How Governor’s Rule can be imposed in Sindh after
the 18th Amendment
Zafar Iqbal Kalanaurii
Present Political Scenario
Power corridors of Pakistan are echoed with the whispers of the Governor
Rule in the Sindh. Military leadership has showed serious concern about the
Sindh Government performance with words like “Sindh Government is
incapable, inefficient and corrupt.”
Military leadership has also accused mal-governance in Sindh and termed
Sindh police as ‘intensely politicized’.
Military leadership further said that “The Sindh Government has totally
collapsed and this is the failure of Law and Order.”
The Sindh Rangers conducted a raid at Nine-zero, the MQM head Quarter,
and seized the ammunition meant for NATO. Amid raid six criminals were
arrested. Karachi’s peace is on stake following the attack once again.
We may recall the Governor rule of Punjab in 2009 when the then President
Asif Ali Zardari had imposed governor rule in the Punjab for a period of two
months. The (then) President had issued the proclamation of Governor’s rule
in the Punjab on the advice of Prime Minister Yousuf Raza Gilani and after
receiving reports from the Punjab Governor and other information.
Former president of Pakistan and co-chairman Pakistan People’s Party (PPP)
Asif Ali Zardari ruled out on Monday, 15th of May, 2015 possibility of
Governor rule in Sindh province.
In a statement issued, he also dismissed possibility of Chief Minister Syed
Qaim Ali Shah’s resignation. “There will be no Governor rule and change of
chief minister,” he said.
The PPP Co-Chairman said imposition of Governor Rule has become more
difficult with the passage of 18th Constitutional Amendment. “I am not afraid
of Governor Rule,” he added.
Former President Asif Ali Zardari is making a last ditch effort to save Sindh
from ‘Governor’s Rule’.
1
On the June 17, 2015 he launched a tirade against the Army and
Establishment and June 18, 2015 he sent a clear message to Prime Minister
Nawaz Sharif asking him “are you with PPP or with establishment”. Although
Nawaz asked him to meet him in person but Zardari is in no mood to be
‘diplomatic’ this time like he always had been in the past.
After the charge-sheet of rangers and arrest of Sindh five Government
officials in land grabbing case by (the Rangers) the PPP co-chairman has
decided to take on the Establishment hard before it manages to send the
Sindh government home through the Federal Government.
PPP top leaders said: “It is a decisive moment for PM Sharif to decide
whether he is with democratic forces or with the establishment”. They said if
PM Sharif imposed Governor’s Rule in Sindh he would soon be sent home as
well. He should not remain in any delusion, they warned.
PM Statement: A day after Pakistan Peoples Party (PPP) co-chairperson and
former president Asif Ali Zardari unleashed his tirade against the military
leadership, Prime Minister Nawaz Sharif on Wednesday stepped in to defend
the armed forces.
The statement from PM House quoted Nawaz as saying during a meeting on
political consultations that criticism of the armed forces encourages
destabilizing factors in the country, adding that under the current
circumstances criticizing the armed forces was not an appropriate step.
He further said that the operation against terrorism is in its critical stages,
adding that national unity was the need of hour.
“Coordination between the Civilian and Military leadership has strengthened
democracy. This harmony is evident in the decisions taken by the All Parties
Conferences (APC) during which the Civilian and Military leadership set joint
national targets,” the statement said. Nawaz also underscored that the
process should continue with the same passion.
In an uncharacteristically aggressive speech, Zardari on Tuesday lashed out
against what he called “the character assassination of his party” and warned
the military leadership that if they did not stop, he would expose the misdeeds
of many generals.
The former President said Army Chiefs come and go every three years but
the political leadership was here to stay. “We know the country better and we
know how to run its affairs,” he stressed.
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The Federal Government assured the Senate that there is no plan to dislodge
the Sindh government.
“The Government could have dislodged the Sindh government when there
were daily target killings,” State Minister for Interior Baligur Rehman told
Senate in response to a call attention notice moved by PPP over the raid
conducted by Sindh Rangers on Karachi Building Control Authority. Pak
destiny
Former DG ISPR Maj. Gen. (rted.) Athar Abbas said the operation clean-up
has been decided in Karachi; but, the situation is constantly being hampered
owing to the inefficiencies of administrative and political institutions.
The tension between the Sindh government and the security forces has been
building up for some time, and it was just a matter of time that the situation
would blow up. Asif Ali Zardari’s outburst on Tuesday against the generals
has now brought the confrontation to a head — with the federal government
standing clearly by the military.
The former president seems to have thrown down the gauntlet. Whatever
happens next, the survival of the Sindh Government is now at stake. Political
observers describe the last-minute cancellation of Prime Minister Nawaz
Sharif’s meeting with Mr Zardari as ominous.
What made Mr Zardari launch a frontal attack on the military leadership? Most
observers and even some PPP leaders agree that it was a reaction to the raid
early this week by the Rangers on the Sindh Building Control Authority office.
“The links lead to senior PPP leaders,” says a source familiar with the
investigation.
Earlier, Rangers had released a report about the crime situation in Karachi,
accusing political parties of being directly involved in land-grabbing, extortion
and smuggling — swindling billions of rupees every year. This the Sindh
government saw as a deliberate move to undermine the civilian
administration. “The Rangers have for a long time been transgressing the
force’s mandate to embarrass the provincial government,” says PPP Senator
Farhatullah Babar.
Those two incidents last week may have proved to be crunch points, but the
tension between the Federal Law Enforcement Agency and the Sindh
Government has been mounting for quite some time. PPP leaders often
complained of the Rangers establishing a parallel authority and getting
involved in affairs beyond their jurisdiction. The allegations have been firmly
refuted, though, by the Federal Government and the Rangers.
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Although the Rangers were called out in aid of the civil administration and
have now been spearheading law enforcement in Karachi for many years, the
strain intensified after the formation of the provincial apex committee — that
also included the Local Corps Commander and the Head of the Rangers —
earlier this year under the National Action Plan to fight terrorism.
Some highly placed sources confirm reports about tension brewing between
Civil and Military Leaders in the Apex Committee Meetings, with the Army and
Rangers’ officials taking up issues of widespread corruption and the collapse
of administration in Karachi.
Many analysts, however, agree that the ineptitude of the Sindh Government
and the virtual collapse of civil law enforcement allowed the Rangers to fill the
vacuum. The Provincial Government and PPP leaders ignored repeated
warnings, further widening the gap between the army and provincial
administration. The action by the Rangers has also provoked the ire of the
MQM, which has been the major target of the crackdown.
Interestingly, the Provincial Government and the PPP leadership vehemently
defended the Rangers’ action against the MQM and the alleged extra-judicial
killing of the latter’s activists. But the conflict came to a head when the
crackdown was extended to the Government officials.
According to security officials, the land scam in Karachi that has thrived under
the direct patronage of PPP leaders is the biggest source of crime and the
major cause of violence between various political parties involved in a turf
war. “Why don’t the Rangers go after Militant and Sectarian groups, which is
their responsibility?” questions Farhatullah Babar.
Given the worsening law and order situation, traders and big business started
looking towards the military and the demand for the imposition of governor’s
rule grew louder. That the Corps Commander frequently addressed
businessmen also raised eyebrows in the Civil Administration.
All this led to the reinforcement of the suspicion that the noose was being
tightened around senior PPP leaders. “The attack on the military leaders by
Zardari is a desperate move to pre-empt any action by the Rangers against
his close associates,” says Dr Hassan Askari, a leading political analyst.
Although there has not been any public response by the military as yet, a
senior official described the speech by the former president as “disgraceful”.
The strong condemnation that has come from the Prime Minister and Federal
Ministers is clear indication that Mr Zardari cannot hope for support from any
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political party. “Mr Zardari now has very limited options,” says Mr Askari. “The
policy of confrontation will not work. He has boxed himself into a corner.”
It remains to be seen, though, how Mr Zardari extricates himself and his party
from this situation.
According to sources the Military Establishment had already cleared their
decision about Sindh government position. Ball is in Premier’s court who is to
decide further.
Let’s examine the legal proposition regarding imposition of Governor’s Rule
under the Constitution in its present form.
After the Amendment of Article 232 of the Constitution, by virtue of 18th
Amendment the following provisos has been inserted:
"Provided that for imposition of emergency due to internal disturbances
beyond the powers of a Provincial Government to control, a Resolution from
the Provincial Assembly of that Province shall be required: Provided further
that if the President acts on his own, the Proclamation of Emergency shall be
placed before both Houses of Majlis-e-Shoora (Parliament) for approval
by each House within ten days." 1
1
Article 232: Proclamation of emergency on account of war, internal disturbance, etc
1. If the President is satisfied that a grave emergency exists in which the security of Pakistan,
or any part thereof, is threatened by war or external aggression, or by internal disturbance
beyond the power of a Provincial Government to control, he may issue a Proclamation of
Emergency:
Provided that for imposition of emergency due to internal disturbances beyond the
powers of a Provincial Government to control, a resolution from the Provincial
Assembly of that Province shall be required:
Provided further that if the President acts on his own, the Proclamation of Emergency
shall be placed before both Houses of Majlis-e-Shoora (Parliament) for approval by
each House within ten days.
2. Notwithstanding anything in the Constitution, while a Proclamation of Emergency is in
forcea. Majlis-e-Shoora (Parliament) shall have power to make laws for a Province, or any
part thereof, with respect to any matter not enumerated in the Federal Legislative List
or the Concurrent Legislative List;
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b. the executive authority of the Federation shall extend to the giving of directions to a
Province as to the mr in which the executive authority of the Province is to be
exercised, and
c. the Federal Government may by Order assume to itself, or direct the Governor of a
Province to assume on behalf of the Federal Government, all or any of the functions of
the Government of the Province, and all or any of the powers vested in, or exercisable
by, any body or authority in the Province other than the Provincial Assembly, and
make such incidental and consequential provisions as appear to the Federal
Government to be necessary or desirable for giving effect to the objects of the
Proclamation, including provisions for suspending, in whole or in part, the operation of
any provisions of the Constitution relating to any body or authority in the province:
Provided that nothing in paragraph (c) shall authorize the Federal Government to
assume to itself, or direct the Governor of the Province to assume on its behalf, any of
the powers vested in or exercisable by a High Court, or to suspend either in whole or
in part the operation of any provisions of the Constitution relating to High Courts.
(3) The power of Majlis-e-Shoora (Parliament) to make laws for a Province with respect to
any matter shall include power to make laws conferring powers and imposing duties, or
authorizing the conferring of powers and the imposition of duties upon the Federation, or
officers and authorities of the Federation, as respects that matter.
4. Nothing in this Article shall restrict the power of a Provincial Assembly to make any law
which under the Constitution it has power to make but if any provision of a Provincial law is
repugnant to any provision of an Act of Majlise- Shoora (Parliament) which Majlis-e-Shoora
(Parliament) has under this Article power to make, the Act of Majlis-e-Shoora (Parliament),
whether passed before or after the Provincial law, shall prevail and the Provincial law shall, to
the extent of the repugnancy, but so long only as the Act of Majlis-e-Shoora (Parliament)
continues to have effect, be void.
5. A law made by Majlis-e-Shoora (Parliament), which Majlis-e-Shoora (Parliament) would not
but for the issue of a Proclamation of Emergency have been competent to make, shall, to the
extent of the incompetency, cease to have effect on the expiration of a period of six months
after the Proclamation of Emergency has ceased to be in force, except as respects things
done or omitted to be done before the expiration of the said period.
6. While a Proclamation of Emergencyis in force, Majlis-e-Shoora (Parliament) may by law
extend the term of the National Assembly for a period not exceeding one year and not
extending in any case beyond a perio d of six months after the Proclamation has ceased to
be in force.
7. A Proclamation of Emergency shall be laid before a joint sitting which shall be summoned
by the President to meet within thirty days of the Proclamation being issued and(a). shall cease to be in force at the expiration of two months unless before the
expiration of that period it has been approved by a resolution of the joint sitting; and
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Introduction:
The President may proclaim state of emergency and make regulations
accordingly. Emergency may arise all over the country or in a Province or in a
part of it. The President is authorized to declare state of emergency for whole
of the country or any part of the country. But after the passing 18th
Amendment the Article 232 of the Constitution has been amended and the
imposition of emergency has been made subject to a Resolution from
the Provincial Assembly of the Province is required or if the President acts on
his own, the Proclamation of Emergency has to be placed before both
Houses of Majlis-e-Shoora (Parliament) for approval by each House
within ten days.2
(b). shall, subject to the provisions of paragraph (a), cease to be in force upon a
resolution disapproving the Proclamation being passed by the votes of the majority of
the total memberships of the two Houses in joint sitting.
(8) Notwithstanding anything contained in clause (7), if the National Assembly stands
dissolved at the time when a Proclamation of Emergency is issued, the Proclamation shall
continue in force for a period of four months but, if a general election to the Assembly is not
held before the expiration of that period; it shall cease to be in force at the expiration of that
period unless it has earlier been approved by a resolution of the Senate.
2
P L D 2011 Supreme Court 997
WATAN PARTY and another Versus Federation of Pakistan and others
Art. 232---Proclamation of Emergency on account of war, internal disturbances---Held, except
adherence to the constitutional provisions in any situation prevailing in the country, no extraconstitutional steps have to be followed…Scope.
A Proclamation of Emergency may be issued by the President of Pakistan providing for
imposition of emergency due to internal disturbance beyond the power of Provincial
Government to control, a resolution from Provincial Assembly of the Province shall be
required, however, if the President acts on his own, the Proclamation shall be placed before
both houses of parliament for approval of each house within 10 days. As per Article 232(7), a
Proclamation of Emergency is to be laid before a joint sitting and shall cease to be in force at
the expiration of two months, unless before the expiration of that period it has been approved
by resolution of the joint sitting. A proclamation issued under Article 234 may, by like
resolution, be extended for a further period not exceeding two months at a time, but no such
Proclamation shall in any case remain in force for more than sixmonths. It is competent for
the Majlis-e-Shoora (Parliament), in terms of Article 234(5) of the Constitution, in joint sitting
to, inter alia, confer on the President the power to make laws with respect to any matter
within the legislative competence of the Provincial Assembly. Under Article 245 of the
Constitution, the Federal Government also intervenes in the affairs of the Provinces and may
call upon the military to act in aid of civil administration.
The Federation and Provinces are equally responsible to adhere to the provisions of the
Constitution, particularly for ensuring the enforcement of Fundamental Rights as guaranteed
by the Constitution. The Federal and the Provincial Governments, though not directly, but
7
Relevant Provisions:
Article 232 to 2373 Constitution of Pakistan.
Power to Proclaim the Emergency:
A proclamation of emergency is issued by the President. The President is the
sole judge of the situation and it is he who has to decide whether or not the
proclamation would issue4.5 6
indirectly share their responsibility in running the affairs of the Province in accordance with
the relevant provisions of the Constitution.
3
Article: 237 Majlis-e-Shoora (Parliament) may make laws of indemnity, etc
237. 1[Majlis-e-Shoora (Parliament)] may make laws of indemnity, etc.-Nothing in the
Constitution shall prevent 1[Majlis-e-Shoora (Parliament)] from making any law indemnifying
any person in the service of the Federal Government or a Provincial Government, or any
other person, in respect of any act done in connection with the maintenance or restoration of
order in any area in Pakistan.
4
PLD 2000 SC 869
Syed ZAFAR ALI SHAH and others versus General PERVEZ.MUSHARRAF, CHIEF
EXECUTIVE
OF PAKISTAN and others
(a) Constitution of Pakistan (1973)------Art.184---Provisional Constitution Order (1 of 1999), Preamble---Oath of Office of (Judges)
Order (1 of 2000), Art.3---Proclamation of Emergency by Chief Executive of Pakistan dated
14-10-1999---Extra-constitutional step of taking over the affairs of Pakistan by the Armed
Forces of Pakistan---Power of judicial review of Supreme Court---Concept and scope--Restriction imposed by Provisional Constitution Order, 1999 does not in any way restrict the
power of judicial review of Supreme Court whereunder the Court has an inherent power to
interpret any provision of the Constitution or any other legislative instrument or law, even if
that particular provision is the one which seeks to oust the jurisdiction of Supreme Court---No
form of oath taken by or administered to the Judges of superior Courts can restrict the judicial
power and derogate from the legal position that the Courts, as final arbiters in any
constitutional controversy, retain their power and jurisdiction to say as to what a particular
provision of the Constitution or the law means or does not mean even if that particular
provision is one seeking to oust such jurisdiction of the Court---On no principle of necessity
could powers of the judicial review vested in the superior Courts under Constitution of
Pakistan (1973) be taken away---Any provision purporting to restrain the power of judicial
review of the superior Courts is to be ignored altogether--Principles.
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Judicial power means that the superior Courts can strike down a law on the touchstone of the
Constitution. The nature of judicial power and its relationship to jurisdiction are all allied
concepts and the same cannot be taken away. It is inherent in the nature of judicial power
that the Constitution is regarded as the supreme law and any law or act contrary to it or
infringing its provisions is to be struck down by the Court in that the duty and function of the
Court is to enforce the Constitution.
The basic question, which needs to be resolved in the present case is whether the restriction
imposed by the Provisional Constitution Order 1 of 1999 on the jurisdiction of Supreme Court
does in anyway restrict the power of judicial review of Supreme Court whereunder if has an
inherent power to interpret any provision of the Constitution. or any other legislative
instrument or law, even if that particular provision is a provision which seeks to oust the
jurisdiction of Supreme Court.
Judiciary is the only forum recognized by both the rulers and the ruled where: (1) questions of
validity and legitimacy are capable of being resolved finally with a view to controlling the
recklessness of the Government in power and where (2) declining to resolve it would
tantamount to self-condemnation, self-destruction and betrayal of the trust of the people of
Pakistan. No form of oath taken by or administered to the Judges of the superior Courts can
restrict the judicial power and derogate from the legal position that the Courts, as final
arbiters in any constitutional controversy, retain their power and jurisdiction to say as to what
a particular provision of the Constitution or the law means or does not mean even if that
particular provision is one seeking to oust such jurisdiction of the Court. Any attempt to
control or circumscribe the judicial power of the superior Courts with a view to denying -them
the right to decide the validity and the quantum of legislative power of the new regime, would
be an exercise in futility. Changing the form of oath will neither take away power of judicial
review nor the jurisdiction of Supreme Court. Notwithstanding the new oath or its language,
the Courts shall continue to have jurisdiction to decide the controversy involved as if the new
oath and the "new constitutional documents" under which the oath is administered, do not
adversely affect the jurisdiction and power of the Court. Superior Courts follow the Code of
Conduct prescribed for the Judges and inherently owe allegiance to the State of Pakistan,
which requires Supreme Court to decide the issue of validity of the new regime under which
the Judges are being asked to take new oath inasmuch as such allegiance cannot be taken
away. The oath administered under the Constitution has to be respected because that draws
its authority from the people of Pakistan whereas the oath under the Constitution to defend
the same has a different meaning than an oath administered under a document, validity
whereof is yet to be determined and thus the two are incomparable.
The Objectives Resolution recognises the `Islamic doctrine of sovereignty' as expounded in
the Holy Book (Qur'an), that sovereignty belongs neither to the ruler nor the ruled but
Almighty Allah alone which is to be exercised by the people of Pakistan through their chosen
representatives. The Objectives Resolution also envisages that the independence of
Judiciary is to be fully secured. It is a fundamental principle of jurisprudence that Courts must
always endeavour to expand their jurisdiction so that the rights of the people are guarded
against arbitrary violations by the executive. The orders of the Chief Executive are subject to
the jurisdiction of the Constitutional Courts of the land. By including paragraphs 2(b) and 7 in
the Provisional Constitution Order, 1999, it has been recognized that the superior Courts,
which are respected by the people being an embodiment of the ideals of justice and guardian
of the rights of the people are not merely entitled to continue but have, in fact, done so in the
past as well. The Oath of Office (Judges) Order, 2000 (Order 1 of 2000), dated 25th January,
2000 allows all the Courts to continue to function and exercise powers, which is a reiteration
of what was earlier stated by the Oath of Office (Judges) Order, 1999 (Order 10 of 1999),
9
paragraph 3 whereof states that Order 1 of 2000 shall apply to:. (1) newly appointed Judges;
(2) that Oath shall be made before the constitutional authority; and (3) that it would be in
accordance with the appropriate form set out in the Third Schedule to the Constitution. This
required the newly appointed Judges to take oath before the constitutionally designated
authority and as per the procedure prescribed by the Constitution and not by the Order 1 of
2000. Any provision purporting to restrain the power of judicial review of the superior Courts
is to be ignored altogether. A Judge acting in his conscience and in good faith may decide to
resign or he may decide that in the higher public interest he would retain office as has been
done by the Judges of Supreme Court and other Judges of the Superior Judiciary.
Contention that after having taken oaths -of their offices under the Provisional Constitution
Order, 1999 as amended, the Judges of the superior Courts are bound to defend the
Proclamation of Emergency and the Provisional Constitution Order, 1999 as amended, in
that, the old Constitution has been replaced by a new revolutionary order on the basis of the
verdict earlier given by Supreme Court in the case of Begum Nusrat Bhutto PLD 1977 SC
657, is totally misconceived in that it was clearly stated in the said judgment that on no
principle of necessity could powers of the judicial review vested in the superior Courts under
1973 Constitution be taken away. The old Order has not been replaced by a new Order but it
was merely a case of constitutional deviation for a temporary period.
The evolution of judicial power is coterminous with the evolution of civilization and this is so
because judicial power has to check the arbitrary exercise of powers by any organ or
authority. Provisional Constitution Order, 1999 purports to suspend the Constitution on the
one hand and, on the other, it says that the country will be governed in accordance with the
provisions of the Constitution as nearly as possible. What emerges from this is that the
Fundamental Rights are left intact except those which had been suspended by the earlier
Proclamation of Emergency dated 28-5-1999 i.e. Articles 15 to 19 and 24 of the Constitution.
