INDEX
S. No.
Issues/Points/Details
1.
2.
3.
4.
Short order
Prayer
Facts
Notice to General Pervez Musharraf
5.
6.
7.
8.
9.
10.
11.
Arguments of Mr. Rashid A. Rizvi, ASC
Arguments of Mr. Hamid Khan, Sr. ASC
Oral prayer made by Mr. Hamid Khan
Arguments of Mr. M. Akram Sheikh, Sr. ASC
Arguments of Attorney General for Pakistan
Arguments of Mr. Yousaf Khan Leghari, AG Sindh
Constitutional developments
i. Tamizuddin Khan’s case
ii. Usif Patel’s case
iii. Reference by H.E. The Governor General
iv. Dosso’s case
v. Asma Jilani's case
vi. Begum Nusrat Bhutto's case
vii. Zafar Ali Shah's case
viii. Assumption of office of President by Army
Chiefs
ix. Referendum 2002
x. Constitutional Amendments made through
LFO, 2002
xi. Election 2002
xii. The Seventeenth Amendment
xiii. Tikka Iqbal Muhammad Khan's case
xiv. Post 3rd November, 2007 actions of
General Pervez Musharraf
Proclamations of Emergency by the Army Chiefs
Letter of Prime Minister Shaukat Aziz
Extra/supra-constitutional actions
General Yahya Khan declared as a usurper
Comments on Begum Nusrat Bhutto's case &
Asma Jilani's case
Unconstitutional assumption of power to be
treated as usurper
Assumption of power by General Pervez
Musharraf
Actions of General Pervez Musharraf were mala
fide
i. General Pervez Musharraf/PM Shaukat
Aziz satisfied over decision of SC (press
clippings)
12.
13.
14.
15.
16.
17.
18.
19.
Pages
2-13
13-14
14-20
19 &
266-268
20-24
25-36
36-37
37-41
41-46
46-47
48-50
50-53
53-54
54-57
57-60
60-68
69-80
80-82
82-83
83-84
84
85-88
88-100
100-101
101-113
113-119
119-120
120
121-122
122-123
123-125
125-129
129-136
ii
ii.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
Actions of 3rd November, 2007 were the
result of apprehensions of General Pervez
Musharraf of losing case in the SC (press
clippings)
iii. Order dated 3rd November, 2007 passed by
a 7 – member bench of this Court in
Wajihuddin Ahmed’s case
a. General Pervez Musharraf himself
admits unconstitutionality of his
actions
b. Non-affirmation by the Parliament
of the actions of 3rd November, 2007
Actions of 3rd November, 2007 declared
unconstitutional, illegal, void ab initio and mala fide
Chief Justices and Judges shall be deemed never to
have ceased to be such Chief Justices or Judges
Notifications of Ministry of Law & Justice declaring
Chief Justices and Judges to cease to hold office
declared null and void
Admissibility of press reports (print/electronic
media)
Discussion & findings on post – 3rd November, 2007
actions of General Pervez Musharraf, constitutional
amendments, including validation by means of
Article 270AAA
Position of President vis-à-vis Army Chief during
the periods of constitutional deviations
Assumption of supra-constitutional powers by the
Army Chief, including power to amend the
Constitution by him
Condonation of the actions of usurpers of power
Constitutional amendments made by General
Pervez Musharraf declared unconstitutional, illegal
and ultra vires
Law of necessity
Differences between the actions of 3rd November,
2007 and previous military takeovers
i. Reaction at the international level
ii. Reaction at the national level
iii. Oaths taken on previous occasions, but for
the first time order passed by a 7-member
bench of SC restraining the Judges of SC &
HCs from taking oath
iv.
Restrictions on the movement of Judges
lifted after announcement by the Prime
Minister
136-141
141-144
144
144
145
145
145
144-145
&
247-248
145-151
151-154
154-162
162-164
164-165
165-183
183-184
184-193
193-211
211-215
213-214
iii
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
Absence of vacancies, unconstitutional increase of
strength of Judges by the Finance Act, 2008
Appointment of Abdul Hameed Dogar, J declared as
unconstitutional, illegal and ultra vires
Restoration notifications of Chief Justice and Judges
Abdul Hameed Dogar, J, & other Judges even not de
facto Judges
Communication by fax of order dated 3rd November,
2007 passed by a 7 – member bench of this Court in
Wajihuddin Ahmed’s case
i. Coverage in newspapers
ii. Coverage in TV channels
iii. CMA against order dated 3rd November,
2007 mentioned the coverage of the order
in the press
iv. Finding on coverage – wilful violation of
the order dated 3 rd November, 2007
Abdul Hameed Dogar, J, was not authorized to be
consulted for appointment
Judges violating 3rd November, 2007 order were
liable for action under the Constitution
Appointment
of
Judges
declared
to
be
unconstitutional, illegal and void ab initio
Chief Justice of Pakistan and Judges of SC /HCs to
be deemed never to have ceased to hold office
Zia Perwez, J
Judges to revert to the concerned HCs/Sessions
Courts
Decisions rendered by Abdul Hameed Dogar, J, &
other Judges were coram non judice
Order dated 6th November 2007 passed in
Wajihuddin Ahmed's case
Notice not issued to concerned Judges
Orders dated 3rd November, 2007 vis-à-vis order
dated 6 th November, 2007
Wajihuddin Ahmed's case was dismissed for want
of instruction and not on merits as purportedly done
in the order dated 19th November, 2007
Tika Iqbal Muhammad Khan's case (Constitution
Petitions 87 & 88/2007) were collusive
Tika Iqbal Muhammad Khan's case was violative of
Constitution and Zafar Ali Shah's case
Grounds of Proclamation of Emergency
i. No link between law and order situation
and the action of 3rd November, 2007
ii.
Law and order situation after 3rd
November, 2007 as per report of Secretary
Interior
215-220
220
220-223
223-225
225-226
227-230
231-247
248
248
249-252
252
252
253-254
254
255
255-256,
259
256-260,
263
261-263
264-265
265-276
276-278
278-281
281
288-290
283
iv
iii.
iv.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
Constitutional provisions on emergency
Emergency
imposed
under
the
Constitution is subject to judicial review
v. Erosion of trichotomy of power
vi. Trichotomy of power – power of judicial
review discussed in the light of case law
vii. Exercise of suo motu powers in the light of
case law
viii. In Tika Iqbal Muhammad Khan's case not a
single case of excess of jurisdiction
discussed
ix. Grievance relating to Supreme Judicial
Council
x. Grievance actually related to SC Judges
hearing disqualification case, but all Judges
made dysfunctional
Review Petition in Tika Iqbal Muhammad Khan's
case
Finding on actions of 3rd November, 2007 summed
up and reiterated
Judgments/orders in Wajihuddin Ahmed's case and
Tika Iqbal Muhammad Khan's case declared to be
illegal, mala fide, coram non judice and void ab
initio
Protection of the cases of other litigants
All actions of General Pervez Musharraf shorn of
validity conferred by Tika Iqbal Muhammad Khan's
case
Judges of Islamabad High Court to cease to hold
office
Judgments/administrative actions of Islamabad
High Court saved
Employees of Islamabad High Court
Re-establishment of Islamabad High Court
Protection of actions of legislative and executive
branches of government, which continued after 3rd
November, 2007
Ordinances continued in force beyond the
constitutional duration
General elections not affected
Good governance
Retrospective validation would be subject to judicial
review
Decision regarding respondents Nos. 3 & 4
Primacy of the opinion of Chief Justice of Pakistan in
the matter of appointment of Judges of HCs
Governor to act on advice of Chief Minister in the
matter of appointment of Judges of High Courts
285-289
289-290
290
290-303
304-320
319
320
320
320-321
321-322
322
322-323
323-324
324
325
325
325-326
326-328
328-330
330-333
332
332-333
333-334
334-342
342-343
IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Javed Iqbal
Mr. Justice Sardar Muhammad Raza Khan
Mr. Justice Khalil-ur-Rehman Ramday
Mr. Justice Mian Shakirullah Jan
Mr. Justice Tassaduq Hussain Jillani
Mr. Justice Nasir-ul-Mulk
Mr. Justice Raja Fayyaz Ahmed
Mr. Justice Ch. Ijaz Ahmed
Mr. Justice Ghulam Rabbani
Mr. Justice Sarmad Jalal Osmany
Mr. Justice Muhammad Sair Ali
Mr. Justice Mahmood Akhtar Shahid Siddiqui
Mr. Justice Jawwad S. Khawaja
CONSTITUTION PETITION NO. 09 OF 2009
Sindh High Court Bar Association through its Secretary
….
PETITIONER
….
PETITIONER
CONSTITUTION PETITION NO. 08 OF 2009
Nadeem Ahmed Advocate
VERSUS
Federation of Pakistan through Secretary, Ministry of Law
and Justice, Islamabad and others
….
RESPONDENTS
(Both petitions)
For the petitioner:
(Const.P.09/2009)
Mr. Hamid Khan, Sr. ASC
Mr. Rashid A. Razvi, ASC
Mr. M. S. Khattak, AOR
Assisted by
M/s Waqar Rana, Waheed Khalid Khan
& Haq Nawaz Talpur, Advocates
For the petitioner:
Mr. Muhammad Akram Sheikh, Sr. ASC
Const. P 9 & 8/2009
2
(Const.P.08/2009)
Assisted by
Barristers Ms Natalya Kamal &
Mr. Sajeel Shehryar, Advocates
For respondent No.1:
Sardar Muhammad Latif Khan Khosa
Attorney General for Pakistan
Agha Tariq Mehmood Khan, DAG
Mr. Shah Khawar, DAG
Ch. Akhtar Ali, AOR
For respondent No.2:
Mr. Yousaf Khan Leghari, AG Sindh
Raja Abdul Ghafoor, AOR
For respondents Nos. 3 & 4:
Nemo
Respondent No. 5:
Mr. Mazhar Ali B. Chohan, AOR (absent)
Dates of hearing:
20th to 22nd and 29th to 31 st July, 2009
--JUDGMENT
IFTIKHAR
MUHAMMAD
CHAUDHRY,
CJ
–
These
Constitution Petitions were disposed of by the short order dated 31st July,
2009 as under: “The above Constitutional Petitions bearing Nos. 9 of 2009 and 8 of
2009 involve common questions of facts and law and are disposed
of by this single judgment.
2.
In the first mentioned petition, the petitioner while referring
to several provisions of Constitution and the case law, beside
making other contentions, legal and factual, has stated, in Para
No.5, that: “The removal of Judges of Supreme Court and High Courts on
3.11.2007 was not only violative of Article 209 of the Constitution,
1973 but was against the rule laid down by the Bench of twelve
(12) Judges of Supreme Court in the case of Syed Zafar Ali Shah
(PLD 2000 SC 869). The subsequent validation in the case of Tikka
Iqbal Khan (PLD 2008 SC 178) a smaller Bench of the Supreme
Court is per-incuriam and in any event, is not by a Supreme Court
that is de jure. It is respectfully submitted, that Justice Abdul
Hameed Dogar could not be treated as Constitutional head of the
Supreme Court even after the decision in the case of Tikka Iqbal
Khan (supra) as he himself was the real beneficiary of the said
judgment and contrary to one of the cardinal principles of Natural
justice, “no person should be judge in his own cause” had headed
the Bench. Hence, in view of the facts and reasons stated above
Justice Iftikhar Muhammad Chaudhry is still the Chief Justice of
Pakistan as per Constitution and all appointments and reappointments made in the Supreme Court and High Courts
Const. P 9 & 8/2009
3
without consultation of de jure Chief Justice of Pakistan are
unlawful, illegal, ultra-vires of the Constitution as well as mala
fide”.
3.
Having made above averments, the petitioner has, inter-alia,
sought a declaration to the effect that the respondents Nos. 3 and 4
namely Justice Zafar Ahmad Khan Sherwani and Justice Abdul
Rasheed Kalwar are and continue to be Judges of High Court of
Sindh and that they would continue as Additional Judges till
25.8.2010 and that their term of appointment has not expired as
opined by Mr. Justice Abdul Hameed Dogar, as then he was called.
During the course of his submissions, learned counsel appearing for
him prayed further that following declarations be also granted:
i)
ii)
iii)
iv)
that the purported acts done by General Pervez Musharraf, (Rtd.)
between 3.11.2007 to 16.12.2007 aimed at to suspend and amend
the Constitution through several instruments are unconstitutional,
invalid and without any legal consequence;
that on account of his acts taken during 3.11.2007 to 15.12.2007
relating to superior judiciary, General Pervez Musharraf (Rtd.)
became a usurper;
all the appointments of Judges of superior judiciary on or after
3.11.2007 up till 22.3.2008 which were without consultation of dejure Chief Justice of Pakistan are/were unconstitutional, invalid
and without any legal consequence;
that the two (so called) Judgments dated 23.11.2007 and 15.2.2008
on Constitutional Petitions No. 87 and 88 of 2007 filed by Tikka
Iqbal Muhammad and WATAN Party and the Review Petition
No.7 of 2008 filed by the former are/were nullity in law, being
decisions per incuriam, coram non judice, without any legal basis
and based on mala-fide proceedings rendered by biased persons of
Tribunal (then calling themselves as Judges of this Court)
fraudulently, collusively and lacking in bona-fides:
4.
In the other petition No. 8 of 2009 which has been filed by
Nadeem Ahmad, a practicing Advocate, while criticizing the
judgment delivered in case of Tikka Iqbal Muhammad v. Federation of
Pakistan (PLD 2008 SC 178), the petitioner has, inter-alia, averred as
follows:
“All the persons who were not judges on 3rd November 2007 but
who were brought into Supreme Court and High Courts as
‘judges’ despite the fact that the Honourable Chief Justice of
Pakistan was never consulted before their appointment which
meant that they were never appointed under the Constitution.
AND
“On the night of 22 March 2009, issuance of cause lists comprising
persons who have not been appointed in strict adherence to
Article 177 and who are therefore complete strangers to the
Supreme court, is a serious matter and it is incumbent on the
Honourable Chief Justice, before proceeding with any other
judicial work, to forthwith stop all these persons from hearing any
cases till such time that he, along with other validly appointed
judges, are able to look into and judicially determine validity of
their appointments as judges.”
Const. P 9 & 8/2009
4
5.
The petitioner has, among others, sought a declaration that
all those persons, both in Supreme Court and High Courts,
regardless of whether they have taken oath under PCO or the
Constitution, who have been appointed without ‘consultation’ of
Honourable Chief Justice of Pakistan as not judges and therefore,
not entitled to function as such.
6.
On 22.7.2009 a notice was issued to General Pervez
Musharraf (Rtd.) on his available address intimating him about the
proceedings in this case and 29.7.2009 as the date fixed therein
before this Court. The Process Serving Officer reported on the same
day that he had gone to the residential place viz. C-1, B Park Road,
Chak Shahzad, Islamabad where a person identifying himself as
Muhammad Hussain son of Amir and that on formers offer the
latter refused to receive the notice. The factum of issuance of the
afore-referred notice was widely televised through National and
International T.V. channels. Also, it was widely published in
National and International print media, but, on the date so fixed no
one entered appearance.
7.
We have heard learned counsel for petitioners and learned
Attorney General for Pakistan.
8.
Before dilating upon the pleas taken in the arguments by
learned counsel for the parties, in our view, some of the
facts/events which took place before 3rd November, 2007 touching
the very basis of the issues involved in the matter are brought on
record.
9.
In our country, during sixty years of its independence after
partition, to the misfortune of people, several times, the
Constitutions framed by Legislative Bodies were desecrated.
Sovereignty of people was not allowed to flourish and get deeprooted in the polity of our country. Prior to 3rd November, 2007, the
Constitutions were either abrogated or put in abeyance and the
democratic system of governance was put to an end. For the first
time, Constitution of 1956 was abrogated on 7th October, 1958 and
Martial Law was imposed by the then President, Iskandar Mirza
who dismissed the Central and Provincial Governments; dissolved
the Parliament and Provincial Assemblies and abolished all
Political Parties and appointed General Muhammad Ayub Khan,
the then Commander in Chief as Martial Law Administrator.
Iskandar Mirza was soon, within few days, replaced by the latter.
On 25th March, 1969, again the then head of Army, General Agha
Muhammad Yahya Khan, abrogated the Constitution of 1962 and
by proclamation (PLD 1969 Central Statutes 42) Promulgated
Martial Law followed by Provisional Constitution Order (Gazette
of Pakistan, Extraordinary 4th April, 1969). On 5th July, 1977 once
again Martial Law was imposed throughout the country by the
then head of Army Chief viz. former General Muhammad Ziaul
Haq, who, vide Proclamation of Martial Law (PLD 1969 Federal
Statutes 326) dissolved the National Assembly, the Senate, the
Provincial Assemblies etc. and put the Constitution of 1973 in
abeyance followed by Laws (Continuance in Force) Order, 1977.
Const. P 9 & 8/2009
5
When the Constitution was revived, it was undeniably, in a
mutilated form by the notorious Eighth Amendment.
10.
Later, there was another onslaught on the ongoing
democratic system of governance. On 12th October, 1999, the then
Chief of Army Staff, General Pervez Musharraf, now retired, once
more, put the Constitution in abeyance and the whole of Pakistan
was brought under the control of Armed Forces. The National
Assembly, the Senate and the Provincial Assemblies were
suspended, so also, the Chairman and Deputy Chairman of Senate,
the Speaker and Deputy Speaker of the National Assembly and the
Provincial Assemblies were suspended and it was declared that the
Prime Minister, Federal Ministers, Parliamentary Secretaries, the
Provincial Governors, the Provincial Chief Ministers and the
Advisor to the Chief Ministers would ceased to hold offices,
followed by issuance of Provisional Constitution Order and the
Oath of Office (Judges) Order 2000. General Pervez Musharraf
(Rtd.), self styled himself as Chief Executive and started ruling the
country under the new dispensation. Later, he, unceremoniously,
occupied the office of President and in the coming years revived
the Constitution with Seventeenth Amendment.
11.
Again, on 3rd November, 2007 the General Pervez
Musharraf, (Rtd.), in his capacity as Chief of Army Staff, in the garb
of declaration of emergency, put the Constitution in abeyance,
issued Provisional Constitution Order No.1 of 2007 followed by the
Oath of Office (Judges) Order, 2007, making as many as sixty one
(61) Judges of superior judiciary including Chief Justice of Pakistan
and Chief Justices of three Provinces dysfunctional for many of
them either did not agree to take or were not given the oath. Of
them were; from Supreme Court 13 out of 18 (17 permanent and
one ad-hoc) Judges including Chief Justice of Pakistan, 18 out of 31
Judges of the Lahore High Court, 24 out of 28 Judges including
Chief Justice of High Court of Sindh, 6 out of 13 Judges including
Chief Justice of Peshawar High Court. It is quite saddening that all
the five Judges including the Chief Justice of Balochistan High
Court took oath under the Oath of Office (Judges) Order, 2007.
12.
An independent and strong judiciary is a back bone of viable
democratic system all over the world. The time tested experience
has proved that independent and strong judiciary provides
strength to the institutions running government particularly, those
who roll on the wheels of democracy. Equally the independent and
strong judiciary acts as an arbiter striking balance among various
segments of Democratic system. It helps State organs, such, as,
Legislature, Executive and the judiciary itself to function smoothly
maintaining balance inter se. The constitution of Pakistan, of 1973,
too, provides the judiciary guarantees enshrined in it and states
that the judiciary shall be fully secured, but, unfortunately, to its
great dismay, this organ of State has, all along been under the
wrath of adventurers imposing their dictatorial terms obviously for
their ulterior designs. The history of this country witnessed that in
a set up of one government tenure of a Chief Justice of Pakistan
was curtailed with ulterior motives and was restored to its original
position when the designs were stood achieved. Likewise, through
Const. P 9 & 8/2009
6
various instruments, the favourites and pliant members of superior
judiciary were out rightly given underserved benefits while the
others were shown doors. This happened during the era of the then
Martial Law Administrator General Ziaul Haq and following the
same foot steps, General Pervez Musharraf (Rtd.) did the same in
the year 2000. Many judges of superior judiciary who declined to
toe his line of action were unceremoniously sacked.
13.
General Pervez Musharraf (Rtd.) through his 1999/2000
action, declared that the national Assembly, the provincial
Assemblies, Senate, Chairman and Deputy Chairman of Senate,
Speaker of National Assembly and the Provincial Assemblies were
suspended and the Prime Minister, Federal Ministers,
Parliamentary Secretaries, the Provincial Governors and the
provincial Chief Ministers and the Advisors to the Chief Ministers,
to have ceased to hold offices. However, his November, 2007 action
was a singular in nature, in that, the onslaught was on judiciary
alone. All other institutions were intact. The independence of
judiciary was given a serious blow. In order to save the judiciary
from being destroyed, for the first time in the history of this
Country, a seven member Bench of this Court headed by the de
jure Chief Justice of Pakistan, passed an order, inter-alia,
restraining the President and Prime Minister of Pakistan from
undertaking any such action, which was contrary to the
Independence of Judiciary. So also the Judges of this Court and that
of the High Courts including Chief Justice (s) were required not to
take oath under the Provincial Constitution Order or any other
extra Constitutional step and on the same day viz. 3.11.2007, the
order was served on the members of superior judiciary through the
respective Registrars of the Courts by way of Fax. It was also sent
to all the relevant Executive functionaries.
14.
The action of General Pervez Musharraf (Rtd.) was,
undeniably, taken to prevent the 11 member Bench of this Court
which was hearing the Petition No. 73 of 2007 filed by Mr. Justice
(Rtd.) Wajihuddin Ahmad and others in which the qualification of
the General was in question, and perhaps, he was not expecting a
favourable decision. The reasons shall, in that behalf be found in
the detailed judgment. Be that as it may, Justice Abdul Hameed
Dogar, as then he was called, along with four other Judges of this
Court took oath in pursuance of unconstitutional Provisional
Constitution Order and the Oath of Office (Judges) Order, 2007 and
by that he also violated the order of seven member Bench of this
Court which was headed by de jure Chief Justice of Pakistan. Mr.
Justice Abdul Hameed Dogar took the oath of Chief Justice of
Pakistan, although, the office was not vacant. Some of High Courts
Judges too took oath likewise violating the Constitution and the
order of seven-member Bench, legally and lawfully passed. Besides,
many other Judges in this Court and in the High Courts were
appointed and they took oath in violation of constitutional
provisions and the order of seven-member Bench of this Court.
15.
Subsequently, in order to dilute the effect of afore-referred 7
member Bench order, Mr. Justice Abdul Hameed Dogar, the CJP, as
then was called, constituted a Bench of 8 Judges including those
Const. P 9 & 8/2009
7
appointed afresh in pursuance of Provisional Constitution Order
and took up CMA bearing No.2874 of 2007 in Constitution Petition
No.73 of 2007 and by their order dated 6.11.2007 illegally and
unlawfully, without the mandate of the Constitution, declared the
order dated 3.11.2007 to be illegal and without jurisdiction. Later, a
10 member Bench was also constituted which was headed by Mr.
Justice Abdul Hameed Dogar, Chief Justice of Pakistan, as then he
was called. This Bench again illegally and unlawfully took up and
dismissed the petition No.73 and Original Criminal Petition No.51
of 2007 filed by Justice (Rtd.) Wajihuddin Ahmad calling in
question the eligibility of General Pervez Musharraf to contest
election to the office of President although, it already stood
dismissed for want of instruction. Further details in this behalf shall
be given in the detailed judgment.
16.
Also subsequently, an other 7 member Bench headed by Mr.
Justice Abdul Hameed Dogar, Chief Justice of Pakistan, as then he
was called, took up hearing the case of Tikka Iqbal Muhammad
Khan and WATAN Party and decided the same on the principle of
‘Salus Populi Supreme Lex’ and granted that relief which was even
not prayed by the petitioner. This judgment is/was, ex-facie, per
incuriam, coram-non-judice illegal and unlawful. Later, a time
barred Review Petition was filed by Tikka Iqbal Khan which was
heard by 13-member Bench and was dismissed, palpably to give
impression that a larger Bench decided the matter to dilute the
effect of a previous judgment handed down in case of Syed Zafar
Ali Shah (PLD 2000 SC 869).
17.
It may be noted that the chosen representative of the time,
too, did not extend validation to the unconstitutional acts taken
upto 3rd November, 2007 as is universally known. It is, however,
quite heartening that, for the first time, in the history of our
beloved country, the chosen representative of people, who took
their offices as a result of election taking place on 18th February,
2008 have, commendably, stayed their hands off and have not
sanctified the unconstitutional acts, such as, the Declaration of
Emergency, the Provisional Constitution Order No.1, the Oath of
Office (Judges), Order, 2007, the Constitution (Amendment) Order,
2007 (President’s Order No.5 of 2007), the Constitution (Second
Amendment) Order of 2007 (President’s Order No.6 of 2007) and
many other instruments made and declared by General Pervez
Musharraf (Rtd.). In this, their restraint not extending validity to all
these unconstitutional and illegal instruments and other steps taken
by retired General are laudable. Evidently, this was done by the
present representatives of people believing firmly that the
prosperity of the country lies in the strong and independent
democratic system which can alone flourish and survive with
democratic steps to be taken in the better interest of people
always apt and keen to choose them in such a viable system of
governance. We are sanguine that the current democratic
dispensati on comprising of the President, the Prime Minister,
Ministers and the Parliament shall continue to uphold the
Constitution, its institutions and sacred values.
18.
From above, the conclusions drawn are that:
Const. P 9 & 8/2009
8
i)
The General Pervez Musharraf (Rtd.) in the garb of
Emergency Plus and the Provisional Constitution Order
made amendments in the Constitution by self-acquired the
powers which all are unconstitutional, unauthorized,
without any legal basis, hence, without any legal
consequences;
ii)
Mr. Justice Abdul Hameed Dogar, took oath as CJP in
violation of the order dated 3.11.2007 passed by a 7 member
Bench headed by de-jure Chief Justice of Pakistan and in
pursuance of unconstitutional instruments introduced by
General Pervez Musharraf (Rtd.), additionally knowing well
that the office of Chief Justice of Pakistan was not lying
vacant;
iii)
Also, the Judges who were either retired or were not holding
any judicial office, beside those in High Courts took fresh
oath on their appointment on and after 3.11.2007 till
15.12.2007 in Supreme Court where the full strength of
Judges along with an Ad-hoc Judge appointed under the
Constitution were already working and thus there was no
vacancy. Similarly, many Judges took oath in Provincial
High Courts. All of them did so in violation of order dated
3.11.2007 passed by 7 member Bench headed by de-jure
Chief Justice of Pakistan. Four incumbent Judges already
functioning in the Supreme Court took fresh oath under the
influence of and in pursuance of unconstitutional steps of
General Pervez Musharraf (Rtd.);
iv)
The Petition No.73 of 2007 filed by Mr. Justice (Rtd.)
Wajihuddin Ahmad challenging the eligibility of General
Pervez Musharraf (Rtd.) to contest for the office of President
in uniform was dismissed purportedly on merits although
the record maintained in the Supreme Court revealed
otherwise;
iv)
The decisions in the cases of Tikka Iqbal Muhammad Khan
granting validity to the actions of General Pervez Musharraf
(Rtd.) were per incuriam, coram-non-judice, without any
legal basis hence, of no legal consequences;
vi)
The amendments in the Supreme Court (Number of Judges)
Act, (XXXIII, 1997) 1997 by way of Finance Act, 2008 raising
the strength of Judges in Supreme Court from 17 (1+ 16) to
30 (1+29) seemingly aimed at providing allocation of funds
for increasing the strength of Judges is unconstitutional
because the strengths of Judges of Supreme Court is be
increased by Parliament as defined in Article 50 to be read
with Article 260 of the Constitution which defines the acts of
Parliaments;
vii)
Surprisingly, in the past the Courts of the time used to
extend favours empowering the adventurers to amend the
Constitution in actual effect were to achieve their overt and
Const. P 9 & 8/2009
9
covert agenda but this time, such powers were acquired by
the General Pervez Musharraf (Rtd.) himself through the
PCO and brought a host of unconstitutional amendments for
his own benefits; and
viii)
The present representative of people firmly believe in strong
and independent judiciary and the democratic system which
is evident that the deposed Judges of Supreme Court, High
Courts and the de-jure Chief Justice of Pakistan were
restored with effect from 3rd of November, 2007 implied that
the present representatives of people denied the validity of
the actions of General Pervez Musharraf (Rtd.) taken from
3.11.2007 to 15.12.2007 during which the Constitution
remained suspended.
19.
Considering the above, in the light of submissions of learned
counsel for the parties and on examination of the material brought
before us and for the detailed reasons to be recorded, we dispose
the above petitions as follows.
20.
The judgment purported to have been delivered in
Constitutional Petitions bearing No: 87 and 88 of 2007 in the case
titled as TIKKA IQBAL MUHAMMAD KHAN VS. GENERAL
PERVEZ MUSHARRAF AND OTHERS (PLD 2008 SC 25 and PLD
2008 SC 178) and the judgment dated 15.2.2008, purported to have
been passed in C.R.P.No.7 of 2008 titled as TIKKA IQBAL
MUHAMMAD KHAN VS. GENERAL PERVEZ MUSHARRAF AND
OTHERS and any other judgment/judgments passed on the
strength of the said two judgments are hereby declared to be void ab
initio.
21.
The Proclamation of Emergency issued by General Pervez
Musharraf as the Chief of Army Staff (as he then was) on
November 3, 2007; the Provisional Constitution Order No.1 of 2007
issued by him on the same date in his said capacity; the Oath of
Office (Judges) Order of 2007 issued by him also on the same date
though as the President of Pakistan but in exercise of powers under
the aforesaid Proclamation of Emergency and the Provisional
Constitution Order No.1 of 2007; The Provisional Constitution
(Amendment) Order, 2007 issued by him like-wise on 15.11.2007;
the Constitution (Amendment) Order, 2007 being President’s Order
No.5 of 2007 issued on November 20, 2007; the Constitution
(Second Amendment) Order, 2007 being the President’s Order No.6
of 2007 issued on 14th December, 2007; the Islamabad High Court
(Establishment) Order 2007 dated 14th December 2007 being the
President’s Order No.7 of 2007; the High Court Judges (Pensionary
Benefits) Order, 2007 being President’s Order No.8 of 2007; the
Supreme Court Judges (Pensionary Benefits) Order, 2007 being
President’s Order No.9 of 2007 dated 14th December, 2007 are
hereby declared to be un-constitutional, ultra-vires of the
Constitution and consequently being illegal and of no legal effect.
22.
As a consequence thereof: -
Const. P 9 & 8/2009
10
i)
the Chief Justice of Pakistan; the Judges of the Supreme
Court of Pakistan; any Chief Justice of any of the High Courts and
the Judges of the High Courts who were declared to have ceased to
hold their respective offices in pursuance of the afore-mentioned
alleged judgments or any other such judgment and on account of
the instruments mentioned in Para 21 above, shall be deemed never
to have ceased to be such Judges, irrespective of any notification
issued regarding their reappointment or restoration;
ii)
it is declared that the office of the Chief Justice of Pakistan
never fell vacant on November 3, 2007 and as a consequence
thereof it is further declared that the appointment of Mr. Justice
Abdul Hameed Dogar as the Chief Justice of Pakistan was unconstitutional; void ab initio and of no legal effect;
Provided that subject to whatever is contained hereinafter,
the said un-constitutional appointment of Mr. Justice Abdul
Hameed Dogar as the Chief Justice of Pakistan shall not affect the
validity of any administrative or financial acts performed by him or
of any oath made before him in the ordinary course of the affairs of
the said office;
iii)
since Mr. Justice Abdul Hameed Dogar was never a
constitutional Chief Justice of Pakistan, therefore, all appointments
of Judges of the Supreme Court of Pakistan, of the Chief Justices of
the High Courts and of the Judges of the High Courts made, in
consultation with him, during the period that he, unconstitutionally, held the said office from 3.11.2007 to 22.3.2009
(both days inclusive) are hereby declared to be un-constitutional,
void ab initio and of no legal effect and such appointees shall cease
to hold office forthwith;
Provided that the Judges so un-constitutionally appointed to
the Supreme Court while holding the offices as Judges of any of the
High Courts shall revert back as Judges of the respective High
Courts subject to their age of superannuation and like-wise, the
Judges of the High Courts, who were District and Sessions Judges
before their said un-constitutional elevation to the High Courts
shall revert back as District and Sessions Judge subject to limitation
of superannuation;
iv)
the Judges of the Supreme Court of Pakistan, if any, the
Chief Justices of the High Court, if any, and the Judges of any of the
High Courts, if any, who stood appointed to the said offices prior
to 3.11.2007 but who made oath or took oath of their respective
offices in disobedience to the order passed by a Seven Member
Bench of the Supreme Court of Pakistan on 3.11.2007 in
C.M.A.No.2869 of 2007 in Constitution Petition No.73 of 2007, shall
be proceeded against under Article 209 of the Constitution. The
Secretary of the Law Division of the Government of Pakistan shall
take steps in the matter accordingly;
Provided that nothing hereinabove shall affect those Judges
who though had been appointed as Judges/Chief Justices of any of
the High Courts between 3.11.2007 to 22.3.2009 but had
Const. P 9 & 8/2009
11
subsequently been appointed afresh to other offices in consultation
with or with the approval of or with the consent of the
Constitutional Chief Justice of Pakistan;
v)
any judgments delivered or orders made or any decrees
passed by any Bench of the Supreme Court or of any of the High
Courts which comprised of or which included the afore-described
Judges whose appointments had been declared void ab initio, are
protected on the principle laid down in MALIK ASAD ALI’S CASE
(PLD 1998 SC 161);
vi)
since the Constitution (Amendment) Order, 2007 being the
President’s Order No.5 of 2007 and the Islamabad High Court
(Establishment) Order being President’s Order No.7 of 2007
establishing Islamabad High Court for the Federal Capital
Territory, have been declared to be un-constitutional and of no
legal effect, therefore, the said Islamabad High Court shall cease to
exist forthwith. All judicial matters pending before the said High
Court before the passing of this order shall revert/stand
transferred to the courts which had jurisdiction in the said matters
before the promulgation of afore-mentioned President’s Order No.5
of 2007 and President’s Order No.7 of 2007 promulgated on 14th
December, 2007. The Judges of the said Court shall, as a
consequence thereof, cease to be Judges except such Judges or the
Chief Justice of the said court, who prior to their appointments in
the said Islamabad High Court, were Judges of some other High
Court who shall revert to the court of which they were originally
the Judges, subject to their age of superannuation. The officers and
employees of the said Court shall also cease to hold their respective
appointments and shall become part of the Federal Government
Surplus Pool for their further appointments. However, if any such
officer or employee was an officer or an employee of some other
court or department or office, such officers or employees shall
revert to their respective courts, departments or offices to which
they belonged before joining the service in the Islamabad High
court, subject again to their age of superannuation;
We would like to mention here that establishment of a High
Court or a Federal Court for the Federal Capital Territory might be
a desirable act but it is unfortunate that such a step was taken in an
un-constitutional and a highly objectionable manner. We may,
therefore, add that notwithstanding what has been declared and
ordered above, the relevant and competent authorities may take
steps to establish such a court in accordance with the
Constitution/the law;
vii) the Ordinances promulgated by the President or a Governor
of a Province before 3.11.2007 which were given permanence by the
Provisional Constitution Order No.1 of 2007 as also the Ordinances
issued by the President or a Governor between 3.11.2007 and
15.12.2007 (both days inclusive) which were also, like-wise given
permanence through the same instrument and which legislative
measures along with the said Provisional Constitution Order had
been validated by the afore-mentioned judgment delivered in
TIKKA IQBAL MUHAMAD KHAN’S CASE, stand shorn of their
Const. P 9 & 8/2009
12
purported permanence on account of our afore-mentioned
declarations. Since on account of the said judgment in TIKKA
IQBAL MUHAMMAD KHAN’S CASE purporting to be a judgment
of this Court, the presumption that the said Ordinances were valid
laws not requiring approval of the Parliament or the respective
Provincial Assemblies in terms of Article 89 or 128 of the
Constitution and since it is today that this Court has attributed
invalidity to the said legislative instruments, therefore, the period
of 120 days and 90 days mentioned respectively in the said Article
89 and the said Article 128 of the Constitution, would be deemed to
commence to run from today and steps may be taken to place the
said Ordinances before the Parliament or the respective Provincial
Assemblies in accordance with law;
viii) since the Constitution, through its Article 176, authorises
only the Parliament to determine the number of Judges of the
Supreme Court of Pakistan and since the Parliament had so done
through the Supreme Court (Number of Judges) Act XXXIII of
1997, therefore, the increase in the strength of the Judges through
the Finance Act of 2008 which Act was not passed by the
Parliament but was passed only by the National Assembly would
be deemed to be valid only for financial purposes and not for the
purposes of Article 176 of the Constitution. It is resultantly declared
that the number of Judges of the Supreme Court for purposes of the
said Article 176 shall continue to remain sixteen;
ix)
in the Code of Conduct prescribed for the Judges of the
Superior Courts in terms of Article 209(8) of the Constitution, a new
clause shall be added commanding that no such Judge shall,
hereinafter, offer any support in whatever manner to any unconstitutional functionary who acquires power otherwise than
through the modes envisaged by the Constitution and that any
violation of the said clause would be deemed to be misconduct in
terms of the said Article 209 of the Constitution;
x)
in view of our findings above regarding Mr. Justice Abdul
Hameed Dogar not being a constitutional and a valid consultee, the
notification dated 26.8.2008 and the notification dated 15.9.2008
extending the term of office of Mr. Justice Abdur Rasheed Kalwar
and of Mr. Justice Zafar Ahmed Khan Sherwani as Additional
Judges of the High Court of Sindh are declared to be unconstitutional and of no legal effect;
xi)
that the court acknowledges and respects the mandate given
by the sovereign authority i.e. electorate to the democratically
elected Government on 18th February, 2008 and would continue to
jealously guard the principle of trichotomy of powers enshrined in
the Constitution, which is the essence of the rule of law. Any
declaration made in this judgment shall not in any manner affect
the General Elections held and the Government formed as a result
thereof i.e. the President, the Prime Minister, the Parliament, the
Provincial Governments, anything done by these institutions in the
discharge of their functions. These acts are fully protected in terms
of the age old of principle of Salus populi est suprema lex reflected in
PLD 1972 SC 139;
Const. P 9 & 8/2009
13
xii)
Before parting with the judgment, we would like to reiterate
that to defend, protect and uphold the Constitution is the sacred
function of the Supreme Court. The Constitution in its preamble,
inter alia, mandates that there shall be democratic governance in the
country, “wherein the principles of democracy, freedom, equality,
tolerance and social justice as enunciated by Islam shall be fully
observed; ................. wherein the independence of judiciary shall be
fully secured.” While rendering this judgment, these abiding values
have weighed with us. We are sanguine that the current democratic
dispensation comprising of the President, Prime Minister and the
Parliament shall equally uphold these values and the mandate of
their oaths;
23.