The Court must take into account before determining the legitimacy of a revolutionary regime,
the two oblique arguments, which would attempt to undermine it: one relating to collapse of
its jurisdiction with the disappearance of .the old Constitution; and the other relating to
subservience of the Judiciary to the new regime.
Judicial review, must, therefore, remain strictly judicial and in its exercise, Judges must take
care not to intrude upon the domain of the other branches of Government.
The power of judicial review should be exercised with caution.
The Army take-over of 12th October, 1999 was extra constitutional. The superior Courts of
Pakistan retain the power of judicial review despite the ouster of jurisdiction which came
either from within the Constitution, or by virtue of Martial Law Orders or by legislation. Even
non obstante clauses in these cases would fail to prevent such objectives of the incumbent
administrations.
Thus visualised, the purported ouster in the Proclamation and the Provisional Constitution
Order, 1 of 1999 of the jurisdiction of the superior Courts is an exercise in futility and the
power of judicial review remains intact. Both under Islamic doctrines as well as under its
constitutional/ juridical personality, the superior Courts would continue to exercise this power.
Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division 1994 SCMR
2142; William Marbury v. James Medison 2 Law Ed. 60; Spirit of Law by Montesquieu;
Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657; Principles of
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Revolutionary Legality by J.M. Eekelaar and Constitutional Legitimacy---A Study of the
Doctrine of Necessity by Leslie Wolf-Phillips ref.
(b) Constitution of Pakistan (1973)------Arts.2A & 175---Independence, of Judiciary---Concept---Independence of Judiciary is
basic principle of the constitutional system of governance--Judiciary has to be properly
organized and effective and efficient enough to quickly address and resolve public claims and
grievances; and also has to be strong and independent enough to dispense justice fairly and
impartially--Efficient and independent Judiciary can foster an appropriate, legal and Judicial
environment where there is peace and security in the society, safety of life, protection of
property and guarantee of essential human rights and fundamental freedoms for all
individuals and groups, irrespective of any distinction or discrimination on the basis of caste,
creed, colour, culture, gender or place of origin etc. ---Such a legal and judicial environment,
is conducive to economic growth and social development---Principles.
The Objectives Resolution contained in the Preamble to the Constitution, which now forms
substantive part thereof by virtue of Article 2A as well as declaration of Quaid-e-Azam about
democratic set-up and social justice, envisage independence of Judiciary.
The basic functions of the Judiciary are to promote the administration of justice, to protect
Human Rights and to maintain Rule of Law in the country.
The independence of Judiciary is a basic principle of the constitutional system of governance
in Pakistan. The Constitution of Pakistan contains specific and categorical provisions for the
independence of Judiciary. The Preamble and Article 2A state that "the independence of
Judiciary shall be fully secured"; and with a view to achieve this objective, Article 175
provides that "the Judiciary shall be separated progressively from the executive".
In a system of constitutional governance, guaranteeing Fundamental Rights, and based on
principle of trichotomy of powers, such as ours, the Judiciary plays a crucial role of
interpreting and applying the law and adjudicating upon disputes arising among governments
or between State and citizens or citizens inter se. The Judiciary is entrusted with the
responsibility for enforcement of Fundamental Rights. This calls for an independent and
vigilant system of judicial administration so that all acts and actions leading to infringement of
Fundamental Rights are nullified and the rule of law upheld in the society.
The Constitution makes it the exclusive power/responsibility of the. Judiciary to ensure the
sustenance of system of "separation of powers" based on checks and balances. This is a
legal obligation assigned to the Judiciary. It is called upon to enforce the Constitution and
safeguard the Fundamental Rights and freedom of individuals. To do so, the Judiciary has to
be properly organized and effective and efficient enough to quickly address and resolve
public claims and grievances; and also has to be strong and independent enough to dispense
justice fairly and impartially. It is such an efficient and independent Judiciary which can foster
an appropriate legal and judicial environment where there is peace and security in the
society, safety of life, protection of property and guarantee of essential human rights and
fundamental freedoms for all individuals and groups, irrespective of any distinction or
discrimination on the basis of caste, creed, colour, culture, gender or place of origin, etc. It is'
indeed such a legal and judicial environment, which. is conducive to economic growth and
social development.
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The independence of Judiciary requires that the Judiciary shall decide matters before it in
accordance with its impartial assessment of the facts and its understanding of the law without
improper influences, direct or indirect; from any source. The Judiciary in Pakistan is,
independent. It claims and has always claimed that it has the right to interpret the
Constitution and any legislative instrument and to say as to what a particular provision of the
Constitution or a legislative instrument means or does not mean, even if that particular
provision is a provision seeking to oust the jurisdiction of the Supreme Court.
Al-Qur'an: Sura Al-Nisa, Verses 135-136 by Allama Abdullah Yousaf. Ali; Letter sent by
Hazrat Umar to Abu Musa Al-ash'ari, Governor Basra/Chief Qazi; Beijing Statement of
Principles of the Independence of Judiciary in the LAWASIA Region (6th Conference of Chief
Justices of Asia and the Pacific held at - Beijing on 19-8-1995); Government of Sindh v.
Sharaf Faridi PLD 1994 SC 105; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324;
Malik Asad Ali v. Federation, of Pakistan PLD 1988 SC 161; Mehram Ali v. Federation of
Pakistan PLD 1998 SC 1445 and Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999
SC 504 and The Federalist Papers by Alexander Hamilton-James Madison-John Jay ref.
(c) Corruption------ Connotation and scope---Effect of corruption on society and way of life of the people.
`Corruption' is generally defined as the abuse of public office for private gain. In view of the
fact that scope of corruption has widened, this definition would include the abuse of all offices
of trust. It has diverse meanings and far-reaching effects on society, government and the
people. Of late, the culture of corruption and bribe has embedded in the society to the extent
that even routine works which should be done without any approach or influence, are
commonly known to be done only on some such consideration. This bribe culture has
plagued the society to the extent that it has become a way of life.
Values in public life and perspective of values in public life, have undergone serious changes
and erosion during the last few decades. What was unheard before is commonplace today. A
new value orientation is being undergone in our life and culture.' People are at the threshold
of the crossroads of values. It is for the sovereign people of the country to settle these
conflicts yet the Courts have a vital role to play in these matters.
Once corruption pervades in the body politic and official circles, then the entire
Government/administration becomes completely crippled and paralyzed.
When corruption permeates in the social, political and financial transactions to such an extent
that even proper and honest orders and transactions are suspected to the point of belief,
being a result of corruption, one is compelled to infer all is not well and corruption has gone
deep in the roots. No doubt, this is an age of "corruption eruption", but during the last few
years there have been large scale prosecutions of former world leaders in various countries
on the charges of corruption and corrupt practices, in some cases leading to convictions,
which phenomenon must not be taken lightly and the issue must be addressed adequately
and effectively through transparent institutionalized processes.
(1988) 2 SCC 602; Kh. Ahmed Tariq Rahim's case PLD 1992 SC 646; Mian Muhammad
Nawaz Sharif's case PLD 1993 SC 47~ and Benazir Bhutto's case PLD 1998 SC 388 ref.
(d) Provisional Constitution Order (1 of 1999)---
12
----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the
affairs of Pakistan by the Armed Forces of Pakistan---Allegations of corruption etc. against
parliamentarians or politicians or members from the general public---Proceedings
commenced against all said persons were to be decided on their own merits in accordance
with law and on the basis of the legally admissible material brought before the concerned fora
in those proceedings and only after the finalisation of the said proceedings that the country
will be geared up for resort to democratic principles and corruption-free society which are prerequisites for good governance.
(e) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the
affairs of Pakistan by the Armed Forces of Pakistan ---Factors---Validity---Misdeclaration of
assets before the Wealth Tax Authorities qua the Election Commission and allegations of
massive corruption and corrupt practices by the large number of politicians by itself may not
be a ground for intervention of the Armed Forces but such aspect of the matter, when viewed
in the overall context and with particular reference to the alleged massive corruption and
corrupt practices, becomes a relevant factor.
(f) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the
affairs of Pakistan by the Armed Forces of Pakistan ---Factors---Validitiy---Combined effect of
the overall policies and methodology adopted by the former Government was the total
collapse of the country's economy inasmuch as G. D. P. growth during the past three years
had hardly kept pace with the growth of population and Pakistan had a debt burden which
equalled the country's entire national income---Supreme Court also took judicial notice of the
fact that the trade imbalance was persistent and due to defective economic policies and lack
of economic discipline by the previous regime, the industrial sector had suffered a great set
back.
Federation of Pakistan v. Shaqkat Ali Mian PLD 1999 SC 1026 ref.
(g) Provisional Constitution Order (1 of 1999)-----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999-Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the
affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity-=-On the day when
the Army took over and for years prior to that time there was merely a feigned appearance of
what could be called a form of "oligarchy" which means a Government in which the authority
constitutionally reposes in a few individuals and families and a small coterie of individuals
who, because of economic and other power, could influence measurably the policy of the
Government.
New Dictionary of American Politics by Smith and Zucher, First Edn., p.114 and The Politics
of American Democracy by M. Irish, Third Edn., pp. 52 to 81 ref.
(h) Provisional Constitution Order (1 of 1999)---
13
----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the
affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity---Low turnout of
voters during past elections---Effect---General apathy and indifference is discernible and has
a direct nexus with the unenviable performance of the former Governments--Had appropriate
steps been taken by the Governments in the past to undo the damage done to the general
thinking of the people, the things would have been totally different---Proportions which the
misrule had taken beginning before the take-over by the Army, were to the discredit of all
concerned.
(i) Provisional Constitution Order (1 of 1999)-----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution of Pakistan (1973), Arts.184(3). & 91(4), (5)---Extra-constitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Suspension of Assemblies and
the Senate through extra-constitutional measures by the Chief of Army Staff--Factors--Validity---Doctrine of State necessity---Applicability---Role of public representatives--Principle of joint and ministerial responsibility in Parliamentary system---Rest of the members
of representative bodies cannot be absolved of their responsibility if, despite wrongdoings by
the cabinet, they remained silent spectators---Suspension of the Assemblies and the Senate
through extra-constitutional measures taken by the Chief of Army Staff, warrants validation
on the ground of State necessity and State survival.
(j) Constitution of Pakistan (1973)------Art.58(2)(b) [since repealed]---Dissolution of National Assembly--Balance governing the
powers of the President and the Prime Minister--Never safe to confer unfettered powers on a
person who was holding the reins of the affairs of the country as "power corrupts and
absolute corrupts absolutely"---Situation could have been avoided if checks and balances
governing the powers of the President and the Prime Minister had been in the field by means
of Art.58(2)(b) of the Constitution of Pakistan (1973).
(k) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution of Pakistan (1973), Arts.184(3) & 63(2)--Extra-constitutional step of taking over
the affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity---Ridiculing the
Judiciary and tapping of telephones of Judges of superior Courts---Debates of Parliament of
the relevant period clearly demonstrated that integrity and independence of the Judiciary of
Pakistan were challenged by the Members of Parliament which had the effect of defaming
and bringing the Judges into ridicule and disparaging remarks against the Judiciary crossed
all limits and no Reference was made to the Chief Election Commissioner for their
disqualification as Members of the Parliament under Art.63(2) of the Constitution of Pakistan
(1973)---Such acts of tapping the telephones of Judges of the superior Courts and maligning
the Judiciary were most detestable, immoral, illegal and unconstitutional.
Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504 and Mohtarama Benazir
Bhutto's case PLD 1998 SC 388 ref.
(1) Provisional Constitution Order (1 of 1999)---
14
----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the
affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity---Doctrine of State
necessity--Applicability---Machinery of the Government at the Centre and the Provinces had
completely broken down and the Constitution had been rendered unworkable, and a situation
had arisen for which the Constitution provided no solution and the Armed Forces had to
intervene to save the State from further chaos, for maintenance of peace and order,
economic stability, justice and good governance and to safeguard integrity and sovereignty of
the country dictated by highest considerations, of State necessity and welfare of the people.
(m) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking over the
affairs of Pakistan by the Armed Forces of Pakistan---Validity---Precedents from foreign
jurisdictions--Applicability ---Precedents from foreign jurisdictions, though entitled to
reverence and respect but are not ipso facto applicable to the facts and circumstances
prevailing on the day of taking over by the Armed Forces.
(n) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking over the
affairs of Pakistan by the Armed Forces of Pakistan---Validity---Doctrine of State necessity--Applicability---To save and maintain the integrity, sovereignty and stability of the country and
having regard to the welfare of the people while interpreting the legislative instruments i.e..
Provisional Constitution Order, 1999 and Proclamation of Emergency by Chief Executive of
Pakistan dated 14-10-1999, Court has to make every attempt to save "what institutional
values remained to be saved" with a view to maintaining and upholding the independence of
Judiciary which in turn would protect the State fabric and guarantee Human/Fundamental
Rights---Doctrine of State necessity had not been rejected in the judgment of Supreme Court
in Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504---Prerequisites of doctrine of
State necessity stated.
Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Attorney-General of the
Republic v. Mustafa Ibrahim Cypress Law Reports 105; Begum Nusrat Bhutto v. Chief of the
Army Staff PLD 1977 SC 657 and Miss Asma Jilani's case PLD 1972 SC 139 ref.
(o) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking over the
affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity---Doctrine of State
necessity ---Application--All the elements viz. inevitable necessity; exceptional
circumstances; no other remedy to apply, measures taken being proportionate to the
necessity and of temporary character limited to the duration of exceptional circumstances,
were present, inasmuch as, the Constitution provided no solution to meet the extraordinary
situation prevailing on 12th October, 1999 when the Armed Forces took over the affairs of
Pakistan.
15
Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Attorney-General of the
Republic v. Mustafa Ibrahim Cypress Law Reports 105 and Begum Nusrat Bhutto v. Chief of
the Army Staff PLD 1977 SC 657 ref.
(p) State necessity, doctrine of------Applicability---Elements---Inevitable necessity; exceptional circumstances; no other
remedy to apply; measures taken being proportionate to the necessity and of temporary
character limited to the duration of exceptional circumstances, were the elements for
application of the doctrine.
Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Attorney-General of the
Republic v. Mustafa Ibrahim Cypress Law Reports 105 and Begum Nusrat Bhutto v. Chief of
the Army Staff PLD 1977 SC 657 ref.
(q) Provisional Constitution of Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking over the
affairs of Pakistan by the Armed Forces of Pakistan---Validity- -;.Doctrine of State necessity --Applicability--Intervention by the Armed Forces on 12th October, 1999 was an imperative
and inevitable necessity in view of the exceptional circumstances prevailing at that time, and,
therefore, there was no valid justification for not validating the extra-constitutional measure of
the Armed Forces on the technical distinction between "doctrine of necessity" and the
"doctrine of State necessity".
Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC. 657; The Classics of
International Law by Hugo Grotius; A Treatise on the Law of the Prerogative of the Crown
and the Relative Duties and Rights of the Subject by Joseph Chitty; The GabcikovoNagymaros Project, decided by International Court of Justice; Corpus Juris Secundum,
Vol.65, p.387; Constitutional and Administrative Law by Stanley De Smith and Rodney
Brazier, 8th Edn. 1998; Makenete v. Lekhanya and others (1993) 3 LRC; Attorney-General of
the Republic v: Mustafa Ibrahim Cypress Law Reports 105; Mitchell and others v. Director of
Public Prosecutions and another 1986 LRC. (Grenada); States of Emergency---Their Impact
on Human Rights; From Military to Civilian Rule, Edited by Constantine P. Danopoulos and
Democracy, the Rule of Law and Islam, Edited by Eugene Cotran and Adel Omar Sherif ref.
(r) Constitution of Pakistan (1973)------Art.232---Proclamation of Emergency---State of emergency--Interpretation---State of
emergency includes "regimes of exception" i.e. regimes which have overthrown and not
merely suspended the previous constitutional order and have assumed legislative and
executive powers analogous to those under a formal state of emergency---Government to
take steps to ensure that the Fundamental Rights of citizens are not affected and derogation
must be proportionate to the emergency, while adopting constitutional as well as extraconstitutional means---Effort to be made to minimize emergencies and to induce the
authorities concerned to respect. the Fundamental Rights.
Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657; The Classics of
International Law by Hugo Grotius; A Treatise on the Law of the Prerogative of the Crown
and the Relative Duties and Rights of the Subject by Joseph Chitty; The GabcikovoNagymaros Project decided by International Court of Justice; Corpus Juris Secundum,
16
Vol.65, p.387; Constitutional and Administrative Law by Stanley De Smith and Rodney
Brazier, 8th Edn. 1998; Makenete v. Lekhanya and others (1993) 3 LRC; Attorney-General of
the Republic v. Mustafa Ibrahim Cypress Law Reports 105; Mitchell and others v. Director of
Public Prosecutions and another 1986 LRC (Grenada); States of Emergency---Their Impact
on Human Rights; From Military to Civilian Rule, Edited by Constantine P. Danopoulos and
Democracy, the Rule of Law and Islam, Edited by Eugene Cotran and Adel Omar Sherif ref.
(s) Provisional Constitution Order (1 of 1999)-----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking over the
affairs of Pakistan by the Armed Forces of Pakistan---Validity---Doctrine of State necessity --Applicability--Invocation of the "doctrine of State necessity" depends upon the peculiar and
extraordinary facts and circumstances of a particular situation---Superior Courts alone can
decide as to whether any given peculiar and extraordinary circumstances warrant the
application of doctrine of State necessity or not--Such dependence has a direct nexus with
what preceded the action itself--Material available on record generally will be treated at par
with the "necessity/State necessity/continuity of State" for the purposes of attaining the
proportions justifying its own scope as also the future and expected course of action leading
to restoration of democracy.
Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657; The Classics of
International Law by Hugo Grotius; A Treatise on the Law of the Prerogative of the Crown
and the Relative Duties and Rights of the Subject by Joseph Chitty; The GabcikovoNagymaros Project, decided by International Court of Justice; Corpus Juris Secundum, Vol.65, p.387; Constitutional and Administrative Law by Stanley De Smith and Rodney
Brazier, 8th Edn. 1998; Makenete v. Lekhanya and others (1993) 3 LRC; Attorney-General of
the Republic v. Mustafa Ibrahim Cypress Law Reports 105; Mitchell and others v. Director of
Public Prosecutions and another 1986 LRC (Grenada); States of Emergency---Their Impact
on Human Rights; From Military to Civilian Rule, Edited by Consiantine P. Danopoulos and
Democracy, the Rule of Law and Islam,, Edited by Eugene Cotran and Adel Omar Sherif ref.
(t) Doctrine of necessity------ Not restricted to criminal prosecution alone.
(u) State necessity, doctrine of------Invocation---Conditions detailed.
The invocation of the doctrine of State necessity depends upon the peculiar and
extraordinary facts and circumstances of a particular situation. It is for the superior Courts
alone to decide whether any given peculiar and extraordinary circumstances warrant the
application of the above doctrine or not. This dependence has a direct nexus with what
preceded the action itself. The material available on record generally will be treated at par
with the "necessity/State necessity/continuity of State" for the purposes of attaining the
proportions justifying its own scope as also the future and expected course of action leading
to restoration of democracy.
Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657; The Classics ofInternational Law by Hugo Grotius; A Treatise on the Law of the Prerogative of the Crown
and the Relative Duties and Rights of the Subject by Joseph Chitty; The Gabcikovo-
17
Nagymaros Project decided by International Court of Justice; Corpus Juris Secundum,
Vol.65, p.387; Constitutional and Administrative Law by Stanley De Smith and Rodney
Brazier, 8th Edn. 1998; Makenete v. Lekhanya and others (1993) 3 LRC; Attorney-General of
the Republic v. Mustafa Ibrahim Cypress Law Reports 105; Mitchell and others v. Director of
Public Prosecutions and another 1986 LRC (Grenada); States of Emergency---Their Impact
on Human Rights; From Military to Civilian Rule, Edited by Constantine P. Danopoulos and
Democracy, the Rule of Law and Islam, Edited by Eugene Cotran and Adel Omar Sherif ref.
(v) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the
affairs of Pakistan by the Armed Forces of Pakistan---Validation accorded to the action of the
Armed Forces by Supreme Court---Effect---Held, though initially the status of the Government
after taking over the affairs of Pakistan was de facto, but in view of the validation accorded by
the Supreme Court through its short order, it had attained the status of a de jure Government.
(w) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking over the
affairs of Pakistan by the Armed Forces of Pakistan---Validity---Doctrine of State necessity--Applicability---All that is required to be considered that the extra-constitutional action should
have nexus with the facts on the ground---Duty of superior Court is that it recognizes the evil,
suggests remedial measures therefor and lays down infrastructure for a journey leading to
the restoration of the democratic processes/institutions as expeditiously as possible---If,
however, those responsible for achieving said objectives fall short of the measures within the
contemplation of the law during their tenures respectively, then the remedy lies in identifying
the facts on the ground and taking remedial measures to suppress the evil---Prolonged
involvement of the Army in civil affairs runs a grave risk of politicizing it, which would not be in
national interest and civilian rule in the country must be restored within the shortest possible
time after achieving the declared objectives as reflected in the speeches of the Chief
Executive dated 13th and 17th October, 1999 which necessitated the military take-over--Action of Armed Forces of taking over the affairs of Pakistan qualified for validation on the
ground of State necessity/survival in circumstances,
Recognition of a situation of whatever magnitude does call for remedial measures to be
considered/contemplated with a view to purging the situation on the- ground. All that is
required to be considered is that the action should have a nexus with the facts on the ground.
Such consideration can be undertaken only by the superior Courts in the exercise of their
powers under Articles 199 and 184 of the Constitution. It is the duty of the superior Courts
that they recognize the evil, suggest remedial measures therefore and lay down infrastructure
for a journey leading to the restoration of the democratic processes/institutions as
expeditiously as possible. If those responsible for achieving these objectives fall short of the
measure within the contemplation of the law during their tenures respectively, then the
remedy lies in identifying the facts on the ground and taking remedial measures to suppress
the evil. The action of 12th October, 1999 being what it is, qualifies for validation on the
ground of State necessity/survival. It is for the representatives of the people to see to it that
everything is in order and nobody can raise his little finger when their actions are in dine with
the fundamentals of the Constitution. No rule except that by the representatives of the people
within the contemplation of the Constitution and the law has the support of the Superior
Judiciary. Courts are firmly committed to the governance of the country by the people's
18
representatives and the definition of the term `democracy' to the effect that "it is Government
of the people, by the people and for the people" and not by the Army rule for an indefinite
period. Prolonged involvement of the Army in civil affairs runs a grave risk of politicizing it,
which would not be in national interest and that civilian rule in the country must be restored
within the shortest possible time after achieving the declared objectives as reflected in the
speeches of the Chief Executive, dated 13th and 17th October, 1999, which necessitated the
military take-over.
(x) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the
affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity---Doctrine of State
necessity--Applicability---Whole spectrum of circumstances prevalent on or before 12th
October, 1999, the day when Armed Forces took over the affairs of Pakistan, revealed that
the representatives of the people, who were responsible for running the affairs of the State,
were accused of corruption and corrupt practices and failed to establish good governance in
the country as a result whereof a large number of references had been filed against the
former Prime Minister, Ministers, Parliamentarians and members of the Provincial Assemblies
for their disqualification on account thereof---Process of accountability carried out by the
former Government was shady, inasmuch as, either it was directed against the political rivals
or it was not being pursued with due diligence---All institutions of the State including Judiciary
were being systematically destroyed in the pursuit of self-serving policies---Democratic
institutions were not functioning in accordance with the Constitution, they had become privy
to the one man rule and the very purpose for which they were established stood defeated by
their passive conduct---Attempts were made to politicize the army, destabilize it and create
dissension within its ranks and had the former Prime Minister been successful in his designs,
there would have been chaos and anarchy rather a situation of civil war where some factions
of Armed Forces were fighting against other---Action of Armed Forces of taking over the
affairs of Pakistan having nexus with the facts on the ground, was qualified to be validated on
the ground of State necessity/survival in circumstances.
An overall view of the whole spectrum of circumstances prevalent on or before 12th October,
1999 revealed that the representatives of the people who were responsible for running the
affairs of the State were accused of corruption and corrupt practices and failed to establish
good governance in the country as a result whereof a large number of references had been
filed against the former Prime Minister, Ministers, Parliamentarians and members of the
Provincial Assemblies for their disqualification on account thereof. The process of
accountability carried out by the former Government was shady, inasmuch as, either it was
directed against the political rivals or it was not being pursued with due diligence. All
institutions of the State -including Judiciary were being systematically destroyed in the pursuit
of self-serving policies. The democratic institutions were not functioning in accordance with
the Constitution, they had become privy to the one man rule and the very purposes for which
they were established stood defeated by their passive conduct. Attempts were made to
politicise the army, destabilise it and create dissension within- its ranks. Had the former Prime
Minister been successful in his designs, there would have been chaos and anarchy rather a
situation of civil war where some factions of Armed Forces were fighting against others.
(y) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution of Pakistan (1973), Arts. 91 & 184(3)--Term "Chief Executive", import of---
19
Constitution of Pakistan (1973) envisages Parliamentary form of Government where the
Prime Minister acts as, the Chief Executive of the country---By means of Proclamation of
Emergency dated 14-10-1999 as also the Provisional Constitution Order, 1999 the
Constitution has been only held in abeyance and the country is to be run as nearly as may be
ii-o accordance with the Constitution, therefore, Chairman, Joint Chiefs of Staff Committee
and Chief of Army Staff while taking over the affairs of the country assumed to himself the
title of "Chief Executive"---Validity---Since practically the Chairman, Joint Chiefs of Staff
Committee and Chief of Army Staff was performing the functions of the Prime Minister, he
held the position of Chief Executive in the scheme of the Constitution of Pakistan.
The term "Chief Executive" means President where there is a Presidential form of
Government and Prime Minister in a Parliamentary form of Government. The Constitution of
1973 envisages Parliamentary form of Government where the Prime Minister acts as the
Chief Executive of the country. By means of the Proclamation of Emergency as also the PCO
1 of 1999, the Constitution has only been held in abeyance and the country is to be run as
nearly as may be in accordance with the Constitution, therefore, General Pervez Musharraf,
while taking over the affairs of the country, assumed to himself the title of "Chief Executive".
Since practically, he is performing the functions of the Prime Minister, he holds the position of
Chief Executive in the scheme of the Constitution.
Indian Constitutional Law by H.M. Seervai, 4th Edn., p,20; Fazalul Qadir Chaudhry's case
PLD 1963 SC 486 and American Constitutional Law, 1995 Edn., p.204 ref.
(z) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution -of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the
affairs of Pakistan by the Armed Forces of Pakistan---Nature---Coup d'etat or revolution--Coup d'etat and revolution are interchangeable in the context of step of taking over the affairs
of Pakistan by the Armed Forces and nothing substantial would turn on considering it from
one angle or another.
In coup d'etat as well in revolution, power changes from one man to another from one clique
to another depending upon the facts and circumstances of each case. Coup d'etat is
generally undertaken to achieve a particular objective motivated by various considerations.
In the context of the present case the terms coup d'etat and revolution are interchangeable
and nothing substantial would turn on considering it from one angle or another.
Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Madzimbuto v. Lardner Burke
(1968) 3 AER 561; Texas v. White 74 US (7 Wall) 700 (at p. 733), 1868; Madzimbuto v.
Lardner Burke 1966 Rhodesian L. Rep. 228 (General Division); Revolution and Political
Change by C. Welch and Bunker Taintor; Attorney-General v. Mustafa Ibrahim 1964 Cyprus
LR 195 Sup. Ct.; Revolutions, published in the Irish Jurist, 1977 and Begum Nusrat Bhutto v.
Chief of the Army Staff PLD 1977 SC 657 ref.
(aa) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the
affairs of Pakistan by the Armed Forces of Pakistan---Validity---Grant of power to Chief
Executive of Pakistan to amend the Constitution---Extent---Power of the Chief Executive of
20
Pakistan to amend the Constitution is strictly circumscribed by the limitations laid down by the
Supreme Court---Limitations with regard to amendment of the Constitution by Chief Executive
of Pakistan as laid down by the Supreme Court enumerated.
If the Parliament cannot alter the basic features of the Constitution, power to amend the
Constitution cannot be conferred on the Chief Executive of the measure larger than that
which could be exercised by the Parliament. Clearly, unbridled powers to amend the
Constitution cannot be given to the Chief Executive even during the transitional period even
on the touchstone of `State necessity'. The Constitution of Pakistan is the supreme law of the
land and its basic features i.e. independence of Judiciary, federalism and parliamentary form
of Government blended with Islamic Provisions cannot be altered even by the Parliament.
Resultantly, the power of the Chief Executive to amend the Constitution is strictly
circumscribed by the limitations laid down by the Supreme Court.
Mahmood Khan Achakzai's case PLD 1997 SC 426 ref.
Following are the limitations laid down by the Supreme Court with regard to the powers of
Chief Executive of Pakistan to amend the Constitution:
(i) The Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff through
Proclamation of Emergency, dated the 14th October, 1999, followed by PCO 1 of 1999,
whereby he has been described as Chief Executive, having validly assumed power by means
of an extra constitutional step, in the interest of the State and for the welfare of the people, is
entitled to perform all such acts and promulgate all legislative measures as enumerated
hereinafter, namely:-(a) All acts or legislative measures which are in accordance with, or could have been made
under the 1973 Constitution, including, the power to amend it.
(b) All acts which tend to advance or promote the good of the people.
(c) All acts required to be done for the ordinary orderly running of the State; and
(d) All such measures as would establish or lead to the establishment of the declared
objectives of the Chief Executive.
(ii) That Constitutional Amendments by the Chief Executive can be resorted to only if the
Constitution fails to .provide a solution for attainment of his declared objectives and further
that the power to amend. the Constitution by virtue of clause (6), sub-clause (i) (a) ibid is
controlled by sub-clauses (b), (c) and (d) in the same clause.
(iii) That no amendment shall be made in the salient features of the Constitution i.e.
independence of Judiciary, federalism, parliamentary form of Government blended with
Islamic provisions.
(iv) That Fundamental Rights provided in Part II, Chapter 1 of the Constitution shall continue
to hold the field but the State will be authorized to make any law or take any, executive action
in deviation of Articles 15, 16, 17, 18, 19 and 24 as contemplated by Article 233 (1) of the
Constitution, keeping in view the language of Articles 10, 23 and 25 thereof.
(v) That these acts, or any of them, may be performed or carried out by means of orders
issued by the Chief Executive or through Ordinances on his advice;
21
(vi) That the superior Courts continue to have the power of judicial review to judge the validity
of any act or action of the Armed Forces, if challenged, in the light of the principles underlying
the law of State necessity as stated above. Their powers under Article 199 of the
Constitution, thus, remain available to their full extent, and may be exercised as heretofore,
notwithstanding anything to the contrary contained in any legislative instrument enacted by
the Chief Executive and/or any order issued by the Chief Executive or by any person or
authority acting on his behalf.
(vii) That the Courts are not merely to determine whether there exists any nexus between the
orders made, proceedings taken and acts done by the Chief Executive or by any authority or
person acting on his behalf, and his declared objectives as spelt out from his speeches,
dated 13th and 17th October, 1999, on the touchstone of State necessity but such orders
made, proceedings taken and acts done including the legislative measures, shall also be
subject to judicial review by the superior Courts.
(bb) Provisional Constitution Order (I of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Oath of Office (Judges) Order (1 of 2000), Preamble--Constitution of Pakistan (1973),
Arts.209 & 184(3)---Extra-constitutional step of taking over the affairs of Pakistan by the
Armed Forces of Pakistan---Validity---Supreme Judicial Council---Judges of the Supreme
Court and High Courts cannot be removed without resorting to the procedure prescribed in
Art.209 of the Constitution-Cases of the Judges who ceased to be Judges of the Supreme.
Court and High Courts by virtue of Oath of Office (Judges) Order, 2000, however, was hit by
the doctrine of past and closed transaction and could not be re-opened.
(cc) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the
affairs of Pakistan by the Armed Forces of Pakistan---Validity---Restoration of democratic
institutions---Supreme Court, in view of the circumstances explained by the Attorney-General,
observed that there wag no choice but to grant reasonable time to enable the Chief Executive
to restore the democratic institutions to the rightful holders of the public representations under
the Constitution.
Contention of the Attorney-General was that the Federation intended to restore true
representative democracy in the country as early as possible. It was, however, not possible to
give specific timeframe for the above, among others, for the reasons that the
Authorities/Government require time for:
(a) Revival of country's economy, which stands ruined.
(b) For completion of the process of accountability.
(c) Recovery of huge plundered national wealth including bank loans running into billions of
rupees and foreign exchange abroad worth billions of US dollars.
(d) The task of unavoidable electoral reforms including preparation of fresh electoral rolls.
22
(e) To ensure harmonious and efficient working of the important organs of the State, stable
and good governance including maintenance of law and order, to prevent abuse of power,
and to ensure and safeguard smooth functioning and enjoyment of democracy by the people.
Supreme Court observed that the Court was not in favour of an Army rule in preference to a
democratic rule. There were, however, evils of grave magnitude with the effect that the
civilian Governments could not continue to run the affairs of the country in the face of
complete breakdown. The remedy to the said evil was the holding of fair and impartial
elections by the Chief Election Commissioner at the earliest possible time, but the same
could not be achieved till the electoral rolls were updated. Ordinarily, Court would have
allowed minimum time for holding of fresh elections as contemplated under the. Constitution,
but the Attorney-General made a statement at the Bar that as per report. of the Chief Election
Commissioner, updating of the electoral rolls could not be done before two years and
thereafter objections and delimitation process etc. were to be attended to. In the absence of
proper and authentic electoral rolls, millions of people will be disenfranchised. This statement
of the Attorney-General was not rebutted. This being so, there was no choice but to grant
reasonable time to enable the Chief Executive to restore the democratic institutions to the
rightful holders of the office of public representatives under the Constitution.
(dd) Constitution of Pakistan (1973)------Art. 2A---Independence of Judiciary---Extent---Stability in the system, success of the
Government, democracy, good governance, economic stability, prosperity of the people,
tranquillity, peace and maintenance of law and order depend, to a considerable degree, on
the interpretation of Constitution and legislative instruments by the superior Courts and it is,
therefore, of utmost importance that the Judiciary was independent and no restraints were
placed on its performance and operation---Interpretation of Constitution by superior Courts--Scope and extent.
Stability in the system, success of the Government, democracy, good governance, economic
stability, prosperity of the people, tranquillity, peace and maintenance of law and order
depend to a considerable degree on the interpretation of Constitution and legislative
instruments by the superior Courts. It is, therefore, of utmost importance that the judiciary is
independent and no restraints are placed on its performance and operation. It claims and has
always claimed that it has the right to interpret the Constitution or any legislative instrument
and to say as to what a particular provision of the Constitution or a legislative instrument
means or does not mean, even if that particular provision is a provision seeking to oust the
jurisdiction of this Court. Under the mandate of the Constitution, the Courts exercise their
jurisdiction as conferred upon them by the Constitution or the law. Therefore, so long as the
superior Courts exist, they shall continue to exercise powers and functions within the domain
of their jurisdiction and shall also continue to exercise power of judicial review in respect of
any law or provision of law, which comes for examination before the superior Courts to
ensure that all persons are able to live securely under the rule of law; to promote, within the
proper limits of judicial functions, the observance and the attainment of human and
Fundamental Rights; and to administer justice impartially among persons and between the
persons and the State, which is a sine qua non for the maintenance of independence of
judiciary and encouragement of public confidence in the judicial system.
(ee) Constitution of Pakistan (1973)------Arts. 184 & 199---Judicial review by superior Courts---Powers and scope.
23
Superior Courts have the right to interpret the Constitution or any legislative instrument and to
say as to what a particular provision of the Constitution or a legislative instrument means or
does not mean, even if that particular provision is a provision seeking to oust the jurisdiction
of Supreme Court. Under the mandate of the Constitution, the Courts exercise their
jurisdiction as conferred upon them by the Constitution or the law. Therefore, so long as the
superior Courts exist, they shall continue to exercise powers and functions within the domain
of their jurisdiction and shall also continue to exercise power of judicial review in respect of
any law or provision of law, which comes for examination before the superior Courts to
ensure that all persons are able to live securely under the rule of law; to promote, within the
proper limits of judicial functions, the observance and the attainment of human and
Fundamental Rights; and to administer justice impartially among persons and between the
persons and the State, which is a sine qua non for the maintenance of independence of
judiciary and encouragement of public confidence in the judicial system.
(ff) Interpretation of statutes---- Provision seeking to oust the jurisdiction of Supreme Court--Interpretation---Power of
superior Courts---Scope---Superior Courts have right to interpret the Constitution or any
legislative instrument and to say as to what a particular provision of the Constitution or a
legislative instrument means or does not mean, even if that particular, provision is a provision
seeking to oust the jurisdiction of Supreme Court.
(gg) Constitution of Pakistan (1973)
----Art. 178---Provisional Constitution Order (1 of 1999), Preamble---Oath of Office of
(Judges) Order (1 of 2000), Art.3---Oath of office by Judges of Supreme Court under
Provisional Constitution Order, 1999 and Oath of Office of (Judges) Order, 2000---Object and
beneficial effects necessitating such oath highlighted.
Fresh oath under Oath of Office (Judges) Order No. l of 2000, does not in any way preclude
the Judges of Supreme Court from examining the questions raised in the Constitutional
petitions under Article 184(3) of the Constitution of Pakistan (1973), which have to be decided
in accordance with their conscience and law so as to resolve the grave crises and avoid
disaster by preventing imposition of Martial Law for which the Constitution does not provide
any remedy.
New oath of Office was taken by the Judges of Supreme Court under PCO No. l of 1999 read
with Oath of Office (Judges) Order No. l of 2000 with 'a view to reiterating the wellestablished principle that the first and the foremost duty of the Judges of the superior Courts
is to save the judicial organ of the State. This was exactly what was done. By virtue of PCO
No.l of 1999, the Constitution has not lost its effect in its entirety although its observance as a
whole has been interrupted for a transitional period. The activity launched by the Armed.
Forces through an extra Constitutional measure, involves the violation of "some of the rights"
protected by the Constitution, which still holds the field but some of its provisions have been
held in abeyance. A duty is cast upon the Superior Judiciary to offer some recompense for
those rights which were purportedly violated in view of the promulgation of PCO No. 1 of
1999. This could be achieved only by taking the Oath and not by declining to do so and
thereby becoming a party to the closure of the Courts, which would not have solved any
problem whatsoever but would have resulted in chaos, anarchy and disruption of peaceful
life. Independence of judiciary does not mean that Judges should quit their jobs and become
instrumental in the closure of the Courts. Indeed, the latter course would have been the most
detestable thing to happen. Independence of judiciary means that the contentious matters, of
24
whatever magnitude they may be, should be decided/resolved by the Judges of the superior
Courts according to their conscience. This Court, while performing its role as "the beneficial
expression of a laudable political realism", had three options open to it in relation to the
situation arising out of the military take-over on twelfth day of October, 1999, firstly, it could
tender resignation en bloc, which most certainly could be equated with sanctifying (a)
chaos/anarchy and (b) denial of access to justice to every citizen of Pakistan wherever he
may be; secondly, a complete surrender to the regime by dismissing Constitutional petitions
for lack of jurisdiction in view of the purported ouster of its jurisdiction under PCO No. l of
1999 and thirdly, acceptance of the situation as it is, in an attempt to save what "institutional
values remained to be saved". Supreme Court, after conscious deliberations and in an
endeavour to defend and preserve the national independence, the security and stability of
Pakistan, sovereignty and honour of the country and to safeguard the interest of the
community as a whole, decided to maintain and uphold the independence of judiciary, which,
in its turn, would protect the State fabric and guarantee human rights/Fundamental Rights. It
took the Oath under PCO No. l of 1999 so as to secure the enforcement of law, extend help
to the law enforcing agencies for maintenance of public order and with a view to restoring
democratic institutions, achieving their stability and guaranteeing Constitutional rights to the
people of Pakistan.
Oath of Office prescribed under Articles 178 and 194 of the Constitution for the Judges of the
superior Courts contains a specific provision that - a Judge shall abide by the Code of
Conduct issued by the Supreme Judicial Council. Same is the position with regard to the
provisions regarding Oath of Office (Judges) Order No. l of 2000. The precise provisions in
the Oath of Office (Judges) Order, 2000 are that a Judge, to whom oath is administered, shall
abide by the provisions of Proclamation of Emergency of Fourteenth day of October, 1999,
PCO 1 of 1999, as amended, and the Code of Conduct issued by the Supreme Judicial
Council. But there is specific omission of words, "to preserve and defend the Constitution".
Adherence to the Code of Conduct has not been subjected to any pre-conditions and there
can be no deviation from it by a Judge who takes oath either under the Constitution or PCO
No. l of 1999 or Oath of Office (Judges) Order 1 of 2000. One of the requirements of the
Code of Conduct is that the oath of a Judge implies complete submission to the Constitution,
and under the Constitution to the law. Subject to these governing obligations, his function of
interpretation and application of the Constitution and the law is to be discharged for the
maintenance of the Rule of Law over the whole range of human activities within the nation.
Thus, the new Oath merely indicates that the Superior Judiciary, like the rest of the country,
had accepted the fact that on 12th October, 1999, a radical transformation took place.
(hh) Provisional Constitution Order (1 of 1999)-----Preamble---Effect of Provisional Constitution Order, 1999 on the Constitution of Pakistan
(1973). '
By virtue of PCO No. 1 of 1999, the Constitution has not lost its effect in its entirety although
its observance as a whole has been interrupted for a transitional period. The activity launched
by the Armed Forces through an extra-Constitutional measure, involves the violation of "some
of the rights" protected by the Constitution, which still holds the field but some of its
provisions have been held in abeyance.
(ii) Constitution of Pakistan (1973)-- .
25
----Art. 2A---Independence of Judiciary means that the contentious matters of whatever
magnitude they may be, should be decided/resolved by the Judges of the superior Courts
according to their conscience.
Independence of judiciary means that the contentious matters, of whatever magnitude they
may be, should be decided/resolved by the Judges of the superior Courts according to their
conscience.
(jj) Provisional Constitution Order (1 of 1999)-----Preamble---Oath of Office (Judges) Order (1 of 2000), Preamble--Proclamation of
Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan
(1973), Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution of Pakistan
(1973) before Supreme Court calling in question the validity of Provisional Constitution Order,
1999 [as amended], Oath of Office (Judges) Order, 2000 and Proclamation of Emergency by
Chief Executive of Pakistan dated 14-10-1999---Maintainability---Notwithstanding anything
contained in the Proclamation of Emergency dated 14-10-1999, the Provisional Constitution
Order, 1999 [as amended] and the Oath of Office (Judges) Order, 2000, all of which
purportedly restrained Supreme Court from calling in question or permitting to call in question
the validity of any of the provisions thereof, Supreme Court, in the exercise of its inherent
powers of judicial review, has the right to examine validity of said instruments---Principles--Constitutional petitions before Supreme Court under Art. 184(3) of Constitution of Pakistan
(1973) are therefore, maintainable.
Notwithstanding anything contained in the Proclamation of Emergency of the Fourteenth day
of October, 1999, the Provisional Constitution Order No. l of 1999, as amended and the Oath
of Office (Judges) Order No. l of 2000, all of which purportedly restrained Supreme Court
from calling in question or permitting to call in question the validity of any of the provisions
thereof, Supreme Court, in the exercise of its inherent powers of judicial review, has the right
to examine the validity of the aforesaid instruments. Additionally, submission of the
Federation in response to the Court's notice concerning its own legitimacy, also suggests that
Supreme Court has an inherent authority, arising from the submission of both the parties to
its jurisdiction, notwithstanding the preliminary objection raised in the written statement as to
the maintainability of the Constitutional petitions. In the exercise of its right to interpret the
law, Supreme Court has to decide the precise nature of the ouster clause in the above
instruments and the extent to which the jurisdiction of the Courts has, been ousted, in
conformity with the well-established principles that the provisions seeking to oust the
jurisdiction of the superior Courts are to be construed strictly with a pronounced leaning
against ouster. The Constitution petitions under Article 184(3) of the Constitution are,
therefore, maintainable.