A copy of this judgment shall be sent to the Secretary Law
and Parliamentary Affairs, Government of Pakistan, for
compliance.”
Hereinbelow are the detailed reasons for the above short order.
2.
The Sindh High Court Bar Association through its Secretary
filed Constitution Petition No. 09 of 2009 under Article 184(3) of the
Constitution of the Islamic Republic of Pakistan, 1973 with the following
prayer: “The petitioner, therefore, prays that this Hon’ble Court may be
pleased: (i)
To declare that the respondents Nos. 3 and 4 are and
continue to be Judges of the High Court of Sindh and would
continue as Additional Judges till 25th August, 2010 and that
their term of appointment has not expired as opined by
Justice Abdul Hameed Dogar;
(ii)
To declare and direct Registrar of the High Court of Sindh
that the respondents should be assigned regular work as
Judges of the Sindh High Court;
(iii)
To issue writ of mandamus directing the respondents to act
in accordance with Constitution and the Law in the matter of
appointment of Judges, in particular, the respondents Nos. 3
and 4, further directing the continuance of respondents Nos.
3 and 4 to perform functions and duties as Judges of the
High Court of Sindh unless justiciable reasons are placed on
record to ignore the recommendations by constitutional
Const. P 9 & 8/2009
14
consultees asked through office memorandum dated 13th
March, 2009;
(iv)
To issue directions to the respondent No. 1 and the Registrar
of the High Court of Sindh to place the entire record of
proceedings
of
consultation
leading
to
issuance
of
notification dated 12th March, 2009 before this Hon’ble
Court;
(v)
To issue a writ of mandamus to appoint the respondents
Nos. 3 and 4 as permanent Judges of the High Court of
Sindh under Article 193 of the Constitution of the Islamic
Republic of Pakistan;
(vi)
To grant costs of the petition; and
(vii)
To grant any other relief or reliefs as may be considered
appropriate and just in the circumstances of the case.”
3.
It was averred in the petition that M/S Zafar Ahmed Khan
Sherwani and Abdul Rasheed Kalwar, respondents Nos. 3 and 4 in the
instant petition were appointed, along with others, as Additional Judges of
the High Court of Sindh vide notification No. F.5(1)/2007-A.II., dated
15.9.2007 for a period of one year on and from the date they took oath of
their office.
On 3rd November 2007, General Pervez Musharraf issued
Proclamation of Emergency, Provisional Constitution Order No.1 of 2007
(hereinafter referred to as PCO No. 1 of 2007) and Oath of Office (Judges)
Order, 2007 (hereinafter referred to as Oath Order, 2007), though there was
no provision in the Constitution, which authorized Chief of Army Staff to
impose emergency and, in fact, it was martial law aimed at removing the
Judges who were hearing the petitions filed against him. The Constitution
of Pakistan was held in abeyance. All the Judges of the Supreme Court,
Federal Shariat Court and the High Courts, including Chief Justices were
declared to have ceased to hold office. Only those Judges would continue
Const. P 9 & 8/2009
15
in office who made oath under PCO No. 1 of 2007. The same day, the Chief
Justice of Pakistan and 6 other Judges of the Supreme Court passed order
on the miscellaneous application, which had been filed in Wajihuddin
Ahmed’s case (Constitution Petition No. 73 of 2007) on 2nd November, 2007
restraining, inter alia, the Judges of the Supreme Court and the High
Courts including Chief Justices from making oath under PCO No. 1 of
2007. In compliance with the aforesaid Order of the Supreme Court, a large
number of Judges of the Supreme Court and the High Courts including the
respondents Nos. 3 & 4 did not make oath under PCO No. 1 of 2007,
therefore, all such non-compliant Judges were declared to have ceased to
hold office vide notifications of different dates issued by the Ministry of
Law and Justice. The notification dated 3rd November, 2007 issued by the
Ministry of Law and Justice declaring certain Judges of the High Court of
Sindh including the respondents Nos. 3 and 4 (shown at serial No.9 & 11
below) to have ceased to hold office read as under: “NOTIFICATION
No. F.12(d)/2007-A.II. – In pursuance to Article 3 of the Oath of
Office (Judges) Order, 2007 (Order No.1 of 2007), the following
persons have ceased to hold office of Judges of High Court of Sindh
with effect from 3rd November, 2007: 1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
Mr. Justice Rahmat Hussain Jafferi
Mr. Justice Khilji Arif Hussain
Mr. Justice Amir Hani Muslim
Mr. Justice Gulzar Ahmed
Mr. Justice Maqbool Baqar
Mr. Justice Muhammad Athar Saeed
Mr. Justice Faisal Arab
Mr. Justice Sajjad Ali Shah
Mr. Justice Zafar Ahmed Khan Sherwani
Mr. Justice Salman Ansari
Mr. Justice Abdul Rasheed Kalwar
Mr. Justice Arshad Siraj
Sd/(Malik Hakam Khan)
Acting Secretary”
Const. P 9 & 8/2009
4.
16
It was further averred that vide notification No. F.1(2)/2008-A-
II., dated 26.08.2008, the respondents Nos. 3 & 4 were re-appointed as the
Additional Judges of the High Court of Sindh with effect from the date
they took oath of their offices for the period mentioned in notification No.
F.5(1)/2007-A.II., dated 15.09.2007. Later, vide another notification No.
F.5(1)/2007 dated 15.9.2008, the tenure of the respondents Nos. 3 & 4,
along with others, was extended for a period of six months with effect
from the date their term expired.
5.
It was stated that the Chief Justice, High Court of Sindh vide
his letter dated 10.09.2008 recommended one year extension in the tenure
of five Additional Judges including the respondents Nos. 3 & 4, but an
extension of six months was granted, which, according to the Chief Justice
was to expire on 14.03.2009. He, therefore, vide letter dated 25.02.2009
again took up the matter of appointment of five Additional Judges
including respondents Nos. 3 & 4 and recommended that they be
appointed as permanent Judges under Article 193 of the Constitution.
However, vide notification dated 12.03.2009, only three persons, namely,
Abdur Rahman Faruq Pirzada, Salman Ansari and Syed Mahmood Alam
Rizvi were appointed as Judges under Article 193 of the Constitution.
Once again, the Chief Justice, High Court of Sindh, vide his letter dated
13.03.2009 reiterated his recommendation regarding the permanent
appointment of the respondents Nos. 3 & 4. The Ministry of Law and
Justice was under the impression that since the respondents Nos. 3 and 4
were not recommended by the then incumbent Chief Justice of Pakistan for
Const. P 9 & 8/2009
17
their permanent appointment, therefore, on expiry of their tenure on or
about 16.03.2009, they ceased to be Judges of the High Court.
6.
After a preliminary hearing of the petition, a three–member
Bench of this Court vide order dated 3rd April, 2009 issued notices to the
respondents for filing of Para-wise comments/written statements. Notice
was also issued to the learned Attorney General for Pakistan under Order
XXVII-A of the Code of Civil Procedure, 1908 read with Order XXIX of the
Supreme Court Rules, 1980 as important questions requiring interpretation
of the Constitutional provisions by this Court were involved therein. The
contentions raised by the learned counsel for the petitioners, noted in
Paragraphs 2 to 4 of the aforesaid Order, were as under: “2.
The learned counsel contended that respondents Nos. 3
and 4 (Mr. Justice Zafar Ahmed Khan Sherwani and Mr. Justice
Abdul Rasheed Kalwar) were illegally directed to cease to hold
office in pursuance of Proclamation of Emergency of 3rd November,
2007, which was incorrectly validated by a 7-Member Bench of this
Court in the case of Tikka Iqbal Muhammad Khan v. General Pervez
Musharraf (PLD 2008 SC 178) holding, inter alia, that the Judges who
had not taken oath under the Provisional Constitution Order, 2007
(PCO 2007) had ceased to hold office. According to the learned
counsel, this judgment was per incuriam in view of the 12-Member
Bench judgment in the case of Zafar Ali Shah v. Pervez Musharraf,
Chief Executive of Pakistan (PLD 2000 SC 869) wherein it was held in
unambiguous terms that after the pronouncement of this judgment,
no Judge of a Superior Court could be removed except by following
the procedure laid down in Article 209 of the Constitution.
According to him, in the case of Tikka Iqbal Muhammad Khan, the
judgment in the case of Zafar Ali Shah was not examined in the
correct perspective. Therefore, the judgment of the 12 Judges would
prevail.
Const. P 9 & 8/2009
“3.
18
The learned counsel further contended that the respondents
Nos. 3 and 4 were reappointed for a period of one year vide
notification dated 26.08.2008, which, in effect, was the revival of
their original appointment as they were given the seniority position
prevailing on 2nd November, 2007. He pointed out that later on vide
notification dated 15.09.2008 the period of their appointment as
Additional Judges of the High Court was extended for six months
with effect from the date their present term expired. Thus,
according to the learned counsel, this period of six months would
be added to the earlier period of appointment as Additional Judges,
which was to expire on 25.08.2009 and for all intents and purposes
they would be entitled to continue their service as Additional
Judges up to 25.02.2010. He submitted that although the Chief
Justice,
High
Court
of
Sindh
earlier
misunderstood
and
misinterpreted the notifications dated 26.08.2008 and 15.09.2008,
but on a representation made by the respondents Nos. 3 and 4,
corrected the error and assigned them Court work. Subsequently,
the Ministry of Law as well as the then incumbent of the office of
Chief Justice of Pakistan, through their separate letters, interpreted
the notifications dated 26.08.2008 and 15.09.2008 in a manner that
their period of appointment as Additional Judges had already
expired, which according to the learned counsel, was not the
correct interpretation of both the notifications.
“4.
The learned counsel also contended that without prejudice
to his plea with regard to the interpretation of the notifications
dated 26.08.2008 and 15.09.2008, the Chief Justice and the Governor
of Sindh both recommended the two Additional Judges for their
appointment as permanent Judges under Article 193 of the
Constitution of the Islamic Republic of Pakistan, 1973. The learned
counsel maintained that after recommendation of the Chief Justice
and the Governor of Sindh regarding permanent appointment of
the respondents Nos. 3 and 4, in view of the law laid down in AlJehad Trust v. Federation of Pakistan (PLD 1996 SC 324), the
respondents ought to have been appointed accordingly.”
Const. P 9 & 8/2009
19
Constitution Petition No. 08 of 2009 filed by Mr. Muhammad Akram
Sheikh, Sr. ASC, on behalf of Nadeem Ahmed, Advocate, challenging the
action of General Pervez Musharraf dated 3 rd November, 2007 was ordered
to be listed and notice was issued to the respondent therein, namely,
Federation of Pakistan, through Secretary, Ministry of Law and Justice,
Islamabad. Vide order dated 22nd July, 2009, notice of the proceedings was
also issued to General Pervez Musharraf.
7.
It was averred in Constitution Petition No. 8 of 2009 that
General Pervez Musharraf, the then Chief of Army Staff had forcibly
prevented all the Judges of the Supreme Court and the High Courts from
functioning as Judges of their respective courts by means of Proclamation
of Emergency, PCO No. 1 of 2007 and Oath Order, 2007. The restraint
Order dated 3 rd November, 2007 passed by a seven – member Bench of this
Court in Wajihuddin Ahmed’s case was binding upon all concerned. The
Chief Justice of Pakistan and many other Judges along with their family
members were illegally placed under house arrest. Abdul Hameed Dogar,
J was illegally appointed as the Chief Justice of Pa kistan. The Judges of the
Supreme Court and the High Courts, who made oath under PCO No. 1 of
2007 read with Oath Order, 2007 were continued in office. General Pervez
Musharraf, without regard to merit, competence and repute and without
consultation with the Chief Justice of Pakistan ‘packed the courts’ with
dozens of persons by placing them in the Supreme Court and the High
Courts, who occupied office of Judge in violation of the Constitution and
the Order dated 3rd November, 2007 passed by a seven – member Bench of
this Court in Wajihuddin Ahmed’s case. Such Judges, in
Tikka Iqbal
Const. P 9 & 8/2009
20
Muhammad Khan’s case, purportedly set aside the very Order dated 3rd
November, 2007 that they had violated and upheld all the illegal actions of
General Pervez Musharraf. A declaration was sought to the effect that all
the persons regardless of their oath under PCO No. 1 of 2007, or the
Constitution, who were appointed on or after 3rd November 2007 without
consulting the Chief Justice of Pakistan were not Judges under the
Constitution and, therefore, not entitled to function as such.
8.
Mr. Rashid A. Rizvi, ASC, learned counsel for the petitioner in
Constitution Petition No. 9 of 2009 made the following arguments: (1)
Respondents Nos. 3 and 4 were illegally directed to
cease to hold office in pursuance of Proclamation of
Emergency
of
3rd
November,
2007,
which
was
incorrectly validated by a 7-Member Bench of this Court
in the case of Tikka Iqbal Muhammad Khan’s case
holding, inter alia, that the Judges who had not taken
oath under PCO No. 1 of 2007 had ceased to hold office;
(2)
The judgments in Tikka Iqbal Muhammad Khan v. General
Pervez Musharraf (PLD 2008 SC 178) and Wajihuddin
Ahmed v. Chief Election Commissioner (PLD 2008 SC 25)
were violative of Article 209 of the Constitution 1973
and per incuriam as they failed to take into consideration
the law laid down in the cases of Asma Jilani v.
Government of the Punjab (PLD 1972 SC 139), Liaquat
Husain v. Federation of Pakistan (PLD 1999 SC 504), Zafar
Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan
(PLD 2000 SC 869) and Al-Jehad Trust v. Federation of
Pakistan (PLD 1996 SC 324) on legal and factual planes.
Therefore, the judgment of the 12 Judges would prevail.
In Asma Jilani’s case, the assumption of power by
General Agha Muhammad Yahya Khan was declared to
Const. P 9 & 8/2009
21
be illegal and unconstitutional and he was termed as a
usurper, while in Liaquat Hussain v. Federation of Pakistan
(PLD 1999 SC 504), this Court in unequivocal terms
rejected the law of necessity invoked earlier in the cases
of State v. Dosso (PLD 1958 SC 533) and Begum Nusrat
Bhutto v. Chief of Army Staff (PLD 1977 SC 657) as a
means for validation of unconstitutional and illegal
actions of the concerned military commanders. In Zafar
Ali Shah’s case this Court, in unambiguous terms, held
that after the pronouncement of that judgment, no
Judge of a Superior Court would be removed except by
following the procedure laid down in Article 209 of the
Constitution. Therefore, the imposition of emergency on
3rd November, 2007 and promulgation of PCO No. 1 of
2007 and Oath Order, 2007 and the consequential
measures/laws/ordinances
were
unlawful
and
violative of the Constitution and liable to be declared
illegal, unjustified, mala fide and of no legal effect;
(3)
The imposition of emergency on 3rd November, 2007
was aimed at destroying the independence of judiciary
and to obtain a favourable verdict in Wajihuddin
Ahmed’s case challenging the candidature of General
Pervez Musharraf for the election of President, which
was evident from the press clippings placed on record
vide CMA No. 2361 of 2009;
(4)
Notification dated 03.12.2007 by which twelve judges of
the Sindh High Court were declared "to have ceased to
hold office” was illegal, mala fide and ultra vires of the
Article 209 of the Constitution and the law laid down in
the cases of Asma Jilani, Liaquat Husain, Zafar Ali Shah,
Al-Jehad Trust and Asad Ali;
(5)
The respondents No.3 and 4 were victimized for
Const. P 9 & 8/2009
22
obeying the Order dated 3rd November, 2007 passed by
a seven – member Bench of this Court in Wajihuddin
Ahmed’s case and thereby refusing to take oath under
PCO No. 1 of 2007 and Oath Order, 2007;
(6)
Vide notification dated 15.09.2008 the period of the
appointment of the respondents Nos. 3 & 4 as
Additional Judges of the High Court was extended for
six months with effect from the date their present term
expired. Thus, this period of six months would be
added to the earlier period of appointment as
Additional Judges, which was to expire on 25.08.2009
and for all intents and purposes they would be entitled
to continue their service as Additional Judges up to
25.02.2010;
(7)
Although the Chief Justice, High Court of Sindh earlier
misunderstood and misinterpreted the notifications
dated 26.08.2008 and 15.09.2008, but on a representation
made by the respondents Nos. 3 and 4, corrected the
error and assigned them Court work. Subsequently, the
Ministry of Law as well as the then incumbent of the
office of Chief Justice of Pakistan, through their separate
letters, interpreted the notifications dated 26.08.2008
and 15.09.2008 in a manner that their period of
appointment as Additional Judges had already expired,
which was not the correct interpretation of both the
notifications;
(8)
Without prejudice to the plea with regard to the
interpretation of the notifications dated 26.08.2008 and
15.09.2008, the Chief Justice and the Governor of Sindh
both recommended the respondents Nos. 3 & 4 for their
appointment as permanent Judges under Article 193 of
the Constitution of the Islamic Republic of Pakistan,
Const. P 9 & 8/2009
23
1973. Therefore, in view of the law laid down in Al-Jehad
Trust case, the respondents ought to have been
appointed accordingly;
(9)
It was a matter of record that the respondents Nos. 3 &
4 were initially appointed as Additional Judges of the
High Court of Sindh on 15th September, 2007 on the
recommendation of Chief Justice of Pakistan Justice
Iftikhar Muhammad Chaudhry and Chief Justice of
Sindh High Court Justice Sabihuddin Ahmed (late).
They were declared to have ceased to hold office of
Judge as a result of illegal, unconstitutional and mala
fide emergency on 3rd November, 2007 imposed by
General Pervez Musharraf. Subsequently, they were
reappointed on 26th August, 2008 for the same period
i.e. one year. Again on 15th September, 2008 through
another notification their tenure was extended for six
months. No adverse remarks were passed by any of the
constitutional consultees during the entire consultative
process. Thus, non-acceptance of the recommendation
under Article 193 by Abdul Hameed Dogar, J, was
result of mala fide and ill-will;
(10)
Where there were two conflicting recommendations for
appointment of a Judge under Article 193; one by de
facto Chief Justice of Pakistan who had assumed his
office in violation of constitutional provisions and the
other by a de jure Chief Justice of High Court, the
Executive/President ought to accept the views of the de
jure Chief Justice of High Court, particularly in view of
the fact that the Chief Justice of the High Court has had
the opportunity and privilege of directly watching the
conduct and performance of the Additional Judges;
(11)
The respondents No.3 and 4 were condemned unheard
Const. P 9 & 8/2009
24
and since notification dated 3rd December 2007 was
violative of the principle of natural justice, therefore, the
same was void and liable to be set aside;
(12)
The respondents Nos. 3 & 4 were liable to be declared to
be Additional Judges of the High Court of Sindh and
the proceedings for their appointment under Article 193
of the Constitution ought to be initiated de novo; and
(13)
The issue was required to be determined by the apex
Court because the same had not been dealt with in the
Al-Jehad Trust case, which laid down that the opinion of
the Chief Justice of the High Court and the Chief Justice
of Pakistan regarding fitness and suitability of a
candidate for judgeship, being the experts of the field,
was entitled to be accepted in the absence of valid
reasons to be assigned by the executive, which would
be justiciable. The judgment in Al-Jehad Trust case
proceeded on the assumption of consensus between the
two judicial consultees. The said judgment did not deal
with a situation where there was divergence of views
between the two Chief Justices. The non-justiciability of
the views of the two Chief Justices was also founded
upon the same consideration of a consensus between
the said two consultees. The views of the Chief Justices
would become justiciable where there was a difference
of opinion between the two of them. The respondents
Nos. 3 and 4 were reappointed for a period of one year
vide notification dated 26.08.2008, which, in effect, was
the revival of their original appointment as they were
given
the
seniority
November, 2007.
position
prevailing
on
2nd
Const. P 9 & 8/2009
9.
25
Mr. Hamid Khan, Sr. ASC, learned counsel for the petitioner
in Constitution Petition No. 9 of 2009 raised the following contentions: (1)
General Pervez Musharraf imposed an unconstitutional
and illegal emergency, unconstitutionally and illegally
held in abeyance the Constitution in abeyance and in its
place imposed a new constitutional order, called PCO
No. 1 of 2007 and Oath Order, 2007. Therefore, the
acts/actions and instruments brought about by him
from 3rd November, 2007 till 15th December, 2007 (both
days inclusive) were unconstitutional, ultra vires and
void and were liable to be so declared;
(2)
Two of the instruments, namely, Proclamation of
Emergency and PCO No. 1 of 2007 were issued by
General Pervez Musharraf in his capacity as the Chief of
Army Staff, while the third instrument, namely, Oath
Order, 2007 was issued by him in his capacity as
President of Pakistan. Neither the Constitution nor any
law permitted him to promulgate any of the said
instruments in any of his capacities. Therefore, the
actions
of
3rd
November,
unconstitutional,
illegal
2007
and
were
invalid.
patently
The
unconstitutional and illegal assumption of power as
described in the aforesaid instruments made him a
usurper and he was liable to be so declared;
(3)
Oath Order, 2007 was issued by General Pervez
Musharraf in his capacity as the President of Pakistan as
a delegatee of the Chief of Army Staff, which was
against the scheme of the Constitution and the law,
inasmuch as neither any subordinate authority could
delegate its functions to a superior authority nor the
President was empowered under the Constitution to
issue such an Order;
Const. P 9 & 8/2009
(4)
26
The instruments of 3rd November, 2007 were purported
to be laws of permanent and perpetual character. On
the other hand, under Article 89 of the Constitution the
President was empowered to promulgate Ordinances
for a period of four months. The Chief of Army Staff did
not have any power or authority under any law to
promulgate any of the aforesaid unconstitutional
measures. As such, the same were issued neither under
any provision of the Constitution nor under any law on
the statute book;
(5)
The actions of 3rd November 2007 up to 15th December
2007 (both days inclusive) were the creation and for the
benefit of one individual alone, namely, General Pervez
Musharraf. Any reference he made to other institutions
in any of the instruments of that date and onward was
incorrect in the course of history and an attempt to
involve other institutions and persons with the sole
object of his own personal aggrandizement and political
benefit. The Pakistan Army was dragged into it and
confronted with the people. Earlier, as a result of
agreement with the Muttahida Majlis-e-Amal (MMA), he
got inserted into Article 41 of the Constitution clause (7)
– his assumption of the office of President in pursuance
of the Referendum held in April 2002 for a term of five
years; clause (8) – for a vote of confidence for further
affirmation of his being in office; and clause (9) for
regulating the proceedings for the vote of confidence by
the Chief Election Commissioner in accordance with
such procedure and the counting of votes in such
manner as may be prescribed by the rules framed by the
Federal
Government
–
all
notwithstanding
any
provision of the Constitution or any other law for the
Const. P 9 & 8/2009
27
time being in force. All these were special provisions
made for one person;
(6)
After the acts of 3rd November, 2007 General Pervez
Musharraf was as much a usurper as was General Agha
Muhammad Yahya Khan after the imposition of martial
law in 1969. Therefore, as stated by Yaqub Ali Khan, J.,
in Asma Jilani’s case, at the first available opportunity, on
the ouster of the usurper, his actions should be nullified
and he would be liable to be tried for high treason and
punished;
(7)
General Pervez Musharraf could not have introduced
his own amendments into the Constitution for selfservice and benefit during the so called emergency. The
surreptitious validation, affirmation and adoption made
by him through insertion of Article 270AAA were
invalid and thus had no legal effect in the absence of a
parliamentary validation in accordance with Articles
238 and 239 of the Constitution. The unconstitutional
acts of General Pervez Musharraf were never extended
constitutional protection by the Parliament through a
constitutional amendment. The said amendments were
unconstitutionally and illegally validated by the so
called judgments in Tikka Iqbal Muhammad Khan’s case.
Therefore, the constitutional amendments along with
the judgments were required to be done away with;
(8)
All the consequential acts based upon or flowing from
those actions would also be ineffective, that is to say, all
the actions of 3rd November, 2007 up to 15th December,
2007 would have to be declared invalid and ineffective;
(9)
Before the schedule of election was announced,
Constitution Petitions No. 58, 59, 61, 62, 63 and 68 of
Const. P 9 & 8/2009
28
2007 were filed in the Supreme Court in August 2007 on
behalf of Jamat-e-Islami, Imran Khan and others
challenging the dual office of General Pervez Musharraf
as well as his candidature for the election of President
on the ground that being a person in the service of
Pakistan, he was not eligible to contest election of
President in view of the provision of Article 63(1)(d) of
the Constitution. The petitions were held to be not
maintainable by a majority of 6 to 3. Later, the
nomination papers filed by General Pervez Musharraf
were challenged before the Supreme Court, inter alia, on
the ground that the schedule of election was against the
provision of Clause (4) of Article 41, which provided
that the election to the office of President shall be held
not earlier than sixty days and not later than thirty days
before the expiry of the term of the President in office.
His term was to expire on 15th November, 2007,
therefore, his election had to take place between 15th
September, 2007 and 15 th December, 2007. However,
before the verdict was given in Wajihuddin Ahmed’s case,
apprehending without any legal and valid justification
that the said petitions would be decided against him,
Proclamation of Emergency of 3rd November 2007 was
unconstitutionally and illegally promulgated;
(10)
The so called judgments in
Tikka Iqbal Muhammad
Khan’s case (though they were not judgments in the eye
of law because the body of persons who sat in judgment
over the actions of 3rd November 2007, having been
appointed under PCO No. 1 of 2007, and not under the
Constitution, did not constitute Supreme Court of
Pakistan, therefore, at the most that body would be
described as a tribunal) were in any case per incuriam
because they were violative of the law laid down in
Const. P 9 & 8/2009
29
Zafar Ali Shah’s case and thus were void and nullity in
law;
(11)
It had illegally and unjustifiably been held in Tikka Iqbal
Muhammad
Khan’s
case
that
the
proceedings
in
Wajihuddin Ahmed’s case were being delayed by the
petitioner’s counsel. In reality, the situation was the
other way round because it was the counsel for the
respondent General Pervez Musharraf and the learned
Attorney General for Pakistan who were delaying the
proceedings by reading lengthy excerpts from the books
being cited at the bar;
(12)
It was wrongly held in
Tikka Iqbal Muhammad Khan’s
case that before Order dated 3rd November, 2007 was
passed, the Hon’ble Judges of the 7 – Member of the
Supreme Court had ceased to be the Judges because a
Judge would cease to hold office only in accordance
with the procedure laid down in Article 209 of the
Constitution, and by no other means;
(13)
By 5th November, 2007 the strength of the tribunal was
not more than 5, therefore, they were in a hurry to
increase the number beyond seven. Accordingly vide
notification
dated
05.11.2007
four
persons
were
purportedly appointed to the Supreme Court under
PCO No. 1 of 2007 and Oath Order, 2007 whereafter the
tribunal took up matter for hearing on 6th November,
2007 and passed the order on that date;
(14)
One of the grounds for setting aside the Order dated
03.11.2007 given in the order dated 06.11.2007 was that
it was passed without notice, but surprisingly, the order
dated 06.11.2007 itself was passed without any notice,
even to the petitioner;
Const. P 9 & 8/2009
(15)
30
The judgments in
Tikka Iqbal Muhammad Khan’s case
were clearly motivated by collateral and ulterior
purposes of acting in collusion with the usurper to
depose the de jure Chief Justice of Pakistan and Judges
of the Supreme Court and the High Courts, upholding
his
unconstitutional
actions
and
validating
the
unconstitutional appointments. The personal interest
and bias of Abdul Hameed Dogar, J, and others was
apparent on the face of the record, which rendered their
decisions void;
(16)
The judgments in
Tikka Iqbal Muhammad Khan’s case
were void inasmuch as the ratio of the judgments in the
cases of Begum Nusrat Bhutto’s case did not apply to this
case and the application of the doctrine of civil and state
necessity and maxim of salus populi est suprema lex
(welfare of the people was the supreme law) were not at
all applicable. Rather the dictum laid down in Asma
Jilani’s case was applicable;
(17)
The striking difference and distinction between the
actions of 5th July 1977 and 12th October 1999 on the one
hand, and the action of 3rd November 2007 on the other,
was that the former were affirmed, adopted and
validated by the Parliament through the Eighth and
Seventeenth
Amendments
of
the
Constitution
respectively whereas the latter was not validated or
ratified by the Parliament. Reference in this behalf was
made to Article 270C, which though
was
first
introduced under the Legal Framework Order, 2002,
but it was later inserted into the Constitution under the
Seventeenth Amendment. In absence of any validation
or ratification by the Parliament, Abdul Hameed Dogar
and other persons who were ostensibly styled as Chief
Const. P 9 & 8/2009
31
Justices would not be consultees for the purposes of
Articles 177, 193 and 197 of the Constitution. Hence, all
the appointments made in consultation with such Chief
Justices would be void ab initio;
(18)
The actions of 3rd November 2007 were directed against
one organ of the State alone, namely, the judicial branch
as against the earlier two military takeovers of 5th July
1977 and 12th October 1999 when the whole of the
governmental
structure
was
demolished,
the
Constitution was held in abeyance, the Federal and the
Provincial Governments (Prime Minister and Chief
Ministers along with their Cabinets) were dismissed,
and the National and the Provincial Assemblies were
dissolved. In the instant case, emergency was imposed
and the use of the words “martial law” was avoided,
though rumours were spread that “emergency plus”
was
being
imposed.
Therefore,
the
principles
enunciated in the cases Begum Nusrat Bhutto and Zafar
Ali Shah were not applicable, rather the instant case
would be governed, as nearly as may be, by the
principles laid down in the case of Asma Jilani;
(19)
The actions of 3rd November, 2007, in the course of our
history,
were
different
from
the
previous
ones,
inasmuch as they were never accepted or acquiesced by
the Judges, the lawyers, political activists and the
people of Pakistan. Thousands of lawyers and political
activists were arrested and detained. The apex Court
could take judicial notice of the fact that there was
nationwide movement, joined by each and every
segment of the nation. Initially on the first day, a large
number of Judges including 13 out of 18 Judges, i.e. ¾
Judges of the Supreme Court itself, did not make oath
Const. P 9 & 8/2009
32
under PCO No. 1 of 2007 read with Oath Order, 2007.
None of the Judges who did not accept the aforesaid
oath applied for pension, or for revival of his licence to
practice law. Had the tribunal looked into the earlier
judgments, the conclusion reached by it in Tikka Iqbal
Muhammad Khan’s case would not have been reached. As
a matter of fact, it was a selective application of the law
laid down in those judgments. It was repugnant to the
earlier judgments;
(20)
Under Article 190 of the Constitution, all authorities
including General Pervez Musharraf were obligated to
act in aid of the Supreme Court. Since the Order dated
3rd November, 2007 passed by a seven – member Bench
of this Court in Wajihuddin Ahmed’s case was in force,
therefore, the acts of General Pervez Musharraf, besides
being unconstitutional and illegal, also violated the
Order of the Supreme Court, hence, the same were void.
There was a judicial order restraining General Pervez
Musharraf
from
imposing
emergency,
or
doing
anything against the independence of judiciary and
requiring the Judges not to take oath. Despite that,
General Pervez Musharraf took the action of 3rd
November 2007 and certain Judges took oath under
PCO No. 1 of 2007 read with Oath Order, 2007. This
aspect was different from the earlier cases;
(21)
The Judges of the superior courts who had taken oath to
preserve, protect and defend the Constitution ought not
break their oath under any circumstances and not
submit to the will of the military adventurer. All the
Judges of the Supreme Court including Abdul Hameed
Dogar, J, and all the Judges of the High Courts
including Chief Justices, who were appointed under
Const. P 9 & 8/2009
33
PCO No. 1 of 2007 and who took oath of office under it,
despite the Order dated 3rd November, 2007 passed by a
seven – member Bench of this Court in Wajihuddin
Ahmed’s case were not only unconstitutionally and
illegally appointed as such Chief Justices and Judges
and their appointments were inherently invalid, but
they would also be guilty of misconduct and liable to be
proceeded against under Article 209 of the Constitution;
(22)
The fresh appointments were made after 3rd November,
2007 in consultation with Abdul Hameed Dogar, J, who
was neither a de facto Chief Justice of Pakistan, nor could
he be described as the Acting Chief Justice of Pakistan
within the meaning of Article 180 of the Constitution;
(23)
At the relevant time, there was no vacancy either in the
office of the Chief Justice of Pakistan or any Judge of the
Supreme Court according to the law. Under the
Supreme Court (Number of Judges) Act, 1997 (Act No.
XXXIII of 1997), the strength of the Supreme Court was
Chief Justice and 16 Judges. The number of Judges of
the Supreme Court was raised from 16 to “not more
than 29” by the Finance Act, 2008, which was
unconstitutional and invalid for the reason that the Act
of 1997 could only be amended by an Act of Parliament.
The Finance Act was not an Act of Parliament,
inasmuch as it was passed only by the National
Assembly. As a matter of fact, Finance Bills were never
placed before the two Houses of Parliament and were
directly passed by the National Assembly. While the
Finance Act remained valid for the purposes of financial
allocations, it would be invalid as regards the increase
of number of Judges of the Supreme Court was
concerned;
Const. P 9 & 8/2009
(24)
34
On 3rd November 2007, not only the Chief Justice and 16
Judges were in place, but one ad hoc Judge was also
working in the Supreme Court. Thus, there was no
vacancy against which anyone could be appointed as
the Chief Justice of Pakistan, or as a Judge of the
Supreme Court;
(25)
All the 13 Judges of the Supreme Court who had not
made oath under PCO No. 1 of 2007 read with Oath
Order, 2007, though they were put under house arrest,
were available for performing their functions. They
could not be said to have vacated office and there could
not be appointment of permanent Judges in their place.