(kk) Provisional Constitution Order (1 of 1999)--.
----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the
affairs of Pakistan by the Armed Forces of Pakistan---Validity---State necessity, doctrine of,
and salus populi est suprema lex, principle of---Applicability---Supreme Court, while recording
in detail the factors for action by Armed Forces validated the same on the basis of the
doctrine of State necessity and the principle of salus populi est suprema lex for a transitional
period to prevent any further destabilization, to create corruption-free atmosphere at national
level through transparent accountability and revival of economy before restoration of
26
democratic institutions under the Constitution, in that Constitution offered no solution to the
prevailing crisis.
National Assembly is the highest representative body, which reflects the will and aspirations
of the people of Pakistan. Similar is the status of a Provincial Assembly in a Province.
Senate, being a symbol of unity of the federating units has its own utility for the country as a
whole. It is, therefore, of utmost importance that the impugned suspension of the above
democratic institutions is examined with great care and caution, otherwise it would adversely
affect the democratic process in the country, which may cause instability, impair the
economic growth and resultantly prove detrimental to the general well-being of the people.
However, where the representatives of the people, who are responsible for funning the affairs
of the State are themselves accused of massive corruption and corrupt practices and in the
public as well as private sectors are benefiting therefrom and resist establishing good
governance; where a large number of references have been filed against the former Prime
Minister, Ministers, Parliamentarians and Members of the Provincial Assemblies for their
disqualification on account of corruption and corrupt practices; where there is a general
perception that corruption is being practised by diversified strata including politicians,
Parliamentarians, public officials and ordinary citizens and that a number of Parliamentarians
and Members of the Provincial Assemblies misdeclared their assets before Election
Commission and Tax Authorities; where there was no political and economic stability and
bank loan defaults were rampant and that as per report of Governor, State Bank of Pakistan
Rs.356 billion are payable by the bank defaulters up to 12-10-1999, having no accountability
and transparency; where economic stability in Pakistan was highly precarious and there was
an overall economic slowdown as GDP growth during the past three years had hardly kept
pace with the growth of population; where Pakistan has a debt burden, which equals the
country's entire national income; where all the institutions of the State were being
systematically destroyed and the economy was in a state of collapse due to self-serving
policies of the previous Government, which had threatened the existence, security, economic
life, financial stability and credit of Pakistan; where a situation had arisen under which the
democratic institutions were not functioning in accordance with the provisions of the
Constitution, inasmuch as, the Senate and the National and Provincial Assemblies were
closely associated with the former Prime Minister and there was no real democracy because
the country was, by and large, under one man rule; where an attempt was made to politicize
the Army, destabilize it and create dissension within its ranks and where the judiciary was
ridiculed, leaving no stone unturned to disparage and malign it by making derogatory and
contemptuous. speeches by some of the members of the previous ruling party inside and
outside the Parliament and no Reference was made to the Chief Election Commissioner for
their disqualification as members of the Parliament under Article 63(2) of the Constitution;
where the disparaging remarks against the judiciary crossed all limits with the rendering
judgment by this Court in the case of Sh. Liaquat Hussain v Federation of Pakistan PLD 1999
SC 504, declaring the establishment of Military, Courts as ultra vires of the Constitution.
which resulted into a slanderous campaign against the judiciary launched by the former
Primc. Minister registering his helplessness in the face of the Judiciary not allowing him the
establishment of Military Courts as. a mode of speedy justice; where the image of the
judiciary' was tarnished under a well-conceived design; where the telephones of the Judges
of the superior Courts and other personalities were tapped in spite of the law laid down by
this Court in the case of Mohtarma Benazir Bhutto v. President of Pakistan PLD 1999 SC
388, 'that tapping of telephones and eaves-dropping was immoral, illegal and
unconstitutional; where storming of the Supreme Court was resorted to allegedly by some of
the leaders and activists of the Pakistan Muslim League which ultimately- led to the issuance
of contempt notices against them/contemners by the Full Bench of Supreme Court in a
pending appeal; where Mian Nawaz Sharif's Constitutional and moral authority stood
27
completely eroded and where situation was somewhat similar and analogous to the situation
that was prevalent to July, 1977, the extra-Constitutional step of taking over the affairs of the
country by the Armed Forces for a transitional period to prevent any further destabilization, to
create corruption-free atmosphere at national level through transparent accountability and
revive the economy before restoration of democratic institutions under the Constitution, is
validated, in that, the Constitution offered no solution to the present crisis.
Probably, the situation could have been avoided if Article 58(2)(b) of the Constitution (1973)
had been in the field, which maintained parliamentary form of Government and had provided
checks and balances between the powers of the President and the Prime Minister to let the
system run without any let or hindrance to forestall the situation in which Martial Law can be
imposed. With the repeal of Article 58(2)(b) of the Constitution, there was no remedy
provided in the Constitution to meet the situation like the present one with which the country
was confronted, therefore, Constitutional deviation made by the Chief of the Army Staff, for
the welfare of the people rather than abrogating the Constitution or imposing Martial Law by
means of an extra-Constitutional measure is validated for a transitional period on ground of
State necessity and on the principle that it is in public interest to accord legal recognition to
the present regime with a view to achieving his declared objectives and that it is in the
interest of the community that order be preserved. Legal recognition/legitimacy can be
accorded to the present regime also on the principle that the Government should be by the
consent of the governed, whether voters or not. Here there is an implied consent of the
governed i.e. the people of Pakistan in general including politicians/parliamentarians, etc. to
the Army take-over, in that, no protests worth the name or agitations have been launched
against the Army take-over and/or its continuance. The Court can take judicial notice of the
fact that the people of Pakistan have generally welcomed the Army takeover due to their
avowed intention to initiate the process of across the board and transparent accountability
against those, alleged of corruption in every walk of life, of abuse of national wealth and of
not taking appropriate measures for. stabilizing the economy and democratic institutions.
Another principle, which is attracted is that since an extra-Constitutional action has been
taken by General Pervez Musharraf wielding effective political power, it is open to the Court
to steer a middle course so as to ensure that the framework of the pre-existing Order survives
but the Constitutional deviation therefrom be justified on the principle of necessity, rendering
lawful what would otherwise be unlawful. However, prolonged involvement of the Army in civil
affairs runs a grave risk of politicizing it, which would not be in national interest, therefore,
civilian rule in the country must be restored within the shortest possible time after achieving
the declared objectives, which necessitated the military take-over and Proclamation of
Emergency as spelt out from the speeches of the Chief Executive, dated 13th and 17th
October, 1999. The acceptance of the above principles do not imply abdication from judicial
review in the transient suspension of the previous legal order.
Sh. Liaquat Hussain v. Federation of Pakistan PLD 1990 SC 504 and Benazir Bhutto v.
President of Pakistan PLD 1998 SC 388 ref.
(ll) Provisional Constitution Order (1 of 1999)-----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution.of Pakistan (1973), Arts.184(3) & 199 Extra-constitutional step of taking over
the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Powers of superior
Courts---Scope and extent---Situation in the country having arisen for which the Constitution
had provided no solution and the intervention by the Armed Forces through an extraconstitutional measure having become inevitable, Supreme Court validated the measures
taken by Armed Forces including all past and closed transactions, as well as such executive
28
actions as were required for the orderly running of the State and all acts which tended to
advance or promote the good of the people on the basis of State necessary and the principle
of salus populi est suprema lex as embodied in Begum Nusrat Bhutto's case reported as PLD
1977 SC 657---Chief Executive of Pakistan having validly assumed power by means of an
extra-constitutional step, in the interest of the State and for the welfare of the people, was
entitled to perform all such acts and promulgate all legislative measures as indicated by the
Supreme Court---Superior Courts, however, continue to have the power of judicial review to
judge the validity of any act or action of the Armed Forces, if challenged, in the light of the
principles underlying the law of State necessity---Powers of superior Courts under Art.199 of
the Constitution of Pakistan (1973), thus, remained available to their full extent, and may be
exercised as heretofore, notwithstanding anything to the contrary contained in any legislative
instrument enacted by the Chief Executive and/or am order issued by the Chief Executive or
by any person or Authority acting on his behalf---Courts were not merely to determine
whether there existed any nexus between the orders made, proceedings taken and acts done
by the, Chief Executive or by any Authority or person acting on his behalf, and his declared
objectives as spelt out from his speeches dated 13th and 17th October., 1999, on the
touchstone of State necessity but orders made, proceedings taken and acts done including
the legislative measures, shall also be subject to judicial review by the superior Courts---Rule
laid down by Supreme Court for validation of action of Armed Forces on 12-10-1999 detailed.
Following is the text of rule laid down by the Supreme Court while validating the action of
taking over the affairs of Pakistan by the Armed Forces of Pakistan on 12th October, 1999:
"1. On 12th October, 1999 a situation arose for- which the Constitution provided no solution
and the intervention by the Armed Forces through an extra-Constitutional measure became
inevitable, which is hereby validated on the basis of the doctrine of State necessity and the
principle of salus populi est suprema lex as embodied in Begum Nusrat Bhutto's case. The
doctrine of State necessity is recognised not only in Islam and other religions of the world but
also accepted by the eminent international jurists including Hugo Grotius, Chitty and de Smith
and some superior Courts from foreign jurisdiction to fill a political vacuum and bridge the
gap.
2. Sufficient corroborative and confirmatory material has been produced by the Federal
Government in support of the intervention by the Armed Forces through extra-Constitutional
measure. The material consisting of newspaper clippings, writings, etc. in support of the
impugned intervention is relevant and has been taken into consideration as admissible
material on the basis of which a person of ordinary prudence would conclude that the matters
and events narrated therein did occur. The findings recorded herein are confined to the
controversies involved in these cases alone.
3. All past and closed transactions, as well as such executive actions as were required for the
orderly running of the State and all acts, which tended to advance or promote the good of the
people are also validated.
4. That the 1973 Constitution still remains the supreme law of the land subject to the
condition that certain parts thereof have been held in abeyance on account of State
necessity.
5. That the superior Courts continue to function under the Constitution. The mere fact that the
Judges of the superior Courts have taken a new bath under the Oath of Office (Judges)
Order No. l of 2000, does not in any manner derogate from this position, as the Courts had
been originally established under the 1-973 Constitution, and have continued in their
29
functions in spite of the Proclamation of Emergency and PCO No. l of 1999 and other
legislative instruments issued by the Chief Executive from time to time.
6.(i) That the Chairman, Joint Chiefs of Staff Committee and the Chief of the Army Staff
through Proclamation of Emergency dated the 14th October, 1999, followed by PCO 1 of
1999, whereby he had been described as Chief Executive; having validly assumed power by
means of an extra Constitutional step, in the interest of the State and for the welfare of the
people, was entitled to perform all such acts and promulgate all legislative measures as
enumerated hereinafter, namely:-(a) All acts or legislative measures which. were in accordance with, or could have been made
under the 1973 Constitution, including the power to amend it;
(b) All acts which tended to advance or promote the good of the people;
(c) All acts required to be done for the ordinary orderly running of the State; and
(d) All such measures as would establish or lead to the establishment of the declared
objectives of the Chief Executive.
(ii) That Constitutional amendments by the Chief Executive could be resorted to only if the
Constitution failed to provide a solution for attainment of his declared objectives and further
that the power to amend the Constitution by virtue of clause (6), sub-clause (i) (a) (ibid) was
controlled by sub-clauses (b), (c) and (d) in the same clause.
(iii) That no amendment shall be made in the salient features of the Constitution i.e.
independence of judiciary, federalism, parliamentary form of Government blended with
Islamic provisions.
(iv) That Fundamental Rights provided in Part II, Chapter 1 of the Constitution shall continue
to hold the field but the State will be authorized to make any law or take any executive action
in deviation of Articles 15, 16, 17, 18, 19 and 24 as contemplated by Article 233(1) of the
Constitution, keeping in view the language of Articles 10, 23 and 25 thereof.
(v) That these acts; or any of them, may be performed or carried out by means of orders
issued by the Chief Executive or through Ordinances on his advice;
(vi) That the superior Courts continue to have the power of judicial review to judge the validity
of any act or action of the Armed Forces, if challenged, in the light of the principles underlying
the law of State necessity as stated above. Their powers under Article 199 of the
Constitution, thus, remain available to their full extent, and may be exercised as heretofore,
notwithstanding anything to the contrary contained in any legislative instrument enacted by
the Chief Executive and/or any order issued by the Chief Executive or by any person or
authority acting on. his behalf.
(vii) That the Courts are not merely to determine whether there exists any nexus between the
orders made, proceedings taken and acts done by the Chief Executive or by any authority or
person acting on his behalf, and his declared objectives as spelt out from his speeches,
dated 13th and 17th October, 1999, on the touchstone of State necessity but such orders
made, proceedings taken and acts done including the legislative measures, shall also be
subject to judicial review by the superior Courts.
30
6. That the previous Proclamation of Emergency of 28th May, 1998 was issued under Article
232(1) of the Constitution whereas the present Emergency of 14th October, 1999 was
proclaimed by way of an extra- Constitutional step as a follow up of the Army take-over which
also stands validated notwithstanding the continuance of the previous Emergency which still
holds the field.
7.
That the validity of the National Accountability Bureau Ordinance, 1999 will be
examined separately in appropriate proceedings at appropriate stage.
8. That the cases of learned former Chief Justice and Judges of the Supreme Court, who had
not taken oath under the Oath of Office (Judges) Order, 2000 (Order 1 of 2000), and those
Judges of the Lahore High Court, High Court of Sindh and Peshawar High Court, who were
not given oath, cannot be re-opened being hit by the doctrine of past and closed transaction.
9. That the Government shall accelerate the process of accountability in a coherent and
transparent manner justly, fairly, equitably and in accordance with law.
10. That the Judges of the superior Courts are also subject to accountability in accordance
with the methodology laid down in Article 209 of the Constitution.
11. General Pervez Musharraf, the Chief of the Army Staff and. the Chairman, Joint Chiefs of
Staff Committee is a holder of Constitutional post. His purported arbitrary removal in violation
of the principle of audi alteram partem was ab initio void and of no legal effect.
12. That this order will not affect the trials conducted and convictions recorded including
proceedings for accountability pursuant to various orders made and Orders/laws promulgated
by the Chief Executive or any person exercising powers or jurisdiction under his authority and
the pending trials/proceedings may continue subject to this order.
13. This is not a case where old legal order has been completely suppressed or destroyed,
but merely a case of Constitutional deviation for a transitional period so as to enable the
Chief Executive to achieve his declared objectives.
14. That the current electoral rolls are outdated. Fresh elections cannot be held without
updating the electoral rolls. The learned Attorney-General states that as per report of the
Chief Election Commissioner this process will
take two years. Obviously, after preparation of the electoral rolls some time is required for
delimitation of constituencies and disposal of objections, etc.
15. That we take judicial notice of the fact that ex-Senator Mr. Sartaj Aziz moved a
Constitution Petition No. 15 of 1996, seeking a mandamus to the concerned authorities for
preparation of fresh electoral rolls as, according to Mr. Khalid Anwar, through whom, the
above petition was filed, the position to the contrary was tantamount to perpetuating
disenfranchisement of millions of people of Pakistan in violation of Articles 17 and 19 of the
Constitution. Even MQM also resorted to a similar Constitution Petition bearing No.53 of 1996
seeking the same relief. However, for reasons best known to the petitioners in both the
petitions, the same were not pursued any further.
16. That having regard to all the relevant factors involved in the case including the one
detailed in paragraphs 14 and 15 above, three years' period is allowed to the Chief Executive
with effect from the date of the' Army take-over i.e. 12th October, 1999 for achieving his
declared objectives.
31
17. That the Chief Executive shall appoint a date, not later than 90 days before the expiry of
the, aforesaid period of three years, for holding of general elections to the National Assembly
and the Provincial Assemblies and the Senate of Pakistan.
18. That this Court has jurisdiction to review/re-examine the continuation of the Proclamation
of Emergency dated 12th October, 1999 at any stage if the circumstances so warrant as held
by this Court in the case of Sardar Farooq Ahmed Khan Leghari v. Federation of Pakistan
PLD 1999 SC 57."
(mm) State necessity, doctrine of------Doctrine of State necessity is recognised not only in Islam and other religions of the world
but also accepted by the eminent international jurists to fill a political vacuum and bridge the
gap.
(nn) Maxim:
----"Salus populi est suprema lex"----Applicability.
(oo) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Oath of Office (Judges) Order (1 of 2000), Preamble--Effect of Provisional Constitution
Order, 1999; Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999
and Oath of Office (Judges) Order, 2000 was that Constitution of Pakistan (1973) still
remained the supreme law of the land subject to the condition that certain parts thereof had
been held in abeyance on account of State necessity.
(pp) Constitution of Pakistan (1973)------Arts. 175 & 184(3)---Provisional Constitution Order (1 of 1999), Preamble---Proclamation
of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges)
Order (1 of 2000), Preamble---Constitution of Pakistan (1973), Preamble and Art.184(3)--Oath of Judges of superior Courts under Oath of Office (Judges) Order, 2000---Effect--Powers of superior Courts---Superior Courts continued to function under the Constitution of
Pakistan (1973)---Mere fact that the Judges of the superior Courts had taken a new oath
under the Oath of Office (Judges) Order, 2000 did not in any manner derogate from the said
position, as the Courts had been originally established under the Constitution of Pakistan
(1973,) and had continued their functions in spite of the Proclamation of Emergency by the
Chief Executive of Pakistan and Provisional Constitution Order, 1999 and other legislative
instruments issued by the Chief Executive from time to time.
(qq) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Oath of Office (Judges) Order (1 of 2000), Preamble--Constitution of Pakistan (1973),
Preamble and Art. 184(3)---Powers of Chief Executive of Pakistan---Scope and extent--Judicial review of powers of the Chief Executive of Pakistan by superior Courts---Scope--Chief Executive of Pakistan having validly assumed power by. means of an extra-
32
constitutional step, in the interest of the -State and for the welfare of the people, was entitled
to perform all such acts and promulgate all legislative measures as indicated by Supreme
Court---Superior Courts, however, continue to have the power of judicial review to judge the
validity of any act or action of the Armed Forces, if challenged; in the light of the principles
underlying the law of State necessity---Powers of superior Courts under Art. 199 of the
Constitution of Pakistan (1973), thus, remained available to their full extent, and may be
exercised as heretofore, notwithstanding anything to the contrary contained in any legislative
instrument enacted by the Chief Executive and/or any order issued by the Chief Executive or
by any person or authority acting on his behalf---Courts were not merely to determine
whether there existed any nexus between the orders made; proceedings taken and acts done
by the Chief Executive or by any Authority or person acting on his behalf, and his declared
objectives as spelt out from his speeches dated 13th and 17th October, 1999, on the
touchstone of State necessity but orders made, proceedings taken and acts done including
the legislative measures, shall also be subject to judicial review by the superior Courts.
The Chairman, Joint Chiefs of Staff Committee and the Chief of Army Staff through
Proclamation of Emergency dated the 14th October, 1999, followed by PCO 1 of 1999,
whereby he had been described as Chief Executive, having validly assumed power by means
of an extra Constitutional step, in the interest of the State and for the welfare of the people,
was entitled to perform all such acts and promulgate all legislative measures as enumerated
hereinafter, namely:-(a) All acts or legislative measures which were in accordance with, or could have been made
under the 1973 Constitution, including the power to amend it;
(b) All acts which tended to advance or promote . the good of the people;
(c) All acts required to be done for the ordinary orderly running of the State; and
(d) All such measures as would establish or lead to the establishment of the declared
objectives of the Chief Executive.
(ii) That Constitutional amendments by the Chief Executive could be resorted to only if the
Constitution failed to provide a solution for attainment of his declared objectives and -further
that the power to amend the Constitution by virtue of clause (6), sub-clause (i) (a) (ibid) was
controlled by sub-clauses (b), (c) and (d) in the same clause.
(iii) That no amendment shall be made in the salient features of the Constitution i.e.
independence of judiciary, federalism, parliamentary form ,of Government blended with
Islamic provisions.
(iv) That Fundamental Rights provided in Part II, Chapter I of the Constitution shall continue
to hold the field but the State will be authorized to make any law or take any executive action
in deviation of Articles 15, 16, 17, 18, 19 and 24 as contemplated by Article 233(1) of the
Constitution, keeping in view the language of Articles 10, 23 and 25 thereof.
(v) That these acts, or any of them, may be performed or carried out by means of orders
issued by the Chief Executive or through Ordinances on his advice;
(vi) That the superior Courts continue to have the power of judicial review to judge the validity
of any act 'or action of the Armed Forces, if challenged, in the light of the principles
underlying the law of State necessity as stated above. Their powers under Article 199 of the
33
Constitution, thus, remain available to their full extent, and may be exercised as heretofore,
notwithstanding -anything to the contrary contained in any legislative instrument enacted by
the Chief Executive and/or any order issued by the Chief Executive or by any person or
authority acting on his behalf.
(vii). That the Courts are not merely to determine whether there exists any nexus between the
orders made, proceedings taken and acts done by the Chief Executive of by any authority or
person acting on his behalf, and his declared objectives as spelt out from his speeches,
dated 13th and 17th October, 1999, on the touchstone of State necessity but such orders
made, proceedings taken and acts done including the legislative measures, shall also be
subject to judicial review by the superior Courts.
(rr) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Oath of Office (Judges) Order (1 of 2000), Preamble--Validation of Proclamation of
Emergency dated 14-10-1999 in continuation of Emergency proclaimed on 28-5-1998--Proclamation of Emergency dated 28th May, 1998 issued under Art.232(1) of Constitution of
Pakistan (1973) and Proclamation of Emergency dated 14-10-1999 issued by Chief
Executive by way of an extra-constitutional step as a follow up of the Army take-over stood
validated notwithstanding the continuance of the Emergency proclaimed on 28th May, 1998
still held the field.
(ss) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of. Pakistan dated 14-101999---Oath of Office (Judges) Order (1 of 2000), .Preamble--Constitution of Pakistan (1973),
Preamble, Arts.209 & 184(3)---Past and closed transaction, doctrine of---Applicability---Cases
of former Chief Justice and Judges of Supreme Court who had not taken oath under the Oath
of Office (Judges) Order, 2000 and those Judges of the Lahore High Court, High Court of
Sindh and Peshawar High Court, who were not given oath, could not be reopened being hit
by the doctrine of past and closed transaction.
The cases of former Chief Justice and Judges of the Supreme Court, who had not taken oath
under the Oath of. Office (Judges) Order, 2000 (Order 1 of 2000), and those Judges of the
Lahore High Court, High Court of Sindh and Peshawar High Court; who were not given oath,
cannot be reopened, being hit by the doctrine of past and closed transaction.
The practical effect of the above observation is that the action of the Chief Executive in this
behalf has been validated. It is a well-settled principle that in such situations the Court may
refuse relief in respect of a particular decision, but go on to determine the general question of
law or interpretation that the case raises. Clearly, the Judges of the Superior Judiciary enjoy
constitutional guarantee against arbitrary removal. They can be removed only by following
the procedure laid down in Article 209 of the Constitution by filing an appropriate reference
before the Supreme Judicial Council and not otherwise. The validity of the action of the Chief
Executive was open to question on the touchstone of Article 209 of the Constitution. But none
of the Judges took any remedial steps and accepted pension as also the right to practise law
and thereby acquiesced in the action. Furthermore, the appropriate course of action for
Supreme Court in these proceedings would be to declare the law to avoid the recurrence in
future, but not to upset earlier actions or decisions taken in this behalf by the Chief Executive,
these being past and closed transactions. The Courts can refuse relief in individual cases
even though the action is flawed, depending upon the facts and circumstances of each case.
34
The action of Chief Executive in the context given above has not encroached on the judicial
power or impaired it in the process. However, the observations made herein as to the
declaration of law under Article 209 of the Constitution would not entitle the relevant
authorities or Supreme Court to reopen the cases of the above Judges which have become
final.
The Judges of the Supreme Court and High Courts cannot be removed without resorting to
the procedure prescribed in Article 209 of the Constitution, but the cases of Judges who
ceased to be Ridges of the Supreme Court and High Courts by virtue of Oath of Office
(Judges) Order, 2000 (Order 1 of 2000) is hit by the doctrine of past and closed transaction
and cannot be reopened.
(tt) Constitution of Pakistan (1973)------Arts. 209 & 184(3)---Provisional Constitution Order (1 of 1999), Preamble---Proclamation
of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges)
Order (1 of 2000), Preamble--Constitution of Pakistan (1973), Preamble and Arts.184(3) &
209--Accountability, process of---Government shall accelerate the process of accountability in
a coherent and transparent manner justly, fairly, equitably and in accordance with law--Judges of superior Courts were subject to accountability only in accordance with the
methodology laid down in Art.209 of the Constitution of Pakistan (1973).
(uu) Constitution of Pakistan (1973)------Arts. 243 & 184(3)---Command of Armed Forces---Removal of Chief of the Army Staff and
Chairman, Joint Chiefs of Army Staff Committee--Procedure---Chief of the Army Staff and
Chairman, Joint Chiefs of Army. Staff Committee being a holder of constitutional post, his
arbitrary removal in violation of the principle of audi alteram partem was ab initio void and of
no legal effect.
(vv) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Oath of Office (Judges) Order (1 of 2000), Preamble--Constitution of Pakistan (1973),
Preamble and Art.184(3)---Validity of extra-constitutional step of taking over the affairs of
Pakistan by the Armed Forces accorded by Supreme Court---Effect---Order of Supreme
Court validating the extra-constitutional step of taking over the affairs of the country by the
Armed Forces and rules laid down in the said order will not affect the trials conducted and
convictions recorded including proceedings for accountability pursuant to various orders
made and orders/laws promulgated by the Chief Executive of Pakistan or any person
exercising powers or jurisdiction under his authority and the pending trials/proceedings may
continue subject to the present order of validation by the Supreme Court.
(ww) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Oath of Office (Judges) Order (1 of 2000), Preamble--Constitution of Pakistan (1973),
Preamble and Art.184(3)---Extraconstitutional step of taking over the affairs of Pakistan by
the Armed Forces of Pakistan---Effect---Effect of action of Armed Forces was not that legal
order in the country had been completely suppressed or destroyed, but it was merely a
35
Constitutional deviation for a transitional period so as to enable the Chief Executive of
Pakistan to achieve his declared objectives.
(xx) Constitution of Pakistan (19'73)------Arts. 224 & 184(3)---Provisional Constitution Order (1 of 1999), Preamble---Proclamation
of Emergency by Chief Executive of Pakistan dated 14-10-1999---Extra-constitutional step of
taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Elections--Time frame---Current electoral rolls being outdated, fresh elections. could not be held without
updating ,the electoral rolls and after preparation of the electoral rolls as some time was
required for delimitation of constituencies and disposal of objections etc.---Supreme Court,
after having regard to all the relevant factors involved allowed three years' period to the Chief
Executive of Pakistan with effect from the date of the Army take-over i.e. 12-10-1999 for
achieving his declared objectives---Chief Executive of Pakistan shall appoint a date, not later
than 90 days before the expiry of three years, for holding a general election to the National
Assembly and the Provincial Assemblies and the Senate of Pakistan.
(yy) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Oath of Office (Judges) Order (1 of 2000), Preamble--Constitution of Pakistan (1973),
Preamble and Art. 184(3)---Extra constitutional step of taking over the affairs of Pakistan by
the Armed Forces of Pakistan---Validity---Jurisdiction to review/re-examine by Supreme Court
the continuation of Proclamation of Emergency. dated 12-10-1999---Scope--Supreme Court
having validated the extra-Constitutional step of taking-over the affairs of the country by the
Armed Forces subject to rules laid down in the validating order, had jurisdiction to review/reexamine the continuation of Proclamation of Emergency dated 12-10-1999 at any stage, if
the circumstances so warrant.
Sardar Farooq Ahmed Khan Leghari v. Federation of Pakistan PLD 1999 SC 57 ref.
Ahmad Saeed Karmani's case PLD 1956 (W.P) Lah.807; Darvesh M. Arbey's case
PLD 1977 Lah.846; Iqbal Ahmad Khan's case PLD 1977 Lah.337; Muhammad Bachal
Memon's case PLD 1987 Kar.296; Muhammad Naeem Akhtar's case 1992 CLC 2043;
Shams-ud-Din's case 1994 MLD 2500; Manzoor Ahmed Wattoo's case PLD 1997 Lah.38;
Muhammad Anwar Durrani's case PLD 1989 Quetta 25; A.K. Fazalul Quader Chaudhry's
case PLD 1966 SC 105; Pit Sabir Shah's case PLD 1994 SC 738; Tfie Speaker, Balochistan
Provincial Asembly, Quetta's case PLD 1996 SCMR-1969; Mrs. Shahida Zahir Abbassi's
case PLD 1996 SC 632; Mahmood Khan Achakzai's case PLD 1997 SC 426; Wukala Mahaz
Barai Tahafaz-e-Dastoor's case PLD 1998 SC 1263; Sardar Farooq Ahmed Khan Leghari's
case PLD 1999 SC 57; Syed Jalal Mehmood Shah's case PLD 1999 SC 395; Sh. Liaqat
Hussain's case PLD 1999 SC 504; Miss Benazir Bhutto' case PLD 1988 SC 416; Mian
Muhammad Nawaz Sharif's case PLD 1993 SC 473; Dosso's case PLD 1958 SC (Pak.) 533;
Miss Asma Jilani's case PLD 1972 9C 139; Begum Nusrat Bhutto v.- Chief of Army Staff 'and
others PLD 1977 SC 657; Special Reference No: 1 of 1955 PLD 1955 SC 435; Yousaf Ali v.
Muhammad Aslam Zia PLD 1958 SC 104; William Marburty v. James Medison 2 Law Edn.60;
PLD.1955 FC 435; R v. Stratton (1779) (21 St. Tr. 1222); Al-Jehad Trust v. Federation of
Pakistan PLD 1996 SC 324; Al-Jehad Trust v. Federation of Pakistan 1999 SCMR 1379; Usif
Patel and 2 others v. The Crown PLD 1955 FC 387; Miss Benazir Bhutto v. Federation of
Pakistan PLD 1988 SC 416; Controller of Patents and Designs, Karachi v. Muhammad
Quadir Hussain 1995 SCMR 529; Zahid Akhtar v. Government of Punjab PLD 1995 SC 530;
Federation of Pakistan v. N.-W.F.P. Government PLD 1990 SC 1172; Mian Aziz A. Sheikh v.
36
The Commissioner of Income-tax, Investigation, Lahore PLD 1989 SC 613; Mst. Kaneez
Fatima v. Wali Muhammad PLD 1993 SC 901; Fazle Ghafoor v. Chairman, Tribunal of
Disputes, Dir, Swat at Chitral at Mardan 1993 SCMR 1073; Ghulam Hamdani. v. Muhammad
Iqbal 1993 SCMR 1083; M. Ismail Qureshi v. M. Awais Qasim 1993 SCMR 1781;
Zaheeruddin v. The State 1993 SCMR 1718; Brig. Retd. Imtiaz Ahmad v. Government of
Pakistan through Secretary, Interior Division 1994 SCMR 2142; Speech of the Chief
Executive dated 17-10 1999; Mokotso v. H.M. King Moshoehoe II 1989 LRC (Const.) 24;
Mitchell v. Director of Public Prosecutions 1986 LRC (Const.) 35; Hamza Shehbaz Sharif v.
Federation of Pakistan 1999 PCr.LJ 1584; Huddaibia Engineering v. Pakistan PLD 1998 Lah.
90; Mushtaq Ahmed Gormani v. State PLD 1958 SC 333; Amanullah Khan v. Federal
Government of Pakistan PLD 1990 SC 1092; M. Inayat Khan v. M. Anwar and 2 others PLD
1976 SC 354; Ex-Major-General Akbar Khan v. The Crown PLD 1954 FC 87; F.B. Ali v. The
State PLD 1975 SC. 506; Shahida Zahir Abbasi v. President of Pakistan PLD 1996 SC 632;
Muhammad Umar Khan v. The Crown PLD 1953 Lah. 528; Reference by the President of
Pakistan under Art. 162 of the Constitution of Islamic Republic of Pakistan PLD 1957 SC
(Pak.) 219; Federation of Pakistan v. Moulvi Tamizuddin Khan PLD 1955 FC 240; AttorneyGeneral of the Republic v. Mustafa Ibrahim and others 1964 Cyprus Law Reports 195; Ziaur
Rehman's case PLD 1973 SC 49; PLD 1989 SC 166; 1997 SCMR 1043 at 1057 and 1059;
Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161; William Marbury v. James
Medison 2 Law Ed. 60; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; Federation
of Pakistan v. M. Nawaz Khokhar PLD 2000 SC 26; Anatulay VIII (1988) 2 SCC 602; Kh.
Ahmed Tariq Rahim's case PLD 1992 SC 646; Federation of Pakistan v. Shaukat Ali Mian
PLD 1999 SC 1026; Makenete v. Lekhanya and others (1993) 3 LRC; Mitchell and others v.
Director of Public Prosecutions and another 1986 LRC (Grenada); Edwin Ward Scadding v.
Louis Lorant 10 ER 164; Toronto R. Co. and City of Toronto 46 DLR 547; Farzand Ali v.
Province of West Pakistan PLD 1970 SC 98; Fazalul Qadir Chaudhry's case PLD 1963 SC
486; Madzimbuto v. Lardner Burke (1968) 3 AER 561; Texas v. White 74 US (7 Wall) 700 (at
p.733), 1868; Madzimbuto v. Lardner Burke 1966 Rhodesian L.Rep. 228 (General Division)
and Muhammad Yusuf v. The Chief Settlement and Rehabilitation Commissioner Pakistan,
Lahore and another PLD 1968 SC 101; Al-Qur'an: Sura Aale-e-Imran, Verses 4-135; Surah
Maida, Verses 5/9; Sura AI-Nisa, Verses 135-136; Spirit of Law- by Montesquieu; The
Constitutional History of England by F.W. Maitland; Law of Necessity by Glanville William,
p.216; Principles of Revolutionary Legality by J.M. Eekelaar, pp.29,30,39 to 43; Cases in
Constitutional Law by D.L. Keir and F.H. Lawson. 5th Edn., pp.73 to 116; English
Constitutional Conflicts of the Seventeenth Century, 1603-1689 by J.R. Tanners, pp.20, 4145, 62, 65, 70, 78, 79; The Constitution of England from Queen Victoria to George VI by
Arthur Berriedale .Keith; Judging the State by One Paula R. Newberg; Constitutional
Legitimacy---A Study of the Doctrine of Necessity by Leslie Wolf-Phillips; Commentaries on
the Constitution of the United States by Joseph Story; Constitution in Crisis, Political Violence
and the Rule of Law by John E. Finn; 'The Federalist Papers by Alexander Hamilton-James
Madison-John Jay, pp. 464 to 470, 479, 481; Dissolution of Constituent Assembly of Pakistan
and the Legal Battles of Moulvi Tamizuddin Khan by Syed Sharifuddin Pirzada; Destruction of
Pakistan's Democracy by Allen Mcgrath; Transfer of Power, Vol. VII; The Statute of
Westminster and Dominion Status by K.C. Wheare; Voyage through History by Masarrat
Husain Zuberi; Corpus Juris Secundurn, Vol. 65, pp.115, 116, 118, 387, 389; Sorensen, pp.
271, 272; Judicial Review on Administration Action by De Smith, p. 544; States of
Emergency---A Study prepared by the International Commission of Jurists, pp.14, 17, 18, 21,
23; Constitutional and Administrative Law by Hilaire Barnett; Constitutional and
Administrative. Law by Stanley De Smith and Rodney Brazier; Public Opinion .and Political
Developments in Pakistan by Inamur Rehman; Pakistan in the 80s Law and Constitution,
Edited by Wolfgang Peter Zingel Stephanie Zingel Ave Lalemant; In Defence of the
Continuity of Law--Pakistan's Courts in Crises of State by Dieter Conrad; Black's Law
37
Dictionary; A History of Militarism,. Civilian and Military by Alfred Vagts: Recognition of
Governments in International Law with particular Reference to Governments in Exile by
Stefan Talmon; The Man on Horseback---The Role of the Military in Politics by S.E. Finer;
Machiavelli On Modern Leadership by Michael A. Ledeen; Through the Crisis; Standard
Journal of International Law; The Indian Army and the Pakistan Army by Stephen P. Kohento;
Beijing Statement of Principles of the Independence of Judiciary in the LAWASIA Region;
The Federalist Papers by Alexander Hamilton-James Madison-John Jay; Corruption and
Government, Cause,. Consequences and Reform by Susan Rose-Ackerman; Commonwealth
Finance Minister Meeting held on 21-23rd September, 1999 at Grand Cayman, Cayman
Islands; Money Laundering---A Practical Guide to New Legislation h) Rowan BosworthDavies and Graham Saltmarsh, 1994 Edn.; New Dictionary of American Politics by Smith and
Zucher, First Edn., p.114; The Pollitics of American Democracy by M. Irish, Third Edn., pp.52
to 81; The Hidden Wiring- --Unearthing the British Constitution by Peter Hennessy, pp.35, 37;
Arthur Berriedale Keith---The Chief Ornament of Scottish Learning by Ridgway F. Shinn Jr.;
The 1~rtgiish Constitution by Walter Bagehot; The Classics of International Law by Hugo
Grotius; A Treatise on the Law of the Prerogative of the Crown and the Relative Duties and
Rights of the Subject by Joseph Chitty; The; (iabcikovo-Nagymaros Project, decided by
International Court of Justice; From Military to Civilian Rule, Edited by Constantine P.
Danopoulos; Democracy, the Rule of Law and Islam, Edited by Eugene Cotran and Adel
Omar Sherif; Constitutional Limitations by Colley, Eighth Edn., Vo1.2, 8:1357; Indian
Constittitionai Law by H.M Seeravi, 4th Edn., p.20; American Constitutional Law, 1995 Edn.,
p.204 Revolution and Political Change by C. Welch and Bunker Taintor and Revolutions
published in Irish Jurist, 1977 ref.
5
PLD 2008 Supreme Court 178
TIKA IQBAL MUHAMMAD KHAN and others Versus General PERVEZ MUSHARAF and
others
(a) Proclamation of Emergency, dated 3-11-2007-----Provisional Constitution Order (1 of 2007), Preamble---Oath of Office (Judges) Order,
2007, Preamble---Constitution of Pakistan (1973), Art. 184(3)---Constitutional petition under
Art. 184(3) of the Constitution---Maintainability---Vires of Proclamation of Emergency, dated
3-11-2007; Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007--Held, Supreme Court is competent to examine the vires of the Proclamation of Emergency,
dated 3-11-2007; Provisional Constitution Order, 2007 and Oath of Office (Judges) Order,
2007 until these measures are protected by making an amendment in the Constitution--Petitions under Art.184(3) of the Constitution are, therefore, maintainable.
Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869
reaffirmed.
(b) Proclamation of Emergency, dated 3-11-2007-----Objects and reasons---Proclamation of Emergency, dated 3-11-2007 cannot be seen in
isolation but has to be examined in the context of the historical process of the country.
The Proclamation of Emergency is essentially founded on two main grounds, viz., the
security situation prevalent in the country and the erosion of trichotomy of powers in
38
consequence of increased interference in the Government policies by some former Judges of
the superior Courts, particularly the former Chief Justice of Pakistan, which adversely
affected the economic growth and the law and order situation in the country. By letter of 3rd
November, 2007, on the subject of "national security situation", the Prime Minister apprised
the President of Pakistan as to the magnitude of extremism, militancy and terrorism, which
were going on in the country and the widespread perception of overstepping the limits of
judicial authority and taking over of executive functions. Along with the letter, the Prime
Minister enclosed details of law and order incidents during the period from April to October,
2007 posing grave threat to internal security of the country.
The Proclamation of Emergency of 3rd November, 2007 cannot be seen in isolation, but has
to be examined in the context of the historical process of the country.
Prime Minister of Pakistan's letter to the President on National Security situation; Presidential
address, dated 3-11-2007 and Wasey Zafar v. Government of Pakistan PLD 1994 SC 621
quoted.
(c) Constitution of Pakistan (1973)-----Art. 209---Supreme Judicial Council---Reference to Supreme Judicial Council---Scope--Direction cannot be issued to the. Supreme Judicial Council to initiate proceedings of judicial
misconduct against any Judge of a Superior Court at the instance of a lawyer or a citizen--Supreme Court as also a High Court is prohibited to take upon themselves the exercise to
record even tentative finding that a particular Judge has committed misconduct warranting
filing of a Reference against him under Art.209 of the Constitution---On the same analogy, no
direction could be issued to the Supreme Judicial Council to stay its hands off the Reference
filed against the (former) Chief Justice of Pakistan, what to speak of quashing the Reference
altogether.
Muhammad Ikram Chaudhry v. Federation of Pakistan PLD 1998 SC 103 ref.
(d) Administration of justice-----Judicial accountability is a cardinal principle of the system of Administration of Justice and
is essential to its successful working and discussion on the subject.
Justice at Cross Roads by V.R. Krishna Iyer rel.
(h) Constitution of Pakistan (1973)---
----Preamble---Pakistan has a parliamentary system and the Constitution is based on the
principle of trichotomy of powers whereunder all the three organs of the State, namely the
legislative, executive and the judiciary are required to perform their functions and exercise
their powers within their allotted sphere---Theory of trichotomy of powers is the foundation of
the Constitutional scheme---Each organ of the State is equally important and each has
definite role to play---None is permitted to intrude into the domain of the other.
The State v. Zia-ur-Rehman PLD 1973 SC 49; Mehram Ali v. Federation of Pakistan PLD
1998 SC 1445; American Jurisprudence, 2nd Edn., Vol. 16A (1998) and Divisional Manager v.
Chander Dass Appeal (civil) No.5732 of 2007 rel.
(i) Proclamation of Emergency, dated 3-11-2007---
39
----Constitution of Pakistan (1973), Art.184(3)---Constitutional petition under Art.184(3) of the
Constitution---Vires of Proclamation of Emergency, dated 3-11-2007---Chief of Army Staff,
held, justifiably decided to take extra-Constitutional step by means of Proclamation of
Emergency as in the past the Constitutional deviations by the Chief Army Staff/Armed Forces
were validated by the Parliament in similar circumstances.
(j) Proclamation of Emergency, dated 3-11-2007------Provisional Constitution Order (1 of 2007), Preamble---Oath of Office (Judges) Order,
2007, Preamble---Constitution of Pakistan (1973), Art. 184(3)---Constitutional petition under
Art. 184(3) of the Constitution---Vires of Proclamation of Emergency, dated 3-11-2007,
Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007---Maxim: Salus
popuh est suprema lex---Applicability---Held, if the actions of 3-11-2007 were not taken, there
would have been chaos and anarchy in the country---Said actions were taken by the Chief of
Army Staff in the larger interests of the State and for the welfare of the people in consonance
with the maxim Salus populi est suprema lex---Principle of Salus populi est suprema lex and
the principle of State necessity described.
Hastings Law Journal (USA, April, 1994; American Jurisprudence, 2nd Edn. (1998), Vol. 16A,
S.322, p.259 and Re: Reference by, H.E. the Governor-General PLD 1955 FC 435 rel.