The
tribunal,
therefore,
exercised
the
usurped
jurisdiction of the Supreme Court and acted with clear
mala fides, which rendered its decisions as without
jurisdiction and of no legal effect;
(26)
Since there was no vacancy in the Supreme Court of
Pakistan, and no consultation with the constitutional
consultee ever took place regarding the appointment of
any of the persons purporting to act as the Judges of the
Supreme Court in Tikka Iqbal Muhammad Khan’s case to
purportedly confer validity on the actions of 3rd
November 2007, the tribunal was coram non judice and
the members of the tribunal were not even de facto
Judges;
(27)
The so called judgments in
Tikka Iqbal Muhammad
Khan’s case wrongly placed reliance on the cases of
Begum Nusrat Bhutto and Zafar Ali Shah as the facts and
circumstances were entirely different which formed the
basis for the said judgments and the dictum laid down
Const. P 9 & 8/2009
35
therein could not be extended to it, as was attempted to
be done by the tribunal. Even otherwise, the lawyers
and the people of Pakistan never considered the
aforesaid two judgments a good law of the land, and
perhaps a time had come that the same were revisited;
(28)
The Supreme Court had the jurisdiction to
reconsider and revisit any of its previous
judgments. It was not unprecedented that the
Supreme
Court
had
also
reconsidered
or
revisited its previous view even after a review
against the previous decision had been heard
and
decided.
The
Supreme
Court
has
reconsidered and revisited its previous decision
even in exercise of its suo motu jurisdiction;
(29)
The whole nation, the judiciary, the lawyers and
political parties all rejected the actions of 3rd November
2007, therefore, unlike what was being said in earlier
judgments that the military takeovers were welcomed
and sweets were distributed, was not the situation in
the present case;
(30)
The doctrine of civil or state necessity was at best a
doctrine of condonation and not of validation. But while
extending condonation, a wrong could not be made
right, at the best it could only be ignored, pardoned, etc.
In any case, not everything would be condoned, and
more specifically a usurper’s acts to entrench himself
into power would not be condoned, as held in Asma
Jilani’s case;
(31)
The petition of
Tikka Iqbal Muhammad Khan
having been filed under Article 184 (3), was not
competent because –
Const. P 9 & 8/2009
36
(a)
As held in Watan Party v. Chief Executive (PLD
2003 SC 74) the petitioner had no locus standi
because he was neither a leader of any
political party nor a political worker; and
(b)
No question relating to the enforcement of
his
fundamental
rights
was
involved.
Moreover, the fundamental rights were
suspended and it was purportedly held so
by the said tribunal. The petitioners had no
interest in or nexus with the proceedings. Even
the members of the tribunal were feeling
difficulty how to treat the proceedings adversary.
In the earlier cases, the bona fides of the petitioners
were established on the face of the record
inasmuch as in Asma Jilani’s case, the daughter of
the detenu, in Begum Nusrat Bhutto’s case the wife
of the detenu, and in Zafar Ali Shah’s case, a
member of the National Assembly had filed the
petitions.
Tikka Iqbal Muhammad Khan and
Zafarullah Khan, the so called President of the so
called Watan Party were definitely planted and
inspired to bring the petitions. The whole
exercise was mala fide and an abuse of the
jurisdiction of the Supreme Court and also
of its process. Since it was well settled that
discretionary jurisdiction could not be
exercised
to
perpetuate
injustice,
the
jurisdiction was wrongly exercised.
10.
Mr. Hamid Khan, learned Sr. ASC prayed that the following
declaration may be issued by this Court: -
Const. P 9 & 8/2009
(1)
37
General Pervez Musharraf became a usurper as a result of the
acts of 3rd November 2007 to 15th December, 2007 and that he
be so declared;
(2)
All his acts/actions purportedly done to suspend and amend
the Constitution between 3rd November, 2007 and 15th
December, 2007 (both days inclusive) were unconstitutional
and invalid and may be so declared;
(3)
All appointments of Judges on and after 3rd November, 2007
till 24th March, 2009 not made in consultation with the de jure
Chief Justice of Pakistan were unconstitutional and invalid,
and were liable to be so declared, and that such Judges were
not even de facto Judges;
(4)
The two so called judgments in Tikka Iqbal Muhammad Khan’s
case dated 23.11.2007 and 15.2.2008 were nullity in law being
per incuriam, coram non judice, without any legal basis, based
on mala fide proceedings, rendered by biased persons of the
tribunal and given on collusive and fraudulent petitions
lacking bona fide. Because the judgments in the cases of Begum
Nusrat Bhutto and Zafar Ali Shah were no longer considered
good law in Pakistan, perhaps it was time to revisit the same;
and
(5)
The elections of 18th February 2008 were constitutionally valid
because they were held after the expiry of the constitutional
term of the National and Provincial Assemblies between 15th
and 22nd November 2007 and were actually a consequence of
the constitutional mandate contained in Article 224 of the
Constitution, hence the same were liable to be declared as
such.
11.
Mr. Muhammad Akram Sheikh, Sr. ASC, learned counsel for
the petitioner in Constitution Petition No. 8 of 2009, challenging the
Const. P 9 & 8/2009
38
legality of the actions of 3rd November 2007 made the following
submissions: (1)
All the actions taken by General Pervez Musharraf on 3rd
November, 2007 and thereafter holding the Constitution in
abeyance, deposing and putting under arrest the Judges of
the Superior Courts and appointing strangers as such Judges
and getting his all such acts validated by those strangers were
patently illegal. General Pervez Musharraf, being a member of
the Armed Forces of Pakistan and bound by his oath under
the Constitution , the illegality was more blatant;
(2)
The decisions in
Tikka Iqbal Muhammad Khan’s case were
unconstitutional and Article 270AAA as inserted into the
Constitution by General Pervez Musharraf could not be
treated as part of the Constitution. The decisions rendered in
Tikka Iqbal Muhammad Khan’s case were coram non judice and a
nullity in law, having been rendered by persons who stood
disqualified to act as Judges under the Order dated 03.11.2007
passed by a seven – member Bench of the Supreme Court;
(3)
It was laid down in Al-Jehad Trust case that the consultation
referred to in Articles 177 and 193 of the Constitution was to
be meaningful and would be binding upon the Executive/
President and a consultation with an Acting Chief Justice did
not meet the criteria laid down in the aforesaid Articles. The
possibility of arbitrary judicial appointments by the executive
stands overruled;
(4)
Ever since the 30th of June, 2005, the date of his taking oath,
Mr. Justice Iftikhar Muhammad Chaudhry continued to be the
Chief Justice of Pakistan without any interruption of a single
day. The office of the Chief Justice of Pakistan never fell
vacant in terms of Article 180 of the Constitution. Therefore,
Abdul Hameed Dogar, J, could not, in law, be said to be an
Const. P 9 & 8/2009
39
Acting Chief Justice, nor could he be treated as entitled to
perform the constitutional function of being consulted for
appointment of new Judges of the Supreme Court and the
High Courts and the consultation made with him for such
appointments did not meet the requirement of Articles 177
and 193 of the Constitution;
(5)
General Pervez Musharraf, without any regard to merit,
competence or repute, and without any consultation with the
Hon’ble Chief Justice of Pakistan, ‘packed the courts’ with
dozens of persons on and after 3rd November, 2007. The
persons so brought into the Supreme Court and the High
Courts
were
not
duly
appointed
Judges
under
the
Constitution;
(6)
Such forum illegally reversed the Order dated 3rd November,
2007 passed by a seven – member Bench of this Court in
Wajihuddin Ahmed’s case and illegally upheld all the illegal
actions of General Pervez Musharraf taken by him on and
after 3rd November, 2007;
(7)
A government servant, such as General Pervez Musharraf,
who is bound by his Constitutional oath to defend the
Constitution, could not hold the Constitution in abeyance,
dismiss and arrest the Judges of superior courts of Pakistan,
appoint strangers as Judges of superior courts and get his
illegal acts validated by those strangers. Even the Executive
organ of State or any executive officer could not dismiss or
restrain any Judge of superior courts or stop him from
performing his judicial functions because Judges of superior
courts could be removed from their offices by no process other
than the one provided in Article 209 of the Constitution;
(8)
Non-performance of functions of his office by the Chief Justice
of Pakistan from 3 rd November 2007 till 16th March 2009 due to
Const. P 9 & 8/2009
40
the forcible restraint placed upon him by the Executive could
not be construed as resulting in his “absence” from office, or
his “inability” to perform his functions or causing “vacancy”
in his office so as to appoint the next most senior Judge as
Acting Chief Justice under Article 180 or to appoint a
permanent incumbent under Article 177;
(9)
Abdul Hameed Dogar, J, in the presence of Chief Justice of
Pakistan from 3rd November 2007 till 16 th March 2009 was
neither a permanent Chief Justice nor an Acting Chief Justice.
Therefore, he could not validly be “consulted” for the
appointment of Supreme Court and High Court Judges under
Articles 177 and 193 of the Constitution, something for which
even a duly appointed Acting Chief Justice was not
competent;
(10)
The Constitution could only be amended by following the
procedure prescribed in Articles 238 and 239 of the
Constitution and the Supreme Court did not have the power
and jurisdiction to allow any person to amend it. The
amendments made by the usurpers in the past, even though
made under the purported authority of the Supreme Court in
the cases of Begum Nusrat Bhutto and Zafar Ali Shah, remained
invalid until they were validated and protected by the
Parliament by means of the Eighth and the Seventeenth
Amendments to the Constitution. The purported validation by
insertion of Article 270AAA by General Pervez Musharraf was
invalid, which was even otherwise in direct clash with the
principle of independence of judiciary, which was a salient
feature of the constitutional framework and hence illegal;
(11)
This Court had a constitutional duty to safeguard the
independence and dignity of the judiciary, security of tenure
of the Judges of superior Courts and also to block the
possibility of future constitutional adventurism and a possible
Const. P 9 & 8/2009
41
judicial recognition thereof by overruling the ratio of the cases
of Dosso, Begum Nusrat Bhutto and Zafar Ali Shah and all other
such judgments to the extent that they provided justification
for validation of constitutional breach; while
(12)
This Court may, in the larger public interest, indemnify the
judgments and orders rendered in the name of the Supreme
Court and of all the High Courts of the country from 3rd
November 2007 till the date of pronouncement of judgment in
the instant petition, except any judgment or order that would
stand in conflict with the Order of 7-member Bench passed in
Constitution Petition No. 73 of 2007.
12.
Sardar Muhammad Latif Khan Khosa, learned Attorney
General for Pakistan appeared in response to the Court’s notice issued in
terms of Order XXVII-A of the Code of Civil Procedure, 1908 read with
Order XXIX of the Supreme Court Rules, 1980 as important questions
relating to interpretation of the provisions of the Constitution were
involved in the case. In his address to the Court, the learned Attorney
General briefly and broadly recounted the constitutional developments in
the history of Pakistan, from its coming into existence on 14th August, 1947
under the Indian Independence Act, such as –
?
The
dissolution of the Constituent Assembly by the
Governor-General Ghulam Muhammad on 24th October,
1954 and upholding of such dissolution by the Federal Court
in the case of Federation of Pakistan v. Moulvi Tamizuddin Khan
(PLD 1955 FC 240) on a purely legal ground, rather a
technicality that the Sindh Chief Court was divested of the
power and jurisdiction to issue the writ it did, declaring the
dissolution of the assembly illegal and restoring it, due to
invalidity of the law for want of requisite assent by the
Governor-General;
Const. P 9 & 8/2009
?
42
The imposition of martial law by General Ayub Khan by
means of Proclamation of 7th October, 1958, annulment of
the Constitution, dissolution of the National and the
Provincial Assemblies and dismissal of the Central and the
Provincial Cabinets and justification of all acts of General
Ayub Khan by the Supreme Court in Dosso’s case on the
principle of revolutionary legality;
?
The promulgation of a new Constitution in 1962 by General
Ayub Khan; imposition of second martial law by General
Yahya Khan on 25th March, 1969, abrogation of the
Constitution, dissolution of the legislatures and dismissal of
the governments, assumption of the office of President,
promulgation of Provisional Constitution Order on 4th April,
1969 and decision in Asma Jilani’s case declaring the
assumption of power by General Yahya Khan as a usurper
and the law laid down in Dosso’s case being declared
unsustainable both on the principle of revolutionary legality,
stare decisis or otherwise;
?
The
elections
of
1970,
dismemberment
of
Pakistan,
enactment of Interim Constitution on 21st April, 1972 and
then enforcement of the Constitution of the Islamic Republic
of Pakistan, 1973 on 14th August, 1973;
?
The imposition of third martial law by General Muhammad
Ziaul Haq on 5th July, 1977, holding in abeyance the
Constitution, arrests and detentions of the political activists,
including the then Prime Minister of Pakistan, Zulfikar Ali
Bhutto and the decision of the Supreme Court in Begum
Nusrat Bhutto’s case filed against the detention of her
husband justifying the military takeover under the doctrine
of necessity and the maxim salus populi est suprema lex and
the departure thus made from the dictum enunciated in
Asma Jilani’s case, authorizing the Army Chief to amend the
Constitution for attainment of his declared objectives, the
execution of Zulfikar Ali Bhutto, boycott of the non-party
Const. P 9 & 8/2009
43
elections of 1985, the passing of the Eighth Amendment to
the Constitution on 31st December 1985, dissolution of the
Assemblies on 29th May 1988;
?
Imposition of emergency on 12th October, 1999 by General
Pervez Musharraf, holding the Constitution in abeyance,
issuance of Provisional Constitution Order, 1999, dissolution
of the National and the Provincial Assemblies, dismissal of
the Government of Mian Muhammad Nawaz Sharif, Prime
Minister of Pakistan having two-third majority in the
Parliament and the Oath of Office (Judges) Order, 2000,
sacking of Judges of the superior courts and the validation of
all his acts by the Supreme Court in Zafar Ali Shah’s case
authorizing him to run the affairs of the government
including the power to amend the Constitution;
?
Holding of Referendum on 30th April, 2002 by General
Pervez Musharraf to become the President of Pakistan for a
term of five years and the decision of the Supreme Court in
Hussain Ahmad v. Pervez Musharraf, Chief Executive (PLD
2002 SC 853) holding that the consequences flowing from the
holding of Referendum were purely academic, hypothetical
and presumptive in nature and leaving the same to be
determined at a proper forum at the appropriate time;
?
Promulgation of the Legal Framework Order, 2002 making
large scale amendments in the Constitution and the decision
of
the
Supreme
Court
in
Watan
Party
v.
Chief
Executive/President of Pakistan (PLD 2003 SC 74) case holding
that the elected Parliament and not the Supreme Court was
the appropriate forum to consider all these amendments;
?
Election of October 2002, formation of government by PML
(Q) under the patronage of General Pervez Musharraf,
periodical restoration of the Constitution, the passing of the
Seventeenth Amendment to the Constitution as a result of an
accord with the MMA, the Pakistan People’s Party and the
Const. P 9 & 8/2009
44
Pakistan Muslim League (N) boycotting the proceedings;
and
?
Announcement of the schedule of election of the President
on 20.09.2007, filing of nomination papers by General Pervez
Musharraf, filing of Constitution Petitions by Makhdoom
Amin Faheem and Wajihuddin Ahmed and dismissal
thereof by the Supreme Court holding the petitions not
maintainable and asking the petitioners to submit objections
before the Chief Election Commissioner in the first instance,
acceptance of his nomination papers, again filing of petition
by Wajihuddin Ahmed, its hearing, conclusion of arguments
of the petitioner and the promulgation of Proclamation of
Emergency, PCO No. 1 of 2007 and Oath Order, 2007 by
General Pervez Musharraf and the judgment in Tikka Iqbal
Muhammad
Khan’s
case
validating
all
his
acts
and
empowering him to amend the Constitution, restoration of
the Constitution on 15th December, 2007, holding of election
on 18th February, 2008, formation of the Federal and the
Provincial Governments by the Pakistan People’s Party and
establishment of a complete democratic set up in the
country.
13.
The learned Attorney General stated that the acts and
instruments of 3rd November 2007 of General Pervez Musharraf, which
were obviously extra-constitutional, were not accepted, rather were
objected to by all the democratic political parties except Pakistan Muslim
League (Quaid-e-Azam), hereinafter referred to as “PML (Q)”, which had
tabled a resolution in the National Assembly to endorse the said actions
and got it passed. He unequivocally declared that neither he was
supporting General Pervez Musharraf’s actions of 3rd November, 2007 nor
he would defend him in the instant proceedings. He made the following
arguments: -
Const. P 9 & 8/2009
(1)
45
The present democratic government had never accepted
extra-constitutional promulgation of Orders and/or any
other repressive measures. The respect for judiciary had
always been hallmark of its ideology and judicial process
was resorted to by their leaders even in the most trying
circumstances. The verdict in Tikka Iqbal Muhammad Khan’s
case was affirmed in review by a 13 – member Bench of the
Supreme Court whereby the acts of 3rd November 2007 were
validated on the principles of state necessity and salus populi
est suprema lex, which even otherwise ceased to exist on
revival of the Constitution on 15th December 2007;
(2)
Notwithstanding
the
aforesaid
position,
the
present
fourteen–member Bench may like to revisit the cases of
Dosso, Begum Nusrat Bhutto, Mehmood Khan Achakzai,
Zafar Ali Shah, Watan Party, Pakistan Lawyers Forum, and
Tikka Iqbal Muhammad Khan, but such revisiting would be
prospective as held in a chain of authorities, including
Punjab Province v. Malik Khizar Hayat Khan Tiwana (PLD 1956
FC 200), etc;
(3)
Much water having flown under the bridge in the
interregnum, the de facto doctrine would call for judicial
restraint because complete annulment would create chaos
and confusion of great magnitude. In re: Reference by H.E.
The
Governor-General
(PLD
1955
FC
435),
certain
Ordinances were saved for consideration of their validity by
the Constituent Assembly. Reliance was also placed on
Cooley’s Constitutional Limitations 8th Edition, Vol. 2, p.
137, Sabir Shah v. Federation of Pakistan (PLD 1994 SC 738),
Managing Director, Sui Southern Gas Co. Ltd. v. Ghulam Abbas
(PLD 2003 SC 724), etc;
(4)
The objection with regard to increase of number of the
Judges of the Supreme Court was neither part of the
pleadings nor was any prayer made for annulment of section
13 of the Finance Act, 2008. The striking down of a
Const. P 9 & 8/2009
46
legislative instrument could not be pleaded collaterally
which was not permissible in law. The Money Bill even
otherwise was simultaneously sent to the Senate of Pakistan
and their recommendations solicited. Money bill as a matter
of fact was unanimously passed in terms of Article 73 of the
Constitution and was duly passed by the National Assembly
after consideration of the Senate and assented to by the
President of Pakistan. The Finance Act, 2008 was passed in
line with the consistent and constant practice, inasmuch as
laws were amended through the Money Bills so as to work
out the financial implications and to budget the expenditure
from the national exchequer. Hence, no exception could be
taken to it.
14.
On merits of Constitution Petition No. 09 of 2009, the learned
Attorney General took the position that the respondents Nos. 3 and 4,
being aggrieved of their non-confirmation could have filed a petition, but
not the Sindh High Court Bar Association. The respondents Nos. 3 & 4
were recommended by the Chief Justice of the High Court alone, while the
Governor, the Chief Justice of Pakistan, the Prime Minister and the
President of Pakistan had not agreed. The opinion of the Chief Justice of
Pakistan, being the pater familias, deserved primacy, which even otherwise
was not justiciable in view of the law laid down in Supreme Court Bar
Association v. Federation of Pakistan (PLD 2002 SC 939). He, however, stated
that whatever view was taken by the apex Court, it would be acceptable to
the Government.
15.
Mr. Yousaf Khan Leghari, learned Advocate General Sindh,
who appeared on behalf of the respondent No. 2 (Government of Sindh
through Chief Secretary), stated that he had clear instructions not to
Const. P 9 & 8/2009
47
support the actions of 3rd November 2007. The learned Advocate General
made the following submissions on the main petition: (1)
The petition ought to be decided by the High Court in the first
instance so that the apex Court had the benefit of the views of that
Court. In the alternative, it should be heard by a smaller Bench, so
that the same could be reviewed by a larger Bench;
(2)
A Bar Association was not competent to invoke jurisdiction of the
apex Court under Article 184(3) of the Constitution asking for
appointment of Judges from amongst its members, or for denotifying the appointments of the Judges;
(3)
It was clear from notification dated 26.08.2008 that the respondents
Nos. 3 & 4 were appointed as Additional Judges for a period of one
year from the date of their oath for the period mentioned in the
notification dated 15.09.2007 otherwise the notification dated
26.08.2008 would have mentioned period of one year. On the other
hand, the notification recited “for the period mentioned in
notification dated 15.09.2007”. Thus, the appointment made vide
notification dated 26.08.2008 was for the remaining period of the
year, which commenced from the date of their oath under the
notification dated 15.09.2007, that is to say, it was only for 22 days;
and
16.
Having heard the learned counsel for the petitioners in both
the petitions, the learned Attorney General for Pakistan and the learned
Advocate General Sindh, and having perused the record of Constitution
Petitions No. 59 of 2007 as also Constitution Petitions No. 73 of 2007
together with other connected petitions, which were repeatedly referred to
by the learned counsel for the petitioners in the course of arguments, and
also having gone through the case-law cited at the bar, we now proceed to
determine the issues involved in the present petitions. The appointment of
the respondents No.3 and 4 as Additional Judges of the Sindh High Court
Const. P 9 & 8/2009
48
on 15.09.2007 for a period of one year, their reappointment vide notification
dated 26.08.2008 for the period mentioned in the notification dated
15.09.2007, extension in their tenure for a period of six months vide
notification dated 15.09.2008 and ultimately their non-confirmation were
interjected by the actions of 3rd November, 2007 taken by General Pervez
Musharraf, in consequence whereof not only the respondents Nos. 3 & 4
but a large number of other Judges of the Supreme Court and High Courts,
including the Chief Justice of Pakistan were declared to have ceased to
hold office. The next interjection was the judgment reported as Tikka Iqbal
Muhammad Khan v. General Pervez Musharraf (PLD 2008 SC 178) whereby
the actions of 3rd November, 2007 were validated and the power to amend
the Constitution as provided in Article 2 of PCO No. 1 of 2007 to be
exercised by the President was reaffirmed. Thus, it is imperative to
determine the validity of the judgment in Tikka Iqbal Muhammad Khan’s
case, side by side with the actions of 3rd November, 2007, which formed
the foundation upon which the whole superstructure of the later actions
rested.
17.
Indeed, we have a chequered history of constitutional
developments in Pakistan. Before dealing with the issues raised in these
petitions, it is necessary to have a cursory glance at the major
constitutional developments. The first major event in this behalf was the
dissolution of the Constituent Assembly of Pakistan by Governor-General
Ghulam Muhammad in 1954, which he did on the following grounds: “(1)
The Governor-General having considered the political crisis with
which the country is faced, has with deep regret come to the
conclusion that the constitutional machinery has broken down. He,
Const. P 9 & 8/2009
49
therefore, has decided to declare a state of emergency throughout
Pakistan. The Constituent Assembly as at present constituted has
lost the confidence of the people and can no longer function;
(2)
The ultimate authority vests in the people who will decide all
issues including constitutional issues through their representatives
to be elected afresh. Elections will be held as early as possible;
(3)
Until such time as elections are held, the administration of the
country will be carried on by a reconstituted Cabinet. He has called
upon the Prime Minister to reform the Cabinet with a view to
giving the country a vigorous and stable administration. The
invitation has been accepted; and
(4)
The security and stability of the country are of paramount
importance. All personal, sectional and provincial interests must be
subordinated to the supreme national interest.”
This act of the Governor-General was challenged by Moulvi Tamizuddin
Khan, President of the Constituent Assembly, in the Chief Court of Sindh.
The Chief Court of Sindh allowed the petition and declared the dissolution
of the Assembly as illegal. It was held that the Acts of the Constituent
Assembly when it did not function as the Federal Legislature did not
require the Governor-General’s assent. The Federation of Pakistan
challenged the judgment of the Sindh Chief Court before the Federal
Court. The Federal Court reversed the judgment of the Sindh Chief Court
on the ground that the assent of the Governor-General was necessary to
the validity of all the laws and the amendments made in the Government
of India Act, 1935. The Court held that since section 223-A of the
Government of India Act under which the Chief Court of Sindh assumed
jurisdiction to issue the writs did not receive assent of the GovernorGeneral, it was not yet law, and that, therefore, the Chief Court had no
jurisdiction to issue the writs. However, in his dissenting judgment,
Const. P 9 & 8/2009
50
Cornelius J, (later CJ,) held that there was nothing in section 6(3) of the
Indian Independence Act, or in the status of Pakistan as a Dominion which
created the obligation that all laws made by the Constituent Assembly of a
constitutional nature, required the assent of the Governor-General for their
validity and operation. Thus, by majority, the dissolution of the assembly
was upheld on a legal ground. As to the merits of the case, it was observed
that it was wholly unnecessary to go into the other issues, and nothing
said in the judgment was to be taken as an expression of opinion on
anyone of those issues.
18.
The next case of constitutional importance was Usif Patel v.
Crown (PLD 1955 FC 387). The appellants in that case were proceeded
against under the Sind Control of Goondas Act, 1952. They were declared to
be goondas, directed to furnish heavy security, and for their failure to give
security confined to prison. Against their detention in prison, the
petitioners approached the Sind Chief Court by an application under
section 491 of the Code of Criminal Procedure, 1898 alleging that their
imprisonment was wrongful and prayed that they be set at liberty. Some
of the petitioners moved revision petitions under section 17 of the
aforesaid Act before the Chief Court.
19.
By means of the Emergency Powers Ordinance, 1955
(Ordinance No. IX of 1955) issued under section 42 of the Government of
India Act, 1935 the Governor-General sought to validate all those Acts by
indicating his assent with retrospective operation. The ground urged
before the Chief Court on which their imprisonment was alleged to be
illegal was that the Governor’s Act under which action had been taken
Const. P 9 & 8/2009
51
against them was invalid because it was passed by the Governor in
exercise of the powers which were conferred on him by a Proclamation
issued by the Governor-General under section 92A of the Government of
India Act, 1935, which section had been inserted in the Government of
India Act, 1935 by an Order of the Governor-General under section 9 of the
Indian Independence Act, 1947. It was contended that this action of the
Governor-General was ultra vires of the provisions of the aforesaid section
9. The contention was repelled by the Chief Court and the detentions of the
petitioners were held to be legal and their applications rejected.
20.
The matter came up in appeal before the Federal Court where
the questions requiring determination were as under: (1)
Whether the Governor-General could by an Ordinance validate the
Indian Independence (Amendment) Act, 1948; and
(2)
Whether the Governor-General could give assent to constitutional
legislation made by the Constituent Assembly with retrospective
effect.
It was held that a Legislature could not validate an invalid law if it did not
possess the power to legislate on the subject to which the invalid law
related, the principle governing validation being that validation being
itself legislation, one could not validate what one could not legislate upon.
The essence of a federal legislature was that it was not a sovereign
legislature, competent to make laws on all matters; in particular it could
not, unless specifically empowered by the Constitution, legislate on
matters which were assigned by the Constitution to other bodies. Nor was
it competent to remove the limitations imposed by the Constitution on its
legislative powers. The power of the legislature of the dominion for the
Const. P 9 & 8/2009
52
purpose of making provision as to the constitution of the Dominion could,
under subsection 1 of section 8 of the Indian Independence Act, 1947, be
exercised only by the Constituent Assembly, and that, such power could
not be exercised by that Assembly when it functioned as the Federal
Legislature within the limits imposed upon it by the Government of India
Act, 1935. The Governor-General could not, by an Ordinance, repeal any
provision of the Indian Independence Act, 1947 or the Government of
India Act, 1935 and assume unto himself all powers of legislation.
21.
Since the Amendment Act of 1948 was not presented to the
Governor-General for his assent, it did not have the effect of extending the
date from 31st March, 1948 to 31st March, 1949 and that since section 92A
was added to the Government of India Act, 1935 after 31st March, 1948, it
never became a valid provision of that Act. Thus, the Governor-General
had no authority to act under section 92A and the Governor derived no
power to legislate from a Proclamation under that section. Accordingly,
the Sind Goondas Act was ultra vires and no action under it could be taken
against the appellants. That being so, it was argued, the detention of the
appellants in jail was illegal.
22.
The Federal Court held that the Acts mentioned in the
Schedule to the aforesaid Ordinance could not be validated by the
Governor-General under section 42 of the Government of India Act, 1935,
nor could retrospective effect be given to them. A noteworthy fact was that
the Constituent Assembly, having already been dissolved by the
Governor-General by a Proclamation on 24th October, 1954 had ceased to
Const. P 9 & 8/2009
53
function and no legislature competent to validate these Acts was in
existence. In conclusion, the Court observed as under: “It might have been expected that, conformably with the attitude
taken before us by responsible counsel for the Crown the first
concern of the Government would have been to bring into existence
another representative body to exercise the powers of the
Constituent Assembly so that all invalid legislation could have
been immediately validated by the new body. Such a course would
have been consistent with constitutional practice in relation to such
a situation as has arisen. Events, however, show that other counsels
have since prevailed. The Ordinance contains no reference to
elections, and all that the learned Advocate-General can say is that
they are intended to be held.”
23.
Next case of significant relevance was the Reference by H. E.
The Governor-General reported as PLD 1955 FC 435. The Federal Court
having held in Maulvi Tamizuddin Khan’s case that assent of the GovernorGeneral was necessary to all laws passed by the Constituent Assembly, the
Governor-General sought to validate such Acts by indicating his assent,
with retrospective operation, by means of the Emergency Powers
Ordinance, 1955 (Ordinance No. IX of 1955) issued under section 42 of the
Government of India Act, 1935. The Federal Court in Usif Patel’s case,
however, declared that the Acts mentioned in the Schedule to that
Ordinance could not be validated under section 42 of the Government of
India Act, 1935, nor could retrospective effect be given to them. A
noteworthy fact was that the Constituent Assembly had ceased to function,
having already been dissolved by the Governor-General by a Proclamation
on 24th October 1954, and no legislature competent to validate these Acts
was in existence.
Const. P 9 & 8/2009
24.
54
The Governor-General made a Reference to the Federal Court
under section 213 of the Government of India Act, 1935 asking for the
Court’s opinion on the question whether there was any provision in the
Constitution or any rule of law applicable to the situation by which the
Governor-General could, by Order or otherwise, declare that all orders
made, decisions taken, and other acts done under those laws, should be
valid and enforceable and those laws, which could not without danger to
the State be removed from the existing legal system, should be treated as
part of the law of the land until the question of their validation was
determined by the new Constituent Convention.
25.
The answer returned by the Federal Court (by majority) was
that in the situation presented by the Reference, the Governor-General
had, during the interim period, the power under the common law of civil
or state necessity of retrospectively validating the laws listed in the
Schedule to the Emergency Powers Ordinance, 1955, and all those laws,
until the question of their validation was decided upon by the Constituent
Assembly, were, during the aforesaid period, valid and enforceable in the
same way as if they had been valid from the date on which they purported
to come into force.
26.
In Dosso’s case, the respondents in one of the appeals were
tried by a Jirga (Council of Elders) under the provisions of the Frontier
Crimes Regulation, 1901 (FCR) and convicted and sentenced under
different provisions of the Pakistan Penal Code, 1860. They filed
applications before the High Court for a writ of habeas corpus and certiorari
on the ground that the provisions of the FCR enabling the executive
Const. P 9 & 8/2009
55
authorities to refer a criminal case to a Council of Elders were void under
Article 4 of the Constitution of the Islamic Republic of Pakistan, 1956. The
High Court accepted the contention and held that the provisions of FCR
could be enforced under subsection (4) of section 1 ibid only against
Pathans and Baluchis and against such other class of persons the local
government may notify and as this was not a reasonable classification,
those provisions were ultra vires of Article 5 of the Constitution. The
convictions and sentences were set aside, and the respondents were
ordered to be treated as under trial prisoners, it being left to the
government to refer their cases to a court of law. On appeals filed by the
State before the Federal Court against the impugned orders of the High
Court, the validity of the exercise of power by the High Court was
adjudged in the context of the actions of 7th October, 1958. What happened
was that by Proclamation of that date, the President of Pakistan annulled
the Constitution of 1956, dismissed the Central Cabinet and the Provincial
Cabinets and dissolved the National Assembly and both the Provincial
Assemblies. Simultaneously, martial law was declared throughout the
country and Commander-in-Chief of the Pakistan Army was appointed as
the Chief Martial Law Administrator. Three days later, the President
promulgated the Laws (Continuance in Force) Order, 1958, the general
effect of which was the validation of laws other than the late Constitution,
that were in force before Proclamation, and restoration of the jurisdiction
of all Courts including the Supreme Court and High Courts. The Order
contained the further direction that the country, thereafter to be known as
Const. P 9 & 8/2009
56
Pakistan and not the Islamic Republic of Pakistan, should be governed as
nearly as may be in accordance with the late Constitution.
27.
Under Clause (7) of Article 2 of the Laws (Continuance in
Force) Order, 1958, all writ petitions pending in High Courts seeking
enforcement of fundamental rights stood abated. The Court held that if the
Constitution was destroyed by a successful revolution, the validity of the
prevalent laws depended upon the will of the new law-creating organ.
Therefore, if the new legal order preserved any one or more laws of the old
legal order, then a writ would lie for violation of the same. As regards
pending applications for writs or writs already issued but which were
either sub judice before the Supreme Court or required enforcement, the
Court in the light of the Laws (Continuance in Force) Order, 1958 held that
excepting the writs issued by the Supreme Court after Proclamation and
before the promulgation of the Order, no writ or order for a writ issued or
made after Proclamation shall have any legal effect unless the writ was
issued on the ground that anyone or more of the laws mentioned in Article
4 or any other right kept alive by the new Order had been contravened.
28.
The Supreme Court, on the basis of the theory propounded by
Hans Kelsen, accorded legitimacy to the assumption of power by General
Ayub Khan holding that coup d’état was a legitimate means to bring about
change in the government and particularly so when the new order brought
about by the change had been accepted by the people. It was held that
where a Constitution and the national legal order under it was disrupted
by an abrupt political change not within the contemplation of the
Constitution, then such a change would be a revolution and its legal effect
Const. P 9 & 8/2009
57
would not only be the destruction of the Constitution but also the validity
of the national legal order, irrespective of how or by whom such a change
was brought about. In the result, in accordance with the judgments of the
majority, the proceedings for writs in each of these cases were held to have
abated. The result was that the directions made and the writs issued by the
High Court were set aside.
29.
According to the facts of Asma Jilani’s case, President Ayub
Khan vide his letter of 25th March, 1969 addressed to General Yahya Khan
called upon him to discharge his legal and constitutional responsibility not
only to defend the country against external aggression but also to save it
from internal disorder and chaos. But, the Commander-in-Chief on the
very same day, on his own proclaimed martial law throughout the length
and breadth of Pakistan and assumed the powers of the Chief Martial Law
Administrator. He abrogated the Constitution, dissolved the National and
Provincial Assemblies and declared that all persons holding office as
President, members of the President's Council, Ministers, Governors of
Provinces and members of their Council of Ministers shall cease to hold
office with immediate effect. Existing laws and Courts were, however,
preserved with the proviso that no writ or other order shall be issued
against the Chief Martial Law Administrator or any person exercising
powers or jurisdiction under the authority of the Chief Martial Law
Administrator.
30.
Ms Asma Jilani filed a petition before the High Court under
Article 98(2)(b)(i) of the Constitution of 1962 to question the validity of the
detention of her father, Malik Ghulam Jilani, who was arrested at Karachi
Const. P 9 & 8/2009
58
under the Defence of Pakistan Rules, 1971. The Government raised a
preliminary objection that the High Court could not assume jurisdiction in
the matter because of the bar contained in the jurisdiction of Courts
(Removal of Doubts) Order, 1969 promulgated by the last martial law
regime. The High Court relying on Dosso’s case held that the Order of 1969
was a valid and binding law and that, as such, it had no jurisdiction in the
matter by reason of the provisions of clause (2) of the said Order.
31.