(k) Constitution of Pakistan (1973)------Art. 232---Proclamation of Emergency---Principle of derogation or deviation, as the case
may be, is accepted even in international charters on protection of human rights---Need to
have extra powers during emergency---Principles.
European Commission on Human Rights, Art.15; Basu's Human Rights in Constitutional Law,
2nd Edn. 2003, p.537; Muhammad Umer Khan's case PLD 1953 Lah. 528; State v. Dosso.
PLD 1958 SC 533; Asma Mani v. Government of Punjab PLD 1972 SC 139 and Begum
Nusrat Bhutto v. Chief of Army Staff PLD 1977 SC 657 rel.
(h) Constitution of Pakistan (1973)---
----Preamble---Pakistan has a parliamentary system and the Constitution is based on the
principle of trichotomy of powers whereunder all the three organs of the State, namely the
legislative, executive and the judiciary are required to perform their functions and exercise
their powers within their allotted sphere---Theory of trichotomy of powers is the foundation of
the Constitutional scheme---Each organ of the State is equally important and each has
definite role to play---None is permitted to intrude into the domain of the other.
The State v. Zia-ur-Rehman PLD 1973 SC 49; Mehram Ali v. Federation of Pakistan PLD
1998 SC 1445; American Jurisprudence, 2nd Edn., Vol. 16A (1998) and Divisional Manager v.
Chander Dass Appeal (civil) No.5732 of 2007 rel.
(i) Proclamation of Emergency, dated 3-11-2007------Constitution of Pakistan (1973), Art.184(3)---Constitutional petition under Art.184(3) of the
Constitution---Vires of Proclamation of Emergency, dated 3-11-2007---Chief of Army Staff,
held, justifiably decided to take extra-Constitutional step by means of Proclamation of
40
Emergency as in the past the Constitutional deviations by the Chief Army Staff/Armed Forces
were validated by the Parliament in similar circumstances.
(j) Proclamation of Emergency, dated 3-11-2007------Provisional Constitution Order (1 of 2007), Preamble---Oath of Office (Judges) Order,
2007, Preamble---Constitution of Pakistan (1973), Art. 184(3)---Constitutional petition under
Art. 184(3) of the Constitution---Vires of Proclamation of Emergency, dated 3-11-2007,
Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007---Maxim: Salus
popuh est suprema lex---Applicability---Held, if the actions of 3-11-2007 were not taken, there
would have been chaos and anarchy in the country---Said actions were taken by the Chief of
Army Staff in the larger interests of the State and for the welfare of the people in consonance
with the maxim Salus populi est suprema lex---Principle of Salus populi est suprema lex and
the principle of State necessity described.
Hastings Law Journal (USA, April, 1994; American Jurisprudence, 2nd Edn. (1998), Vol. 16A,
S.322, p.259 and Re: Reference by, H.E. the Governor-General PLD 1955 FC 435 rel.
(k) Constitution of Pakistan (1973)------Art. 232---Proclamation of Emergency---Principle of derogation or deviation, as the case
may be, is accepted even in international charters on protection of human rights---Need to
have extra powers during emergency---Principles.
European Commission on Human Rights, Art.15; Basu's Human Rights in Constitutional Law,
2nd Edn. 2003, p.537; Muhammad Umer Khan's case PLD 1953 Lah. 528; State v. Dosso.
PLD 1958 SC 533; Asma Mani v. Government of Punjab PLD 1972 SC 139 and Begum
Nusrat Bhutto v. Chief of Army Staff PLD 1977 SC 657 rel.
(p) Proclamation of Emergency, dated 3-11-2007-----Suspension of Fundamental Rights---Restrictions on the media---Held, during the period of
Emergency, Yellow Journalism touched heights and attempts to malign the institutions of the
State were made, which was an unhealthy sign in this noble profession---Supreme Court
observed that it should be hoped that some thought would be given to this aspect of the
matter at the appropriate level and an effort made to draw a line somewhere.
(q) Constitution of Pakistan (1973)-----Arts. 270AAA(3), 89(2) & 128(2)---Provisional Constitution Order (1 of 2007), Preamble--Proclamation of Emergency, dated 3-11-2007---Duration of Ordinances in force at the time of,
or during the Proclamation of Emergency and the Provisional Constitution Order, 2007--Held, Ordinances promulgated and legislative measures taken by the President, or as the
case may be, by the Governor, which were in force at the time of, or during the period for
which the Proclamation of Emergency, dated 3-11-2007 held the field, would continue to be
in force by virtue of the Provisional Constitution Order, 2007 read with Art.270AAA(3) of the
Constitution, until altered, repealed or amended by the appropriate Legislature and there
would be no question of expiry of these Ordinances in terms of Art.89(2), or as the case may
be, under Art.128(2) of the Constitution.
Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426; Zafar Ali Shah v.
Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869; Mrs. Keayus Byrne v. M.
Obaidurllah Khan PLD 1961 [W.P.] Lah. 256; Badrul Haque Khan v. The Election Tribunal
41
Dacca PLD 1963 SC 704; Abu Farida Khan v. East Pakistan PLD 1964 Dacca 473; Hashmat
Ali v. Abdul Karim PLD 1968 Lah. 188; Sheikh Atta Muhammad v. Mian Muhammad Abdullah
PLD 1971 Lah. 210 and Malik Muzaffar Khan v. Government of the Punjab 1980 SCMR 121
ref.
(r) Proclamation of Emergency dated 3-11-2007------Provisional Constitution Order (1 of 2007), Preamble---Oath of Office (Judges) Order,
2007, Preamble---Constitution (Amendment) Order (5 of 2007), Preamble---Provisional
Constitution (Amendment) Order, 2007, Preamble---Constitution of Pakistan (1973),
Art.184(3)--Constitutional petition under Art. 184(3) of the Constitution---Vires of Proclamation
of Emergency dated 3-11-2007; Provisional Constitution Order, 2007 and Oath of Office
(Judges) Order, 2007---Held, sum total of the circumstances led to a situation where the
running of the government in accordance with the provisions of the Constitution had become
impossible for which the Constitution provided no remedy or satisfactory solution and there
was a strong apprehension of disastrous consequences ensuing in case the action of 3-112007 had not been taken by the Chief of Army Staff/President---Sufficient corroborative
material had been produced by the authorities, justifying the taking of the extra-constitutional
measures by the Chief of Army Staff/President---Situation which led to the issuance of
Proclamation of Emergency of 3-11-2007 as well as the other two Orders was similar to the
situation which prevailed in the country on 5-7-1977 and 12-11-1999 warranting the extraconstitutional steps, which had been validated by the. Supreme Court in Begum Nusrat
Bhutto v. Chief of Army Staff PLD 1977 SC 657 and Syed Zafar Ali Shah v. Pervez
Musharraf, Chief Executive of Pakistan PLD 2000 SC 869 in the interest of the State and for
the welfare of the people, coupled with the fact that the Constitution was not abrogated, but
merely held in abeyance---Supreme Court, after recording findings on the situation obtaining
in the recent past in the country and, pointing out the transgression of constitutional limits by
some members of the superior judiciary by way of judicial activism ignoring the wellentrenched principles of judicial restraint, disposed of the constitutional petitions and passed
order and issued directions.
Following is the text of order passed and directions issued by the Supreme Court:-"We, therefore, hold that(i) the Constitution of the Islamic Republic of Pakistan, 1973 still remains to be the
supreme law of the land albeit certain parts thereof have been held in abeyance in
the larger interest of the country and the people of Pakistan;
(ii) the extra-constitutional steps of Proclamation of Emergency of the 3rd day of
November, 2007, the Provisional Constitution Order No.1 of 2007, the Provisional
Constitution (Amendment) Order, 2007, the Oath of Office (Judges) Order, 2007 and
the President's Order No. 5 of 2007 are hereby declared to have been validly made
by the Chief of Army Staff/President subject to the condition that the country shall be
governed, as nearly as may be, in accordance with the Constitution. All acts and
actions taken for the orderly running of the State and for the advancement and good
of the people are also validated. In absence of the Parliament, General Pervez
Musharraf, Chief of Army Staff/President, in pursuance of the Proclamation of
Emergency of the 3rd day of November, 2007 may, in the larger public interest and
the safety, security and integrity of Pakistan, under the principle of salus populi est
supremo lex, may perform-
42
(a) all acts or legislative measures which are in accordance with, or could have been
made under the 1973 Constitution, including the power to amend it;
(b) all acts which tend to advance or promote the good of the people; and
(c) all acts required to be done for the ordinary orderly running of the State."
"We further hold and direct as under: (i) The old Legal Order has not been completely suppressed or destroyed, but it is a
case of constitutional deviation for a limited transitional period;
(ii) constitutional amendments can be resorted to only if the Constitution fails to
provide a solution for the attainment of the declared objectives of the Chief of Army
Staff/President, but without affecting the salient features of the Constitution, i.e.
independence of Judiciary, federalism, parliamentary form of Government blended
with Islamic provisions;
(iii) the President, the Federal Government and the Election Commission of Pakistan
shall ensure the holding of fair, free and transparent elections as required by the
Constitution and the law;
(iv) the Superior Courts continue to have the power of judicial review, to judge the
validity of any act or action of the Chief of Army Staff, or the President
notwithstanding the ouster of their jurisdiction by the aforesaid extra-constitutional
measures;
(v) the Chief Justices and Judges of the superior courts (Supreme Court of Pakistan,
Federal Shariat Court and the High Courts) are subject to accountability only before
the Supreme Judicial Council in accordance with the procedure laid down in Article
209 of the Constitution;
(vi) the learned Chief Justices and Judges of the superior courts, (Supreme Court of
Pakistan, Federal Shariat Court and the High Courts), who have not been given, and
who have not made, oath under the Oath of Office (Judges) Order, 2007 have
ceased to hold their respective offices on the 3rd of November, 2007. Their cases
cannot be re-opened being hit by the doctrine of past and closed transaction; and
(vii) the Proclamation of Emergency of the 3rd day of November, 2007 shall be
revoked by the President and/or the Chief of Army Staff at the earliest so that the
period of constitutional deviation is brought to an end. However, this Court may, at
any stage, re-examine the continuation of the Proclamation of Emergency if the
circumstances so warrant."
Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657 and Syed Zafar Ali Shah
v. Pervez Musharaf, Chief Executive of Pakistan PLD 2000 SC 869 ref.
6
P L D 2010 Supreme Court 1161
SINDH HIGH COURT BAR ASSOCIATION Versus FEDERATION OF PAKISTAN
43
Kinds of Emergency:
(i) Emergency due to war, external or internal disturbance.
(ii) Emergency due to the breakdown of constitution machinery. 7
Proclamation of Emergency dated 3-11-2007------Provisional Constitution Order [1 of 2007], Preamble---Oath of Office (Judges) Order,
2007, Preamble---Constitution of Pakistan (1973), Arts.189 & 190---Civil Miscellaneous
Application for bringing into the notice of the Supreme Court about the events going on for
the last few days i.e. the reports published in print media and also aired on electronic media,
that the Government of Pakistan was contemplating to withdraw notification/executive order
dated 16-3-2009 restoring the Chief Justice of Pakistan and other Judges of the Supreme
Court of Pakistan and Chief Justices and Judges of High Courts---Vide order dated 15-102010 of the Supreme Court (PLD 2010 SC 1151), while disposing of Civil Miscellaneous
Application to the extent of the matter of withdrawal of executive order/notification vis-a-vis
restoration of Judges dated 16-3-2009 final order was passed and directions were issued to
the effect that all the constitutional and State functionaries and administrative heads in the
country to ensure that no action qua initiation of proceedings concerning withdrawal of the
executive order (order of "restoration of Judges") dated 16-3-2009, status whereof has
already been determined by Supreme Court in its judgment in Sindh High Court Bar
Association's case (PLD 2009 SC 789), is taken, intentionally or otherwise, by any of the
functionaries as noted hereinabove, and all the constitutional and administrative
heads/functionaries were restrained/refrained from doing so---Attorney General for Pakistan
had stated that in compliance with the order of the Supreme Court dated 15-10-2010
whereby he was required to communicate immediately the said order to all concerned, he
had served the same upon 105 constitutional and State functionaries and administrative
heads and also had already sent the compliance report to the Registrar---Matter was
postponed to enable the authorities/ functionaries to put up report and statements, if desired--As far as reference to the statement pertained to the denial issued by the Chief
Executive/Prime Minister was concerned, although the matter was finally disposed of, but to
know about the desire of the concerned functionaries, the matter was refixed---Attorney
General for Pakistan had categorically stated that no one had desired to submit a statement--Held, as the case had been disposed of by a binding order in terms of Art. 189 read with
Article 190 of the Constitution, therefore, it was up to the concerned authorities/functionaries
to submit the statement or not.
7
PLD 2001 S C 233
WASIM SAJJAD and others versus FEDERATION OF PAKISTAN through Secretary,
Cabinet Division and others
(a) Provisional Constitution Order (1 of 1999)---
44
----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated
14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Precedents from
foreign jurisdictions--Applicability ---Precedents from. foreign jurisdictions, though entitled to
reverence and respect but were not ipso facto applicable to the facts and circumstances
prevailing on the day of taking over by the Armed Forces.
(b) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated
14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Doctrine of State
necessity---Applicability---To save and maintain the integrity, sovereignty and stability of the
country and having regard to the welfare of the people while interpreting the legislative
instruments i.e. Provisional Constitution Order, 1999 and Proclamation of Emergency by
Chief Executive of Pakistan dated 14-10-1999, Court had to make every attempt to save
"what institutional values remained to be saved with a view to maintaining and upholding the
independence of Judiciary which, in turn, would protect the State fabric and guarantee
Human/Fundamental Rights---Theory of State necessity would arise only if an act which
would otherwise be illegal becomes legal if it is done bona fide in view of State
necessity---Doctrine of State necessity had not been rejected in the judgment of Supreme
Court in Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504---Prerequisites of
doctrine of State necessity stated.
(c) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated
14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity---Doctrine of
State necessity ---Application--Court faced extra-constitutional situation and all the elements
viz. inevitable necessity; exceptional circumstances; no other remedy to apply, measures
taken being proportionate to the necessity and of temporary character, limited to the duration
of exceptional circumstances, were present, inasmuch as, the Constitution provided no
solution to meet the extraordinary situation prevailing 'on 12th October, 1999 when the Armed
Forces took over the affairs of Pakistan.
(d) State necessity, doctrine of------Applicability---Elements---Inevitable necessity; exceptional circumstances; no other
remedy to apply; measures taken being proportionate to the necessity and of temporary
character, limited to the duration of exceptional circumstances, were the elements for
application of the doctrine.
(e) Constitution of Pakistan (1973)------Art.188---Supreme Court Rules, 1980, O.XXVI, R.1---Review of Supreme Court
judgment---If nothing had been overlooked by the Supreme Court nor the Court had failed to
consider any important aspect of the matter, review petition would not sustain.
(f) Provisional Constitution Order (1 of 1999)---
45
----Preamble---Constitution of Pakistan (1973), Art. 2A---Extraconstitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Revolutionary
political change was not in derogation of the Objectives Resolution under Art.2A of the
Constitution.
(g) Constitution of Pakistan (1973)------Art.188---Supreme Court Rules, 1980, O.XXVI, R.1---Review of Supreme Court judgment
---Reagitation of the same issues through review petition was beyond the scope of review.
(h) Constitution of Pakistan (1973)------Art.188---Supreme Court ,Rules, 1980, O.XXVI, R.1-.,Review of Supreme Court
judgment---Raising of factual controversies would amount to rearguing the same cause which
was not permissible under law.
(i) Provisional Constitution Order (1 of 1999)------Preamble---Constitution of Pakistan (1973), Art. 184(3)---Extra constitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Collapse of economy
of the country was not the only ground for intervention of the Armed Forces, as a matter of
fact, the material relied upon and remarks made by the Supreme Court were in response to
the assertions made by the parties in their petitions.
(j) Provisional Constitution Order (1 of 1999)------Preamble----Constitution of Pakistan (1973), Arts. 188, 184(3) & 91(4)--Supreme Court
Rules, 1980, O.XXVI, R.1---Review of Supreme Court judgment---Principle of joint and
ministerial responsibility in. Parliamentary System---Contention was that in a parliamentary
system, the principle of joint ministerial responsibility was applied to the cabinet, inasrtluch as
every minister, whether he agreed to a particular decision of the Cabinet or not, must own
such decision---Validity---Such principle could not be extended to the members of the
Parliament, as the function of the Parliament was not merely to remove the Government but
also to legislate and carry out accountability of the Government through Parliamentary
Committees in accordance with the procedure, where questions were asked and adjournment
motions introduced---Accountability by Court, however, was also an on going exercise.
Begum Nusrat Bhutto v. Chief of the Army Staff and Federation of Pakistan PLD 1977 SC
657; Sh. Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504; Mehmood Khan
Achakzai v. Federation of Pakistan PLD 1997 SC 426; Constitutional and Administrative Law
by Barnett; Disenchantment with Parliamentary Democracy by A.K. Brohi, published in PLD
1977 Jour. 81; Pakistan Fisheries Ltd., Karachi v.: United Bank Ltd. PLD 1993 SC 109;
Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Dr. Muhammad
Iqbal v. Haji Muhammad Akrarn PLD 1991 Lah. 8; Syed Ghayyur Hussain Shah v. Gharib
Alam PLD 1990 Lah. 432; Mian Rafiq Saigol and another v. Bank of Credit and Commerce
International (Overseas) Ltd. and another PLD 1997 SC 865; Mohtarma Benazir Bhutto v.
President of Pakistan PLD 1998 SC 388; State of Emergency; The Indian Experience by
Venkat Iyer; State of Maharashtra v. Ramdas Shrinivas Nayak AIR 1982 SC 1249 = 1982
Cr.LJ 1581; The Superintendent, Land Customs, Torkham (Khyber Agency) v. Zewar Khan
and 2 others PLD 1969 SC 485; Dawarkadas and another v. The State PLD 1957 SC (Pak.)
72; Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2189; Abdul
Ghaffar-Abdul Rehman v. Asghar Ali PLD 1998 SC 363; Kh. Ahmed Tariq Rahim PLD 1992
46
SC 646; Mian Muhammad Nawaz Sharif s case PLD 1993 SC 473; Benazir Bhutto's case
PLD 1998 SC 388 and Federation of Pakistan v. Shaukat Ali Mian PLD 1999 SC 1026 ref.
(k) Provisional Constitution Order (1 of 1999)------Preamble---Oath of Office of (Judges) Order (1 of 2000), Preamble--Proclamation of
Emergency by Chief Executive of Pakistan dated 14-10-1999---Extra-constitutional step of
taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Action of
taking over the affairs of Pakistan by the Armed Forces qualifies for validation on the ground
of state necessity/survival---Status of the Government was de facto but in view of the
validation it has attained the status of a de jure government---Representatives of the people
were to see to it that everything was in order and no body could raise his little finger when
their actions were in line with the fundamentals of the Constitution---No rule except that by
the representatives of the people within contemplation of the Constitution and the law has the
support of the superior Judiciary which is firmly committed to the governance of the country
by the peoples' representatives according to the definition of the term "democracy" to the
effect that "it is Government of the people, by the people and for the people" and not by the
Army rule for an indefinite period---Validation and legitimacy accorded to the Government by
the Supreme Court is conditional, and interlinked with the holding of general elections to the
National Assembly and the Provincial Assemblies and the Senate of Pakistan within the time
frame laid down by the Supreme Court leading to restoration of the democratic
institutions---Pakistan must have democracy and any obstacles in respect of achieving that
goal must be overcome---Chief Executive/Armed Forces have no power to amend the salient
features of the Constitution (1973) relating to independence of judiciary, federalism and
parliamentary form of Government blended with Islamic provisions---Legitimacy conferred on
the Regime, on the touchstone of the doctrine of state necessity/state survival, does not imply
abdication of the power of judicial review in the transient suspension of the previous legal
order ---Constitution of Pakistan (1973) still remains the supreme law of the land subject to
the condition that certain parts thereof have been held in abeyance on account of state
necessity/state survival---Notwithstanding the purported ouster of jurisdiction of all the Courts
to challenge any action, order or law promulgated by the Chief Executive, every action of the
Chief Executive/Armed Forces is open to judicial review through appropriate writs/petitions in
line with the principles laid down in the Supreme Court judgment in Syed Zafar Ali Shah v.
General Pervaiz Musharraf, Chief Executive of Pakistan PLD 2000 SC 869---Fundamental
Rights are intact and justiciable ---Supreme Court observed that prolonged involvement of the
Army in civil affairs runs a grave risk of politicising it, which would not be in the national
interest, therefore, civilian rule in the country must be restored within the shortest possible
time after achieving the declared objectives which necessitated the military take-over, as
spelt out in the speeches of the Chief Executive dated 13th and 17th October, 1999---Chief
Executive has been allowed by the Supreme Court three years period with effect from the
date of the Military take-over (12th October, 1999) for achieving his declared objectives and
to appoint a date, not later than 90 days before the expiry of the aforesaid period of three
years for holding general elections to the National Assembly and Provincial Assemblies and
the Senate of Pakistan---Positive assurance has also been reaffirmed by the Chief Executive
in respect of holding of general elections within the time frame laid down by Supreme Court
for restoration of democratic institutions.
The Chief Executive/Armed Forces have no power to amend the salient features of the
Constitution relating to independence of judiciary, federalism and parliamentary form of
Government blended with Islamic provisions. Prolonged involvement of the Army in civil
affairs runs a grave risk of politicising it, which would not be in the national interest, therefore,
civilian rule in the country must be restored within the shortest possible time after achieving
47
the declared objectives which necessitated the Military Takeover, as spelt out in the
speeches of the Chief Executive, dated 13th and 17th October, 1999. The legitimacy
conferred on the present Regime, on the touchstone of the doctrine of state necessity/state
survival, does not imply abdication of the power of judicial review in the transient suspension
of the previous legal order. Constitution of 1973 still remains the supreme law of the land
subject to the condition that certain parts thereof have been held in abeyance on account of
state necessity/state survival. The result is that notwithstanding the purported ouster of
jurisdiction of all the Courts in Pakistan to challenge any action, order or law promulgated by
the Chief Executive, every action of the Chief Executive/Armed Forces is open to judicial
review through appropriate writs/petitions in line with the principles laid down in the judgment
(Syed Zafar Ali Shah v. General Pervaiz Musharraf, Chief Executive of Pakistan PLD 2000
SC 869). Similarly, the Fundamental Rights were also intact and justiciable.
The action of 12th October, 1999 being what it is, qualifies for validation on the ground of
state necessity/survival. It is - for the representatives of the people to see to it that everything
is in order and nobody can raise his little finger when their actions are in line with the
fundamentals of the Constitution. No rule except that by the representatives of the people
within the contemplation of the Constitution and the law has the support of the Superior
Judiciary. Judiciary is firmly committed to the governance of the country by the peoples'
representatives and Supreme Court reiterated the definition of the term 'democracy' to the
effect that "it is Government of the people, by the people and for the people'.' and not by the
Army rule for an indefinite period.
Though initially the status of the present Government was de facto, but in view of the
validation it has attained the status of a de jure Government. The validation and legitimacy
accorded to the present Government is conditional and interlinked with the holding of general
elections to .the National Assembly, the Provincial Assemblies and the Senate of Pakistan
within the time frame laid down by the Supreme Court leading to restoration of the democratic
institutions.
No one could disagree that Pakistan must have democracy and any obstacles in respect of
achieving that goal must be overcome.
Pakistan has a chequered political history eversince it attained its legal birth and freedom
with the adoption of Government of India Act, 1935 ' as an interim Constitution along with the
Indian Independence Act, 1947. Unfortunate as it is, after the demise of Quaid-e-Azam
Muhammad Ali Jinnah, there has been a political vacuum in the country and malfunctioning
of the institutions giving rise to military intervention in the civil affairs of the country time and
again. Irrespective of the causes for., military intervention, its prolonged involvement in the
civil affairs will not only politicise it but would also affect its professionalism in defending the
borders of Pakistan. Such a course can never be countenanced by Supreme Court. Positive
assurance has been made by the Chief Executive in respect of holding of general elections
within the time frame laid down by Supreme Court for restoration of democratic institutions.
Supreme Court also reaffirmed by way of emphasis that the validation and legitimacy
accorded to the present Government is conditional, interlinked and intertwined with the
holding of general elections to the National Assembly and the Provincial Assemblies and the
Senate of Pakistan within the time frame laid down by Supreme Court leading to restoration
of the democratic institutions. .
Since the Chief Executive was claiming in the Oath of Office (Judges) Order, 2000 (Order No.
1 of 2000), legislative power to amend the Constitution, in the absence of appropriate
48
representative institutions, it was the duty of Supreme Court to place checks on it. After
considering all the attending circumstances, limited powers of amendment were conferred as
highlighted in the judgment under review and reaffirmed in the Short Order dated 7-2-2001.
The matter was heard for months together in which over twentyfive Advocates of Supreme
Court including Senior Advocates and amicus curiae addressed the Court. The judgment
under review was rendered after threadbare consideration of each and every aspect of the
matter, the case-law' cited at the Bar as also the pleadings of the parties vide reasons
assigned in paragraphs No. 221 to 287, which did not suffer from any error or flaw
whatsoever warranting interference.
(l) Accountability------ Accountability is an ongoing process and the same shall continue with a view to
completing it even by the successive Governments.
(m) Provisional Constitution Order (1 of 1999)------Preamble---Oath of Office of (Judges) Order (1 of 2000), Preamble--Proclamation of
Emergency by. Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan
(1973), Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Review of Supreme Court
judgment---Extra constitutional step of taking over the affairs of Pakistan by the Armed
Forces of Pakistan---Validity---No glaring omission or patent mistake floating on the surface
in the judgment under review was found---Nothing had been overlooked by the Court nor the
Court had failed to consider any aspect of the attending matters---In situation prevailing on or
before the take-over of affairs of the country by the Armed Forces for which the Constitution
provided no solution, the Armed Forces had to intervene to save the State from further chaos,
and for maintenance of peace and order, economic stability, justice, good governance and to
safeguard the integrity and sovereignty. of the country dictated by the highest considerations
of state. necessity and welfare of the people---Argument advanced by the petitioners was that
none of the alleged grievances against the removed government, including the charges of
corruption and lack of good governance, was such. which could not have been redressed
within the four corners of the Constitution because laws and machinery to redress such
grievances were already in existence and, if as alleged, the Government of the day did not
take appropriate steps, it was open to the Supreme Court to direct the taking of specific steps
in exercise of the powers under Art.184(3) read with Art.187 of the Constitution, therefore
'observations of Supreme Court that law of necessity could validly be invoked to suspend the
Constitution as it had no answer to the situation that had arisen, needed to be reviewed Argument advanced having also been raised at the time of judgment under review and
repelled, petitioners could not be allowed to re-argue the same in proceedings of review of
the said judgment---Petitioners could not be permitted to seek reversal of conclusions earlier
reached by the Supreme Court after full application of mind deliberatively and consciously in
the judgment sought to be reviewed.
(n) Provisional Constitution Order (1 of 1999)------Preamble---Oath of Office of (Judges) Order (1 of 2000), Preamble--Proclamation of
Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan
(1973), Art.188---Supreme Court Rules, 1980, O.XXVI, R.1---Review of Supreme Court
judgment---Extra-constitutional step of taking over the affairs of Pakistan by the Armed
Forces---Validity---Rampant corruption was only a cumulative. reason for the validation of
49
action of take-over by the Armed Forces which resulted into the suspension of Assemblies
and removal of the Government as succinctly explained in the judgment under review.
(o) Provisional Constitution Order (1 of 1999)------Preamble---Oath of Office of (Judges) Order (1 of 2000), Preamble--Proclamation of
Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan
(1973), Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Review of Supreme Court
judgment ---Extra constitutional step of taking over the affairs of Pakistan by the Armed
Forces---Validity---Collapse of economy was not the only ground for intervention of Armed
Forces; as a matter of fact the material relied upon and remarks made by the Court were in
response to the assertions made by the petitioners in their original petitions in the case under
review.
(p) Provisional Constitution Order (1 of 1999)------Preamble---Oath of Office of (Judges) Order (1 of 2000), Preamble--Proclamation of
Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan
(1973), Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Review of Supreme Court
judgment---Extra constitutional step of taking over the affairs of Pakistan by the Armed
Forces---Validity---When the country was faced with .a grave crisis, the constitutional
maintenance demanded that the Court interpreted the Proclamation of Emergency and
Provisional Constitution Order, 1999 in such a way as to authorise whatever powers and
measures were necessary to cope with the emergency as the Supreme Court could not be
expected to do the impossible.
(q) Provisional Constitution Order (1 of 1999)------Preamble---Oath of Office of (Judges) Order (1 of.2000), Preamble--Proclamation of
Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan
(1973),- Art.188---Supreme Court Rules, 1980, O.XXVI, R.1---Review of Supreme Court
judgment ---Extraconstitutional step of taking over the affairs of Pakistan by the Armed
Forces---Validity---Powers of Chief Executive to amend the Constitution--Extent---Power to
amend the Constitution cannot be conferred on the Chief Executive of the measure larger
than that which could be exercised by the Parliament---Chief Executive was allowed to
amend the Constitution subject to stated limitations/conditions for the ordinary orderly running
of affairs of the State during the transitory period to advance or promote the good of the
people---Constitutional amendments by the Chief Executive could be resorted to only if the
Constitution failed to provide a solution for attainment of his declared Objectives.
(r) Constitution of Pakistan (1973)------Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Review of Supreme Court
judgment---Conditions---Where there was no error on the face of the record warranting
review, the petitioners could not be allowed under the law to re-agitate the same points which
had already been heard and decided by the Court---Factual controversies could not be raised
and fresh material which had been filed with the review petitions which existed even prior to
the filing of original case and no reason had been advanced as to why the same was not
produced with the former or during the course of hearing of the same, could not be
considered by the Court unless strong reasons were mentioned for its non-production at the
relevant time---Fresh documents, in any event, would have no bearing on the conclusion.
already recorded in the judgment under review.
50
(s) Provisional Constitution Order (1 of 1999)------Preamble---Constitution of Pakistan (1973), Arts. 188 & 184(3)---Review of Supreme
Court judgment---Extra-constitutional step of taking over the affairs of Pakistan by the Armed
Forces of Pakistan---Validity---Legislative instruments promulgated by the Chief Executive
were subject to scrutiny by Supreme Court.
(t) Provisional Constitution Order (1 of 1999)------Preamble---Oath of Office of (Judges) Order (1 of 2000), Art.3--Constitution of Pakistan
(1973), Arts.188, 184(3) & 199---Supreme Court Rules, 1980, O.XXVI, R.1---Review of
Supreme Court judgment ---Extra constitutional step of taking over the affairs of Pakistan by
the Armed Forces of Pakistan---Validity---Judicial review---Scope---No form of oath taken by
or administered to the Judges of the superior Courts could restrict the judicial power and
derogate from the legal position that the Courts; as final arbiters in any constitutional
controversy, retain their power and jurisdiction to say as to what a particular provision of the
Constitution or the law meant, or did not mean even if that particular provision was one
seeking to oust jurisdiction of the Court.
(u) Constitution of Pakistan (1973)------Arts.2A & 175---Independence of judiciary---Objectives Resolution and Declaration of
Quaid-i-Azam about democratic set-up and social justice envisage independence of judiciary.
(v) Constitution of Pakistan (1973)------Arts.2A & 175---Judiciary is entrusted with the responsibility for enforcement of
Fundamental Rights.
(w) Constitution of Pakistan (1973)------Arts.2A & 175---Exclusive power/responsibility of the Judiciary to ensure the sustenance
of system of separation of powers based on checks and balances.
(x) Provisional Constitution Order (1 of 1999)------Preamble---Oath of Office .of (Judges). Order (1 of 2000), Art.3--Constitution of Pakistan
(1973), Arts. 188, 184 & 199---Extra-constitutional step of taking over the affairs of Pakistanby the Armed Forces of Pakistan---Validity---Judicial review---Scope---Contention that after
new oath of Judges under Art.3, Oath of Office of (Judges) Order, 2000, the Judges were
bound to defend the Provisional Constitution Order, 1999 was repelled in the light of Begum
Nusrat Bhutto's .case PLD 1977 SC 657 wherein it was clearly stated that on no principle of
necessity could the power of judicial review be taken away.
(y) Provisional Constitution Order (1 of 1999)------Preamble---Oath of Office of (Judges) Order (1 of 2000), Art.3--Constitution of Pakistan
(1973), Arts. 184 & 199---Extra-constitutional step of taking over the affairs of Pakistan by the
Armed Forces of Pakistan--Validity---Judicial review---Scope---Superior Courts retain the
power of judicial review after the Army take-over---Evolution of judicial power was
51
coterminous with the evolution of civilization and that was because judicial power had to
check the arbitrary exercise of power by any organ or authority.
(z) Provisional Constitution Order (1 of 1999)------Preamble---Constitution of Pakistan (1973), Art. 184---Penal Code (XLV of 1860),
5.120-A---Extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces
of Pakistan---Factors---Removal of Chief of Army Staff during his absence from the country
and appointment of another person as such was an attempt to create dissension among the
Armed Forces, criminal conspiracy hatched by the Prime Minister and others.
(aa) Provisional Constitution Order (1 of 1999)------Preamble---Constitution of Pakistan (1973), Art. 184---Extraconstitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Doctrine of state
necessity and principle "salus populi suprema lex"---Applicability---Intervention of Armed
Forces as such was validated by Supreme Court on the doctrine of state necessity and the
principle "salus populi est suprema lex".
(bb) Provisional Constitution Order (1 of 1999)-----Preamble---Constitution of Pakistan (1973), Art. 184---Extraconstitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Doctrine of state
necessity and principle of "salus populi est suprema lex"---Applicability---Allegation of
corruption against the Prime Minister and his colleagues, disappearance of public faith in the
integrity and honesty of the Government which eroded the constitutional and moral authority
of the Government was a situation somewhat similar to the one prevalent in July, 1977.
(cc) Provisional Constitution Order (1 of 1999)------Preamble---Constitution of Pakistan (1973), Art. 184---Extraconstitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Factor---Doctrine of
state necessity and principle of "salus populi est suprema lex"--- Applicability---Government
was being run contrary to the provisions of the Constitution, the Armed Forces were
compelled to move in as a, last resort to 'prevent any further destabilization.
(dd) Provisional Constitution Order (1 of 1999)------Preamble---Constitution of
Pakistan . (1973),
Art. 184---Extra- constitutional
step of taking over the affairs of Pakistan by the Armed Forces of
Pakistan---Validity---Factor---Doctrine of state necessity and principle of "salus populi est
suprema lex"---Applicability---Government having failed to, eradicate corruption from the
society, corruption and absence of good governance were recognized grounds for imposition
of Martial law---Corruption, however, by itself is a ground for imposition of Martial Law or
Proclamation of Emergencies--- "Corruption" defined.
(ee) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated
14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Allegations of corruption etc.
against parliamentarians or politicians or members from the general public---Proceedings
52
commenced against all said persons were to be decided on their own merits in accordance
with law and on the basis of the legally admissible material brought before the concerned fora
in those proceedings and only after the finalisation of the said proceedings that the country
will be geared up for resort to democratic principles and corruption-free ''society which are
prerequisites for good governance.
(ff) Provisional Constitution order (1 of 1.999)------Preamble--=Proclamation of Emergency by Chief Executive of Pakistan dated
14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan
---Factors---Validity---Misdeclaration of assets both before the Wealth Tax Authorities and the
Election Commission and allegations of massive corruption and corrupt practices by the large
number of politicians and parliamentarians by itself may not be a ground for intervention of
the Armed Forces but such aspect of the matter, when viewed in the overall context and with
particular reference to the alleged massive corruption and corrupt practices, becomes a
relevant factor.
(gg) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated
14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity---Combined
effect of the overall policies and methodology adopted by the former Government was the
total collapse of the country's economy inasmuch as G. D. P. growth during the past three
years had hardly kept pace with the growth of population and Pakistan had a debt burden
which equalled the country's entire national income---Supreme Court also took .judicial notice
of the fact that the trade imbalance was persistent and due to defective economic policies
and lack of economic discipline by the previous Government, the industrial sector had
suffered a great set back.
(hh) Provisional Constitution Order (l of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated
14-10-1999---Cbnstitution of. Pakistan (1973), Art.184(3):--Extraconstitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity---On the day
when the Army took over and for years prior to that time there was merely a feigned
appearance of what could be called a form of "oligarchy" which means a Government in
which the authority constitutionally reposes in a few. individuals and families and a small
coterie of individuals who, because of economic and other power, could influence measurably
the policy of the Government ---Purposes for which the representative institutions were
established stood defeated directly or indirectly---Supreme Court was thus faced with a
situation not visualized by the Constitution.
(ii) Provisional constitution Order (1 of 1999)----=-Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated
14-10-1999---Constitution of Pakistan (1973), Arts.184(3) & 91(4), (5)---Extra-constitutional
step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Suspension of
Assemblies and the Senate through extra-constitutional measures by the Chief of Army
Staff--Factors---Validity---Doctrine of state necessity---Applicability---Role of public
representatives---Principle of joint and ministerial responsibility in Parliamentary
53
system---Rest of the members of representative bodies cannot be absolved of their
responsibility if, despite wrongdoings by the cabinet, they remained silent
spectators---Suspension of the Assemblies and the Senate through extra-constitutional
measures taken by the Chief of Army Staff, warranted validation on the ground of state
necessity and state survival.
(jj) Constitution of Pakistan (1973)------Art.58(2)(b) [since repealed]---Dissolution of National Assembly--Balance governing the
powers of the President and the Prime Minister--Never safe to confer unfettered powers on a
person who was holding the reins of the affairs of the country as "power corrupts and
absolute corrupts absolutely"---Situation could have been avoided if checks and balances
governing the powers of the President and the Prime Minister had been in the field by means
of Art.58(2)(b) of the Constitution of Pakistan (1973).
(kk) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated
14-10-1999---Constitution of Pakistan (1973), Arts.184(3) & 63(2)--Extra-constitutional step of
taking over the affairs of Pakistan by the Armed Forces of
Pakistan---Factors---Validity---Ridiculing the Judiciary and taping of telephones of Judges of
superior Courts---Debates of Parliament of the relevant period clearly demonstrated that
integrity and independence of the Judiciary of Pakistan were challenged by the Members of
Parliament which had the effect of defaming and bringing the Judges into ridicule and
disparaging remarks against the Judiciary crossed all limits and no Reference was made to
the Chief Election Commissioner for their disqualification as Members of the Parliament
under Art.63(2) of the Constitution of Pakistan (1973)---Such acts of taping the telephones of
Judges of the superior Courts and maligning the Judiciary were most detestable, immoral,
illegal and unconstitutional.
(ll) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated
14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity---Doctrine of
State necessity--Applicability---Machinery of the Government at the Centre and the Provinces
had completely broken down and the Constitution had been rendered unworkable, and a
situation had arisen for which the Constitution provided no solution and the Armed Forces
had to intervene to save the state from further chaos, for maintenance of peace and order,
economic stability, justice and good governance and to safeguard integrity and sovereignty of
the country dictated by highest considerations of state necessity and welfare of the people.
(mm) Provisional Constitution Order (1 of 1999)-----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated
14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Doctrine of state
necessity---Applicability---To save and maintain the integrity, sovereignty and stability of the
country and having regard to the welfare of the people while interpreting the legislative
instruments i.e. Provisional Constitution Order, 1999 and Proclamation of Emergency by
Chief Executive of Pakistan dated 14-10-1999, Court has to make every attempt to save
"what institutional values remained to be saved" with a view to maintaining and upholding the
54
independence of Judiciary which in turn would protect the state fabric and guarantee
Human/Fundamental Rights---Doctrine of State necessity had not been rejected in the
judgment of Supreme Court in Liaquat Hussain v. Federation of Pakistan PLD 1999 SC
504---Prerequisites of doctrine of state necessity stated.
(nn) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated.
14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity---Doctrine of
state necessity ---Application--All the elements viz. inevitable necessity; exceptional
circumstances; no other remedy to apply, measures taken being proportionate to the
necessity and of temporary character limited to the duration of exceptional circumstances,
were present, inasmuch as the Constitution provided no solution to meet the extraordinary
situation prevailing on 12th October, 1999 when the Armed Forces took over the affairs of
Pakistan.
(oo) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated
14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Doctrine of state
necessity ---Applicability--Intervention by the Armed Forces on 12th October, 1999 was an
imperative and inevitable necessity in view of the exceptional circumstances prevailing at that
time, and, therefore, there was no valid justification for not validating the extra-constitutional
measure of the Armed Forces on the technical distinction between "doctrine of necessity" and
the "doctrine of state necessity" which. in fact, was not material.
(pp) State necessity, doctrine of-----Applicability---Principles.
Classics of International Law by Hugo Grotius quoted.
(qq) Prerogative of the Crown------Relative duties and rights of the subject---Principles.
Treatise on the Law of the Prerogative of the Crown by Joseph Chitty ref.
(rr) State necessity, doctrine of------"Necessity"---Defined.
Corpus Juris Secundum ref.
(ss) Constitution of Pakistan (1973)------Art.232---Proclamation of Emergency---State of emergency--Interpretation---State of
emergency includes "regimes of exception" i.e. regimes which have overthrown and not
merely suspended the previous constitutional order and have assumed legislative and
executive powers analogous to those under a formal state of emergency---Government to
55
take steps to ensure that the Fundamental Rights of citizens are not affected and derogation
must be proportionate to the emergency, while adopting constitutional as well as
extra-constitutional means---Effort to be made to, minimize emergencies and to induce the
authorities concerned to respect the Fundamental Rights.
(tt) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated
14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Doctrine of state
necessity ---Applicability--Conditions---Invocation of the "doctrine of State necessity" depends
upon the peculiar and extraordinary facts and circumstances of a particular
situation--=Superior Courts alone can decide as to whether any given peculiar and
extraordinary circumstances warrant the application of doctrine of State necessity or
not---Such dependence has a direct nexus with what preceded the action itself---Material
available on record generally will be treated at par with the "necessity/State
necessity/continuity of State" for the purposes of attaining the proportions justifying its own
scope as also the future and expected course of action leading to restoration of democracy.
(uu) Doctrine of necessity------ Not restricted to criminal prosecution alone.
(vv) State necessity, doctrine of------Conditions detailed.
(ww) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated
14-10-1999---Constitution of Pakistan (1973), Art. 184(3)---Extra constitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Validation accorded to the
action of the Armed Forces by Supreme Court---Effect---Held, though initially the status of the
Government after taking over the affairs of Pakistan was de facto, but in view of the validation
accorded by the Supreme Court, it had attained the status of a de jure Government.
(xx) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated
14-10-1999---Oath of Office of (Judges) Order (1 of 2000)--Constitution of Pakistan (1973),
Art.184(3)---Extra-constitutional step of taking over the affairs of Pakistan by the Armed
Forces of Pakistan--Validity---Prolonged involvement of Army, its ill effects---Doctrine of state
necessity---Applicability---Conditions---All that is required to be considered is that the
extra-constitutional action should have nexus with the facts on the ground---Duty of superior
Court is that it recognizes the evil, suggests remedial measures therefor and lays down
infrastructure for a journey leading to the restoration of the democratic processes/institutions
as expeditiously as possible---If, however, those responsible for achieving said objectives fall
short of the measures within the contemplation of the law during their tenures respectively,
then the remedy lies in identifying the facts on the ground and taking remedial measures to
suppress the evil---Prolonged involvement of the Army in civil affairs runs a grave risk of
politicizing it, which would not be in national interest and civilian rule in the country must be
restored within the shortest possible time after achieving the declared objectives as reflected
56
in the speeches of the Chief Executive dated 13th and 17th October, 1999 -which
necessitated the military take-over---Action of Armed Forces of taking over the affairs of
Pakistan qualified for validation on the ground of state necessity/survival in circumstances.