On a petition filed before this Court, leave was granted to
consider: (1) as to whether the doctrine enunciated in Dosso’s case was
correct, (2) even if correct, whether the doctrine applied to the facts and
circumstances in which FM Ayub Khan transferred power to General
Yahya Khan and (3) if the source of power assumed by General Yahya
Khan was illegal and unconstitutional, then whether all legislative and
executive acts done by him including the imposition of martial law and the
promulgation of Martial law Regulations and Orders were illegal. It was
held that the doctrine of legal positivism founded on Hans Kelsen’s theory
and recognized in Dosso’s case was inapplicable, General Yahya Khan was
termed as a usurper and all actions taken by him except those in the
welfare of the people were declared to be illegal. The principle laid down
in Dosso’s case was held to be wholly unsustainable and could not be
treated as good law either on the principle of stare decisis or otherwise.
Proclamation of martial law did not by itself involve abrogation of civil
law and functioning of civil authorities and certainly did not vest the
Commander of the Armed Forces with the power of abrogating the
fundamental law of the country.
Const. P 9 & 8/2009
32.
59
It was held that Kelsen’s theory was, by no means, a
universally accepted theory nor was it a theory which could claim to have
become a basic doctrine of the science of modern jurisprudence, nor did
Kelsen
ever
attempt
to
formulate
any
theory
which
favoured
totalitarianism.
33.
The seizing of power by Yahya Khan having been declared by
the Supreme Court to be entirely illegal, question arose whether
everything (legislative measures and other acts) done during his illegal
regime, whether good or bad, could be treated in the same manner and
branded as illegal and of no effect. It was held that grave responsibility, in
such circumstances, rested upon Courts not to do anything which might
make confusion worse confounded or create a greater state of chaos if that
could possibly be avoided consistently with their duty to decide in
accordance with law. Acts done by those actually in control without lawful
authority may be recognized as valid and acted upon by the Courts within
certain limitations, on principles of necessity. It was observed that a
usurper would have done things both good and bad, and he would have
during the period of usurpation also made many Regulations or taken
actions which would be valid if they emanated from a lawful government
and which would have, in the course of time, affected the enforcement of
contracts, the celebration of marriages, the settlement of estates, the
transfer of property and similar subjects. All these could not be invalidated
and the country landed once again into confusion.
34.
It was, therefore, held that recourse had to be taken to the
doctrine of necessity where the ignoring of it would result in disastrous
Const. P 9 & 8/2009
60
consequences to the body politic and upset the social order itself but one
had to disagree with the view that it was a doctrine for validating the
illegal acts of usurpers. Rather, the doctrine could be invoked in aid only
after the Court came to the conclusion that the acts of the usurpers were
illegal and illegitimate. It was only then that the question would arise as to
how many of his acts, legislative or otherwise, should be condoned or
maintained, notwithstanding their illegality in the wider public interest.
This principle would be called a principle of condonation and not
legitimization. Applying this test the Court condoned –
(1)
all transactions which were past and closed, for, no useful purpose
could be served by re-opening them,
(2)
all acts and legislative measures which were in accordance with, or
could have been made under, the abrogated Constitution or the
previous legal order,
(3)
all acts which tended to advance or promote the good of the
people, and
(4)
all acts required to be done for the ordinary orderly running of the
State and all such measures as would establish or lead to the
establishment of the objectives in the Objectives Resolution.
It was held that the Court would not, however, condone any act intended
to entrench the usurper more firmly in his power or to directly help him to
run the country contrary to its legitimate objectives. The Court would not
also condone anything which seriously impaired the rights of the citizens
except in so far as they may be designed to advance the social welfare and
national solidarity.
35.
In Begum Nusrat Bhutto’s case, the facts were that on 5th July
1977 General Ziaul Haq, the then Chief of Army Staff imposed martial law
and held in abeyance the Constitution of 1973. Prime Minister Zulfikar Ali
Const. P 9 & 8/2009
61
Bhutto and other leaders of the Pakistan People’s Party were detained
under Martial Law Order No. 12 of 1977. Begum Nusrat Bhutto filed a
petition under Article 184(3) of the Constitution against the detention of
her husband and others. The Court declared the imposition of martial law
as valid on the doctrine of state necessity.
36.
Explaining
the
circumstances
for
Army’s
intervention,
General Ziaul Haq, in his address of 5 th July 1977 said: "The Army take-over is never a pleasant act because the Armed
Forces of Pakistan genuinely want that the administration of the
country should remain in the hands of the representatives of the
people who are its real masters. The people exercise this right
through their elected representatives who are chosen in every
democratic country through periodic elections.
The elections were held in our beloved homeland on March 7 last.
The election results, however, were rejected by one of the
contending parties, namely, the Pakistan National Alliance. They
alleged that the elections had been rigged on a large scale and
demanded fresh elections. To press their demand for re-elections,
they launched a movement which assumed such dimensions that
people even started saying that democracy was not workable in
Pakistan. But, I genuinely feel that the survival of this country lies
in democracy and democracy alone. It is mainly due to this belief
that the Armed Forces resisted the temptation to take over during
the recent provocative circumstances in spite of diverse massive
political pressures. The Armed Forces have always desired and
tried for the political solution to political problems. That is why the
Armed Forces stressed on the then Government that they should
reach a compromise with their political rivals without any loss of
time. The Government needed time to hold these talks. The Armed
Forces bought them this valuable period of time by maintaining
law and order in the country. The Armed Forces were subjected to
criticism from certain quarters for their role in aid of the civil
administration, but we tolerated this criticism and ridicules in the
Const. P 9 & 8/2009
62
hope that it was a passing phase. We hoped that when this climate
of agitational frenzy comes to an end, the nation would be able to
appreciate the correct and constitutional role of the Armed Forces
and all fears would be allayed.
I have just given you a very broad-outline picture of the situation
obtaining in the country. It must be quite clear to you now that
when the political leaders failed to steer the country out of a crisis,
it is an inexcusable sin for the Armed Forces to sit as silent
spectators. It is primarily for this reason that the Army, perforce,
had to intervene to save the country.
I would like to point out here that I saw no prospects of a
compromise between the People's Party and the P.N.A. because of
their mutual distrust and lack of faith. It was feared that the failure
of the P.N.A. and P.P.P. to reach a compromise would throw the
country into chaos and the country would thus be plunged into a
more serious crisis. This risk could not be taken in view of the
larger interests of the country. The Army had, therefore, to act as a
result of which the Government of Mr. Bhutto had ceased to exist;
martial law has been imposed throughout the country; the National
and Provincial Assemblies have been dissolved and the Provincial
Governors and Ministers have been removed."
The Court, in the course of the judgment, took judicial notice of the
following facts: (1)
That from the evening of the 7th of March 1977 there were widespread allegations of massive official interference with the sanctity
of the ballot in favour of candidates of the Pakistan People's Party;
(2)
That these allegations, amounting almost to widespread belief
among the people, generated a national wave of resentment and
gave birth to a protest agitation which soon spread from Karachi to
Khyber and assumed very serious proportions;
(3)
That the disturbances resulting from this movement became
beyond the control of the civil armed forces;
(4)
That the disturbances resulted in heavy loss of life and property
throughout the country;
Const. P 9 & 8/2009
(5)
63
That even the calling out of the troops under Article 245 of the
Constitution by the Federal Government and the consequent
imposition of local Martial Law in several important cities of
Pakistan, and the calling out of troops by the local authorities
under the provisions of the Code of Criminal Procedure in smaller
cities and towns did not have the desired effect, and the agitation
continued unabated;
(6)
That the allegations of rigging and official interference with
elections in favour of candidates of the ruling party were found to
be established by judicial decisions in at least four cases, which
displayed a general pattern of official interference;
(7)
That public statements made by the then Chief Election
Commissioner confirmed the widespread allegations made by the
Opposition regarding official interference with the elections, and
endorsed the demand for fresh elections;
(8)
That in the circumstances, Mr. Z. A. Bhutto felt compelled to offer
himself to a referendum under the Seventh Amendment to the
Constitution, but the offer did not have any impact at all on the
course of the agitation, and the demand for his resignation and for
fresh elections continued unabated with the result that the
Referendum Plan, had to be dropped;
(9)
That in spite of Mr. Bhutto's dialogue with the leaders of the
Pakistan National Alliance and the temporary suspension of the
Movement against the Government, officials charged with
maintaining law and order continued to be apprehensive that in the
event of the failure of the talks there would be a terrible explosion
beyond the control of the civilian authorities;
(10)
That although the talks between Mr. Bhutto and the Pakistan
National Alliance leadership had commenced on the 3rd of June
1977, on the basis of his offer for holding fresh elections to the
National and Provincial Assemblies, yet they had dragged on for
various reasons, and as late as the 4th of July 1977, the Pakistan
National Alliance leadership was insisting that nine or ten points
remained to be resolved and Mr. Bhutto was also saying that his
side would similarly put forward another ten points if the General
Council of P. N. A. would not ratify the accord as already reached
on the morning of the 3rd of July 1977;
Const. P 9 & 8/2009
(11)
64
That during the crucial days of the deadlock between Mr. Z.A.
Bhutto and the Pakistan National Alliance leadership the Punjab
Government sanctioned the distribution of fire-arms licences on a
vast scale, to its party members, and provocative statements were
deliberately made by the Prime Minister's Special Assistant, Mr. G.
M. Khar, who had patched up his differences with the Prime
Minister and secured this appointment as late as the 16th of June,
1977; and
(12)
That as a result of the agitation all normal economic, social and
educational activities in the country stood seriously disrupted, with
incalculable damage to the nation and the country.
On consideration of the aforesaid facts and circumstances, the Court held
as under: “In the light of these facts, it becomes clear, therefore, that from the
7th of March 1977 onward, Mr. Z. A. Bhutto's constitutional and
moral authority to rule the country as Prime Minister stood
seriously eroded. His Government was finding it more and more
difficult to maintain law and order, to run the orderly ordinary
administration of the country, to keep open educational institutions
and to ensure normal economic activity. These conclusions find
support from the declaration of loyalty to Mr. Z. A. Bhutto's
Government made by the Chairman of the Joint Chiefs of Staff and
the Chiefs of Staff of the Pakistan Army, Pakistan Navy and
Pakistan Air Force on the 28th of April 1977. There has been some
controversy between the parties as to whether Mr. Bhutto had
requested the Service Chiefs for such a declaration, or it was
voluntarily made by them on their own initiative, but the fact
remains that the situation had deteriorated to such an extent that
either Mr. Bhutto or the Service Chiefs themselves felt that a
declaration of loyalty to Mr. Bhutto's Government was needed at
that critical juncture so as to boost up his authority and to help in
the restoration of law and order and a return to normal conditions.
It is again a fact that even this declaration did no have any visible
impact on the momentum of the agitation launched by the
Opposition which continued unabated.
Const. P 9 & 8/2009
65
The Constitutional authority of not only the Prime Minister but also
of the other Federal Ministers, as well as of the Provincial
Governments was being repudiated on a large scale throughout the
country. The representative character of the National and the
Provincial Assemblies was also not being accepted by the people at
large. There was thus a serious political crisis in the country leading
to a break-down of the constitutional machinery in so far as the
executive and the legislative organs of the State were concerned. A
situation had, therefore, arisen for which the Constitution provided
no solution. It was in these circumstances that the Armed Forces of
Pakistan, headed by the Chief of Staff of the Pakistan Army,
General Mohammad Ziaul Haq intervened to save the country
from further chaos and bloodshed, to safeguard its integrity and
sovereignty, and to separate the warring factions which had
brought the country to the brink of disaster. It was undoubtedly an
extra-constitutional step, but obviously dictated by the highest
considerations of State necessity and welfare of the people. It was
precisely for this reason that the declaration of Martial Law on the
morning of the 5th of July 1977 was spontaneously welcomed by
almost all sections of the population which heaved a sigh of relief
after having suffered extreme hardships during the unprecedented
disturbances spread over a period of nearly four months.”
The petition was decided as under: “As the present petition under clause (3) of Article 184 of the
Constitution
is
intended
for
the
enforcement
of
certain
Fundamental Rights of the detenus, it is not maintainable for the
reason that the Fundamental Rights stand validly suspended since
the 5th of July 1977 under clause (3) of Article 2 of the Laws
(Continuance in Force) Order, 1977. On this view of the matter, it is
not necessary for this Court to examine the contention that the
Martial Law Order No. 12 under which detentions have been
ordered is not valid, or that the detentions are mala fide.
Const. P 9 & 8/2009
66
The final position as emerging from this somewhat lengthy
discussion of the various questions arising in this case may briefly
be summed up as follows :(i)
That the legal character and validity of any abrupt political
change, brought about in a manner not contemplated by the
pre-existing Constitution or Legal Order, cannot be judged
by the sole criterion of its success or effectiveness, as
contemplated by Kelsen's pure theory of law. Not only has
this theory not been universally accepted, or applied, it is
also open to serious criticism on the ground that, by making
effectiveness of the political change as the sole condition or
criterion of its legality, it excludes from consideration
sociological factors or morality and justice which contribute
to the acceptance or effectiveness of the new Legal Order.
The legal consequences of such a change must, therefore, be
determined by a consideration of the total milieu in which
the change is brought about, including the motivation of
those responsible for the change, and the extent to which the
old Legal Order is sought to be preserved or suppressed;
(ii)
That in any case the theory of revolutionary legality can
have no application or relevance to a situation where the
breach of legal continuity is of a purely temporary nature
and for a specified limited purpose. Such a phenomenon can
more appropriately be described as one of constitutional
deviation rather than of revolution;
(iii)
That examined in this light, the Proclamation of Martial Law
on the 5th of July 1977, appears to be an extra-Constitutional
step necessitated by the complete breakdown and erosion of
the constitutional and moral authority of the Government of
Mr. Z. A. Bhutto, as a result of the unprecedented protest
movement launched by the Pakistan National Alliance
against the alleged massive rigging of elections to the
National Assembly, held on the 7th of March 1977. It was a
situation for which the Constitution provided no solution,
and the Armed Forces had, therefore, to intervene to save
Const. P 9 & 8/2009
67
the country from further chaos and bloodshed, to safeguard
its integrity and sovereignty, and to separate the warring
factions which had brought the country to the brink of
disaster;
(iv)
That the imposition of Martial Law, therefore, stands
validated on the doctrine of necessity, and the Chief Martial
Law Administrator is entitled to perform all such acts and
promulgate all legislative measures which have been
consistently recognized by judicial authorities as falling
within the scope of the law of necessity;
(v)
That it has also become clear from a review of the events
resulting in the culmination of Martial Law, and the
declaration of intent made by the Chief Martial Law
Administrator, that the 1973 Constitution still remains the
supreme law, subject to the condition that certain parts
thereof have been held in abeyance on account of State
necessity; and the President of Pakistan. as well as the
superior
Courts
continue
to
function
under
this
Constitution. In other words, this is not a case where the old
Legal Order has been completely suppressed or destroyed,
but merely a case of constitutional deviation for a temporary
period and for a specified and limited objective, namely, the
restoration of law and order and normalcy in the country,
and the earliest possible holding of free and fair elections for
the purpose of the restoration of democratic institutions
under the 1973 Constitution;
(vi)
That, accordingly, the superior Courts continue to have the
power of judicial review to judge the validity of any act or
action of the Martial Law Authorities if challenged in the
light of the principles underlying the law of necessity as set
out in this judgment. Their powers under Article 199 of the
Constitution thus remain available to their full extent, and
may be exercised as heretofore, notwithstanding anything to
Const. P 9 & 8/2009
68
the contrary contained in any Martial Law Regulation or
Order, Presidential Order or Ordinance ; and
(vii)
That the provisions contained in clause (3) of Article 2 of the
Laws (Continuance in Force) Order, 1977, suspending the
right to enforce Fundamental Rights are valid for the reason
that the situation prevailing in the country was obviously of
such a nature as to amount to an Emergency contemplated
by clause (1) of Article 232 of the Constitution, and the right
to enforce Fundamental Rights could, therefore, be legitimately suspended by an order of the kind which could have
been made under clause (2) of Article 233 of the
Constitution.
“As a result, the present petition fails and is hereby dismissed.
However, it will be for the detenus, if so advised, to move the High
Courts concerned under Article 199 of the Constitution.
It was also observed as under: “While the Court does not consider it appropriate to issue any
directions, as suggested by Mr. Yahya Bakhtiar, as to a definite
time-table for the holding of elections, the Court would like to state
in clear terms that it has found it possible to validate the
extra-Constitutional action of the Chief Martial Law Administrator
not only for the reason that he stepped in to save the country at a
time of grave national crisis and constitutional breakdown, but also
because of the solemn pledge given by him that the period of
constitutional deviation shall be of as short a duration as possible,
and that during this period all his energies shall be directed
towards creating conditions conducive to the holding of free and
fair elections, leading to the restoration of democratic rule in
accordance with the dictates of the Constitution. The Court,
therefore, expects the Chief Martial Law Administrator to redeem
this pledge, which must be construed in the nature of a mandate
from the people of Pakistan, who have, by and large, willingly
accepted his administration as the interim Government of
Pakistan.”
Const. P 9 & 8/2009
37.
69
The facts in Syed Zafar Ali Shah’s case were that on 12th
October, 1999 Prime Minister Muhammad Nawaz Sharif removed General
Pervez Musharraf, Chief of Army Staff from his office, who was out of
country at the relevant time and appointed Lt. General Ziauddin as the
Chief of Army Staff. General Pervez Musharraf, on his arrival in Pakistan
the same evening, seized power, disbanded the government and put the
Prime Minister under arrest on grounds of interfering in the affairs of the
Armed Forces, politicising the Army, destabilizing it and trying to create
dissension within its ranks. He briefly addressed the nation on radio and
television at 3.00 a.m. on 13th October, 1999. The text of the Chief of Army
Staff's speech read as under: "My dear countrymen, Assalam-o-Alaikum.
You are all aware of the kind of turmoil and uncertainty that our
country has gone through in recent times. Not only have all the
institutions
been
played
around
with,
and
systematically
destroyed, the economy too is in a state of collapse. We are also
aware of the self-serving policies being followed, which have
rocked the very foundation of the Federation of Pakistan.
The armed forces have been facing incessant public clamour to
remedy the fast declining situation from all sides of the political
divide. These concerns were always conveyed to the Prime
Minister in all sincerity, keeping the interest of the country
foremost. It is apparent that they were never taken in the correct
spirit. My singular concern has been the well-being of our country
alone. This has been the sole reason that the army willingly offered
its services for nation building tasks, the results of which have
already been judged by you.
All my efforts and counsel to the Government it seems were to no
avail. Instead they now turned their attention on the army itself.
Const. P 9 & 8/2009
70
Despite all my advices they tried to interfere with the armed forces,
the last remaining viable institution in which all of you take so
much pride and look up to, at all times, for the stability, unity and
integrity of our beloved country. Our concerns again were
conveyed in no uncertain terms but the Government of Mr. Nawaz
Sharif chose to ignore all these and tried to politicize the army,
destabilize it and tried to create dissension within its ranks.
I was in Sri Lanka on an official visit. On my way back the PIA
commercial flight was not allowed to land at Karachi but was
ordered to be diverted to anywhere outside Pakistan, despite acute
shortage of fuel, imperiling the life of all the passengers. Thanks to
Allah, this evil design was thwarted through speedy army action.
My dear countrymen having briefly explained the background, I
wish to inform you that the armed forces have moved in, as a last
resort, to prevent any further destabilization. I have done so with
all sincerity, loyalty and selfless devotion to the country with the
armed forces firmly behind me. I do not wish to make a lengthy
policy statement at this moment. I shall do that very soon. For the
moment I only wish to assure you that the situation in the country
is perfectly calm, stable and under control. Let no outside forces
think they can take advantage of the prevailing situation.
Dear brothers and sisters, your armed forces have never and shall
never let you down, Insha’Allah, we shall preserve the integrity
and sovereignty of our country to the last drop of our blood. I
request you all, to remain calm and support your armed forces in
the re establishment of order to pave the way for a prosperous
future for Pakistan."
38.
On 14th October, 1999, he issued Proclamation of Emergency
effective from 12th October, 1999 and held the Constitution in abeyance
and also issued Provisional Constitution Order, 1999. On 25th January,
2000, he issued Oath of Office (Judges) Order, 2000 in pursuance whereof
the Chief Justice of Pakistan and certain other Judges of the Supreme Court
Const. P 9 & 8/2009
71
and High Courts were removed from office. Syed Zafar Ali Shah, a
member of the purportedly dissolved National Assembly and few others
filed Constitution Petitions before this Court under Article 184(3) of the
Constitution challenging the validity of the aforesaid actions of General
Pervez Musharraf. The petitions came up for hearing before the Full Court
presided over by Saiduzzaman Siddiqui, CJ, and notices were issued to the
respondents and the Attorney General for Pakistan. However, before the
petitions could be taken up, on 26th January 2000, General Pervez
Musharraf issued the Oath Order, 2000 which required the Judges of the
superior Courts to take a fresh oath under PCO No. 1 of 1999 in terms of
the said Oath Order. The Chief Justice of Pakistan and five other Judges of
the Supreme Court did not make the said oath. Irshad Hasan Khan, J, was
appointed as Chief Justice of Pakistan and oath of office was administered
to him along with other Judges by the President of Pakistan, Mr.
Muhammad Rafiq Tarar under PCO No. 1 of 1999 and Oath Order, 2000 on
26th January 2000. The petition of Syed Zafar Ali Shah was heard by a 12member Bench of the reconstituted Supreme Court with Irshad Hasan
Khan as the Chief Justice. By the Short Order dated 12.05.2000, the action
of 12th October, 1999 was 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. General Pervez Musharraf was held entitled to
perform all acts or legislative measures, which were in accordance with, or
could have been made under the Constitution, including the power to
amend it and to perform all such measures as would establish or lead to
the establishment of his declared objectives. As to the power to amend the
Const. P 9 & 8/2009
72
Constitution, it was held that constitutional amendments could be resorted
to only if the Constitution failed to provide a solution for attainment of his
declared objectives, but 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; and
last but not the least, three years’ period from the date of Army takeover,
viz., 12th October, 1999 was allowed to him for achieving his declared
objectives. Some of the findings of the Court are reproduced below: “284. We, therefore, declare that 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 Judges 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.”
“TAKING OF OATH UNDER PCO NO. 1 OF 1999
Fresh oath under Oath of Office (Judges) Order No. 1 of 2000, does
not in any way preclude the Judges of this Court from examining
the questions raised in the above petitions, 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.”
“INTERVENTION BY ARMED FORCES
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
Const. P 9 & 8/2009
73
adversely affect the democratic processes 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 running 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,
Const. P 9 & 8/2009
74
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 of 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 the Constitution, which resulted into a slanderous
campaign against the Judiciary launched by the former Prime
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 1998 SC 388, that tapping of
telephones
and
eavesdropping
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
this Court in a pending appeal; where Mian Nawaz Sharif's
constitutional and moral authority stood completely eroded and
where situation was somewhat similar and analogous to the
situation that was prevalent in 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 Constitution offered no solution to the present
crisis.”
“No rule except that by the representatives of the people within the
contemplation of the Constitution and the law has the support of
Const. P 9 & 8/2009
75
the Superior Judiciary. We are firmly committed to the governance
of the country by the people's representatives and we reiterate 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. It has already been
emphasized in the Short Order that prolonged involvement of the
Army in civil affairs ran 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.”
“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 recognized 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
Const. P 9 & 8/2009
76
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 oath under the Oath of Office (Judges) Order No.
1 of 2000, does not in any manner derogate from this position, as
the Courts had been originally established under the 1973
Constitution, and have continued in their functions in spite of the
Proclamation of Emergency and PCO No. 1 of 1999 and other
legislative instruments issued by the Chief Executive from time to
time;
“6(i)
That General Pervez Musharraf, Chairman, Joint Chiefs of
Staff Committee and Chief of Army Staff through Proclamation of
Emergency, dated the 14th October, 1999, followed by PCO No. 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
Const. P 9 & 8/2009
77
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;
“(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.
Const. P 9 & 8/2009
“6.
78
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, Chief of the Army Staff and
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.
Const. P 9 & 8/2009
“13.
79
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 takeover i.e. 12th October, 1999 for
achieving his declared objectives.
“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 a general election 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
Const. P 9 & 8/2009
80
by this Court in the case of Sardar Farooq Ahmed Khan Leghari v.
Federation of Pakistan PLD 1999 SC 57.”
The review petition against the above judgment was filed by Mr. Wasim
Sajjad, but the same was dismissed vide judgment reported as Wasim Sajjad
v. Federation of Pakistan (PLD 2001 SC 233).
39.
The Supreme Court, in this case, allowed General Pervez
Musharraf a period of three years for the purpose of achieving his declared
objectives and for that limited purpose, in the interest of the State necessity
and for the welfare of the people, held him entitled to perform the acts
mentioned in Para 6(i) of the Short Order, including the power to amend
the Constitution to achieve his declared objectives. Accordingly, the power
to amend the Constitution, as declared in the aforesaid terms, could only
be resorted to by General Pervez Musharraf if the Constitution failed to
provide a solution for attainment of his declared objectives. It was a mere
declaration of an already existing fact having no bearing at all on the
amending power of Majlis-e-Shoora (Parliament). By the Proclamation of
Emergency of 14th October, 1999 and the PCO No. 1 of 1999 General Pervez
Musharraf had already purportedly assumed powers whereby he held the
Constitution in abeyance, though continued the President in office, but
suspended (later dissolved) the Senate, National Assembly and the
Provincial Assemblies along with Chairman/Deputy Chairman of the
Senate and Speakers of the Assemblies, and declared that the Prime
Minister, Chief Minister, Federal and the Provincial Ministers, State
Ministers, Advisors, etc. ceased to hold office and he himself assumed the
office of Chief Executive of Pakistan, all in derogation and in violation of,
the provisions of the Constitution.
Const. P 9 & 8/2009
40.
81
General Pervez Musharraf, while acting as Chief Executive of
Pakistan, in which capacity he was to perform certain legislative and
administrative acts, as referred to above, by Provisional Constitution
(Amendment) Order, 2000 (Chief Executive’s Order No. 10 of 2000 dated
14.11.2000, amended PCO No. 1 of 1999, so as to provide that the words
“Prime Minister” and the words “Chief Minister” wherever occurring,
shall be deemed to be substituted by the words “Chief Executive of the
Islamic Republic of Pakistan” and “Governor” respectively.
41.
In June 2001, he promulgated the President’s Succession
Order 2001 (Chief Executive’s Order No. III of 2001) on 20th June, 2001 in
pursuance whereof Mr. Muhammad Rafiq Tarar, President of Pakistan
was ousted from office and on 21st June, 2001 he himself assumed that
office. Nothing has come on record to indicate that President Tarar was, in
any manner, hampering the exercise of power by General Pervez
Musharraf as the Chief Executive in the attainment of his declared
objectives – he already having administered oath of office to Irshad Hasan
Khan, J, as the Chief Justice of Pakistan and other Judges of the Supreme
Court under PCO No. 1 of 2000 and Oath Order 2000, which had been
issued in derogation of the provisions of the Constitution. President Tarar,
like the Judges of the Supreme Court of that time, had two options, either
to tender resignation, or to accept the situation, as it was, in an attempt to
save what institutional values remained to be saved, and he too opted for
the latter. But unfortunately, the tide of time was not with him so as to
enable him to play any role in bringing the country back on the democratic
path. He was unceremoniously made to quit the office of President against
Const. P 9 & 8/2009
82
the provisions of the Constitution. It too, was one of the many coups
General Pervez Musharraf made since the 12th October, 1999. This was not
the first time that a President had met such a fate. In 1958 President
Iskandar Mirza abrogated the Constitution, declared martial law in the
country and appointed General Ayub Khan as the Chief Martial Law
Administrator. The latter did not take too long to oust President Iskandar
Mirza from the Presidency and to assume unto himself the office of
President also. In 1969, Ayub Khan by his letter of 25th March asked
Commander-in-Chief of the Army General Yahya Khan to play his
constitutional and legal duty of bringing normalcy in the agitation stricken
country, but he imposed martial law in the country and soon thereafter
assumed the office of President. On 5th July, 1977 General Ziaul Haq
continued to accept President Mr. Fazal Elahi Chaudhry in office and
assumed the office of President on the completion of the latter’s term in
1978. However, it is noteworthy that though President Tarar continued to
function under the extra-constitutional set up, but when he was made to
quit the Presidency earlier than the completion of his term by means of the
President’s Succession Order, 2001, he did not resign from his office. Thus,
constitutionally and legally the office of President had not fallen vacant so
as to enable anyone else to assume the same. At any rate, General Pervez
Musharraf, having captured the office of President, as mentioned earlier,
by means of Chief Executive’s Order No. XII of 2002 dated 30th April, 2002
next proceeded to hold Referendum asking for a vote on his continuation
in the office of President for next five years so as to achieve his “declared
objectives”. We would not like to make any comments on the results of the
Const. P 9 & 8/2009
83
Referendum, except that it was a replica of the Referendum held in 1985 by
General Ziaul Haq for his continuation as President of Pakistan for a term
of five years and, therefore, the overwhelming success of General Pervez
Musharraf too, was a foregone conclusion. He was returned with more
than 99 % of the polled votes.
42.
Nearing the completion of the three years’ period, he took in
hand the work of amendment of the Constitution at a large scale. On 21st
August, 2002, he issued the LFO (Chief Executive’s Order No. 24 of 2002
whereby he made amendments in Articles 17, 41, 51, 58, 59, 62, 63, 63A, 70,
71 (new Article), 73, 75, 106, 112, 140A (new Article), 152A (new Article),
199, 203C, 209, 218, 224, 243, 260, 268, 270AA (new Article), 270B, 270C
(new Article) and the Sixth Schedule to the Constitution wherein new
entries 25 to 35 were made. By the Legal Framework (Amendment) Order,
2002 (Chief Executive’s Order No. 29 of 2002 dated 9th October, 2002), he
made amendments in Articles 51, 63, 106, 179, 193 and 195 of the
Constitution. By the Legal Framework (Second Amendment) Order, 2002
(Chief Executive’s Order No. 32 of 2002 dated 26th October, 2002) he
amended Articles 59 and 152 of the Constitution.
43.
Article 2 of the LFO provided the manner of convening of
first meetings of the National Assembly, Senate and the Provincial
Assemblies. Under Article 3 of the LFO, the Constitution was amended to
the extent and in the manner specified in column 3 of the Schedule to the
LFO. Article 4 provided that the Constitution shall stand revived on such
day as the Chief Executive may, by notification in the Official Gazette,
appoint and different days may be so appointed in respect of different
Const. P 9 & 8/2009
84
provisions. Article 5 provided that the provisions of LFO shall have effect
notwithstanding anything contained in the Constitution or any other
Order or law for the time being in force. The LFO was challenged before
the Supreme Court through a Constitution Petition filed by Watan Party.
The petition was dismissed vide judgment dated 7th October, 2002 on the
ground that the petitioner had no locus standi to file the same. It was
further held that the elected Parliament and not the Supreme Court was
the appropriate forum to consider all these amendments.
44.
Elections to the National Assembly and the Provincial
Assemblies were held on 10th October, 2002, i.e. within the timeframe
given by the Supreme Court in Zafar Ali Shah’s case. By notification dated
15th November, 2002 certain Articles of the Constitution were revived,
and on 16th November 2002 General Pervez Musharraf took oath of the
office of President. On the same date, the members of the National
Assembly were also sworn in. Vide notification dated 20th November,
2002 remaining Articles of the Constitution were revived, to come into
effect on different dates mentioned in the notification. The members of
the Senate took oath on 23rd November, 2002 while the four Chief
Ministers were sworn in on 12th March, 2003.
45.
Under the judgment in Zafar Ali Shah’s case, General Pervez
Musharraf was allowed a period of three years to achieve his declared
objectives, hold elections before the end of the said period and handover
power to the civilians. Further, he would resort to amending the
Constitution in case the Constitution failed to provide a solution of any
problem hampering the achievement of his declared objectives. However,
Const. P 9 & 8/2009
85
from 12th October, 1999 until 20th August, 2002 he made, so to say, no
amendment in the Constitution and remained content with the available
constitutional and legal apparatus. However, nearing the close of his three
years period, he took in hand the work of amendment of the Constitution,
obviously not for achieving his declared objectives – the constitutional
deviation made by him having been validated for a transitional period –
but to go ahead with his plans of his continuation in power for an
indefinite period of time, because if it were not so, he would have made
amendments in the Constitution as and when needed in the execution of
his functions. Earlier, General Ziaul Haq, at the time of imposition of
martial law on 5th July, 1977, too had come up with a similar stance of
achieving his declared objectives, holding of elections within 90 days and
restoring of democracy in the country. In his speech of that day, he had
stated –
“I want to make it absolutely clear that neither I have any political
ambitions nor does the Army want to be detracted from its
profession of soldiering. I was obliged to step in to fill in the
vacuum created by the political leaders. I have accepted this
challenge as a true soldier of Islam. My sole aim is to organize free
and fair elections which would be held in October this year. Soon
after the polls power will be transferred to the elected
representatives of the people. I give a solemn assurance that I will
not deviate from this schedule. During the next three months my
total attention will be concentrated on the holding of elections and I
would not like to .dissipate my powers and energies as Chief
Martial Law Administrator on anything else.”
46.
The amendments made in the Constitution by General
Pervez Musharraf by means of the LFO remained a bone of contention
among the political parties on the floors of the Houses of Parliament for a
Const. P 9 & 8/2009
86
long period of more than a year. Ultimately, as a sequel to the accord
between the PML (Q) and MMA, the Seventeenth Amendment to the
Constitution was passed on 31st March, 2003 whereby certain further
amendments were made in the Constitution. As quoted in S.M. Zafar’s
book “Dialogue on the political chess board”, first edition 2004, p. 276, a
salient feature of the accord was that Article 63(1)(d) of the Constitution
would be effective from 31st December, 2004, which meant that General
Pervez Musharraf would be able to retain the office of Chief of Army
Staff until the said date. Article 270AA, as inserted under the Seventeenth
Amendment, read as under: Validation and affirmation of laws etc. Article 270AA.—(1) The
Proclamation of Emergency of the fourteenth day of October,
1999, all President's Orders, Ordinances, Chief Executi ve's
Orders, including the Provisional Constitution Order No.1 of
1999, the Oath of Office (Judges) Order, 2000 (No.1 of 2000),
Chief Executive's Order No.12 of 2002, the amendments made
in the Constitution through the Legal Framework Order, 2002
(Chief Executive's Orders No.24 of 2002), the Legal Framework
(Amendment) Order, 2002 (Chief Executive's Order No.29 of
2002), the Legal Framework (Second Amendment) Orde r, 2002
(Chief Executive's Order No.32 of 2002) and all other laws
made between the twelfth day of October, one thousand nine
hundred and ninety-nine and the date on which this Article
comes into force (both days inclusive), having been validly
made by the competent authority, are hereby further affirmed,
adopted and declared to have been validly made and
notwithstanding anything contained in the Constitution shall
not be called in question in any Court or forum on any ground
whatsoever.
(2)
All
orders
made,
proceedings
taken,
appointments made including secondments and deputations
Const. P 9 & 8/2009
87
and acts done by any authority, or by any person, which were
made, taken or done, or purported to have been made, taken
or done, between the twelfth day of October, one thousand
nine hundred and ninety-nine, and the date on Which this
Article comes into force (both days inclusive), in exercise of the
powers derived from any Proclamation, President's Orders,
Ordinances, Chief Executive's Orders, enactments, including
amendments in the Constitution, notifications, rules, orders, byelaws, or in execution of or in compliance with any orders made or
sentences passed by any authority in the exercise or purported
exercise of powers as aforesaid, shall, notwithstanding any
judgment of any Court, be deemed to be and always to have been
validly made, taken or done and shall not be called in question in
any Court or forum on any ground whatsoever.
(3)
All Proclamations, President's Orders, Ordinances,
Chief Executive's Orders, laws, regulations, enactments, including
amendments in the Constitution, notifications, rules, orders or
bye-laws in force immediately before the date on which this Article
comes into force shall continue in force until altered, repealed or
amended by the competent authority.
Explanation. – In this clause, "competent authority" means, (a)
in respect of President's Orders, Ordinances, Chief
Executive's Orders and enactments, including amendments
in the Constitution, the appropriate Legislature; and
(b)
in respect of notifications, rules, orders and bye-
laws, the authority in which the power to make, alter,
repeal or amend the same vests under the law.
(4)
No suit, prosecution or other legal proceedings,
including writ petitions, shall lie in any Court or forum against
any authority or any person, for or on account of or in respect of
any order made, proceedings taken or act done whether in the
exercise or purported exercise of the powers referred in clause (2)
or in execution of or in compliance with orders made or sentences
passed in exercise or purported exercise of such powers.
(5)
made,
For the purposes of clauses (1), (2) and (4), all orders
proceedings
taken,
appointments
made,
including
Const. P 9 & 8/2009
88
secondments and deputations, acts done or purporting to be
made, taken or done by any authority or person shall be deemed
to have been made, taken or done in good faith and for the
purpose intended to be served thereby."
47.
This brings us to the latest case in a series of Proclamations of
Emergencies promulgated in the country from time to time. It was the
case of
Tikka Iqbal Muhammad Khan. On 3rd November 2007, General
Pervez Musharraf, the then President of Pakistan and also the Chief of
Army Staff at that time, promulgated three instruments, namely,
Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007. The
first two instruments were issued by him in his capacity as the Chief of
Army Staff while the third was issued by him as the President of Pakistan,
but in pursuance of the first two instruments, namely, Proclamation of
Emergency and PCO No. 1 of 2007. By Proclamation of Emergency,
General Pervez Musharraf Chief of Army Staff purported to impose
emergency throughout Pakistan and held in abeyance the Constitution of
1973 on the following grounds: (1)
There, is visible ascendancy in the activities of extremists and
incidents of terrorist attacks, including suicide bombings, IED
explosions, rocket firing and bomb explosions and the banding
together of some militant groups have taken such activities to an
unprecedented level of violent intensity posing a grave threat to the
life and property of the citizens of Pakistan;
(2)
There has also been a spate of attacks on State infrastructure and on
law enforcement agencies;
(3)
Some members of the judiciary are working at cross purposes with
the executive and legislature in the fight against terrorism and
extremism thereby weakening the Government and the nation's
Const. P 9 & 8/2009
89
resolve and diluting the efficacy of its actions to control this
menace;
(4)
There has been increasing interference by some members of the
judiciary in government policy, adversely affecting economic
growth, in particular;
(5)
Constant interference in executive functions, including but not
limited to the control of terrorist activity, economic policy, price
controls, downsizing of corporations and urban planning, has
weakened the writ of the government; the police force has been
completely demoralized and is fast losing its efficacy to fight
terrorism and Intelligence Agencies have been thwarted in their
activities and prevented from pursuing terrorists;
(6)
Some hard core militants, extremists, terrorists and suicide
bombers, who were arrested and being investigated were
ordered
to
be
released.
The
persons
so
released
have
subsequently been involved in heinous terrorist activities,
resulting in loss of human life and property. Militants across the
country have, thus, been encouraged while law enforcement
agencies subdued;
(7)
Some judges by overstepping the limits of judicial authority have
taken over the executive and legislative functions;
(8)
The Government is committed to the independence of the
judiciary and the rule of law and holds the superior judiciary in
high esteem, it is nonetheless of paramount importance that the
honourable Judges confine the scope of their activity to the
judicial function and not assume charge of administration;
(9)
An important constitutional institution, the Supreme Judicial
Council, has been made entirely irrelevant and non est by a
recent order and judges have, thus, made themselves immune
from inquiry into their conduct and put themselves beyond
accountability;
Const. P 9 & 8/2009
(10)
90
The humiliating treatment meted to government officials by
some members of the judiciary on a routine basis during court
proceedings has demoralized the civil bureaucracy and senior
government functionaries, to avoid being harassed, prefer
inaction;
(11)
The law and order situation in the country as well as the
economy have been adversely affected and trichotomy of powers
eroded; and
(12)
A situation has thus arisen where the government of the country
cannot be carried on in accordance with the Constitution and as
the Constitution provides no solution for this situation, there is
no way out except through emergent and extraordinary
measures.
The second instrument issued by General Pervez Musharraf, namely,
PCO No. 1 of 2007 provided as under: (i)
Notwithstanding the abeyance of the Constitution,
Pakistan would, subject to PCO No. 1 of 2007 and any
other Order made by the President, be governed, as
nearly as may be, in accordance with the Constitution;
(ii)
The President may, from time to time, by Order amend the
Constitution, as is deemed expedient;
(iii)
The Fundamental Rights under Articles 9, 10, 15, 16, 17, 19
and 25 shall remain suspended;
(iv)
Notwithstanding anything contained in the Proclamation
of the 3rd day of November, 2007, or this Order or any
other law for the time being in force, all provisions of the
Constitution
of
the
Islamic
Republic
of
Pakistan
embodying Islamic Injunctions including Articles 2, 2A,
31, 203A to 203J, 227 to 231 and 260(3)(a) and (b) shall
continue to be in force;
Const. P 9 & 8/2009
(v)
91
Subject to clause (1) above and the Oath Order, 2007, all
courts in existence immediately before the commencement
of this Order shall continue to function and to exercise
their respective powers and jurisdiction;
(vi)
The Supreme Court or a High Court and any other court
shall not have the power to make any order against the
President or the Prime Minister or any person exercising
powers or jurisdiction under their authority;
(vii)
All persons who immediately before the commencement
of this Order were in office as judges of the Supreme
Court, the Federal Shariat Court or a High Court, shall be
governed by and be subject to Oath Order, 2007, and such
further Orders as the President may pass;
(viii) Subject to clause (1) above, the Majlis-e-Shoora (Parliament)
and the Provincial Assemblies shall continue to function;
(ix)
All persons who, immediately before the commencement of
this Order, were holding any service, post or office in
connection with the affairs of the Federation or of a
Province, including an All Pakistan Service, service in the
Armed Forces and any other service declared to be a Service
of Pakistan by or under Act of Majlis-e-Shoora (Parliament)
or of a Provincial Assembly, or Chief Election Commissioner
or Auditor General shall continue in the said service on the
same terms and conditions and shall enjoy the same
privileges, if any, unless these are changed under Orders of
the President;
(x)
No court, including the Supreme Court, the Federal Shariat
Court, and the High Courts, and any tribunal or other
authority, shall call or permit to be called in question this
Order, the Proclamation of Emergency of the 3rd day of
November, 2007, Oath Order, 2007 or any Order made in
pursuance thereof;
Const. P 9 & 8/2009
(xi)
92
No judgment, decree, writ, order or process whatsoever
shall be made or issued by any court or tribunal against the
President or the Prime Minister or any authority designated
by the President;
(xii)
Notwithstanding the abeyance of the provisions of the
Constitution, but subject to the Orders of the President, all
laws other than the Constitution, all Ordinances, Orders,
Rules, Bye-laws, Regulations, Notifications and other legal
instruments in force in any part of Pakistan, whether made
by the President or the Governor of a Province, shall
continue in force until altered, or repealed by the President
or any authority designated by him;
(xiii) An Ordinance promulgated by the President or by the
Governor of a Province shall not be subject to any limitations
as to duration prescribed in the Constitution; and
(xiv) The above provision shall also apply to an Ordinance issued
by the President or by a Governor which was in force
immediately before the commencement of the Proclamation
of Emergency of the 3rd day of November, 2007.
48.
The third instrument of 3rd November, 2007 issued by General
Pervez Musharraf, viz., Oath Order, 2007 provided as under: (a)
A person holding office immediately before this Order as a
Judge of the Supreme Court, the Federal Shariat Court or a
High Court shall cease to hold that office with immediate
effect;
(b)
A person who is given, and does make Oath in the form set
out in the Schedule, before the expiration of such time from
such commencement as the President may determine or
within such further time as may be allowed by the President
shall be deemed to continue to hold the office of a Judge of
the Supreme Court, the Federal Shariat Court or a High
Court, as the case may be;
Const. P 9 & 8/2009
(c)
93
A Judge of a Superior Court appointed after the
commencement of this Order shall, before entering upon
office, make Oath in the form set out in the Schedule;
(d)
A person who has made oath as aforesaid shall be bound by
the provisions of the Oath Order, 2007, Proclamation of
Emergency of 3rd November, 2007, PCO No.1 of 2007, and,
notwithstanding any judgment of any court, shall not call in
question or permit to be called in question the validity of
any of the provisions thereof; and
(e)
The Judges of the superior Courts including Chief
Justices would cease to hold office on and from 3rd
November 2007 and only such Judges would continue
to hold office who made oath under PCO No. 1 of 2007
read with Oath Order, 2007.
The Chief Justice of Pakistan constituted a Bench of available 7 Judges of
the Supreme Court, which passed a restraint order in Wajihuddin Ahmed’s
case against the above instruments and measures and directed, inter alia,
the Judges of Supreme Court and High Courts not to make oath under
PCO or any other extra-constitutional step. Certain Judges of the Supreme
Court including Chief Justice of Pakistan were put under house arrests.
Immediately thereafter, General Pervez Musharraf purportedly made the
appointment of Abdul Hameed Dogar, J, as the Chief Justice of Pakistan,
who was at serial No. 4 of the seniority list of the Judges of the Supreme
Court, i.e. Chief Justice of Pakistan, Rana Bhagwandas, J, (as he then was)
and Javed Iqbal, J, by means of notification of even date, which is
reproduced below: “GOVERNMENT OF PAKISTAN
LAW, JUSTICE AND HUMAN RIGHTS DIVISION
----Islamabad, the 3rd November, 2007
NOTIFICATION
Const. P 9 & 8/2009
94
No.F.2(1)/2007-A-II(A).- In exercise of the powers conferred by
clause (1) of Article 177 of the Constitution of the Islamic Republic
of Pakistan read with Provisional Constitution Order No.1 of 2007
and Oath of Office (Judges) Order, 2007, the President is pleased to
appoint Mr. Justice Abdul Hameed Dogar, Judge, Supreme Court
of Pakistan to be the Chief Justice of Pakistan with immediate
effect.
Sd/- Mr. Justice (Retd.)
(Mian Muhammad Ajmal)
Principal Secretary”
In pursuance of the above notification, Abdul Hameed Dogar, J, was
administered the oath of office as the Chief Justice of Pakistan during the
night between 3rd and 4th November, 2007. The same night three Judges,
namely, Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar and M.
Javed Buttar, JJ, took oath as Judges of this Court under the new
dispensation while Saiyed Saeed Ashhad, J, who was at Karachi at the
relevant time, made similar oath as a Judge of this Court before the
Governor of Sindh as nominee of the President. Likewise, some Judges of
High Courts including Chief Justice of the Lahore High Court and all the
five Judges of the Balochistan High Court including Chief Justice made
oath under PCO No. 1 of 2007 and Oath Order, 2007. On 5th November,
2007, four persons were purportedly appointed in the Supreme Court by
notification of even date issued by the Ministry of Law and Justice, which
read as under: “Islamabad, the 5th November, 2007.
NOTIFICATION
No.F.2(1)/2007-A-II(A).- In exercise of the powers conferred by
clause (1) of Article 177 of the Constitution of the Islamic Republic
of Pakistan read with Provisional Constitution Order No.1 of 2007
and Oath of Office (Judges) Order, 2007, the President is pleased to
appoint the following as Judges of Supreme Court of Pakistan on
and from the date they take oath of their office: -
Const. P 9 & 8/2009
1.
2.
3.
4.
95
Mr. Justice Ijaz-ul-Hassan, Judge
Peshawar High Court.
Mr. Justice Muhammad Qaim Jan Khan
Judge, Peshawar High Court.
Mr. Justice Mohammad Moosa K. Leghari,
Judge, High Court of Sindh.
Mr. Justice Ch. Ejaz Yousaf,
Former Chief Justice,
Federal Shariat Court.
Sd/Mr. Justice (Retd.)
(Mian Muhammad Ajmal)
Principal Secretary”
Later, more appointments were made details of which are given in later
part of the judgment.
49.
Tikka Iqbal Muhammad Khan and Zafarullah Khan, by
Constitution Petitions No. 87 and 88 of 2007 filed on 10th & 12 th November,
2007 respectively, called in question the validity of the instruments and
measures of 3rd November 2007. They prayed that the deposed Judges of
the superior Courts and the Fundamental Rights be restored; the general
election to the National Assembly and the Provincial Assemblies be held
within the period provided by the Constitution; the detenus held under
preventive detention laws be released forthwith; and restrictions on the
media be lifted. The Constitution Petitions were disposed of by means of
the Short Order dated 23rd November, 2007. The detailed reasons were
furnished by judgment dated 13th February, 2008. It was held, inter alia, as
under: “In the recent past the whole of Pakistan was afflicted with
extremism, terrorism and suicide attacks using bombs, hand
grenades, missiles, mines, including similar attacks on the armed
forces and law enforcing agencies, which reached climax on 18th of
October 2007 when in a similar attack on a public rally, at least 150
people were killed and more than 500 seriously injured. The
extremists/terrorists resorted to abduction of foreigners, which
Const. P 9 & 8/2009
96
badly impaired the image of Pakistan in the comity of nations, and
adversely affected its economic growth. The situation in Islamabad
and various places in NWFP, Balochistan and tribal areas was
analogous to “a state within the state”. Unfortunately, no effort by
the government succeeded in curbing extremism, terrorism and
suicide attacks. The Prime Minister apprised the President of the
situation through his letter of the 3rd of November 2007;
“The Constitution of Pakistan is based on the principle of
trichotomy of powers. All the three organs of the State, namely, the
legislature, the executive and the judiciary are required to perform
their functions and exercise their powers within their specified
sphere. Unfortunately, some members of the superior judiciary by
way of judicial activism transgressed the constitutional limits and
ignored the well-entrenched principle of judicial restraint.
Thousands of applications involving individual grievances were
being processed as suo motu cases ostensibly in the exercise of
power under Article 184(3) of the Constitution, which provision is
resorted to the enforcement of fundamental rights involving
questions of law of general public importance. Instances of
transgression of judicial authority at large scale may be found in
the cases of determination of prices of fruits, vegetables and other
edibles, suspension and transfers of government officials, frequent
directions
to
enact
particular
laws,
stoppage
of
various
development projects, such as New Murree City, Islamabad
Chalets, Lahore Canal Road and many more. They rendered the
State machinery, particularly legislative and executive branches of
the government paralyzed and nugatory. They made ineffective the
institution of the Supreme Judicial Council set up under the
Constitution for the accountability of the members of the superior
judiciary;
“The sum total of the circumstances led to a situation where the
running of the government in accordance with the provisions of the
Constitution became impossible for which the Constitution
provided no remedy or satisfactory solution. There was a strong
apprehension of disastrous consequences that would have followed
Const. P 9 & 8/2009
97
in case the action of the 3rd day of November 2007 was not taken by
the Chief of Army Staff/President;
“The situation which led to the issuance of Proclamation of
Emergency of the 3rd day of November 2007 as well as the other
two Orders, referred to above, was similar to the situation which
prevailed in the country on the 5th of July 1977 and the 12th of
October 1999 warranting the extra-constitutional steps, which had
been validated by the Supreme Court of Pakistan in Begum Nusrat
Bhutto v. Chief of the 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, as
also the fact that the Constitution was not abrogated, but merely
held in abeyance.”
“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;
“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,
Oath 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 suprema lex, may perform –
(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;
Const. P 9 & 8/2009
98
(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.”
“The old Legal Order has not been completely suppressed or
destroyed, but it is a case of constitutional deviation for a limited
transitional period;
“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;
“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;
“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;
“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;
“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 Oath 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
Const. P 9 & 8/2009
99
“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 Proclamation of Emergency if the circumstances so
warrant.”
In pursuance of PCO No. 1 of 2007, General Pervez Musharraf, as
President of Pakistan, purported to make amendments in the Constitution,
inter alia, protecting his own actions including removal of Judges,
establishment of Islamabad High Court, etc., by insertion of Article
270AAA into the Constitution. On 28th November, 2007, he relinquished
the office of Chief of Army Staff. On 15th December, 2007 by means of
Revocation of Proclamation of Emergency Order, 2007, he revoked the
emergency imposed on 3rd November, 2007 and restored the Constitution
as amended by him. General Elections were held on 18th February, 2008.
The newly elected representatives of the people were sworn in, the
National Assembly and Provincial Assemblies came into existence and
governments at the Federal and the Provincial levels were formed. On 24th
March, 2008, pursuant to an announcement made by the newly elected
Prime Minister, restrictions on the movement of Judges were lifted. In the
wake of resolutions passed by all the four Provincial Assemblies calling
upon General Pervez Musharraf to quit the office of President otherwise
impeachment resolution would be moved against him, he resigned from
the office of President on 18th August, 2008. Election for the office of
President was held on 6th September, 2008 wherein Mr. Asif Ali Zardari
was returned as the successful candidate. He made oath of office of
President on 9th September, 2008. Vide notification dated 17th March, 2009,
Const. P 9 & 8/2009
100
the Chief Justice of Pakistan was restored to the position he was holding
immediately before 3rd November, 2007. Later, by different notifications,
Judges of Supreme Court and High Courts, who were declared to have
ceased to hold office on or after 3rd November, 2007 were restored to the
position they were holding prior to 3rd November, 2007. The relevant
details are given in later part of the judgment.
50.
In the above background, instant Constitution Petitions No. 8
and 9 of 2009 were filed wherein the constitutionality of the actions of 3rd
November, 2007 as also the judgment in Tikka Iqbal Muhammad Khan’s case
validating and legitimizing the aforesaid actions were questioned.
51.
On the fateful day of 3rd November, 2007, General Pervez
Musharraf, who was wearing two hats, one of the President of Pakistan
and the other of the Chief of Army Staff, issued Proclamation of
Emergency and PCO No. 1 of 2007 in his capacity as Chief of Army Staff,
while as President of Pakistan he issued Oath Order, 2007 in pursuance of
the aforesaid two instruments. By this, according to the learned counsel for
the petitioners, two wrong impressions were created: (1) the Chief of Army
Staff was an authority superior to the President of Pakistan, and (2) he was
competent to proclaim emergency and promulgate PCO No. 1 of 2007
notwithstanding the provisions of the Constitution and the law. The
learned counsel for the petitioners contended that no such power was
vested in the Chief of Army Staff either under the Constitution or under
any law nor a reference could usefully be made to the cases of Begum
Nusrat Bhutto and Zafar Ali Shah, which were decided by this Court in
different sets of facts and circumstances narrated hereinabove for
Const. P 9 & 8/2009
101
comparison and analysis. The learned counsel also strenuously questioned
the validity of the Oath Order 2007 issued by General Pervez Musharraf in
his capacity as President of Pakistan because the Constitution did not
empower him to promulgate an Order, which was not in accordance with
any provision of the Constitution, but it also contravened a host of
provisions of the Constitution, e.g. Articles 2A, 209, etc. relating to the
independence of judiciary, an important pillar of the constitutional edifice
of the State of Pakistan. The learned counsel canvassed that the instant
case would be governed, as nearly as may be, in accordance with the law
laid down in the cases of Asma Jilani and Liaquat Hussain. At the same time,
they also urged that the judgments in the cases of Begum Nusrat Bhutto and
Zafar Ali Shah were required to be revisited because they were never
considered a good law. On the latter point, the learned Attorney General
for Pakistan also made a similar submission. To deal with the above
contentions, it is necessary to examine the role and functions of the Armed
Forces in the light of the provisions of the Constitution.
52.
Chapter 2 of Part XII of the Constitution deals with the Armed
Forces. Clause (1) of Article 243 provides that the Federal Government
shall have control and command of the Armed Forces while under clause
(1A) it is provided that without prejudice to the generality of the
provisions of clause (1), the supreme command of the Armed Forces shall
vest in the President. Under clause (3), the President shall, in consultation
with the Prime Minister, appoint –
(a)
the Chairman, Joint Chiefs of Staff Committee;
(b)
the Chief of the Army Staff;
(c)
the Chief of the Naval Staff; and
Const. P 9 & 8/2009
(d)
102
the Chief of the Air Staff.
Under Article 244, every member of the Armed Forces shall make oath in
the form set out in the Third Schedule, which recites as under:“I _________, do solemnly swear that I will bear true faith and
allegiance to Pakistan and uphold the Constitution of the Islamic
Republic of Pakistan which embodies the will of the people, that I
will not engage myself in any political activities whatsoever and
that I will honestly and faithfully serve Pakistan in the Pakistan
Army (or Navy or Air Force) as required by and under the law.
May Allah Almighty help and guide me (A’meen).”
Article 245(1) of the Constitution deals with the functions of the Armed
Forces of Pakistan. It provides as under: “(1)
The Armed Forces shall, under the directions of the Federal
Government defend Pakistan against external aggression or threat
of war, and, subject to law, act in aid of civil power when called
upon to do so.”
53.
On a plain reading of the provisions of Article 245(1), the
functions of the Armed Forces can be bifurcated into two categories,
namely, they shall (1) defend Pakistan against external aggression or threat
of war, and (2) subject to law, act in aid of civil power when called upon to
do so. Under clause (1) of Article 243, the control and command of the
Armed Forces is vested in the Federal Government, therefore, in the
performance of both the categories of functions, the Armed Forces act
under the directions of the Federal Government. Thus, the provisions of
clause (1A) of Article 243 under which the supreme command of the
Armed Forces vests in the President, does not, in any manner, derogate
from the power of the Federal Government to require the Armed Forces to
defend Pakistan against external aggression or threat of war, or to act in
Const. P 9 & 8/2009
103
aid of civil power in accordance with law. The Constitution does not
envisage any situation where the Armed Forces may act without any
direction by the Federal Government. The following observations by this
Court in Asma Jilani’s case are apt in the context of the above discussion: “From this examination of the authorities I am driven to the
conclusion that the Proclamation of Martial Law does not by itself
involve the abrogation of the civil law and the functioning of the
civil authorities and certainly does not vest the Commander of the
Armed Forces with the power of abrogating the fundamental law
of the country. It would be paradoxical indeed if such a result could
flow from the invocation in the aid of a State of any agency set up
and maintained by the State itself for its own protection from
external invasion and internal disorder. If the argument is valid
that the proclamation of the Martial Law by itself leads to the
complete destruction of the legal order, then the armed forces do
not assist the state in suppressing disorder but actually create
further disorder, by disrupting the entire legal order of the State. I
cannot, therefore, agree with the learned Attorney-General that the
proclamation of Martial Law by itself must necessarily give the
Commander of the armed forces the power to abrogate the
Constitution, which he is bound by his oath to defend.
If this be so, then from where did General Agha Muhammad
Yahya Khan acquire the right to assume control of the reins of
Government? Field Marshal Muhammad Ayub Khan did not
appoint him as his successor by his letter of the 24th March 1969.
He merely called upon him to perform his "constitutional and legal
duty to restore order" in the country. If this was his authority, then
the only authority he got was to restore order and nothing more.
Even the imposition of Martial Law by his proclamation is of
doubtful validity, because the proclamation should have come
from the civil authorities and it was only then that under the
proclamation the Commander of the armed forces could have
moved into action. There is no provision in any law which gives the
Commander of the armed forces the right to proclaim Martial Law,
although he has like all other loyal citizens of the country a
Const. P 9 & 8/2009
104
bounden duty to assist the State, when called upon to do so. If the
magnitude of the insurrection is so great that the Courts and the
civil administration are unable to function, the military may
exercise all such powers that may be necessary to achieve their
objective and in doing so may even set up Military Tribunals to
promptly punish wrong-doers but this, whether done throughout
the country or in a restricted area within the country, merely
temporarily suspends the functioning of the civil Courts and the
civil administration. As soon as the necessity for the exercise of the
military power is over, the civil administration must, of necessity,
be restored, and assume its normal role.”
Thus, essentially, a proclamation requiring the aid of the Armed Forces
must come from the civilian authorities and as soon as the necessity for the
exercise of the military power is over, the civil administration must, of
necessity, be restored, and assume its normal role.
54.
and
In the cases of Dosso, Begum Nusrat Bhutto, Zafar Ali Shah
Tikka Iqbal Muhammad Khan the Court did not take into
consideration the above aspect of the matter and rendered judgments, not
on the force of the constitutional provisions, but by recourse to the theory
of revolutionary legality propounded by Hans Kelsen, the doctrine of civil
and state necessity and the principle of salus populi est suprema lex, and thus
kept open the gate for military intervention for all times to come. Let it be
made clear that any action of the Armed Forces undertaken without a
direction by the Federal Government shall be unconstitutional, illegal, void
ab initio and consequently of no legal effect. Any member of the Armed
Forces, including the Chairman, Joint Chiefs of Staff Committee and the
three Services Chiefs, namely, the Chief of Army Staff, the Chief of Naval
Staff and the Chief of Air Staff, or any person acting under their authority,
Const. P 9 & 8/2009
105
or on their behalf, who acts in the performance of either of his functions of
defending Pakistan against external aggression, or of acting, subject to law,
in aid of civil power without any direction by the Federal Government acts
in violation of the Constitution and the law and does so at his own risk
and cost. This Court, in Liaquat Hussain’s case (at page 626 of the report),
has held that martial law cannot be imposed in Pakistan in view of the
change in the language of Article 237 of the Constitution wherein the
words “martial law” have been omitted, the legal effect of which is that the
Parliament cannot make 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. This change in the language of
Article 237 of the Constitution was preceded by a discussion of the term
‘martial law’ in Asma Jilani’s case, a decision which was rendered only a
year before the promulgation of the Constitution of 1973. Hamoodur
Rahman, CJ, in the cited case held as under: “As both President's Order No. 3 of 1969 and Martial Law
Regulation 78 were intended to deny to the Courts the performance
of their judicial functions, an object opposed to the concept of law.
Neither would be recognized by Courts as law.
We may now turn to the methodology of law-making during
the Martial Law which was imposed by Yahya Khan on the 26th
March 1969. Pakistan came into being with a written Constitution
Government of India Act, 1935 (26 Geo. 5, Ch. 2) and the Indian
Independence Act, 1947 (10 & 11 Geo. 6, Ch. 30). These
constitutional instruments were, in time, replaced by the
Constitution of 1956 which in turn was substituted by the
Constitution of 1962. It is still in force either by its own vitality or
under the Provisional Constitution Order, 1969. The written
Const. P 9 & 8/2009
106
Constitution of a State is, according to Kelsen, its basic norm. It
regulates all other legal norms. Pakistan has unfortunately suffered
long spells of Martial Law, but its basic structure was democratic
from its inception. There was distribution of powers between the
executive, legislature and judiciary. During Martial Law the
legislative powers of the State were usurped by the Executive and
attempt made to deny to Courts the exercise of judicial functions.
The usurpation of legislative powers of the state by the Chief
Martial Law Administrator was therefore against the basic norm.
The new Legal Order consisting of Martial Law Orders, Martial
Law Regulations, Presidential Orders and Presidential Ordinances
was, therefore, unconstitutional and void ab initio. This Order would
have become legal only if the Government of Yahya Khan was
recognized by Courts as de jure and the Order he gave to the
country was held valid. This question has already been answered
in the negative.
In this connection, we may examine also the nature of
Martial Law imposed by Yahya Khan on the 26th March 1969, for
lest it is said that the Martial Law Regulations, and Martial Law
Orders were not laws in juristic sense, but they derived their
validity from the Proclamation of the 25th March 1969. Martial Law
is of three types: (i) the law regulating discipline and other matters
determining the rule of conduct applicable to the Armed forces. We
are not concerned with it; (ii) law which is imposed on an alien
territory under occupation by an armed force. The classic function
of this type of Martial Law was given by the Duke of Wellington
when he stated in the House of Lords that "Martial Law is neither
more nor less than the will of the General who commands the
Army. In fact Martial Law means no law at all." We are also not
concerned with this type of Martial Law; and (iii) law which relates
to and arises out of a situation in which the civil power is unable to
maintain law and order and the military power is used to meet
force and recreate conditions of peace and tranquility in which the
civil power can re-assert its authority. The Martial Law Regulations
and Martial Law Orders passed under this type of Martial Law
must be germane only to the restoration of peace and tranquility
and induced during the period of unrest.
Const. P 9 & 8/2009
107
In practice, the Martial Law imposed by Yahya Khan
belonged to the second category. A large number of Martial Law
Regulations and Martial Law Orders passed by him between 25th
March 1969 and 20th March 1971 had no nexus with civil
disturbances. In fact, peace and tranquility was restored in the
country within a few days of his stepping in. Martial Law should,
therefore, have come to an end but the entire structure of
institutions of Pakistan including superior Courts were made to
appear by Yahya Khan as merely the expression of his will which a
victorious military commander imposes on an alien territory to
regulate the conduct and behaviour of its subjugated populace.
Neither Pakistan was a conquered territory, nor the Pakistan Army
commanded by Yahya Khan was an alien force to justify the
imposition of this type of Martial Law.
The Martial Law imposed by Yahya Khan was, therefore, in
itself illegal and all Martial Law Regulations and Martial Law
Orders issued by him were on this simple ground void ab initio and
of no legal effect.
Let us next examine the validity of the Presidential Orders
and Ordinances issued by Yahya Khan between 26th March 1969,
and 20th December 1971. He assumed the office of President on
31-3-1969 with effect from the 25th March 1969. Under Article 16 of
the 1962 Constitution if at any time the President was unable to
perform the functions of his office, the Speaker of the National
Assembly was to act as President. Muhammad Ayub Khan could
not, therefore, transfer the office of the President to Yahya Khan.
Indeed, he did not even purport to do so. He simply asked him to
perform his constitutional and legal responsibilities. Yahya Khan,
therefore, assumed the office in violation of Article 16 of the
Constitution to which he had taken oath of allegiance as
Commander-in-Chief. It could not, therefore, be postulated that
Yahya Khan had become the lawful President of Pakistan and was
competent to promulgate Orders and Ordinances in exercise of the
legislative functions conferred by the Constitution on the President.
All Presidential Orders and Ordinances which were issued by him
were, therefore, equally void and of no legal effect.”
Const. P 9 & 8/2009
108
Along with Article 237 as finally approved, the framers of the Constitution
also legislated Article 6 of the Constitution, which provided that any
person who abrogated or attempted or conspired to abrogate, subverted or
attempted or conspired to subvert the Constitution by use of force or show
of force or by other unconstitutional means shall be guilty of high treason.
55.
It appears that the draftsman, who drafted the Proclamations
of Emergency of 14th October, 1999 and 3rd November, 2007 and the
relevant PCOs had an eye on the constitutional developments taking place
in the country at the legislative and the judicial forums. He changed the
earlier methodology to facilitate the intending military adventurer to
wriggle out of the fence erected by the judiciary and the legislature to
prevent repetition of the military takeovers. In 1999, as opposed to the
previous practice of imposing martial law, the draftsman came up with the
idea of promulgating a simple Proclamation of Emergency and holding the
Constitution in abeyance and by the PCO making a provision that subject
to the PCO and any other Order issued by the Chief of Army Staff,
Pakistan shall, as nearly as may be, be governed in accordance with the
Constitution of 1973. Thus the term ‘martial law’ was not used, but a mere
emergency proclaimed, the practical effect of which was exactly the same
as it was of the impositions of martial law on 5th July, 1977, 25th March,
1969 or 7th October, 1958. In 1977 and 1999, Oath Orders were issued and
attempts made to make the superior Courts subservient to the orders and
other legislative and administrative measures issued by the Chief of Army
Staff. In October, 1958 and March, 1969 the Constitutions were abrogated,
and martial law imposed. But in July 1977, though martial law was
Const. P 9 & 8/2009
109
imposed, but the Constitution was not abrogated, rather it was held in
abeyance. In October 1999, a new methodology was adopted, i.e., only an
emergency was proclaimed, which was nothing but a chip off the old
block. On all the previous four occasions, the Parliament and the
Provincial Assemblies were dissolved; the Federal and the Provincial
Governments were dismissed and Prime Minister, Federal Ministers, Chief
Ministers, Provincial Ministers, Chairman and Deputy Chairman Senate
and Speakers and Deputy Speakers of the National and the Provincial
Assemblies were declared to have ceased to hold office. In November 2007,
though emergency was proclaimed and the PCO and the Oath Order
issued on the pattern of 12th October, 1999, but as opposed to the past
practice, the legislative and executive organs of the State were kept intact,
and the judiciary alone was shown the door because it was apprehended
that a favourable decision was not likely to be rendered in the
disqualification case of General Pervez Musharraf. However, a new
dimension in the present case was that the vast majority of the Judges
including Chief Justice of Pakistan did not make oath under PCO No. 1 of
2007 read with Oath Order, 2007. All such non-compliant Judges were put
under house arrest along with their family members. In the above
background, we affirm and approve the law laid down in Asma Jilani’s case
that martial law in any form and by whatever name called, for any
purpose whatsoever cannot be imposed in Pakistan. We also firmly lay
down that no proclamation of emergency can be issued, the effect of which
is to hold in abeyance the Constitution, or its subsequent mutilation by
incorporating amendments in it by an authority not mentioned in the
Const. P 9 & 8/2009
110
Constitution and in a manner not provided for in the Constitution.
56.
Each member of the Armed Forces, as per his oath under the
Third Schedule to the Constitution in pursuance of Article 244, is bound to
bear true faith and allegiance to Pakistan and uphold the Constitution
which embodies the will of the people. He is also sworn not to engage
himself in any political activities whatsoever. He also solemnly affirms and
declares that he will honestly and faithfully serve Pakistan in the Pakistan
Army (or Navy or Air Force) as required by and under the law. The
learned counsel for the petitioners vehemently contended that General
Pervez Musharraf, by his actions of 3rd November, 2007, not only violated
his oath as a member of the Armed Forces, but also overthrew the solemn
pledge he made as President of Pakistan of performing his functions and
discharging his duties honestly, to the best of his ability, faithfully in
accordance with the Constitution and the law. We agree with the
contention of the learned counsel that General Pervez Musharraf failed to
abide by his oath to preserve, protect and defend the Constitution. The
Constitution was framed to continue to be in force at all times. By Article 6,
an in-built mechanism was provided to safeguard the Constitution from its
abrogation or subversion by anyone, that is to say, it could neither be
cancelled by anyone nor could it be overthrown or undermined by anyone
in any manner or mode whatsoever. Thus, unless and until the
Constitution is altered or amended in accordance with the procedure laid
down in Articles 238 and 239, or it is repealed on the pattern of the Interim
Constitution under the provisions of Article 266, which too, is possible by
recourse to the provisions of Articles 238 and 239, its operation and
Const. P 9 & 8/2009
111
enforceability cannot be interrupted even for a single day, nay a single
moment except as specifically provided in the Constitution itself. The
Constitution has not contemplated any situation where it can be held in
abeyance at the will or whims of the Chief of Army Staff and to be revived
after he has achieved his objectives. Let it be stated in unequivocal terms
that the validity accorded in the past did not give a licence to any holder of
the office of Chief of Army Staff of repeating such acts at his will. It is
hereby firmly laid down that the holding in abeyance of the Constitution
or any other act having the effect of discontinuing the operation and the
enforceability of the Constitution for a single moment in a manner not
authorized under the Constitution is nothing but an overthrowing of the
Constitution, so to say, the subversion of the Constitution and thus
constitutes the offence of high treason.
57.
The State of Pakistan emerged on the map of the globe on 14th
August 1947 wherein up till November 2007, i.e., in a span of 60 years,
there were made five military coups all of which were challenged, some
directly while others indirectly, before the apex Court of the country. With
the exception of the imposition of martial law by General Yahya Khan on
25th March, 1969, which was examined in Asma Jilani’s case, the validity of
all other military takeovers/actions was not adjudged on the touchstone of
the Constitution, ostensibly taking the view that the takeover was an extraconstitutional step, that is to say, a step outside the Constitution itself, or a
step not envisaged by any provision of the Constitution, taken in a
situation for which the Constitution provided no remedy, therefore, the
same was not liable to be adjudicated upon in the light of any provision of
Const. P 9 & 8/2009
112
the Constitution. A wrong that was committed in 1954 by the Federal
Court with its decision in Moulvi Tamizuddin Khan’s case, given not on
merits, but on a purely legal – rather a hyper-technical question, continued
to be perpetuated every now and then under the garb of different theories
and doctrines. Had the Court adopted a constitutional approach in the
very first case, and followed the same in just one or two more cases if such
an occasion arose, the course of history would have been, certainly not the
one that this nation has treaded all along, and the country would not have
landed in the quagmire it is presently found in. Be that as it may, it is our
firm belief that Pakistan came into existence as a result of sacrifices made
by the people in its cause. The people of Pakistan are committed and
dedicated to preserving democracy achieved by their unremitting struggle
against oppression and tyranny, as duly voiced and recognized in the
Preamble to the Constitution of the Islamic Republic of Pakistan. The
Founder of Pakistan, the Quaid-i-Azam Muhammad Ali Jinnah declared that
Pakistan would be a democratic State based on Islamic principles of social
justice. While addressing a gathering of the civil officers of Balochistan on
14th February, 1948, he said – “………… Until we finally frame our
Constitution which, of course, can only be done by the Constituent Assembly; our
present provisional constitution based on the fundamental principles of
democracy, not bureaucracy or autocracy or dictatorship, must be worked.