(yy) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated
14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Doctrine of State
necessity ---Applicability--Proclamation to the extent it impinges on the independence of
Judiciary is not valid.
(zz) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated
14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity---Doctrine of
state necessity--Applicability---Whole spectrum of circumstances prevalent on or before 12th
October, 1999, the day when Armed Forces took over the affairs of Pakistan, revealed that
the representatives of the people, who were responsible for running the affairs of the state,
were accused of corruption and corrupt practices and failed to establish good governance in
the country as a result of which a large number of references had been filed against the
former Prime Minister, Ministers, Parliamentarians and members of the Provincial Assemblies
for their disqualification on account thereof---Process of accountability carried out by the
former. Government was shady, inasmuch as, either it was directed against the political rivals
or it was not being pursued with due diligence---All institutions of the state including Judiciary
were being systematically destroyed in the pursuit of self-serving policies---Democratic
institutions were not functioning in accordance with the Constitution, they had become privy
to the one man rule and the very purpose for which they were established stood defeated by
their passive conduct---Attempts were made to politicize the army, destabilize it and create
dissension within its ranks and had the former Prime Minister been successful in his designs,
there would have been chaos and anarchy rather a situation of civil war where some factions
of Armed Forces were fighting against others---Action of Armed Forces of taking over the
affairs of Pakistan having nexus with the facts on the ground, was qualified to be validated on
the ground of State necessity/survival in circumstances.
(aaa) Provisional Constitution Order (1 of 1999)------Preamble---Constitution of Pakistan (1973), Arts. 184, 46, 48, 90 & 99--Extra-constitutional
step of taking over the affairs of Pakistan by the Armed Forces of
Pakistan---Validity---Reference to provision of Arts.46, 48, 90 & 99 of the Constitution was not
relevant, which did not provide a solution to an extra-constitutional situation.
(bbb) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated
14-10-1999---Constitution of Pakistan (1973), Arts. 91 & 184(3)--Term "Chief Executive",
import of---Constitution of Pakistan (1973) envisages -Parliamentary form of Government
where the Prime Minister acts as the Chief Executive of the country---By means of
Proclamation of Emergency dated 14-10-1999 as also the Provisional Constitution Order,
1999 the Constitution has been only held in abeyance and the country is to be run as nearly
as may be in accordance with the Constitution, therefore, Chairman, Joint Chiefs of Staff
57
(iii) Financial emergency.
Committee and Chief of Army Staff while taking over the affairs of the country assumed to
himself the title of "Chief Executive"---Validity---Since practically the Chairman, Joint Chiefs of
Staff Committee and Chief of Army Staff was performing the functions of the Prime Minister,
he held the position of Chief Executive in the scheme of the Constitution of Pakistan.
(ccc) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive 'of Pakistan dated
14-10-1999---Constitution of Pakistan (1973), Art.184(3)=--Extraconstitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Nature---Coup d'etat and
revolution--- Coup d'etat and revolution are interchangeable in the context of step of taking
over the affairs of Pakistan by the Armed Forces and nothing substantial would turn on
considering it from one angle or another.
(ddd). Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated
14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Grant of power to
Chief Executive of Pakistan to amend the Constitution---Extent---Power of the Chief
Executive of Pakistan to amend the Constitution is strictly circumscribed by the limitations
down by the Supreme Court---Limitations with regard to amendment of the Constitution by
Chief Executive of Pakistan as laid down by the Supreme Court, enumerated.
(eee) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated
14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble=-Constitution of Pakistan
(1973), Arts.209 & 184(3)---Extra-constitutional step of taking over the affairs of Pakistan by
the Armed Forces of Pakistan---Validity---Supreme Judicial Council---Judges of the Supreme
Court and High Courts cannot be removed without resorting to the procedure prescribed in
Art.209 of the Constitution---Cases of the Judges who ceased to be Judges of the Supreme
Court and High Courts by virtue of Oath of .Office (Judges) Order, 2000, however, were hit by
the doctrine of past and closed transaction and could not be re-opened.
(fff) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan. dated
14-10-1999---Constitution of Pakistan (1973), Art. 184(3)---Extraconstitutional step of taking
over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Restoration of
democratic institutions---Supreme Court, in view of the circumstances explained by the
Attorney-General. observed that there was no choice but to grant reasonable time to enable
the Chief Executive to restore the democratic institutions to the rightful holders of the public
representation-, under the Constitution.
58
Emergency due to War, External or Internal Disturbance:
When there exists a grave emergency due to which the security of Pakistan
or any part thereof is threatened by war or external aggression by internal
disturbance beyond the power of Provincial Government to control. The
President can declare the state of emergency.
Suspension of Fundamental Rights:
During the emergency the fundamental rights can be suspended and the
President is empowered to declare that the right to move any court for the
enforcement of such suspended rights shall remain suspended for the period
during which proclamation is enforced.8
8
2007 C L C 923 [Karachi]
LIAQUAT ALI GHANGHRO Versus PROVINCE OF SINDH through Secretary Education and
Literacy Department Government of Sindh and another
(a) Constitution of Pakistan (1973)------Arts. 25 & 14---Equality of citizen---Inviolability of dignity of man---Equality under the law
guaranteed by Art.25 of the Constitution permits reasonable classification and if certain Union
of civil servants in one Province are treated differently on account of special conditions
operating there, it could not be urged that the action is discriminatory because other Unions
are not treated similarly where those conditions may not be existing---Mere ban on a Union
could not be held to be violative of dignity of man.
Hussain Ahmed Haroon's case 2002 SCMR 104 ref.
(b) Government Servants (Conduct) Rules, 1966------R. 28---Government of Sindh Notification No.SO(HE-1) Misc1257/2006 dated 21-7-2006--Constitution of Pakistan (1973), Arts.17 & 19---Freedom of association and speech--Provisions of Government Servants (Conduct) Rules, 1966 and notification issued by
Provincial Government placing fetters upon functioning of service Associations cannot
withstand the test of constitutional validity---Principles.
Civil Aviation Authority v. Union of Civil Aviation Employees PLD 1997 SC 781 ref.
(c) Constitution of Pakistan (1973)------Arts. 25, 14, 16, 17, 18, 19, 24, 232 & 233---Proclamation of emergency---Right to form
Association or Union---Some reasonable nexus has to exist between the law or the executive
action taken in derogation of fundamental rights and the objects of the proclamation of
emergency---Ex facie denial of a right to form Associations and Unions to a particular class of
persons in one Province of the State has nothing to do with dealing with the situation of a
country being threatened by external aggression and it appears wholly incongruous that all
the citizens should stand denuded of their basic rights of movement, association, business,
59
expression and property in their ordinary avocation of life having nothing to do with a national
emergency or the Parliament and the Federal Government should assume complete control
over all affairs of Provinces on the pretext of a Proclamation of emergency issued eight years
ago.
Farooq Ahmed Leghari v. Federation of Pakistan PLD 1999 SC 57; Cheng Poh alias Cher
Meh v. Public Prosecutor Malaysia 1980 AC 458 and Australian Communist Party v.
Common Wealth 1950-51 83 CLR 1 ref.
(d) Constitution of Pakistan (1973)------Arts. 232, 233, 15, 16, 17, 18, 19 & 24---Proclamation of Emergency dated 28-5-1998--Effect---Assuming the valid continuance of the said proclamation, the State may no longer be
bound to make laws or take executive action in strict conformity with Arts.15, 16, 17, 18, 19 &
24 of the Constitution, nevertheless these fetters arc removed only for the purpose of dealing
with the State emergency declared through the proclamation and not otherwise.
Farooq Ahmed Leghari v. Federation of Pakistan PLD 1999 SC 57; Cheng Poh alias Cher
Mch v. Public Prosecutor Malaysia 1980 AC 458 and Australian Communist Party v.
Common Wealth 1950-51 83 CLR 1 ref.
(e) Constitution of Pakistan (1973)------Arts. 17 & 199---Constitutional petition---Freedom of Association---Restriction through
notification by Provincial Government---Validity---Association was neither furnished with
allegations on which a tentative opinion could be formed nor given an opportunity to explain
its position-Such requirements of natural justice were a mandatory precondition for such
action---Application of notification imposing restrictions on the Association was thus, without
lawful authority.
(f) Penal Code (XLV of 1860)-----Ss. 147 & I48---Constitution of Pakistan (1973), Arts.14 & 199---Constitutional petition--Registration of case under Ss.147 & 148, P.P.C. against petitioner, a respectable member of
teaching profession on the basis of false report---Petitioner had stated that while he was only
on his way to the place where peaceful protest was being recorded, the police inquired about
his identity and on finding that he was a professor he was taken to the police station and false
F.I.R. was recorded against him---Scope and application of Ss.147 & 148, P.P.C.---Nothing
was available to show that petitioner was ever armed with a weapon---Without inquiry into the
matter and without taking appropriate action against the police, Chief Secretary of the
Province took it upon himself to mention the registration of the case as a ground for action--Authorities had not explained as to what documentary material was available with them to
proceed against the petitioner particularly when his contention that he was yet to reach the
occasion of protest, was itself one which required appropriate enquiry---To keep respectable
member of the teaching profession in custody on the basis of a false report was itself violative
of the dignity of man guaranteed by Art.14 of the Constitution---High Court, in circumstances,
declared the impugned show cause notice to be mala fide and of no legal effect whatsoever.
60
Emergency due to the Breakdown of Constitutional Machinery:In case the president is satisfied with the report of the Governor concerned
that a situation has arisen in which the Gov't of the Province cannot be carried
on in accordance with the provisions of the constitution. He can proclaim an
emergency.
(a) Effect:
Federal executive or Federal Legislature shall take over functions of
Provincial Executive and Legislature.
(b) Duration of Emergency:
The duration of emergency is for the period of sixth months.
(c) Extension in period:
The president may extent the period of emergency for two months.
(d) Law to cease after Sixth Months:
Laws made by the Federal Executive and Federal Legislature shall cease
after sixth months of proclamation of emergency.9
(iii) Financial Emergency:
In case the president is satisfied that a situation has arisen whereby the
economic life, financial stability of credit of Pakistan, or any part thereof, is
threatened, the day after consultation with the Governor of the provinces or
the case may be, the governor of the provinces concerned by proclamation a
declaration to the effect, and while such proclamation is in force, the
executive authority of the federation shall extend to the giving direction to any
province to observe such principles of financial property as may be specified
in the direction as to the giving of such other directions as the president
deems necessary in the interest of economic life, financial stability of credit of
Pakistan or any part thereof.
9
PLD. 1997 Lah 38
No constitution breakdown had been shown to exist in the province but resignations of certain
ministers and Advisors form the provincial cabinet were shown on the record. Such
circumstances could be considered to constitute a situation in which the Govt. of the province
could not run in accordance with the constitution and proclamation under Article 204 was not
justified.
61
Revocation of Proclamation:
The proclamation declared by the President may be varied or revolved by a
subsequent proclamation.
Safeguard to Proclamation:
The validity of any proclamation issued or order made under this part shall not
be called in question in any court.10, 11
P L D 2008 Supreme Court 735
Let. -Gen. (R) SALAHUDDIN TIRMIZI Versus
ELECTION COMMISSION OF PAKISTAN
(a) Constitution of Pakistan (1973)------Arts. 232, 233, 234, 235, 184(3), 185 & 199---Proclamation of Emergency---Judicial
review---Scope---Contention that Executive Authority has absolute power and authority to
judge the need of emergency and court due to the bar contained in the Constitution, has no
jurisdiction to interfere in the matter, is not correct interpretation of law---Principles.
The constitutional bar of jurisdiction certainly does not permit the courts to dilate upon matter
of the nature in which the courts are precluded to exercise jurisdiction, including the
proclamation of emergency in the country by virtue of Articles 223 to 235 of the Constitution
but notwithstanding the ouster clause, the superior courts in exercise of their power of judicial
review, may examine the circumstances calling for justification of such action of the
executives affecting the fundamental rights of people. The superior courts, in case of
proclamation of emergency in the country in consequence to which Constitution is held in
abeyance and is made inoperative, can also exercise power of judicial review which is
inherent in the superior courts to examine the question regarding the existence of
circumstances for justification of such extra constitutional action and State necessity.
The question as to whether an action taken in deviation to the Constitution, except for the
sake of integrity and solidarity of the country and protection of the Constitution itself is
justified, cannot be answered in affirmative in the normal circumstances and such an action is
certainly subject to the judicial review of the superior courts. There may be a situation leading
to the imposition of emergency in the country through extra-constitutional measures in which
the constitutional machinery of State becomes inoperative but there is no concept of
proclamation of emergency while Constitution is operative except in the manner as provided
under Articles 232 to 235 of the Constitution and an extra constitutional action by an
executive authority while the Constitution is operative, may have no legal and moral
justification. The courts in such situation, being custodian of the constitution, must protect the
Constitution and must not condone extra-constitutional action and permit impairing of the
10
PLD 1977 Kar. 604
It was held that president's power to issue proclamation or revoke proclamation of emergency
is not open to judicial review.
11
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constitutional mandate except for the integrity of country or in case of external aggression
against the State. There is a difference between the emergency under the Constitution and
beyond the scope of constitutional provisions and also has different purposes and
consequences therefore, "contention that the Executive authorities have absolute power and
authority to judge the need of emergency and Court due to the bar contained in the
Constitution, have no jurisdiction to interfere in the matter, is not correct interpretation of law.
Parliament may, however pass a law indemnifying any person in service of the Federal or
Provincial Government, for any act done in connection with the maintenance or restoration of
order in any part in Pakistan.
21st Amendment to the Constitution of 1973 & Pakistan Army Act, 1952
etc. To protect the security of Pakistan & against the terrorism by using
the name of religion & sect: etc.12
12
Existing Constitutional Provisions.
Article 232 Proclamation of Emergency.
Proclamation of Emergency on account of War, internal aggression, threat to Security of
Pakistan…. Where in any part of the Constitution, fundamental rights, powers of High Courts
& Provinces etc. may be suspended or curtailed.)
Article 245 Functions Of Armed Forces.
Armed Forces shall under the direction of the Federal Government to act in aid of civil power
when called upon to do so & during such operational period the High Court shall not exercise
its jurisdiction for the being.
Existing General Laws & Regular Courts.
Pakistan Penal Code (PPC)
Criminal Procedure Code Cr.P.C.)
Maintenance of Public Order 1960 (MPO)
Special Law & Special Courts for Speedy Trial.
Anti-Terrorist Act 1997
Protection of Pakistan Act 2014 (for 2 years)
21st Amendment in the Constitution of Pakistan, 1973
Preamble Precisely “21st Amendment”:

For Constitutional protection to the measures

Against Terrorist groups i.e. using name of religion or Sect

To safe integrates of Pakistan from the terrorist groups from foreign or local funded
anti state elements.
Clause 1: This amendment is for 2 years.
Clause 2: Addition after A/175 (3) (Establishment of jurisdiction of the courts):
“…. This article shall have no application to the trail of persons: under Army Act & Protection
of Pakistan Act etc. mentioned in the First Schedule (I) (III), of terrorist group or organization
using the name of religion or a sect of religion which does not includes any religious or
political party under Political Parties Order 2002..
Clause 3: Amendment in the First Schedule (I) (III) of the Constitution:
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The following Acts shall also be exempted from the application of A/8 (Laws inconsistence to
fundamental rights to be void) i.e. These Laws shall not be void being inconsistence to
fundamental rights.
The Pakistan Army Act 1952
The Pakistan Air Force Act 1953
The Pakistan Navy Ordinance 1961
The Protection of Pakistan Act 2014
Amendments in 2015 in the Pakistan Army Act 1952:
Preamble Precisely “These Amendments:-”
As stated in preamble of the 21st Amendment in the Constitution.
Speedy trial related to the terrorism waging of war, against Pakistan, Security of Pakistan,
Armed Forces or Agencies
Prevention of act by terrorist group or their members using the name of religion or sect.
Article 145 of the Constitution enjoins upon Armed Forces to act.
Clause 1: This Amendment is for 2 years.
Clause 2: Addition in the Section 2 of the Army Act (Person subject to this Act i.e.
Servicemen):
Addition after Section 2 (1) (d) (ii)……Add (iii) (a) to (g), (iv), (2) to (6)……. Which selected &
precisely follow as under:(iii) Claiming or are known to belong to any terrorist group or organization using the name of
religion or a sect
(a) Raise any arms or wage war against Pakistan or attack Armed Forces/ Agencies or
attacks any civil or military installations
(b) To (g) other terrorist activity like abduct…….. Funding….. Conspires or aid.
(iv) Selected from Schedule of Protection of Pakistan Act 2014.
Clause 3: No trial of the case through Court Martial would be conducted without
Prior sanction of Federal Government. Federal Government may transfer cases pending in
other courts which previous proceedings would be retained.
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Clause 4: (Overriding effect of this law/Act)… This law shall prevail if some conflict.
(Annexure A)
Relevant Provisions of the Pakistan Army Act 1953
Section 2: Person subject to this Act (i.e. Servicemen).
Section 8: Definitions.
Sections 24 to 59: Offences.
Section 60: Punishment.
Section 80: Kinds of Court Martial.
1.
2.
3.
4.
General Court of Commander-in-Chief
District Court Martial.
Field general Court Martial.
Summery Court Martial.
Note: Head of Court Martial is called President.
Section 112: Subject to the provisions of this Act; Rule of evidence like in Criminal Courts.
Sentence: 1st step. Findings of Sentences
2nd step. Confirmation or Revise by the Higher Officer
1.
In case of Revise…then recording of additional evidence.
Section 131: Remedy against Sentence:
1.
2.
3.
Aggrieved person may file petition to the Confirming Officer
After Confirmation: Aggrieved person may file petition to the Federal Government or
the Commander-in-Chief or Prescribed or High Rank Officer of the Confirming Officer
Then Findings become Decision.
Section 132: Annul Proceedings
Section 133: Bar to Appeal: No appeal lie against Decision or proceedings of the Court
Martial.
Section 143: Pardon or Remissions.
Section 144: Suspension of Sentence.
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Section 146: Release on suspension.
Section 148: Release on set-aside.
The Protection of Pakistan Act 2014 (POPA), which has been enacted for
two years and the Special Military Courts for Speedy Trial of the Scheduled
Offences of Terrorism have been established for the following reasons:












Keeping in view the abnormal circumstances during this war against
terrorism.
To protect the State and the Nation.
To give protection of the Constitution to these amendments in the laws
and other measures.
To protect Pakistan from the terrorist groups or their members or
aiding them in the name of religion or sect.
To ensure the speedy trial and conclusion of the cases.
Keeping in view the weaknesses of the Investigations.
To protect the witnesses, investigating officers, prosecutors & judges
by providing them a secured environment.
To release the witnesses, investigating officers, prosecutors & judges
from threats and influence
To save the Fundamental Rights, Powers of the Provinces from
suspension during the war against terrorism under Article 232 of the
Constitution.
To restrain to invoke the authorities under Article 145 of the
Constitution regarding calling the Armed Forces.
To constitutionalize & legalize these amendments through the
Parliament to save it from challenging before the courts.
To give effect laws through the 21st Amendment in the Constitution
which would strengthen the National Action Plan.
POPA is a very Harsh Law regarding:1.
2.
3.
4.
5.
6.
Prevention Detention.
Search without warrant.
Use of Armed Forces and Agencies to prevent Schedule Offences.
Any Police Officer BPS 15 may use force after warning and order firing
(Conditions of stage and level of firing explained).
In case of allegation of commission of excess the Internal Enquiry & in
case of death a Judicial Enquiry would be conducted.
Investigation by JIT of One Gazetted Police Officer and 2 Officers from
the Armed Forces/Civil Armed Forces.
66
If wrong application of these laws is made then in-justice would result against
the State & the Nation.
The Bar Councils & Bar Associations have passed the Resolutions against it
as well as a Petition against it has been filed before the August Supreme
Court of Pakistan on the plea that it is against the independence of the
Judiciary, which is now being heard.
Two Parliamentary Parties have boycotted at the time of voting in the
Parliament on the plea that it is against the Madaris because of insertion of
words "Region & Sect:”
The Bar Councils & Bar Associations have passed the Resolutions against it
as well as the Petitions against it have been filed before the August Supreme
Court of Pakistan on the plea that it is against the independence of the
Judiciary.
Two Parliamentary Parties had boycotted at the time of voting in the
Parliament on the plea that it is against the Madaris because of insertion of
words "Region & Sect:”
Conclusion:
To conclude we can say that the emergency provisions would come into
operation in the case of war, internal, external disturbance, failure of
constitutional machinery in a province and financial and economic instability.
The President may proclaim state of emergency and make regulations
accordingly. Emergency may arise all over the country or in a Province or in a
part of it. The President is authorized to declare state of emergency for whole
7.
8.
9.
Remand up to total 60 days instead of up to 15 days under ordinary
law.
Burdon of proof is upon accused: Who is charged with preparation, as
facilitator or is involved shall be presumed to be engaged in waging
war against Pakistan unless he establishes his non-involvement in the
offences. The cell phone/data would be admissible in Evidence.
Federal Government may amend the Schedule.
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of the country or any part of the country. But after the passing 18th
amendment the Article 232 of the Constitution has been amended and the
imposition of emergency has been made subject to a Resolution from
the Provincial Assembly of the Province is required or if the President acts on
his own, the Proclamation of Emergency has to be placed before both
Houses of Majlis-e-Shoora (Parliament) for approval by each House
within ten days.
i
Zafar Iqbal Kalanauri Mediator & Advocate Supreme Court Pakistan, 128-A, Upper Mall
Scheme Lahore, Pakistan. Web: http://www.zklawassociates.com
E-Mail: kalanauri@gmail.com Tel 92-42) 35760171 Mobile 92)-314-4224411 & (92)-03004511823.
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