……….” Therefore, the military rule, direct or indirect, is to be shunned
once and for all. Let it be made clear that it was wrongly justified in the
past and it ought not to be justified in future on any ground, principle,
doctrine or theory whatsoever. Military rule is against the dignity, honour
Const. P 9 & 8/2009
113
and glory of the nation that it achieved after great sacrifices 62 years ago; it
is against the dignity and honour of the people of Pakistan, who are
committed to upholding the sovereignty and integrity of the nation by all
means; and it is against the dignity and honour of each and every soldier
of the Armed Forces: Pakistan Army, Pakistan Navy and Pakistan Air
Force, who is oath-bound to bear true faith and allegiance to Pakistan and
uphold the Constitution, which embodies the will of the people; not to
engage himself in any political activities whatsoever; and to honestly and
faithfully serve Pakistan in the respective services. Within such
parameters, a soldier must remain committed to defending Pakistan until
the last drop of his blood against external aggression or threat of war, and
subject to law, acting in aid of civil power when called upon to do so
under the directions of the Federal Government. In the course of the
discharge of his duties, a soldier, therefore, is obligated to seeing that the
Constitution is upheld, it is not abrogated, it is not subverted, it is not
mutilated, and to say the least, it is not held in abeyance and it is not
amended by an authority not competent to do so under the Constitution. If
a member of the Armed Forces acts in aid of a person who does any of the
above acts, or any other similar act, he violates his oath and renders
himself liable to action under and in accordance with the Constitution and
the law.
58.
In the instant case, the actions of 3rd November 2007 taken by
General Pervez Musharraf, viz., Proclamation of Emergency, PCO No. 1 of
2007 and Oath Order, 2007 were preceded by a letter of even date
Const. P 9 & 8/2009
114
addressed by Prime Minister of Pakistan Shaukat Aziz to the President of
Pakistan General Pervez Musharraf, in which he wrote as under: "SUBJECT:
NATIONAL SECURITY SITUATION
Dear Mr. President,
I am writing to you to share my thoughts on the current
national security situation and the risks that it represents for the
future of Pakistan.
2.
The Government has made serious and sincere efforts to
revive the economy, maintain law and order and to curb extremism
and terrorism in the country. In the last few months, however,
militancy, extremism and terrorist activities have been in
ascendance, particularly in some districts of NWFP where the writ
of the government is being eroded and non-State militants are
apparently gaining control. There have been a number of bomb
blasts and suicide attacks in other parts of the country including the
recent suicide attack on a political rally in Karachi on 18th October,
2007. During the last ten months, 1322 precious lives have been lost
and 3183 persons have been injured. Details of such incidents
between April - October, 2007 are enclosed. The executive measures
taken against extremist elements to contain militancy and terrorist
activities have, on a number of occasions, been called into question
by some members of the judiciary making effective action
impossible.
3.
There has been increasing interference by some members of
the judiciary in government policy, adversely affecting economic
growth, in particular. The corner stone of the economic policies of
the government is privatization, liberalization and deregulation
which create economic growth and investment. Both local and
foreign investment has been negatively affected.
4.
It cannot be disputed that the legality of executive measures
is open to judicial scrutiny. The wisdom or necessity of a policy or a
measure is an executive function and not open to judicial review,
however, in the recent past, some members of the judiciary have,
nevertheless, departed from these norms. While we all are
Const. P 9 & 8/2009
115
committed to the independency of the judiciary and the rule of law
and hold the superior judiciary in high esteem, it is nonetheless of
paramount importance that the Honourable Judges confine the
scope of their activity to the judicial function. While judges must
adjudicate they must neither legislate nor assume the charge of
administration.
5.
Most
importantly,
constant
interference
in
executive
functions, including but not limited to the control of terrorist
activity,
economic
policy,
price
controls,
downsizing
of
corporations and urban planning, has weakened the writ of the
government. This has increased the incidents of terrorist attacks
thereby posing grave threat to the life and property of the citizens
of Pakistan and negatively impacting the economy. Wide-ranging
suo motu actions of the courts negate the fundamentals of an
adversarial system of justice. The police force has been completely
demoralized and is fast losing its efficacy to fight terrorism.
Intelligence Agencies have been thwarted in their activities and
prevented from pursuing terrorists.
6.
A large number of hard core militants, extremists, terrorists
and suicide bombers, who were arrested and being investigated
have been released. The persons so released are reported to be
involved in heinous terrorist activities, resulting in loss of human
life and property. Militants across the country have, thus, been
encouraged while law enforcement agencies subdued.
7.
There is a widespread perception of overstepping the limits
of judicial authority and taking over of executive functions.
Privatization is at a standstill while domestic and foreign investors
are being compelled to reconsider investment plans thus adversely
affecting the economy.
8.
On the other hand, an important constitutional institution,
the Supreme Judicial Council, has been made entirely irrelevant by
a recent order. Detailed reasons for this order are still awaited
despite a lapse of three months. Judges have, thus, made
Const. P 9 & 8/2009
116
themselves immune from inquiry into their conduct and are now
beyond accountability.
9.
The law and order condition in the country as well as the
economy have been adversely affected and trichotomy of powers
eroded. A situation has thus arisen where the routine and smooth
functioning of government machinery is becoming increasingly
difficult and causing grave concern among ordinary citizens about
their security. As evident from the attached list, there has been an
unusual increase in security related incidents highlighting the
gravity of the situation.
10.
Mr. President, the contents of this letter reflect my views and
public opinion about the current scenario. For any State to function,
all the three pillars of State must act in harmony in the best national
interest. Pakistan is a country that achieved independence after
immense sacrifices and has tremendous potential to develop.
Prosper and be recognized among the comity of nations as a
country with an exciting future.”
Yours sincerely,
Sd/(Shaukat Aziz)
General Pervez Musharraf
President
Islamic Republic of Pakistan
Aiwan-e-Sadr, Islamabad”
59.
As is evident from the opening paragraph of the letter, the
Prime Minister wrote to the President “to share his thoughts on the
national security situation and the risks” that it represented for the “future
of Pakistan”. In Paragraph 2, the Prime Minister noted ascendancy in
militancy, extremism and terrorist activities, bomb blasts and suicide
attacks including suicide attack on a political rally in Karachi on 18th
October, 2007, etc., and the writ of the government being eroded as nonState militants were gaining control, and stated that the executive
Const. P 9 & 8/2009
117
measures taken against extremist elements to contain militancy and
terrorist activities were called into question by some members of the
judiciary making effective action impossible. Paragraphs 3 to 8 dilated
upon the interference by some members of the judiciary in the executive
functions and in Paragraph 9 he stated that a situation had arisen where
the routine and smooth functioning of government machinery was
becoming increasingly difficult and causing grave concern among
ordinary citizens about their security. In Paragraph 10, the Prime Minister
closed his letter by saying that his letter reflected his views and public
opinion about the current scenario, observing that for any State to
function, all the three pillars of State must act in harmony in the best
national interest, and that Pakistan achieved independence after immense
sacrifices, which had tremendous potential to develop, prosper and be
recognized among the comity of nations as a country with an exciting
future.
60.
From the contents of the letter of the Prime Minister, it cannot
be said that he issued any direction to the Armed Forces in terms of Article
245 of the Constitution to act in aid of the civil power, nor the actions of
General Pervez Musharraf of 3rd November, 2007 could be said to have
been taken or done while acting in aid of the civil power. Even otherwise,
the letter was addressed to the President of Pakistan and not to the Chief
of Army Staff. But for the sake of argument, it may be stated that even if
the letter was addressed to the Chief of Army Staff, it could not be
construed to give to the latter any power to take the kind of steps that he
took in pursuance of the aforesaid letter. With a slight change in the modus
Const. P 9 & 8/2009
118
operandi, it was a replay of the events of 25th March, 1969 where President
Ayub Khan wrote a letter to the Commander-in-Chief of Army General
Yahya Khan asking him to discharge his constitutional and legal duty of
restoring law and order situation in the country, which had worsened on
account of agitation and riots throughout the length and breadth of the
country. In turn, General Yahya Khan, imposed martial law, abrogated the
Constitution of 1962 and brought the country under the control of the
Armed Forces and took upon himself the governance of the affairs of the
country by means of the PCO of 1969. In Asma Jilani’s case, such
assumption of power by General Yahya Khan was declared to be illegal
and he was termed as a usurper because no such power vested in the
Commander-in-Chief of Army to take the kind of steps that he took in
pursuance of the letter of President Ayub Khan. In the instant case too, no
power vested in the Chief of Army Staff General Pervez Musharraf under
the Constitution and the law to issue Proclamation of Emergency and PCO
No. 1 of 2007 on a letter of the Prime Minister written to the President
bringing to his notice the national security situation, which was worsening
on account of terrorism, extremism, militancy, suicide attacks and the
erosion of trichotomy as a result of suo motu actions being taken by some
members of the superior judiciary. If the President, on receipt of such a
letter, wanted to take any action including imposition of emergency, the
same would have been in terms of constitutional provisions on emergency.
Nowhere the Prime Minister asked the President to take the actions that he
took on 3rd November, 2007. In any case, it was not an advice tendered by
the Prime Minister in terms of Article 48 of the Constitution. Neither on
Const. P 9 & 8/2009
119
receipt of such a letter, could the President have authorized Chief of Army
Staff to take that kind of steps. The Constitution does not empower the
President to issue an Oath Order, which he did in pursuance of
Proclamation of Emergency and PCO No.1 of 2007. Instead of upholding
the Constitution in terms of the oath taken by him as member of the
Armed Forces he violated the Constitution, suspended it, assumed to
himself unconstitutional and illegal powers and imposed upon the country
unconstitutional and illegal emergency and PCO No. 1 of 2007. Likewise,
in terms of his oath as President of Pakistan, instead of preserving,
protecting and defending the Constitution, and performing his functions,
honestly, to the best of his ability, faithfully in accordance with the
Constitution and the law, and always in the interest of the sovereignty,
integrity, solidarity, well-being and prosperity of Pakistan, issued Oath
Order, 2007, illegally assumed to himself power to remove Judges of the
superior Courts in violation of Articles 2A and 209 of the Constitution,
which respectively required the securing of independence of judiciary and
the guaranteeing of the tenure of the Judges of the Supreme Court and the
High Courts.
61.
In the cases of Begum Nusrat Bhutto, Zafar Ali Shah and
Tikka Iqbal Muhammad Khan, such acts of the concerned Chief of Army
Staff were described as extra-constitutional steps or measures and were
dealt with on an extra-constitutional plane. We, however, take the view
that the aforesaid acts of General Pervez Musharraf were violative of the
Constitution, pure and simple. In Begum Nusrat Bhutto’s case, Syed
Sharifuddin Pirzada, Sr. ASC, while appearing as Attorney General for
Const. P 9 & 8/2009
120
Pakistan, described such assumption of power by the Chief of Army Staff
General Ziaul Haq as “supra-constitutional”. Anwarul Haq, CJ, while
dilating upon such submission of the learned Attorney General, chose to
term it as “extra-constitutional” and granted validity keeping aside the
provisions of the Constitution. It was not right to expend so much judicial
talent, legal acumen, industry, time and energy on the part of the Bench
and the bar to coin the terms of “supra-constitutional” and “extraconstitutional”, that is to say, in an exercise, which was aimed at finding
justifications for the unconstitutional and illegal acts of usurpers of power
by devising and using such or similar terms and phrases. In our view, such
terminology would hardly change the unconstitutional nature and
character of the said actions, which not only ex facie lacked the backing of
any provision of the Constitution or the law, but were done in violation of
the Constitution and the law.
62.
It was contended that after the acts of 3rd November, 2007
General Pervez Musharraf was as much a usurper as was General Yahya
Khan after the imposition of martial law in 1969. A detailed analysis of the
judgment in Asma Jilani’s case has already been made in the preceding
paragraphs. In the said case, General Yahya Khan was declared usurper by
this Court in the following manner: “Looked at, therefore, either from the constitutional point of view
or the Martial Law point of view whatever was done in March
1969, either by Field-Marshal Muhammad Ayub Khan or General
Agha Muhammad Yahya Khan was entirely without any legal
foundation. It was not even a revolution or a military coup d’état in
any sense of those terms. The Military Commander did not
takeover the reins of Government by force nor did he oust the
constitutional President. The constitutional President out of his
Const. P 9 & 8/2009
121
own free will and accord in response to the public demand,
stepped aside and called upon the Military Commander to restore
law and order, as he was bound to do both under the law and
under the Constitution. On the stepping aside of the constitutional
President the constitutional machinery should have automatically
come into effect and the Speaker should have taken over as Acting
President until fresh elections were held for the choice of a
successor. The political machinery would then have moved
according to the Constitution and the National and Provincial
Assemblies would have taken steps to resolve the political
disputes, if any, if the Military Commander had not by an illegal
order dissolved them. The Military Commander, however, did not
allow the constitutional machinery to come into effect but usurped
the functions of Government and started issuing all kinds of
Martial
Law
Regulations,
Presidential
Orders
and
even
Ordinances.”
63.
In Begum Nusrat Bhutto’s case, Anwarul Haq, CJ, referring to
the ratio of the decision in Dosso’s case held that the legal character and
validity of any abrupt political change, brought about in a manner not
contemplated by the pre-existing Constitution or Legal Order, could not be
judged by the sole criterion of its success or effectiveness, as contemplated
by Kelsen’s pure theory of law. He observed that not only had that theory
not been universally accepted, or applied, it was also open to serious
criticism on the ground that, by making effectiveness of the political
change as the sole condition or criterion of its legality, it excluded from
consideration
sociological
factors
or
morality
and
justice
which
contributed to the acceptance or effectiveness of the new Legal Order. But,
at the same time, he did not follow the law laid down by Hamoodur
Rahman, CJ, in Asma Jilani's case and went on to distinguish it by
observing as under: -
Const. P 9 & 8/2009
122
“Now, it will be seen that in Asma Jilani’s case the Court has taken
the view that the abrogation of the Constitution and assumption of
all governmental power by the Army Commander-in-Chief was
illegal because it was not justified by the circumstances in which he
was called upon by the then President, Field Marshal Muhammad
Ayub Khan to perform his legal and constitutional duty of
restoring law and order. The Court took note of the fact that the
Constitution itself contained a provision for the Speaker of the
National Assembly to assume the office of Acting President, in case
the sitting President wanted to resign or step aside, but this
constitutional provision was frustrated by General Yahya Khan
when he proclaimed himself to be the President of the country as
well as the Chief Martial Law Administrator and abrogated the
1962 Constitution without there being any justification for the
same. It is clear, therefore, that the conclusion that the acts of
General Muhammad Yahya Khan amounted to a usurpation of
powers flows directly from the circumstances obtaining in that
case, and is not to be regarded as a general proposition of law to
the
effect
that
whenever
power
is
assumed
in
an
extra-Constitutional manner by an authority not mentioned in the
Constitution, then it must amount to usurpation in all events. It
would obviously be a question for determination in the circumstances of the particular case before the Court as to whether the
assumption of power amounts to usurpation or not.”
Thus, Anwarul Haq, CJ, treated the decision in Asma Jilani’s case as
restricted to the facts and circumstances of that case alone, and as not
having laid down a general proposition of law that whenever power
would be assumed in an extra-constitutional manner by an authority not
mentioned in the Constitution, then it must amount to usurpation in all
events. However, he did not notice a very loud and clear assertion of
Hamoodur Rahman, CJ, when he said –
“I am not aware of any document or of any provision in any law
which gives the Commander of the armed forces the right to
Const. P 9 & 8/2009
123
proclaim Martial Law, although I am prepared to concede that he
has like all other loyal citizens of the country a bounden duty to
assist the State, when called upon to do so.”
The statement of Hamoodur Rahman, CJ, just quoted, referring to “any
document or of any provision in any law which gives the Commander of the
Armed Forces the right to proclaim martial law” could in no manner be treated
as restricted to the assumption of power by General Yahya Khan alone.
Further, in holding that “looked at, therefore, either from the constitutional
point of view or the Martial Law point of view whatever was done in March 1969,
either by Field-Marshal Muhammad Ayub Khan or General Agha Muhammad
Yahya Khan was entirely without any legal foundation”, he minced no words.
It was a general statement and would apply to each and every situation in
which an authority not mentioned in the Constitution assuming power
would be treated as usurper. We lay it down firmly that the assumption of
power by an authority not mentioned in the Constitution would be
unconstitutional, illegal and void ab initio and not liable to be recognized by
any court, including the Supreme Court. Henceforth, a Judge playing any
role in future in the recognition of such assumption of power would be
guilty of misconduct within the ambit of Article 209 of the Constitution.
64.
As noted earlier, on 3rd November, 2007, General Pervez
Musharraf issued Proclamation of Emergency and PCO No. 1 of 2007 in
his capacity of Chief of Army Staff. In the former instrument, he
incorporated the contents of the letter of the Prime Minister as grounds for
proclaiming emergency throughout Pakistan and holding the Constitution
in abeyance. By Article 2 of PCO No. 1 of 2007 it was provided that
Pakistan shall, subject to the PCO and any other Order made by the
Const. P 9 & 8/2009
124
President be governed, as nearly as may be, in accordance with the
Constitution. Under the proviso to the above Article, it was provided that
the President may amend the Constitution, as may be deemed expedient.
By clause (3) of Article 2 it was provided that all courts shall continue to
function subject to PCO No. 1 of 2007 and Oath Order, 2007, but the
Supreme Court, a High Court or any other court shall not have the power
to make any order against the President or the Prime Minister or any
person exercising powers or jurisdiction under their authority. By clauses
(5) and (6) he kept intact the legislative and the executive organs of the
State, but by Articles 4 and 5 of PCO No. 1 of 2007 provided that
notwithstanding the abeyance of the provisions of the Constitution, but
subject to the Orders of the President, all laws other than the Constitution,
all Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and
other legal instruments in force in any part of Pakistan, whether made by
the President or the Governor of a Province, shall continue in force until
altered, or repealed by the President or any authority designated by him.
Further, an Ordinance promulgated by the President or by the Governor of
a Province shall not be subject to any limitations as to duration prescribed
in the Constitution. Likewise, an Ordinance issued by the President or by a
Governor which was in force immediately before the commencement of
Proclamation of Emergency of the 3rd day of November, 2007 shall also
not be subject to the limitations as to duration prescribed in the
Constitution. He purported to assume all the absolute and unfettered
powers of the legislative branch of the government, the executive branch
being already under him with a compliant Prime Minister holding office
Const. P 9 & 8/2009
125
during his pleasure, and the supreme command of the Armed Forces also
vesting in him by virtue of clause (1A) of Article 243 of the Constitution.
65.
To have full control over the judiciary, and to be free from the
constitutional checks and balances, General Pervez Musharraf issued Oath
Order, 2007 and thereby sought to replace the existing superior judiciary
with a judiciary which was not bound by the Constitution so that his
actions could not be challenged or adjudicated upon by an impartial court.
66.
Mr. Hamid Khan, Sr. ASC, contended that the acts/actions of
3rd November, 2007 were taken by General Pervez Musharraf for his own
benefit and the same were neither required in the interest of the State
necessity nor for the welfare of the people of Pakistan, hence the same,
besides being unconstitutional and void ab initio, were also mala fide. This
aspect too, according to the learned counsel, made the instant case
distinguishable from the cases of Begum Nusrat Bhutto and Zafar Ali Shah.
To substantiate his contention, Mr. Hamid Khan referred to the events and
circumstances, which led to the actions of 3 rd November 2007.
67.
On 31st December, 2004 the President to Hold Another Office
Act, 2004 (Act No. VII of 2004) was enacted. Section 2 of the Act provided
that the holder of the office of the President of Pakistan (General Pervez
Musharraf) may, in addition to his office, hold the office of the Chief of
the Army Staff which was declared not to disqualify its holder as
provided under paragraph (d) of clause (1) of Article 63 read with
proviso to paragraph (b) of clause (7) of Article 41 of the Constitution of
the Islamic Republic of Pakistan or any other law for the time being in
force, or any judgment of any Court or Tribunal. Proviso to above section
Const. P 9 & 8/2009
126
provided that this provision shall be valid only for the present holder of
the office of the President.
68.
In the case of Pakistan Lawyers Forum v. Federation of Pakistan
(PLD 2005 SC 719) challenge was thrown, inter alia, to the LFO, 2002, the
Seventeenth Amendment to the Constitution and the President to Hold
Another Office Act, 2004. The petition was dismissed holding, inter alia,
that General Pervez Musharraf was the President of Pakistan under
clauses (7) and (8) of Article 41 of the Constitution, which provided that
he shall hold the office of Chief of Army Staff notwithstanding anything
in the Constitution to the contrary and that Articles 43, 243 & 244, by
virtue of the overriding effect of aforesaid clauses (7) and (8), were held
not applicable to him. Further, under the proviso to clause (7) ibid, the
provisions of Article 63(1)(d) of the Constitution were made applicable to
the continuation in office of General Pervez Musharraf as President on
and after 31st December 2004, meaning thereby that he would have to
relinquish the office of Chief of Army Staff after the said date. Thus, he
continued to retain the office of Chief of Army Staff.
69.
In May 2007, Qazi Hussain Ahmed, Ameer Jamat-e-Islami filed
Constitution Petition No. 58 of 2007 in this Court under Article 184(3) of
the Constitution with the prayer that General Pervez Musharraf (1) had
ceased to be a member of the Armed Forces w.e.f. 11th August, 2003; (2)
had violated his oath as a member of the Armed Forces by taking part in
political activities and made himself liable to dismissal, etc.; (3) had
rendered himself disqualified to hold the office of President due to his
acting against the Constitution, betraying the nation, defying the oath,
Const. P 9 & 8/2009
127
siding with, and campaigning for, the political parties of his personal
liking, dragging the Army into politics for his own benefit, holding office
of profit in the service of Pakistan and ridiculing the judiciary; and (4) he
may be restrained from acting and posing himself as the Chief of Army
Staff, as also from patronizing the government-led political parties and
addressing political gatherings of such parties.
70.
The aforesaid petition of Qazi Hussain Ahmed came up for
hearing on 5th September, 2007 when it was ordered to be heard along
with other identical petitions, as in the meantime, Constitution Petitions
No. 59, 61, 62, 63, 68, 74, 79, 80, of 2007 had been filed by Jamat-e-Islami
through its Ameer Qazi Hussain Ahmed, Imran Khan, Chairman, Pakistan
Tehrik-e-Insaf, Engineer Jameel Ahmed Malik, Dr. Anwarul Haq,
Pakistan Lawyers Forum through its President Mr. A.K. Dogar,
Advocate, Makhdoom Muhammad Amin Fahim, President, Pakistan
Peoples Party Parliamentarian, Muhammad Shahbaz Sharif, President,
Pakistan Muslim League (N) and Tariq Asad, Advocate, respectively with
similar prayers. From the 17th September 2007 the petitions were being
heard on day to day basis. In the meantime, the Chief Election
Commissioner, vide notification dated 20th September, 2007, announced
the schedule of election for the office of President as under: (a)
(b)
(c)
(d)
(e)
Filing of nomination papers with the
Returning Officer at Islamabad and
with each of the Presiding Officers at
Lahore, Karachi, Peshawar and Quetta
Scrutiny of nomination papers by the
Returning Officer at Islamabad
Withdrawal of candidature before the
Returning Officer at Islamabad
Publication of the list of validly
nominated candidates
Polling day and polling time
27.09.2007
(upto 12.00 noon)
29.09.2007
(at 10.00 a.m.
01.10.2007
(upto 12.00 noon)
01.10.2007
(at 01.00 p.m.)
06.10.2007
Const. P 9 & 8/2009
128
(from 10.00 a.m. to
03.00 p.m.)
Vide judgment dated 28.09.2007 reported as Jamat-e-Islami v. Federation of
Pakistan (PLD 2009 SC 549), by a majority of 6 to 3, the petitions were held
to be not maintainable under Article 184(3) of the Constitution, inter alia,
holding that the petitions relating to the eligibility of President General
Pervez Musharraf, a prospective candidate for the election of President,
though involved questions of public importance, but the same did not
relate to the enforcement of any of the Fundamental Rights so as to invoke
jurisdiction of this Court under Article 184(3) of the Constitution, besides
being premature, speculative and presumptive in nature. It was further
held that the questions involved therein, in fact, fell in the domain of the
Chief Election Commissioner of Pakistan. On the other hand, as per the
minority view of Rana Bhagwandas, Sardar Muhammad Raza Khan and
Mian Shakirullah Jan, JJ, the petitions were held to be maintainable under
Article 184(3) of the Constitution and were allowed. General Pervez
Musharraf was held not qualified to contest the election of President on
account of his holding an office of profit in the service of Pakistan, viz., the
Chief of Army Staff. Falak Sher, J, in his separate reasons concurred with
the majority view that the petitions were not maintainable under Article
184(3) of the Constitution. However, on merits he held that General Pervez
Musharraf, being in the service of Pakistan as Chief of Army Staff, was
holding an office of profit within the contemplation of Article 63(1)(d) of
the Constitution, and, therefore, was not qualified to contest the election of
Const. P 9 & 8/2009
129
President. Thus, on merits four Judges allowed the petitions and held
General Pervez Musharraf disqualified to contest the Presidential election.
71.
It is pertinent to note that up till the date of above decision,
General Pervez Musharraf, Prime Minister Shaukat Aziz and the Federal
Cabinet were well contented with the role played by the judiciary. They
exchanged the congratulations on the decision as is manifest from their
statements appearing in the next day issues of several newspapers such as
the Daily News, Islamabad, the Daily Nation, Islamabad, excerpts
wherefrom are reproduced below: -
The Daily News, Islamabad, 29th September, 2007
“CABINET WELCOMES SC VERDICT”
Islamabad: The federal cabinet Friday expressed profound
happiness at the verdict of the Supreme Court and endorsed that
Pakistan needs the vision and leadership of President General
Pervez Musharraf to continue its march towards peace and
prosperity.
The informal meeting of the cabinet was called by Prime Minister
Shaukat Aziz here at the Prime Minister’s House soon after the
announcement of Judgement by the Supreme Court in which the
cabinet welcomed the Supreme Court’s decision related to the reelection of President General Pervez Musharraf for the second term.
The cabinet was of the view that the judgement given by the
Supreme Court removes any uncertainty about the future
developments and has put the country firmly on the path of growth
and development. ………..”
And,
The Daily Nation, Islamabad, 29 th September, 2007
“MUSHARRAF, AZIZ SAY JUSTICE TRIUMPHS”
President General Pervez Musharraf and Prime Minister Shaukat
Aziz Friday welcomed the Supreme Court’s decision regarding
Const. P 9 & 8/2009
130
dual offices saying that it would be milestone in the country’s
journey towards democracy and has strengthened it.
Maj. Gen. (Retd.) Rashid Qureshi, spokesman for the President
respected and honored the judgment of the Supreme Court. In a
brief statement he said that justice had triumphed.
Meanwhile, addressing a press briefing after chairing the
emergency cabinet meeting following Supreme Court’s verdict on
petitions to disqualify General Pervez Musharraf for re-election,
Prime Minister Aziz said that the government was happy over the
decision which proves that is rule of law, justice, democracy and
parliament in the country.
“After the decision, I called an emergency cabinet meeting which
has endorsed this verdict and greeted President General Pervez
Musharraf on this success,” said Shaukat Aziz, who also phoned
President General Pervez Musharraf to congratulate him on the
issue. The PM was briefing the media about government stance on
Supreme Court’s decision and special cabinet meeting.
He said that this judgement would also make the process of
presidential elections smoother.
“Let us all accept this landmark judgement with grace and dignity
and move on with the electoral process in a mature (way), “Prime
Minister said, adding that the opposition should also accept it in
good spirit.
To a question that as to what step the government would take if the
opposition went on strike on roads as some of its workers threw
rotten eggs and tomatoes at the Supreme Court building and also
announced streets struggle against the verdict, the Prime Minister
said no one would be allowed to take law and order in their hands
and damage the national assets.
“We
would
ensure
decision…………………”
implementation
of
Supreme
Court
Const. P 9 & 8/2009
72.
131
As per schedule of election, nomination papers filed by
General Pervez Musharraf, Makhdoom Muhammad Amin Faheem, Mr.
Wajihuddin Ahmed and Mrs. Faryal Talpur were scrutinized by the Chief
Election Commissioner of Pakistan on 29th September, 2007. However, the
objections raised on behalf of the latter three candidates against the
candidature of General Pervez Musharraf were rejected vide order of even
date.
73.
One of the candidates of election of the President, namely, Mr.
Wajihuddin Ahmed, a former Judge of the Supreme Court filed
Constitution Petition No. 73 of 2007 in this Court with the following
prayer: (1)
The order of the Chief Election Commissioner dated 29.09.2007
accepting orally the nomination papers of General Pervez
Musharraf as a candidate for the President of Pakistan may kindly
be set aside as unconstitutional;
(2)
General Pervez Musharraf may kindly be declared ineligible,
lacking in qualifications under Article 62 and other provisions of
the Constitution and disqualified under Article 63 of the
Constitution to contest the election of the office of the President of
Pakistan;
(3)
After rejecting nomination papers of General Pervez Musharraf, the
remaining electoral process for the election of President of Pakistan
under the schedule announced by the Chief Election Commissioner
may be set aside; and
(4)
As a consequence, fresh Presidential elections through the new
electoral college to be inducted after holding general election be
ordered.
74.
Two other petitions, namely, Constitution Petitions Nos. 74 &
75 of 2007 were filed respectively by Makhdoom Amin Fahim and
Waseem Rehan, which were clubbed with the main petition so as to be
Const. P 9 & 8/2009
132
heard together with it. On 3rd October, 2007, the petitions came up for
hearing before a Bench of 9 Judges including Sardar Muhammad Raza
Khan, J, when the following order was passed: “In the judgment in Jamat-e-Islami v. Federation of Pakistan (Const.
P. 59/2007), one of us (Mr. Justice Sardar Muhammad Raza Khan)
has already expressed his complete views on merits and hence he
expresses his inability to sit on the Bench. In the circumstances, the
matters are referred to his lordship, the Hon’ble Chief Justice for reconstitution of the Bench.”
After the recusal of the said learned Judge, the matter was taken up by the
remaining 8 members of the Bench who passed the following order: “After having heard the learned counsel on behalf of the petitioners
at length we are of the view that prima facie some questions of law
of public importance with reference to enforcement of fundamental
rights are involved and besides that various Articles of the
Constitution such as Articles 41, 43, 62, 63, 243 and 244, require
interpretation and more-so the import, significance and impact of
amendment made in the Presidential Election Rules, 1988 is also to
be examined, therefore, it seems inevitable to issue notice to the
learned Attorney General for Pakistan as well as the other
respondents. To come up tomorrow i.e. 4.10.2007.”
On the same day, i.e. 3rd October, 2007, CMA No. 2683/2007 was filed on
behalf of petitioner Wajihuddin Ahmed stating, inter alia, that the main
petition involved important questions of public and national importance
pertaining to the enforcement of fundamental rights and that the very
constitutional and political future of the country was at stake, therefore,
the petition ought to be heard by the Full Court. The application was
placed before the Chief Justice of Pakistan who passed the following
order: -
Const. P 9 & 8/2009
133
“This application has been moved for constitution of full Court to
hear the subject petition. Keeping in view the availability of the
Hon’ble Judges, a larger Bench has already been constituted with
due diligence. However, if the petitioner is not satisfied and still
desires for the constitution of full Court, his request will be
considered later on, subject to availability of Hon’ble Judges.
Petitioner may be informed accordingly.”
75.
On 4th October, 2007, a Bench of 10 available Judges heard the
petitions and adjourned the hearing to 5th October, 2007 on which date the
following order was passed on the miscellaneous applications filed by the
petitioner seeking stay of the Presidential election scheduled to be held on
6th October, 2007: “Having heard the learned counsel for the parties at some length, it
is unanimously resolved and directed that the election process
already commenced shall continue as per the schedule notified by
the Chief Election Commissioner of Pakistan but the final
notification of the election of the returned candidate shall not be
issued till the final decision of these petitions.
2.
The main petitions shall be set down for hearing on
17.10.2007.”
On passing of the above order, General Pervez Musharraf seemed to be
fully satisfied. According to the news items appearing in the Daily News,
Islamabad dated 6th October, 2007, he told the Treasury MPs that he was
grateful to the judiciary on the “wonderful decision”. Elaborating the
point, he observed that the decision was also beneficial to him and that he
left it to the judiciary to decide, and expressed that they must bank upon
the judiciary of Pakistan. The relevant excerpts are reproduced as below.
The daily News, Islamabad, 6 th October, 2007
“MUSHARRAF IN SEVENTH HEAVEN OVER SC VERDICT”
Const. P 9 & 8/2009
134
President General Pervez Musharraf told the treasury MPs Friday
that he is grateful to the judiciary on the “wonderful decision” it
made on presidential polls, adding he would be at liberty to say in
uniform if the case lingers on even after October 17 and the election
commission does not notify his victory in case he wins.
He said any delay in court’s decision and the issuance of
notification can win him even a year in army office. He said he
would be under no compulsion to drop uniform before the
judgement comes and he could be able to buy more time for
wearing two hats in case the decision on the issue gets late.
Elaborating the point that the court decision is also beneficial to
him, he said there would be no hurdle in his way to continue
holding the COAS office even for a year or so if the case is not
decided. At the same time he also thanked the judiciary and said,
“We should bank on the judiciary”.
“It is a good decision. We are grateful to the Supreme Court Bench,”
he said while commenting on the decision of the larger Bench of the
Supreme Court that the presidential polls should be held
unhindered but the results be withheld up till October 17. He said
he has good hopes from the judiciary in future as well and the
government should trust it.
“I leave it to the judiciary to decide. We must bank on the judiciary
of Pakistan,” an insider quoted him as telling the treasury members
of parliament.
He also laughed at those smelling foul for him in the SC decision
saying he considers it a “blessing in disguise”.
Musharraf said those who consider it their defeat are wrong as the
decision goes in his favour. Suppose, he said, the case keeps
lingering even for a year or two, it would again be beneficial for
him as he would not have to drop the army hat. “In that case, I
would be at liberty to keep the uniform,” he told the legislators.”
Const. P 9 & 8/2009
135
The Attorney General Malik Muhammad Qayyum also expressed his
satisfaction over the verdict, which was evident from his remarks
published in the Daily News of 6 th October, 2007, viz.,
“Attorney General Malik Qayyum expressed his satisfaction over
the verdict and said they are happy as the court has accepted the
viewpoint of the government.”
76.
On 8th October, 2007, the Chief Justice of Pakistan, considering
the availability position of the Judges, constituted an 11-member Bench
consisting of the remaining available Judges. The petitions came up for
hearing on 17th October, 2007, when the 11 member Bench passed the
following order: “Mr. Hamid Khan, learned Sr. ASC, Dr. Farooq Hassan, Sr. ASC
and Mr. A.K. Dogar, Sr. ASC have made a request for constitution
of Full Court to hear these petitions. Let these petitions and the
request made be placed before the Hon’ble Chief Justice to consider
constitution of Full Court.”
The same day, the matter was placed before the Chief Justice of Pakistan
who passed the following order: “In view of the order of even date, passed by Bench-II, request of
the petitioners has been considered once again. Meanwhile, the
Registrar has also enquired from HJ(8) [Falak Sher, J.], who has
expressed his inability to be a member of the Bench hearing the
listed petitions, as according to him he has already expressed his
opinion on merits in Constitution Petition No. 58 of 2007, etc. Same
is the position of HJ(9) [Mian Shakirullah Jan], while HJ(1) [Rana
Bhagwandas, J.] is out of country being on ex-Pakistan leave and
HJ(13) [Nasir-ul-Mulk, J.] is proceeding abroad on official
commitment on 20th morning, whereas HJ(12) [Saiyed Saeed
Ashhad] is on medical leave. As far as the undersigned is
concerned, I feel that the judicial propriety requires that I should
not sit on the Bench hearing petitions involving election of the
Const. P 9 & 8/2009
136
incumbent President of Pakistan being holder of two offices.
Therefore, the Bench already constituted may proceed with the
matter from tomorrow, i.e. 18th October, 2007 to dispose of the cases
accordingly.”
77.
After the above noted interim injunctive order was passed,
election of the office of President took place as per schedule announced by
the Chief Election Commissioner of Pakistan. While the petitions were
being heard on day-to-day basis, apprehensions were expressed by the
sympathizers of General Pervez Musharraf as to the consequences likely to
follow in case a verdict adverse to him was returned by this Court, which
were apparent, inter alia, from the following excerpts of the newspapers: -
The daily DAWN, Islamabad 30 th October, 2007
Attorney General Lists Options For Musharraf
“President Pervez Musharraf may seek re-election from the present
or the new assemblies if the Supreme Court gives a verdict against
him on the petitions challenging his nomination as a presidential
candidate, says Attorney-General Malik Muhammad Qayyum.
Talking to Dawn on Monday, he said that before going for reelection the President would have to get removed – though the
parliament
and
by
Nov.
15—any
legal
or
constitutional
disqualification pointed out by the apex court.
The worst case scenario would be if the apex court held that Gen
Musharraf was not qualified to run for any legal or constitutional
reason.
If the court pointed out some disqualification on legal grounds, the
government would have to remove the same by amending the
relevant law or enacting a new law.
Similarly, if the disqualification was on constitutional ground, the
president would have to get a constitutional amendment passed by
Const. P 9 & 8/2009
137
the middle of November, by which day the assemblies would
complete their tenure and stand dissolved:”
The daily News Islamabad, 30 th October, 2007
“WHAT IF…?
“Now the Supreme Court is again under pressure to give a verdict
favourable to the current military ruler of the country. In a
interview with a private television channel on October 10, the
general was asked how he would react if the court said he could
not be president again. He left open all options: “We will cross the
bridge when we reach it,” he said.
Prime Minister Shaukat Aziz, the cheerleader-in-chief of the
Musharraf election campaign, said on October 14 that he expected
the Supreme Court to uphold his election. Some Ministers have
thrown dark hints that if decided ineligible, the General could
proclaim a state of emergency or even impose martial law. In other
words, he would not shrink from violating even the badly
mutilated constitution that the country was given through the
Seventeenth Amendment. So much for the General’s oath to
“preserve, protect and defend the Constitution”.
The real question is what the general would do if the court decides
against him. His past record gives some clause. He grudgingly
accepted the restoration of the chief justice, because it did not
directly touch on his powers. The decision of the court on the right
of Nawaz Sharif to return to the country, on the other hand,
threatened to disrupt Musharraf’s re-election plans and he flouted
it openly. In the present case, his political survival is at stake. His
reaction is therefore, expected to be robust, to say the least.
Lastly, he could refuse to accept the verdict and either declare a
state of emergency or impose martial law.
The general now lacks the authority to enforce a state of emergency
or martial law, because the country has come a long way since
March and the ground realities have changed dramatically.”
Const. P 9 & 8/2009
138
The Daily News, Islamabad, 3rd November, 2007
“SC JUDGMENT UNLIKELY ON TUESDAY
The Supreme Court will be able to hand down its ruling on
petitions challenging General Pervez Musharraf’s eligibility as
presidential candidate on Tuesday only if lawyers of the two sides
hurriedly wrap up their arguments which seems impossible at the
moment.
The eleven-judge Bench headed by Justice Javed Iqbal, which is
hearing these petitions, dispelled the impression that it was
delaying their disposal. It was even prepared to sit on non-court
work day of Saturday but could not as some lawyers had other
engagements.
Attorney General Justice (Retd.) Malik Qayyum has taken
considerably long time, contrary to what was earlier believed, to
argue the government case. He will take at least another hour on
Monday, the next day of hearing, to finish his expositions.
After that, Barrister Wasim Sajjad, who represents the federal
government, will take the floor. If the proceedings went ahead
smoothly, he will be able to conclude his arguments by tea break at
11 am Tuesday.
Then will come on podium the constitutional guru, Syed
Sharifuddin Pirzada, who requires a full day to defend the
president’s eligibility. This means that the proceedings would
spread to Wednesday.”
The Daily Time, Islamabad, 3rd November, 2007
“SUPREME COURT AND PRESIDENT MUSHARRAF
The remark has come in the midst of rumours that some steps “of a
special nature” could be taken by the government if the verdict of
the Court goes against the president. Some ministers have
expressed their fears on this ground over a period of time, pointing
to “alternative” options reserved by the government. Thus, over the
last two days, these statements have given rise to rumours of
“emergency or martial law” to which the honourable judge has
Const. P 9 & 8/2009
139
referred. It is thought that the stock market in Karachi spiraled
downwards on account of this, and Ms Benazir Bhutto may have
gone to Dubai to avoid being stranded in Pakistan under martial
law.
The federal ministers who have been talking about “options” have
covered their tracks by saying that special measures have been
discussed but no consensus exists inside the government over the
President Musharraf might do if his candidature is rejected by the
Supreme Court. According to his attorney general, Malik
Muhammad Qayyum, President Musharraf would continue to hold
the post of army chief if he was blocked from taking oath of the
president’s office for another term.
The Daily News, Islamabad, 3rd November, 2007
“QAYYUM HINTS AT EMERGENCY IMPOSITION
The government on Friday night gave the strongest hint that
emergency may be imposed in the country when Attorney General
Justice ® Malik Qayyum told The News all major political cases
being heard by the Supreme Court, including the case of General
Musharraf’s eligibility, would cease if emergency was proclaimed.
The attorney general talking exclusively Friday evening from
Lahore said the much talked about stage of emergency, if imposed,
would mean suspension of fundamental rights and end to all cases
filed under Article 184(3) of the constitution.
“No petition could be entertained by the superior judiciary to
challenge any act under the basic fundamental rights provisions of
the constitution,” he said.”
The Daily Nation, Islamabad, 3rd November, 2007
“EMERGENCY NEXT 48 HOURS CRUCIAL”
After high level consultations, the government has finalized the
blueprint of a legal framework order to impose emergency in the
country and a PCO purported to tame the judiciary, which has
given a number of decisions against the Presidency and the
government.
Const. P 9 & 8/2009
140
Under the new PCO, the judges will be required to take fresh oath,
which will automatically exclude all the judges hostile to the
Presidency from the future dispensation.
Sources close to the Presidency claimed that emergency could be
enforced any time.
“Earlier the issue was when to impose emergency, whether before
the Supreme Court decision on the eligibility of Gen Musharraf or
after the ruling. But now there is probability that it will be
promulgated within next 48 hours. The coming weekend is very
crucial,” sources claimed.
There is a strong perception among the President’s aides that the
SC’s verdict will be overwhelmingly against President Musharraf,
hence the planning to impose emergency and PCO in order to
disable the judiciary which most political analysts believe will not
solve President Musharraf’s problems. The relations between the
judiciary and executive turned sour after the former had given a
number of decisions which were embarrassing to the Presidency
and the government.”
78.
In the above background, Mr. Hamid Khan, Sr. ASC, learned
counsel for the petitioners in the instant petitions, who was one of the
counsel for Wajihuddin Ahmed petitioner in Constitution Petition No. 73
of 2007, stated at the bar that on 2nd November, 2007 a miscellaneous
application (later assigned CMA No. 2869 of 2007) was sought to be
presented by Barrister Aitezaz Ahsan before the eleven–member Bench
during the course of hearing, but it was directed that the same be filed in
office. In the said miscellaneous application, it was stated, inter alia, that
there were widespread reports in the print and electronic media, and some
federal ministers had also stated, that the decision in the “disqualification
case” would lead to imposition of martial law or emergency or some other
Const. P 9 & 8/2009
141
unconstitutional steps including but not limited to a fresh Provisional
Constitution Order, which would subvert the proceedings in the aforesaid
case. It was prayed that the respondents may be directed to clarify their
intent in this regard and may be restrained from taking any such step. The
office brought the application on file with instruction to the Court
Associate to bring it to the notice of the 11-member Bench when it resumed
hearing of the petitions on 5 th November, 2007.
79.
The speculations came true on 3rd of November, 2007, when
General Pervez Musharraf in the capacity of the Chief of the Army Staff
issued a Proclamation of Emergency, whereby he held the Constitution in
abeyance and also issued PCO No. 1 of 2007 and Oath Order, 2007.
Immediately thereafter, the Registrar placed the file of Wajihuddin Ahmed’s
case before the Chief Justice of Pakistan for taking up CMA No. 2869 of
2007 filed therein. Thus, a special Bench of 7 available Judges was
immediately constituted and convened, which passed the following
order: “This application was filed in Court on 2nd November 2007
praying that respondent-Government may change composition
of Bench by adopting extra-constitutional measures, which could
mean either by placing martial law or bringing PCO or by
imposing emergency.
2.
Application could not be taken up as it was not numbered.
However, now it has been marked to Bench. In the meantime, in
electronic and print media news appeared that PCO has been
promulgated to enable Government to administer fresh oath to
the Chief Justice as well as Judges of the Supreme Court so that
favourable Judges could be appointed. Be that as it may, we feel
that
Government
has
no
ground/reason
to
take
extra-
constitutional steps, particularly for the reasons being published
Const. P 9 & 8/2009
142
in the newspapers that high profile case is pending and is not
likely to be decided in favour of the Government, although
matter is still pending. Therefore, a special Bench has been
constituted and on considering pressing situation and news
which have been published in newspapers, we direct as
follows: (i)
Government of Pakistan, i.e. President and Prime
Minister of Pakistan are restrained from undertaking any
such action, which is contrary to Independence of
Judiciary;
(ii)
No judge of the Supreme Court or the High Courts
including Chief Justice(s) shall take oath under PCO or
any other extra-Constitutional step;
(iii) Chief of Army Staff, Corps Commanders, Staff
Officers and all concerned of the Civil and Military
Authorities are hereby restrained from acting on PCO
which has been issued or from administering fresh oath to
Chief Justice of Pakistan or Judges of Supreme Court and
Chief Justice or Judges of the Provincial High Courts;
(iv) They are also restrained to undertake any such
action, which is contrary to independence of Judiciary.
Any further appointment of the Chief Justice of Pakistan
and Judges of the Supreme Court and Chief Justices of
High Courts or Judges of Provinces, under new
development shall be unlawful and without jurisdiction;
(v)
80.
Put up before full court on 5th November 2007."
Seen in the above perspective, the actions of General Pervez
Musharraf dated 3rd November, 2007 were the result of his apprehensions
regarding the decision of Wajihuddin Ahmed’s case and his resultant
disqualification to contest the election of President. Therefore, it could not
be said that the said actions were taken for the welfare of the people.
Clearly, the same were taken by him in his own interest and for illegal and
unlawful personal gain of maneouvring another term in office of
President, therefore, the same were mala fide as well. The statement made
in Proclamation of Emergency that the situation had been reviewed in
meetings with the Prime Minister, Governors of all the four Provinces,
Const. P 9 & 8/2009
143
and with Chairman, Joint Chiefs of Staff Committee, Chiefs of the
Armed Forces, Vice Chief of Army Staff and Corps Commanders of the
Pakistan Army, and emergency was proclaimed in pursuance of the
deliberations and decisions of the said meetings, was incorrect. The
Proclamation of Emergency emanated from his person, which was
apparent from the words “I, General Pervez Musharraf…….” used in it.
81.
There is force in the submission of the learned counsel for the
petitioners that the continuation in power of General Pervez Musharraf
was all along the result of maneouvring. The holding of Referendum 2002
and the amendments made in the Constitution by means of the LFO, 2002
were hotly contested at the floors of the Houses of Parliament, but the
amendments so made in the Constitution were ultimately accepted and the
Seventeenth Amendment to the Constitution was passed on 31st December,
2003 under the umbrella of an accord between the PML (Q) and the MMA,
thus paving the way for General Pervez Musharraf to be the President of
Pakistan for the next five years, i.e. up to 15th November, 2007 while
continuing to be the Chief of Army Staff at the same time in terms of the
aforesaid Seventeenth Amendment. He promised to relinquish the office of
Chief of Army Staff on or before 31st December, 2004, but later in deviation
of his promise, he got enacted the President to Hold Another Office, Act,
2004. That is why his candidature for the election of President was
challenged before the Supreme Court, first by the major political parties of
the country in Jamat-e-Islami’s case, and later by the two rival candidates
of the election of President in Wajihuddin Ahmed’s case. The majority
decision in Jamat-e-Islami’s case was rendered in favour of General Pervez
Const. P 9 & 8/2009
144
Musharraf only on a legal ground, namely, the petitions were not
maintainable as it did not involve enforcement of any of the Fundamental
Rights of the petitioners. However, four out of nine Judges gave decision
on merits and held him disqualified to contest the election of President.
82.
As to the constitutionality and the legality of the acts/actions
of 3rd November, 2007, General Pervez Musharraf himself, in an interview
to a foreign TV news channel (BBC) admitted that he had taken
unconstitutional steps. Relevant portion from his interview, as reported in
the Daily DAWN of 18th November, 2007 is reproduced below: -
The daily DAWN, Islamabad, 18 th November, 2007
NO ILLEGAL STEP TAKEN BEFORE NOV. PRESIDENT:
“Before March, I was very good. Suddenly did I go mad after
March or suddenly my personality changed, am I Doctor
Jekyll and Mister Hyde or what is it?” He said.
“Am I such a person?
“Please go into the details, the causes. What I am doing? Have
I done anything unconstitutional, yes, I did it on Nov. 3.
“Did I do it before? Not once.”
83.
It is noteworthy that contrary to the practice in the past, the
Parliament of the relevant time, as also the Parliament that came into
existence as a result of the General Election held on 18th February, 2008,
too, stayed their hands off and did not extend validation or protection to
the unconstitutional acts of General Pervez Musharraf dated 3rd
November, 2007, which displayed their commitment to the rule of law and
supremacy of the Constitution.
84.
In forming the opinion generally as to the prevailing state of
affairs having bearing on the issues involved in the present petitions,
Const. P 9 & 8/2009
145
reports of the relevant period from the electronic and print media have
been taken into consideration, which this Court is entitled to, in the light of
the law laid down in Islamic Republic of Pakistan v. Abdul Wali Khan (PLD
1976 SC 57), Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416),
Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473), Benazir
Bhutto v. President of Pakistan (PLD 1998 SC 388), Benazir Bhutto v. President
of Pakistan (PLD 2000 SC 77), Muhammad Shahbaz Sharif v. Federation of
Pakistan (PLD 2004 SC 583), Watan Party v. Federation of Pakistan (PLD 2006
SC 697) and Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2004
Lahore 130).
85.
In the light of the above discussion, the actions of General
Pervez Musharraf dated 3rd November, 2007, viz., Proclamation of
Emergency, PCO No. 1 of 2007 and Oath Order, 2007, etc. are held and
declared to be unconstitutional, illegal, mala fide and void ab initio. In
pursuance of the aforesaid declaration, it is further held and declared that
the Chief Justice of Pakistan, the Judges of the Supreme Court of Pakistan,
Chief Justices and Judges of High Courts who were declared to have
ceased to hold office by the notifications issued by the Ministry of Law and
Justice, Government of Pakistan in pursuance PCO No. 1 of 2007 and Oath
Order, 2007 shall be deemed never to have ceased to be such Chief Justices
or such Judges irrespective of any notification issued regarding their
reappointment or restoration. The notifications issued by the Ministry of
Law in this behalf are declared to be null and void.
86.
General Pervez Musharraf, during the period of the
emergency from 3rd November, 2007 to 15th December, 2007, in pursuance
Const. P 9 & 8/2009
146
of the instruments and measures of 3rd November, 2007, which have been
held and declared to be unconstitutional, illegal and void ab initio in the
preceding paragraph, promulgated some more instruments, which are
noted hereinafter. On 15th November, 2007, by Provisional Constitution
(Amendment) Order, 2007, he purported to make amendments in PCO No.
1 of 2007 so as to provide power to repeal PCO No. 1 of 2007 and to revoke
Proclamation of Emergency of 3rd November, 2007.
87.
On 20th November, 2007, by means of the Constitution
(Amendment) Order, 2007 (P. O. No. 5 of 2007) General Pervez Musharraf
made certain amendments in the Constitution, i.e., in Articles 175, 198 and
218 (Establishment of High Court for Islamabad Capital Territory), Article
186A (withdrawal by the Supreme Court of any case, appeal or other
proceedings pending before a High Court to it and disposing of the same),
Article 270B (General Elections 2008 to the National Assembly and the
Provincial Assemblies to be deemed to be held under the Constitution)
and Article 270C (appointment/cessation of office of Judge under the Oath
Order, 2007 to be deemed under the Constitution). By the same Order, he
purported to add Article 270AAA in the Constitution (validation and
affirmation of laws etc.).
88.
On 14th December, 2007, by the Constitution (Second
Amendment) Order, 2007 (P.O. No. 6 of 2007), amendments were made in
Article 193 (appointment of a Judge of the High Court of Islamabad
Capital Territory, age limit for appointment of High Court Judges to be 40
years instead of 45 years), Articles 194 and 208 (oath of the Chief Justice of
Islamabad High Court and rules of the Islamabad High Court) and Article
Const. P 9 & 8/2009
147
270C (Judges including Chief Justices of Supreme Court, Federal Shariat
Court or High Courts who had not made oath under the Oath Order, 2007
to cease to hold office on and with effect from 3rd November 2007 and the
Judges including Chief Justices of Supreme Court, Federal Shariat Court or
High Courts appointed and/or continued as such by virtue of the Oath
Order, 2007, on revival of the Constitution to take oath as set out in the
Third Schedule to the Constitution.
89.
By the Islamabad High Court (Establishment) Order, 2007
(P.O. No. 7 of 2007 dated 14th December, 2007), matters relating to the
establishment of the Islamabad High Court, appointment of Judges,
jurisdiction, powers of Chief Justice and other Judges, other courts,
procedure as to appeals to Supreme Court, practice and procedure,
transfer of proceedings, enforcement of orders etc. of Lahore High Court,
Right to appear or to act in proceedings transferred to Islamabad High
Court, power to appoint officers and staff, expenditure charged upon the
Federal Consolidated Fund, removal of difficulties, power to adapt laws,
etc., were provided.
90.
By the High Court Judges (Pensionary Benefits) Order, 2007
(P.O. No. 8 of 2007 dated 14th December, 2007) it was provided that a Judge
who had ceased to hold office of a Judge of High Court in terms of Article
3 of Oath Order, 2007 or had otherwise retired from service as permanent
Judge shall be entitled to full pension and other retirement benefits
admissible to a permanent Judge of a High Court. A Judge of High Court
who was holding the post of District & Sessions Judge immediately before
his appointment as Judge and had ceased to hold office with effect from
Const. P 9 & 8/2009
148
3rd November, 2007 would not be entitled to pensionary benefits.
91.
By the Supreme Court Judges (Pensionary Benefits) Order,
2007 (P.O. No. 9 of 2007), it was provided that a Judge of the Supreme
Court who had ceased to hold office in pursuance of Article 3 of Oath
Order, 2007 would be entitled to full pension and other retirement
benefits.
92.
Finally, on 15th December, 2007, by the Revocation of
Proclamation of Emergency Order, 2007, the emergency proclaimed on 3rd
November, 2007 was revoked on and with effect from 15th December 2007
and the Constitution as amended by P.Os. Nos. 5 & 6 of 2007 was revived
on and from the same date. This Order also provided that the Chief Justice
of Pakistan and Judges of the Supreme Court, the Chief Justice and the
Judges of the Federal Shariat Court and Chief Justice and Judges of the
High Courts holding office at the time of the revival of the Constitution
shall make oath under the Constitution.
93.
The learned counsel for the petitioners vehemently contended
that General Pervez Musharraf could not have introduced his own
amendments into the Constitution for self-service and benefit during the
so called emergency. The surreptitious validation, affirmation and
adoption made by him through insertion of Article 270AAA were invalid
and thus had no legal effect in the absence of a parliamentary validation in
accordance with Articles 238 and 239 of the Constitution. The
unconstitutional acts of General Pervez Musharraf were never extended
constitutional protection by the Parliament through a constitutional
amendment. The said amendments were unconstitutionally and illegally
Const. P 9 & 8/2009
149
validated by the so called judgments in Tikka Iqbal Muhammad Khan’s case.
Therefore, all such instruments and measures including constitutional
amendments along with the judgments were required to be done away
with. They were not liable to be condoned on the touchstone of the criteria
laid down in Asma Jilani’s case. We have considered this aspect of the
matter. An analysis of the first phase of amendments made under P.O. No.
5 of 2007 would show that they were intended to protect the
unconstitutional and illegal act of removal of Judges, which was sought to
be done by insertion of Articles 270C and 270AAA in the Constitution. The
provision of Article 270B was also an eyewash, inasmuch as the holding of
general elections was an act, which was required to be done under the
Constitution. However, by providing that the General Elections of 2008
would be deemed to have been held under the Constitution, an old
technique to blackmail the other players of the game was devised as it was
done at the time of the passing of the Seventeenth Amendment to the
Constitution when it was given to understand that if LFO 2002 was not
accepted, the elections held in October, 2002 would stand vitiated. Even
otherwise, the elections of 2008 were held under Conduct of General
Election Order, 2002, which already stood protected under the Seventeenth
Amendment to the Constitution. Further, when the elections were held on
18th February, 2008, the Constitution was in force having already been
revived on 15th December, 2007.
94.
To
cover
up
the
whole
illegality,
amendments
were
purportedly made in Part VII of the Constitution relating to the Judicature
and a High Court established for the Islamabad Capital Territory, to be
Const. P 9 & 8/2009
150
known as the Islamabad High Court. Indeed, the establishment of a High
Court or a Federal Court for the Islamabad Capital Territory was an act,
which could have been done under and in accordance with the
Constitution. It would also tend to advance or promote the good of the
people, but unfortunately, it was mixed up with the unconstitutional,
illegal, void ab initio and mala fide acts. It was carried out by an authority
not mentioned in the Constitution and in a manner not authorized therein.
Therefore, it was not possible to condone it. However, it would be open to
the Majlis-e-Shoora (Parliament) to take steps to establish such a Court in
accordance with the Constitution and the law. Even while making
amendments relating to the Judicature, an amendment was made in
Article 186A of the Constitution, making a provision for withdrawal of a
case from a High Court to the Supreme Court, which was impregnated
with the potential of being misused in the then scenario where Abdul
Hameed Dogar, J, and such other Judges of the Supreme Court might have
withdrawn any case from a High Court so as to decide it themselves on an
apprehension that the concerned High Court in the case pending before it
might give decision not suitable to General Pervez Musharraf.
95.
Again, in the second phase of amendments purportedly made
through P.O. No. 6 of 2007, judiciary related amendments, e.g.
appointment age, oath of the Chief Justice, Islamabad High Court, the
rules of that Court etc., which could be considered to “have been done for
the ordinary orderly running of the State” were made in conjunction with
mala fide amendments, which provided that the Judges including Chief
Justices of Supreme Court, Federal Shariat Court or High Courts, who had
Const. P 9 & 8/2009
151
not made oath under Oath Order, 2007 shall cease to hold office on and
with effect from 3rd November 2007 and that the Judges including Chief
Justices of Supreme Court, Federal Shariat Court or High Courts
appointed and/or continued as such by virtue of the Oath Order, 2007, on
revival of the Constitution shall make oath as set out in the Third Schedule
to the Constitution.
96.
Last, but not the least, the objective of unconstitutional and
illegal removal of Judges including Chief Justices having been achieved, on
15th December, 2007, by the Revocation of Proclamation of Emergency
Order, 2007, the emergency proclaimed on 3rd November, 2007 was
revoked on and with effect from 15th December 2007 and the Constitution
as amended by P.Os. Nos. 5 & 6 of 2007 was revived on and from the same
date. This Order also provided that the Chief Justice of Pakistan and
Judges of the Supreme Court, the Chief Justice and the Judges of the
Federal Shariat Court and Chief Justice and Judges of the High Courts
holding office at the time of the revival of the Constitution shall take oath
under the Constitution. On the pattern of Zafar Ali Shah’s case, this was
made to appear like “transactions which are past and closed, for, no useful
purpose can be served by reopening them” as held in Asma Jilani’s case.
97.
As noted earlier, Proclamation of Emergency and PCO No. 1
of 2007 were issued by the Chief of Army Staff while Oath Order, 2007 was
issued by the President in pursuance of the aforesaid two instruments. The
learned counsel for the petitioners picked up the point that the above
scheme of things of the acts/actions of 3rd November, 2007 was against
the scheme of the Constitution under which the President was the
Const. P 9 & 8/2009
152
supreme commander of the Armed Forces while the Chief of Army Staff,
being the head of the Pakistan Army alone, occupied a position much
down the ladder, therefore, in what manner the President would act in
pursuance of instruments issued by the Chief of Army Staff? The answer
to this question is found in Asma Jilani’s case. Although by the
Proclamation of Martial Law the office of President had ceased to exist yet
General Yahya Khan, by another Proclamation of the 31st March, 1969,
purported to assume that office with retrospective effect from the 25th of
March 1969. Thereafter, on the 4th April, 1969 a Provisional Constitution
Order was issued whereby the Constitution of 1962, was by and large
restored, and it was provided that the country was to be governed as
nearly as may be, in accordance with its terms, but subject to the
Proclamation of Martial Law and subject to any Regulation or Order that
may be made from time to time by the Chief Martial Law Administrator.
The office of President was reintroduced by clause (2) of the same Article
in the following terms: "The Chief Martial Law Administrator shall be the President of
Pakistan hereinafter referred to as the President, and shall perform
all functions assigned to the President of Pakistan by and under the
said Constitution or by or under any law."
In the above context, Hamoodur Rahman, CJ, held as under: “This clearly indicated that the President was a subordinate
functionary created by the Chief Martial Law Administrator,
although he was himself to hold the same office, because, the
powers of the President were limited to performing the functions
assigned to him under the abrogated Constitution or under any
law. By the other clauses almost all the fundamental rights were
taken away and the Courts were debarred from issuing any order
Const. P 9 & 8/2009
153
against any Martial Law Authority. Power was given to the
President by Article 4 to issue Ordinances but provisions in law
providing for reference of a detention order to an advisory Board
were declared to be of no effect by Article 7 (2), and by Article 8 the
President was also given the power to make orders for making
such provisions "including constitutional provisions", as he may
deem fit for the administration of the affairs of the State.”
The above observations of Hamoodur Rahman, CJ, would sufficiently
explain the scheme followed in the martial law imposed by General Yahya
Khan. It is also noteworthy that such an arrangement was not confined to
that case alone. At the time of every military takeover, the Army Chief,
while abrogating or holding in abeyance the Constitution, as the case may
be, would assume all the powers saying that “the Constitution had become
unworkable”, or “a situation had arisen for which the Constitution
provided no solution”; make all offices including the office of President
subservient to himself; take upon himself the exercise of giving a new
Constitution to the country, or bringing reforms by making amendments
in it before its revival; and would ultimately leave the country in a black
hole, taking it once more to square one, i.e., virtually at the point where he
had begun. So, after his departure, the country and the nation would be at
a loss how and from where to resume their constitutional journey afresh.
From a perusal of the documents made by the military commanders on the
eve of five military takeovers in 1958, 1969, 1977, 1999 and 2007, it appears
that on each subsequent occasion, the earlier documents were copied and
the new document prepared with necessary modifications here and there
to suit their own needs. The differences would be noticeable and would
point only to a gradual journey. But, in the general scheme and the overall
Const. P 9 & 8/2009
154
approach, there would be hardly any differences. In 1958, the Constitution
was abrogated but the country started to be governed as per the old legal
order in terms of the Laws (Continuance in Force) Order, 1958. In 1969, the
Constitution was abrogated, and the governance of the country started
with the Proclamation of Martial Law, followed by a Provisional
Constitution Order. In 1977, the Proclamation of Martial Law was followed
by the Laws (Continuance in Force) Order, 1977. In this case, the Judges of
the Supreme Court were administered oath at the very outset. Later, PCO
and Judges Oath Order were also issued in 1981. In 1999, instead of
declaring martial law, emergency was proclaimed and a PCO issued the
same day. The Oath Order in this case was issued later on 26th January,
2000. In 2007, all three documents were issued together and the power to
amend the Constitution directly provided in the PCO, though in 1977 it
was not explicitly done either in the Proclamation of Martial Law, or the
Laws (Continuance in Force) Order, 1977, but practically it was exercised
in issuing the said documents in derogation of the provisions of the
Constitution, and later exercised at the time of annulment of the Sixth and
the Seventh Amendments to the Constitution. In issuing Oath Order, 2007,
the President having acted in pursuance of the two instruments issued by
the Chief of Army Staff, an authority not authorized to do so under the
Constitution, it only showed blatant disregard and violation of the
Constitution to which General Pervez Musharraf, or for that matter any
military ruler in the past, never paid any heed.
98.
As to the supra-constitutional powers claimed by the Chief
Martial Law Administrator in Begum Nusrat Bhutto’s case, Anwarul Haq,
Const. P 9 & 8/2009
155
CJ, noted the contention of the learned Attorney as under: “The question now arises as to what is the extent and scope of the
powers which the Chief Martial Law Administrator may exercise
during the temporary period for which he has taken control of the
administration in Pakistan. It is contended by the learned AttorneyGeneral that once the take-over is validated on the principle of
necessity, then the Chief Martial Law Administrator would have
the right to govern the country in any manner he thinks best, and
the Courts in Pakistan will be bound by the provisions of the Laws
(Continuance in Force) Order, 1977, which must henceforth be
treated as a supra-Constitutional instrument, binding all authorities
in Pakistan. He seeks to re-enforce this submission by referring to
the implications of Martial Law as described in Corpus Juris
Secundum Vol. 93, and “Salmond on Jurisprudence”, p. 190, 11th
Edition.”
He then held that it was not a case where the old Legal Order had been
completely suppressed or destroyed, but merely a case of constitutional
deviation for a temporary period and for a specified and limited objective,
namely, the restoration of law and order and normalcy in the country and
the earliest possible holding of free and fair elections for the purpose of the
restoration of democratic institutions under the Constitution of 1973. Thus,
the imposition of martial law was validated on the doctrine of necessity,
and the Chief Martial Law Administrator was held entitled to perform all
such acts and promulgate all legislative measures, including amendment
of the Constitution.
99.
In the cases of Zafar Ali Shah and Tikka Iqbal Muhammad
Khan, following the reasoning in Begum Nusrat Bhutto’s case, the action of
Chief of Army Staff was treated as a constitutional deviation of a
temporary character, which was necessitated in the larger interest of the
Const. P 9 & 8/2009
156
State and the welfare of the people in view of the facts and circumstances
noted therein. He was also held entitled to perform all acts and
promulgate all legislative measures, including the power to amend the
Constitution.
100.
It may be mentioned that the power to amend the
Constitution is an onerous task assigned to the Parliament, which
represents the will of the people through their chosen representatives. It is
to be carried out in accordance with the procedure prescribed in Articles
238 and 239 of the Constitution, viz. by a two-third majority of the
members of both the Houses of Majlis-e-Shoora (Parliament), and by no
other means, in no other manner, and by no one else. The holding in
abeyance of the Constitution in the first place, and then making
amendments in it by one man by the stroke of his pen, that is to say, in a
manner not envisaged or permitted by the Constitution, are mutilation
and/or subversion of the Constitution simpliciter, and no sanctity is
attached to such amendments per se. No sanctity attaches to them if they
are made after a declaration to that effect is made by the Court while
adjudging the validity of such assumption of power. Equally bereft of
sanctity remain the amendments of any such authority, which are ratified,
affirmed or adopted by the Parliament subsequently and deemed to have
been made by the competent authority. Why, because –
? Firstly, they were void ab initio because they were made by an
authority not competent to do so under the Constitution;
? Secondly, Article 237, as presently worded, provides for
indemnifying any person in the service of the Federal
Government or a Provincial Government, or any other person
only in respect of any act done in connection with the
Const. P 9 & 8/2009
157
maintenance or restoration of order in any area in Pakistan,
and nothing else. It does not provide for validation of
unconstitutional, illegal and void ab initio acts of usurpers of
power by the
Majlis-e-Shoora (Parliament). It is noteworthy
that Article 278 of the Interim Constitution provided as
under: “278. Nothing in this Constitution shall prevent the Federal
Legislature from making any law indemnifying any person
in the service of the Federal 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 where Martial Law was in force, or validating any
sentence passed, punishment inflicted, forfeiture ordered or
other act done under Martial Law in such area. [Emphasis
supplied]
However, the above provisions of Article 278 were not
adopted in the Constitution of 1973, as they were, and the
words “where Martial Law was in force, or validating any
sentence passed, punishment inflicted, forfeiture ordered or
other act done under Martial Law in such area” were omitted.
On a consideration of the above two provisions, Ajmal Mian,
CJ, in his leading judgment in Liaquat Hussain's case, held
that imposition of martial law in connection with the
maintenance or restoration of order in any area in Pakistan
had been done awa y with in the Constitution of 1973. Thus,
unless Article 237 was first amended, no validation,
affirmation or adoption of unconstitutional, illegal and void ab
initio acts of a usurper of power could be made by Majlis-eShoora (Parliament), otherwise one provision would render
the other redundant and nugatory; the two of such provisions
stand in an irreconcilable conflict, leaving no room for the
Court except to ignore the one, or at the best to prefer one
provision over the other, as it did in Al-Jehad Trust case and
gave effect to Article 209 as against Article 203C, which was
found to be violative of the independence of judiciary – a
salient feature of the Constitution. By the Proclamations of
Emergency of 14th October, 1999 and of 3rd November, 2007
Const. P 9 & 8/2009
158
only emergency was proclaimed (though it was nothing short
of martial law as earlier imposed in the country), hardly
realizing that emergency could be imposed by the President
under Article 232 of the Constitution only in the given
circumstances, which too would be justiciable as per the law
laid down in Farooq Ahmed Khan Leghari’s case (supra), and
Chief of Army Staff had nothing to do with it – the activity
and the functions of the Armed Forces being restricted within
the parameters of Article 245 as discussed in the preceding
paragraphs. We would hasten to observe that as a matter of
fact, in the garb of emergency, same objectives were sought to
be achieved as were previously done through the imposition
of martial law up to 1977. A new dimension in 2007 was that
this time, even the whole of Pakistan was not brought under
the control of the Armed Forces and the executive and
legislative organs of the State were kept intact. While
proclaiming emergency throughout Pakistan, it was simply
ordered and proclaimed that the Constitution of Pakistan shall
remain in abeyance;
? Thirdly, the Constitution, for its amendment, has not
envisaged any mode other than the one prescribed in Articles
238 and 239. Even if it were to be repealed, the same
procedure would be required to be followed. These Articles,
actually, provide the Constitution with the inner strength so
as to withstand the invasions from within. On the eve of every
military takeover, either it was said that the Constitution had
become unworkable, or a situation had arisen for which the
Constitution provided no solution. It was so, not because the
Constitution had, in fact, become unworkable or in reality a
situation had arisen for which indeed the Constitution
provided no solution, but because of the fact that the people at
the helm of affairs did not want to follow the Constitution;
? Fourthly, Article 6 provides that any person who abrogates or
attempts or conspires to abrogate, subverts or attempts or
Const. P 9 & 8/2009
159
conspires to subvert the Constitution by use of force or show
of force or by other unconstitutional means shall be guilty of
high treason. As a matter of fact, Article 6 has built a
stronghold around the body of the Constitution to safeguard
it from any encroachment or violation from without. If each
time an authority were to put it aside at his will, and do
whatever he liked to do with it, that too, by the use or show of
force or by other unconstitutional means, the provisions of
Article 6 would be rendered redundant and nugatory, rather
meaningless, which was not the intent, nor was the same
permissible. Indeed, the Constitution is an organic whole and
a living document meant for all times to come. We, therefore,
are of the view that the holding in abeyance of the
Constitution and/or making amendments therein by any
authority not mentioned in the Constitution otherwise than in
accordance with the procedure prescribed in the Constitution
itself, is tantamount to mutilating and/or subverting the
Constitution. Thus, so long as Article 6 is part of the
Constitution, the Parliament is debarred from even condoning
unconstitutional acts of a usurper, what to talk of validating,
affirming and adopting the same, or deeming the same to
have been made by the competent authority on any ground
whatsoever. It is noteworthy that the acts of General Yahya
Khan were neither validated nor condoned by the Parliament
while framing Articles 269 and 270 of the Constitution. The
language of Article 237, which opens with the words,
“Nothing in the Constitution shall prevent
(Parliament)
from
making
any
law
Majlis-e-Shoora
indemnifying
any
person……” clearly points to the inhibitions contained in the
Constitution itself, under which Majlis-e-Shoora (Parliament)
might not be able to do certain things, such as, its inability to
legislate against Fundamental Rights, the Injunctions of Islam
as laid down in the Holy Quran and Sunnah, etc. Therefore,
Majlis-e-Shoora (Parliament) is not supreme over everything
Const. P 9 & 8/2009
160
else as is put in the common parlance, or as it is said of the
Parliament of the United Kingdom, rather it is independent of
other organs of the State, but it certainly operates within
certain parameters. The validations, affirmations or adoptions
made under the Eighth and the Seventeenth Amendments
stand on a different footing and we would not like to go into
the circumstances in which those amendments were passed.
But, we would certainly observe that the amendments made
by an authority not mentioned in the Constitution, and
otherwise than in accordance with the procedure prescribed in
the Constitution could hardly be given any sanctity vis-à-vis
the amendments made by the Majlis-e-Shoora (Parliament) in
accordance with the procedure laid down in Articles 238 and
239 of the Constitution, even on considerations such as the
elected Parliaments were reduced to mere rubber stamps by the
leaders of the Houses, or the representatives of the people, who were
responsible for running the affairs of the State were themselves
accused of massive corruption and corrupt practices, they had misdeclared their assets before the Election Commission and tax
authorities, or they were resisting establishing good governance in
the country, bank loans defaults were rampant, there was no
economic or political stability, etc. etc. A wrong committed by
one person does not furnish justification for, or give licence to,
others to commit wrongs, even more blatant. In the above
perspective, it is noteworthy that the Parliament elected in the
General Elections of 18th February 2008 has not, and rightly
so, put a seal of approval upon the unconstitutional, illegal
and void ab initio acts/actions of General Pervez Musharraf of
3rd November, 2007 including the amendments made by him
from that date up to 15th December, 2007. Unless such an
approach is firmly entrenched into the body politic and the
jurisprudence of this country, military takeovers previously in
the name of martial law, and later in the garb of proclamation
of emergency will continue to recur as heretofore, and there
Const. P 9 & 8/2009
161
will be nothing stopping the repetition of the actions of the
nature of 7th October, 1958, 25th March, 1969, 5th July, 1977,
12th
October,
1999
and
3rd
November,
2007
using
unconstitutionally and illegally the cover of the Armed Forces.
Such exercise of power, therefore, cannot be indemnified by
the Parliament under Article 237 of the Constitution. There is
no other provision in the Constitution under which they can
be validated, affirmed or adopted on any consideration
whatsoever;
? Fifthly, this Court, in Al-Jehad Trust case, has already given
preference to the provisions of Article 209 over those of
Article 203C on considerations, such as, Article 203C
providing for appointment of a sitting Chief Justice of a High
Court or a Judge thereof in the Federal Shariat Court without
his consent was violative of Article 209; Article 203C was
incorporated by the Chief Martial Law Administrator while
Article 209 was enacted by the framers of the Constitution,
which was a beneficial provision promoting independence of
judiciary, inasmuch as it guaranteed the tenure of a Judge,
therefore, in case of conflict between the two, Article 209
would prevail over Article 203C, which detracted from the
dominant intent and spirit of the Constitution, namely, the
guarantee of tenure of a Judge of the Supreme Court or a High
Court and the independence of judiciary and consequently,
such an appointment would be void. Likewise, it is not
possible to reconcile the provisions of the Constitution
validating, affirming and adopting the amendments made by
an authority not competent to do so under the Constitution
with the provisions of Articles 6 and 237 as also Articles 238
and 239 of the Constitution. The provisions containing
successive validations, affirmations and adoptions have
defeated the dominant intent and spirit behind aforesaid
Articles by which the framers of the Constitution, by
consensus, desired to secure the inviolability and the sanctity
Const. P 9 & 8/2009
162
of the Constitution. It should be noted that Articles 6 and 237
were framed in the backdrop of the successive abrogation of
the Constitutions and imposition of martial laws in the
country from time to time by the General commanding the
Army at his will and whim. It is the bounden duty of all the
three organs of the State to ensure the inviolability and the
sanctity of the Constitution. Amendments made by an
authority not mentioned in the Constitution cannot be
validated by any Court including the Supreme Court. Even
otherwise, none of the judgments ever laid down that in
future the Army Chief would have the power to amend the
Constitution and such exercise of power by him or by any
other authority not mentioned in the Constitution would
always be protected. In any case, it is clarified that neither the
Supreme Court itself possesses any power to amend the
Constitution, nor can it bestow any such power on any
authority
or
any
individual.
The
amendment
Constitution is the exclusive domain of
of
the
Majlis-e-Shoora
(Parliament) in terms of Articles 238 and 239 of the
Constitution and this Court only 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.
101.
In Asma Jilani's case, Hamoodur Rahman, CJ, held that a
Legislature could not validate an invalid law if it did not possess the
power to legislate on the subject to which the invalid law related, the
principle governing validation being that validation being itself legislation,
one could not validate what one could not legislate upon. However, it
appears that the above ruling as also the kind of acts that were found to be
Const. P 9 & 8/2009
163
liable to be condoned in that case have been used by the successive
military regimes for ulterior purposes of usurping power and retaining it
indefinitely. To appreciate this aspect of the matter, it is necessary to
examine the various categories of acts of the usurper, which were
condoned in that case. They read as under: (1)
All transactions which are past and closed, for, no useful
purpose can be served by reopening them;
(2)
All acts and legislative measures which are in accordance
with, or could have been made under, the abrogated Constitution
or the previous legal order;
(3)
All acts which tend to advance or promote the good of the
people; and
(4)
All acts required to be done for the ordinary orderly running
of the State and all such measures as would establish or lead to the
establishment of, the objectives mentioned in the Objectives
Resolution of 1954.
On a perusal of the above four categories of acts, it becomes clear that the
exercise of power by the usurper was accepted and condoned in totality
because, all transactions which were past and closed were protected. Next,
all acts and legislative measures which were in accordance with, or could
have been made under, the abrogated Constitution or the previous legal
order were protected. Through this, absolute power of amendment of the
Constitution, as exercised, was protected which, in the ordinary course, a
duly constituted Parliament would find difficult most of the times to make
for not having the requisite majority. In protecting all acts which tended to
advance or promote the good of the people, every conceivable power
exercised by the stroke of pen, at the will and whims of the person doing
the same was protected. What the successive military rulers, on the
Const. P 9 & 8/2009
164
strength of the above criteria, did was that they made amendments for
their illegal and unlawful personal gain and then mixed the same with few
amendments here and there giving them complexion of advancing or
promoting good of the people. In our view, only those acts which were
required to be done for the ordinary orderly running of the State could be
protected. Similarly, only such past and closed transactions could have
been protected, which were otherwise not illegal at the relevant time, and
rights, privileges, obligations or liabilities had been acquired, accrued or
incurred, or any investigation, legal proceeding or remedy in respect of
any such right, privilege, obligation, liability, penalty, forfeiture, or
punishment had been taken. The actions taken by General Pervez
Musharraf on 3rd November, 2007 and thereafter being unconstitutional,
illegal and void ab initio, the principle of past and closed transaction was
not attracted even otherwise on account of the distinguishing features
between the martial laws of 1958 and 1977 and emergency of 1999 on the
one hand, and the emergency of 3rd November, 2007 on the other, as
explained in this judgment, including passing of order dated 3rd
November, 2007 by a seven – member Bench of this Court in Wajihuddin
Ahmed’s case, arrest of Judges, Judges not accepting it or applying for
pension, sustained resistance in the shape of protests by the Bar
Associations, masses, including civil society, political workers, students,
labourers, large scale arrests of lawyers, resolution of foreign bars, etc.
102.
In the light of the above discussion, it is held and declared that
the amendments purportedly made by General Pervez Musharraf from 3rd
November, 2007 up till 15th December, 2007 (both days inclusive) were
Const. P 9 & 8/2009
165
neither made by an authority mentioned in the Constitution nor the same
were made following the procedure prescribed in the Constitution and
were, therefore, unconstitutional, illegal and void ab initio. Accordingly, the
Constitution (Amendment) Order, 2007 (President’s Order No. 5 of 2007),
the Constitution (Second Amendment) Order, 2007 (President’s Order No.
6 of 2007) and PCO No. 1 of 2007 as also Oath Order, 2007, which were
tantamount to amending Articles 238 & 239 and the Third Schedule to the
Constitution (oath of office of Chief Justice/Judge) respectively, or any
other instrument having similar effect are unconstitutional, illegal and
ultra vires of the Constitution and consequently of no legal effect.
103.
The learned counsel for the petitioners vehemently contended
that the law of necessity, as discussed in the cases of Begum Nusrat Bhutto
and Zafar Ali Shah, was wrongly applied in Tikka Iqbal Muhammad Khan’s
case to the circumstances prevailing on 3rd November, 2007, inasmuch as
the situations prevailing on 5th July, 1977 and 12th October, 1999 were
entirely different to and distinct from the one prevailing on 3rd November,
2007, therefore, the aforesaid acts/actions of General Pervez Musharraf did
not qualify to be validated or condoned on the touchstone of the doctrine
of civil or state necessity and the maxim salus populi est suprema lex. The
learned Attorney General for Pakistan had, at the very outset, stated that
the rulings in the cases of Begum Nusrat Bhutto and Zafar Ali Shah were
never considered a good law and the same were required to be overruled.
In a very recent case reported as Jamat-e-Islami v. Federation of Pakistan (PLD
2009 SC 549), one of us, Sardar Muhammad Raza Khan, J, dilated upon the
doctrine of necessity in the context of the submission of Mr. Abdul Hafeez
Const. P 9 & 8/2009
166
Pirzada, who appeared in the said case as an amicus curiae, that if a writ
were issued by this Court declaring General Pervez Musharraf as
disqualified to contest the election of President on account of his holding
an office of profit in the service of Pakistan, namely, Chief of Army Staff, it
would impede smooth transition from the Army rule to a pure democratic
rule. Therefore, according to the learned amicus curiae, allowing General
Pervez Musharraf to contest the election of President in uniform was, so to
say, justified on the touchstone of the law of necessity and the maxim salus
populi est suprema lex. The learned Judge, having alluded to the writings of
philosophers, scholars and intellectuals, and having referred to various
verses of the Holy Quran, held that the doctrine of necessity as used to
prevent the decision of cases on merits in the name of achieving smooth
transition in the interest of State necessity, was neither just nor fair nor
legal and was violative of the Injunctions of Quran. Paragraphs 57 to 66 of
his opinion are reproduced below for ready reference: “57.
I have gone through the judgment handed down by my
learned brother Rana Bhagwandas, J., being reasons for the short
order dated 28th September, 2007, whereby we had held, while
dissenting with majority view, that the petitions are maintainable
under Article 184 (3) of the Constitution and hence accepted in
totality. I agree with the reasoning adhered to in the judgment
aforesaid but would like to dilate upon the view taken by Mr.
Abdul Hafeez Pirzada, learned amicus curiae.
58.
He did not controvert the merits of the case. His placing
reliance upon Haji Saifullah case (PLD 1989 SC 166) was
tantamount to saying that even if the petitioners have a good case
on merits, it would not be in the fitness of the things to issue writ in
their favour, as it would, most likely impede smooth transition
from uniform rule to the rule of pure democracy. The stance so
Const. P 9 & 8/2009
167
taken is nothing but reiterating the import of doctrine of State
necessity, altogether forgetting that the favour did not work in the
past. The transition provided only a reinvigorating space for a new
Uniform rule, bringing the Nation back again and again to the zero
point the marvel of doctrine of necessity
59.
Doctrine of necessity is neither Law nor any rule nor
regulation. It is a state of affairs where, in the given circumstances,
unfair is justified in the name of expediency. Most of philosophers,
scholars and pseudo-intellectuals in the west have been floating
various ideas from time to time sparking debates the world over.
Genuine things are adopted and promoted in the developed
countries while underdeveloped are duped into the fantasies of in
genuine,
which
unfortunately
are
followed
a
sacred
commandments. Later category includes Hans Kelsen’s doctrine of
State necessity and Machiavelli’s “Prince” cherished in the
underdeveloped
like
Pakistan
despite
being
damagingly
hypocritical. The theories are by no means universally accepted nor
do they form basis of modern jurisprudence. Borrowing words
from Hamoodur Rehman C.J. (as his lordship then was); he while
criticizing Muhammad Munir C.J. said that the latter “not only
misapplied the doctrine of Hans Kelsen but also fell into error that
it was a generally accepted doctrine of modern jurisprudence. Even
the disciples of Kelsen have hesitated to go as far as Kelsen had
gone.
60.
What irks my mind most is not primarily the genuineness or
otherwise of these draconian ideas of Kelsen or Machiavelli but
whether or not we the Muslims have any legacy to follow or to
refute or defy the evil ideologies though dead in the civilized
countries yet flourishing in the third world. I firmly believe and
hold that we the Muslims must seek ultimate guidance from the
ultimate wisdom of revealed knowledge----The Holy Qur’an.
61.
A book that has to last for all times should always avoid
minor details and must always lay down the principles. It is
essentially true about the Holy Qur’an. Before that we seek
guidance from the Book, it is necessary to comprehend as to what
Const. P 9 & 8/2009
171
had been acted upon in a large number of cases. Thereafter when the
Governor-General attempted to validate retrospectively by an Ordinance a
vast body of such constitutional legislation, which had been passed
between 1947 and 1954, the Ordinance itself was struck down in Usif
Patel’s case. At this, the Governor-General invoked the advisory
jurisdiction of the Federal Court under section 213 of the Government of
India Act vide Governor-General's Reference No. 1 of 1955 (P L D 1955 F C
435), and asked the Court to find a solution for the constitutional impasse
created by the judgments of the Court itself. The Federal Court again came
to his rescue and although no “law” of any kind could be found to meet
the situation, it invoked in aid “the supreme principle of necessity
embodied in the maxim salus populi est suprema lex”, and on the basis
thereof evolved a new political formula for the setting up of a new
Constituent Assembly, even though this very maxim when sought to be
invoked in support of the contention of Moulvi Tamizuddin Khan that the
invalidation of a large number of constitutional laws merely on the ground
of want of formal assent of the Governor-General would cause “disaster”
and create a “Constitutional impasse” had not found favour with the
Court. In coming to the conclusion that he did, Muhammad Munir, CJ,
relied on the address of Lord Mansfield in the proceedings against George
Stretton and others that “the principle clearly emerging from this address
of Lord Mansfield is that subject to the condition of absoluteness,
extremeness and imminence, an act which would otherwise be illegal
becomes legal if it is done bona fide under the stress of necessity, the
necessity being referable to an intention to preserve the Constitution, the
Const. P 9 & 8/2009
172
State or the society and to prevent it from dissolution, and affirms Chitty’s
statement that necessity knows no law, and the maxim cited by Bracton
that necessity makes lawful which otherwise is not lawful.” In the words
of Anwarul Haq, CJ, it was “a striking example of the invocation of the law
of necessity to validate certain extra-constitutional measures dictated by
the considerations of the welfare of the people and the avoidance of a legal
vacuum owing to an earlier judgment of the Federal Court in Usif Patel’s
case.” He next took into consideration a case from the Cyprus jurisdiction
where a more or less similar situation had arisen owing to the difficulty of
the Turkish members of the Cyprus Parliament participating in the passing
of a law regarding the functioning of the Supreme Court itself. In the said
judgment, after surveying the concept of the doctrine or law of necessity as
obtaining in different countries the Court came to the conclusion that the
Cyprus Constitution should be deemed to include in it the doctrine of
necessity in exceptional circumstances which was an implied exception to
particular provisions of the Constitution in order to ensure the very
existence of the State. It was further stated that the following pre-requisites
must be satisfied before this doctrine could become applicable: _
(a)
An imperative and inevitable necessity or exceptional
circumstances;
(b)
No other remedy to apply;
(c)
The measure taken must be proportionate to the
necessity;
(d)
and
It must be of a temporary character limited to the
duration of the exceptional circumstances.
It was further laid down that “A law thus enacted is subject to the control
of this Court to decide whether the aforesaid pre-requisites are satisfied,
Const. P 9 & 8/2009
173
that is, whether there exists such a necessity and whether the measures
taken were necessary to meet it.”
105.
Anwarul Haq, CJ, next referred to the case of E. O. Lakanmi v.
Attorney-General, West Nigeria [(1970) 6 N.S.C.C. 143] in which the question
of the validity of a Decree issued by the Federal Military Government of
Nigeria came up for examination. On 15th January, 1966 a section of the
Army rebelled in different parts of the country. Two regional premiers
were put to death and the Prime Minister of the Federation and one of his
Ministers were captured and taken to an unknown destination; also some
senior members of the Army were killed. The Council of Ministers met
without the Prime Minister and decided to hand over the administration of
the country to the Armed Forces before the situation got worsened. The
Acting President of Nigeria himself announced the handing over of the
administration of the country to the Armed Forces. This announcement
was followed by a speech by the General Officer Commanding of the
Nigerian Army in which he declared that he had accepted the invitation of
the Acting President to form the interim military Government, and had
suspended certain parts of the Constitution relating to the office of
President, the establishment of Parliament and of the office of Prime
Minister, and certain offices relating to the Regions. The Supreme Court of
Nigeria distinguished the case before it from Dosso’s case of our country
and held that the Federal Military Government of Nigeria was not a
revolutionary Government, as it had made it clear before assuming power
that the Constitution of the country would remain in force excepting
certain sections which were being suspended. They went on to say that
Const. P 9 & 8/2009
174
“We have tried to ensure that the country is governed by the Constitution
and Decrees which, from time to time, are enacted when the necessity
arises and are then supreme when they are in conflict with the
Constitution. It is clear that the Federal Military Government decided to
govern the country by means of a Constitution and Decrees. The necessity
must arise before a Decree is passed ousting any portion of the
Constitution. In effect, the Constitution still remains the law of the country
and all laws are subject to the Constitution excepting so far as by necessity
the Constitution is amended by a Decree. This does not mean that the
Constitution of the country ceases to have effect as a superior norm. From
the facts of the taking-over, as we have pointed out that the Federal
Military Government is an interim Government of necessity concerned in
the political cauldron of its inception as a means of dealing with the
situation which has arisen and its main object is to protect lives and
property and to maintain law and order.” It was further held that by
recognizing the fact that there was a doctrine of necessity, they did not
alter the law but applied it to facts as they existed and that the Decree in
question was nothing short of a legislative judgment, an exercise of judicial
power and, therefore, ultra vires and invalid under the Constitution of
1963, which envisaged a clear separation of judicial and legislative
functions of the State. Anwarul Haq, CJ, also sought support from the
statement made by Muhammad Munir, CJ, In Re: Reference by H. E.
Governor-General to the effect that an act which would otherwise be illegal
becomes legal if it was done bona fide under the stress of necessity, the
necessity being referable to an intention to preserve the Constitution, the
Const. P 9 & 8/2009
175
State or the society and to prevent it from dissolution, and also from a
passage from Asma Jilani’s case on the point relating to condonation of acts
of the usurper, and held that the imposition of martial law on 5th July,
1977 was impelled by high considerations of State necessity and welfare of
the people, and thus validated the extra-constitutional step taken by the
Chief of Army Staff to overthrow the Government of Mr. Z.A. Bhutto as
well as the Provincial Governments and to dissolve the Federal and the
Provincial Legislatures. The learned counsel for the petitioners have
questioned the correctness of the application of the doctrine of necessity as
applied to the facts of the case of Begum Nusrat Bhutto and its being
followed subsequently in Zafar Ali Shah’s case and Tikka Iqbal Muhammad
Khan’s case, inter alia, on the ground that the circumstances prevailing on
5th July, 1977 were quite different from those prevailing on 3rd November,
2007.
106.
With great respect to the late Chief Justice, the reference to
Asma Jilani’s case on the point of application of the doctrine of necessity to
the facts and circumstances of Begum Nusrat Bhutto’s case was inapt
because, as he himself noted, Hamoodur Rahman, CJ, was dealing, ex post
facto, with the acts of the usurper and he had adopted the principles
enunciated by Lord Pearce, who delivered the dissenting judgment in the
Privy Council in the Rhodesian case, namely: (i)
So far as they are directed to and reasonably required for
ordinary orderly running of the State;
(ii)
So far as they do not impair the rights of citizens under the
lawful Constitution; and
(iii)
So far as they are not intended to and do not in fact directly
help the usurpation and do not run contrary to the policy of the
Const. P 9 & 8/2009
176
lawful sovereign.
At page 708 of the report in Begum Nusrat Bhutto’s case, the Chief Justice
having noticed that the concept of condonation, as expostulated in Asma
Jilani’s case, had relevance not only to the acts of a usurper, but also to a
situation which would arise when power had fallen from the hands of the
usurper, and the Court confronted with protecting the rights and
obligations which may have accrued under the acts of the usurper, during
the time he was in power, suddenly came up with the proposition that in
the case of an authority, whose extra-constitutional assumption of power
was held valid by the Court on the doctrine of necessity, particularly when
the authority concerned was still wielding State power, the concept of
condonation would only have a negative effect and would not offer any
solution for the continued administration of the country in accordance
with the requirements of State necessity and welfare of the people.
Therefore, according to him, once the assumption of power was held to be
valid, then the legality of the actions taken by such an authority would
have to be judged in the light of the principles pertaining to the law of
necessity. Here, the Chief Justice surrounded himself in a cobweb of selfcontradictions. He proceeded to reject the theory of Hans Kelsen by
observing, inter alia, that the legal character and validity of any abrupt
political change, brought about in a manner not contemplated by the preexisting Constitution or Legal Order, could not be judged by the sole
criterion of its success or effectiveness as contemplated by Kelsen’s pure
theory of law, though the Armed Forces were in effective control of the
administration; the theory of revolutionary legality could have no
Const. P 9 & 8/2009
177
application or relevance to a situation where the breach of legal continuity
was of a purely temporary nature and for a specified limited purpose; such
a phenomenon could more appropriately be described as one of
constitutional deviation rather than of revolution; the 1973 Constitution
still remained the supreme law; certain parts of the Constitution had been
held in abeyance on account of State necessity; the President of Pakistan
and the superior Courts continued to function under the Constitution; the
superior Courts would continue to have the power of judicial review to
judge the validity of any act or action of the Martial Law Authorities if
challenged in the light of the principles underlying the law of necessity as
set out in this judgment; their powers under Article 199 of the Constitution
thus would remain available to their full extent, and may be exercised as
heretofore, notwithstanding anything to the contrary contained in any
Martial Law Regulation or Order, Presidential Order or Ordinance; and so
forth and so on. Thus, he impliedly resurrected the theory of Hans Kelsen,
which was completely rejected in Asma Jilani’s case.
107.
Though Anwarul Haq, CJ, took note of the pre-requisites of
the doctrine of necessity as given in the case from Cypress jurisdiction
referred to above, but then made no attempt at all in the course of his
leading judgment to test the action of 5th July, 1977 on the touchstone of
those pre-requisites. Correct, that he noted the circumstances prevailing on
or before the said date, but he did not take upon himself the examination
of the provisions of the Constitution dealing with the type of situation
presented by those circumstances, or the options with the government of
Prime Minister Zulfikar Ali Bhutto, e.g., advising the President to dissolve
Const. P 9 & 8/2009
178
the National Assembly, handing over power to an interim government for
fresh elections, or holding fresh elections in the relevant constituencies to
say the least, reference to the Supreme Court under Article 186, further
recourse to political dialogue, etc. These options, and may be a host of
others as well, as would have been available with the government under
the Constitution, it could not be said that a situation had arisen for which
the Constitution provided no solution. Constitutional remedies were there,
but the same were neither explored nor allowed to be resorted to. As a
matter of course, unfortunately from the year 1958, rather 1954, it had
become the style to say that “a situation had arisen for which the
Constitution provided no solution.” Will there be an end to this rhetoric
somewhere?
108.
The factual matrix on which Proclamations of Emergency
were based differed in every case. There were entirely different sets of
facts and circumstances prevailing on each takeover. The ground for
takeover on 5th July 1977 was an alleged widespread agitation against the
rigging in elections held in March 1977 and the consequential huge loss of
human life. On 12th October, 1999, it was alleged that the State machinery
at the centre and provinces had completely broken down, the Constitution
had been rendered unworkable and a situation had arisen for which the
Constitution provided no solution. On 3rd November, 2007, it was said
that there was ascendency in militancy, extremism and terrorism and
trichotomy of powers had been eroded due to wide ranging suo motu
actions of the courts, which negated the fundamentals of an adversarial
system of justice, and there was an increasing interference by some
Const. P 9 & 8/2009
179
members of the judiciary in government policy, adversely affecting
economic growth in particular. Therefore, it was ‘a situation for which the
Constitution provided no solution.’ If we were to distinguish between
these cases on the basis of facts and circumstances, they were all different
from each other, and we would end up seeing each time a new scenario.
Therefore, if a particular set of facts and circumstances was acknowledged
as a justification for the military takeover and thereby an unconstitutional
and illegal act validated, then a yet newer set of facts and circumstances
would always be presented in future and on an analysis of those facts and
circumstances, same or similar conclusion would be reached once more –
up to what time, it is not possible to predict. Therefore, we have to pause
for a while and see where the wrong lies, what options and remedies are
available with us, and then make an objective analysis and reach some
conclusion. Every now and then a situation arises for which the
Constitution does not provide any solution and it becomes unworkable.
On the first two occasions, it was abrogated, but thereafter it was held in
abeyance. Was it a reality that the Constitution had become unworkable
each time? Were the situations on 7th October, 1958, 25th March, 1969, 5th
July, 1977, 12th October, 1999 and 3rd November, 2007 really such that the
Constitution provided no solution? Do similar situations not arise in other
countries? Are there no protests, rallies, agitations, riots, loss of human life,
etc. in other countries? Is there no corruption in the other countries? Are
there no deficiencies or inefficiencies in the working of different
departments and organizations in other countries? Are there no conflicts
or differences of opinion among the various stakeholders of different
Const. P 9 & 8/2009
180
organs of the State? Does rigging in elections not take place in other
countries? What was the wrong with the judiciary in 1958, 1969, 1977 and
1999? Why were the Judges given new oaths each time and not allowed to
perform their functions under the Constitution? Why the elected leaders
were not allowed to complete their term and why the judgment over their
performance not left to the electorate to whom they would be answerable?
Never was the need so dire, as it is today to find out answers to these and
other similar and relevant questions. It is for the nation to address these
questions in all earnestness.
109.
As to the validity of the proclamations of martial laws or of
emergencies issued by any functionary of the State, including the Chief of
Army Staff, holding the Constitution in abeyance, issuing a PCO and an
Oath Order, and thereby requiring the Judges of the superior Courts to
make a fresh oath so as not to be able to pass any orders against such
authority, in our view, it was wrongly examined earlier on the factual
plane. On the contrary, all such acts must be judged on the touchstone of
the provisions of the Constitution and on no other consideration or criteria,
theory, doctrine or principle.
110.
Anwarul Haq, CJ, validated the action of 5th July, 1977
applying the doctrine of necessity, the other pre-requisites of which were
that the measure taken must be proportionate to the necessity and it must
be of a temporary character limited to the duration of the exceptional
circumstances. Was the action of 5th July 1977 proportionate to the
necessity, was it of a temporary character, and was it limited to the
duration of the exceptional circumstances were the questions never
Const. P 9 & 8/2009
181
considered by the learned Chief Justice and to some – rather most of them,
only time provided the answers that the entire process of reasoning was
fundamentally flawed. Only time confirmed that the takeover was not of a
temporary character, it was never intended to be, though announced at the
beginning, but soon thereafter pushed back finding every now and then
new justifications for prolonging the Army rule.
111.
Further, he cited the principle of necessity, enunciated by
Lord Mansfield in his address in the proceedings against George Stretton,
as earlier noted by Muhammad Munir, CJ in his judgment in The
Reference No. 1 of 1955, as “subject to the condition of absoluteness,
extremeness and imminence, an act which would otherwise be illegal
becomes legal if it is done bona fide under the stress of necessity, the
necessity being referable to an intention to preserve the Constitution, the
State or the society and to prevent it from dissolution”, and as affirming
Chitty’s statement that “necessity knows no law”, and the maxim cited by
Bracton that “necessity makes lawful which otherwise is not lawful.” In
the first place, reference to the judgment in The Reference No. 1 of 1955
was off the mark. The Court there was confronted again with an ex post
facto situation, the question of validation of the acts of Constituent
Assembly, which had been rendered invalid by a decision of the Federal
Court on account of lack of assent of the Governor-General being before it.
The facts of the case were entirely different and the law laid down there
was hardly attracted to the facts of Begum Nusrat Bhutto’s case. Secondly, he
never addressed the “condition of absoluteness, extremeness and
imminence”, or “the necessity being referable to an intention to preserve
Const. P 9 & 8/2009
182
the Constitution, the State or the society and to prevent it from
dissolution”. Nothing was said about absoluteness, extremeness or
imminence of the action of 5th July, 1977 and the principle of necessity was
invoked for the destruction rather than preservation of the Constitution.
The Constitution is the cementing force of the State and the society. By
making a Constitution, the society has already used and applied such a
force and brought into existence a State and has chosen to govern itself in
accordance with the Constitution so made. It has also unequivocally
provided the method and manner for making any further changes in the
Constitution and by no other manner or means.
Thus, how an authority
created under the Constitution itself and equipped with certain powers
including use of force to be exercised and resorted to under the control and
command of a still superior authority created under the Constitution one
day turn around and overthrow the Constitution itself considering that the
force so vested in it was liable to be used by it at its own, and not at the
authorization by the superior authority designated by the Constitution.
That is the destruction of the Constitution and if the Constitution were to
be destroyed, State and the society in the modern times could be preserved
in no manner. Shall the Constitution of Pakistan continue to meet such a
treatment in the garb of the civil and the State necessity and the welfare of
the people, or in the name of “expediency”, as ably put by Sardar
Muhammad Raza Khan J, in the case of Jamat-e-Islami, by its intermittent
holding in abeyance or suspension, mutilation and subversion time and
again at the will and whim of the military ruler by recourse to flimsy
consideration of non-existing facts? It has already been held that the
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183
acts/actions of 3rd November 2007 of General Pervez Musharraf were
motivated for personal illegal and unlawful gain, which he carried out to
avoid his apprehended disqualification under a judgment of the Supreme
Court. It is held and declared that the doctrine of civil and state necessity
and the maxim salus populi est suprema lex were not applicable to all or any
of the unconstitutional, illegal and ultra vires acts/actions taken by General
Pervez Musharraf on and from 3rd November, 2007 until 15th December,
2007 (both days inclusive) because they were not taken in the interest of
the State or for the welfare of the people. It is further held and declared
that the doctrine of necessity and the maxim salus populi est suprema lex, as
elucidated in the cases of Begum Nusrat Bhutto absolutely have no
application to an unconstitutional and illegal assumption of power by an
authority not mentioned in the Constitution in a manner not provided for
in the Constitution, including but not limited to a purported promulgation
of Proclamation of Martial Law, Proclamation of Emergency, Provisional
Constitution Order, Oath Order, Amendments of the Constitution and the
Orders, Ordinances, Regulations, Rules, etc. issued in pursuance thereof,
notwithstanding any judgment of any Court, including the Supreme
Court.
112.
The learned counsel for the petitioners submitted that the
actions of 3rd November, 2007, in the course of our history, were different
from the previous military takeovers, inasmuch as they were never
accepted or acquiesced by the Judges, lawyers, political activists and the
people of Pakistan. He submitted that for the first time in the judicial
history of Pakistan a restraint order was passed by a seven – member
Const. P 9 & 8/2009
184
Bench of the Supreme Court in Wajihuddin Ahmed’s case against the
unconstitutional and illegal acts of a General whereby the Judges of the
Supreme Court and the High Courts were directed not to make oath under
the unconstitutional instruments. Resultantly, according to the learned
counsel for the petitioners, as many as 61 Judges: 13 Judges of the Supreme
Court out of 18 (17 permanent Judges including Chief Justice and one Ad
hoc Judge), 18 out of 31 Judges of the Lahore High Court, 24 out of 28
Judges including Chief Justice of High Court of Sindh and 6 out of 13
Judges including Chief Justice of Peshawar High Court did not make oath
in pursuance of the order dated 3rd November, 2007 passed by a seven –
member Bench of this Court in Wajihuddin Ahmed’s case.
113.
The submission of the learned counsel is well founded. In the
instant case, none of the Judges who did not make oath in pursuance of the
order dated 3rd November, 2007 passed by a seven – member Bench of this
Court in Wajihuddin Ahmed’s case applied for pension, or for revival of their
licence to practice law as was the position in Zafar Ali Shah’s case. It was a
strong rejection of the unconstitutional and illegal use of military force in
suppression of the Fundamental Rights of the people. Even at the
international level, grave concerns were expressed on the actions of 3rd
November, 2007. Statements and resolutions were made by the Bar
Associations across the globe, such as International Bar Association,
American Bar Association, Australian Bar Association, Atlanta Bar
Association, Beverly Hills Bar Association, Boston Bar Association, Bar
Association of the District of Columbia, Connecticut Bar Association,
Dupage County Bar Association, the Florida Bar, Hawaii Bar Association,
Const. P 9 & 8/2009
185
Houston Bar Association, International Bar Association, Los Angeles
County Bar Association, Maryland State Bar Association, State Bar of
Michigan, National Association of Criminal Defence Lawyers, New Jersey
State Bar Association, New York City Bar Association, New York State Bar
Association, North Carolina Bar Association, Ohio State Bar Association,
Tennessee Bar Association, Pennsylvania Bar Association, Philadelphia Bar
Association, Vermont Bar Association and State Bar of Wisconsin.
Furthermore, events in support of lawyers in Pakistan were organized by
Austin Bar Association, Dane County Bar Association, Monroe County Bar
Association, New York County Bar Association, and Bar Associations of
San Francisco and Seattle. A few of the statements and resolutions so
passed are noted here. The International Bar Association, in its report of
November, 2007 on the “state of emergency threatening rule of law in
Pakistan” said –
“The International Bar Association’s Human Rights Institute
(IBAHRI) is gravely concerned as Pakistan’s constitution is
suspended and judges and lawyers are arrested. The latest
developments in Pakistan represent a serious negation of the rule
of law, throwing the country into yet greater turmoil.
‘The IBAHRI calls upon the Government of Pakistan to abide by the
rule of law and reminds it that a state of emergency may only be
called when the life of the nation is under threat. Until such time
the constitution should be applied in full,’ says Justice Richard
Goldstone, IBAHRI Co-Chair.
He
adds,
‘Although
Pakistan’s
Constitution
protects
the
independence of judges, the IBAHRI believes that the Government
has subverted judicial independence by sanctioning the arrest of
judges, instructing police to enter the Supreme Court and by
making public statements undermining judicial authority.’
Const. P 9 & 8/2009
186
Ambassador Emilio Cardenas, IBAHRI Co-Chair says, ‘With
respect to peaceful protests, the IBAHRI notes that the right to free
speech and freedom of assembly are integral to democracy.
Although these principles are found within Pakistan’s constitution,
today’s demonstrations by the legal fraternity have been broken up
using tear gas and batons.’
The IBAHRI is concerned that unless the constitution is restored
and properly applied, the rule of law in Pakistan will continue to
deteriorate leading to greater human rights abuses and further
departure from the principles of democracy.
On 3 November 2007 President Musharraf issued a televised
broadcast at which he said that a state of emergency had been
introduced and the constitution suspended due to a rise in
extremism and in response to what he claimed was the paralysis of
government by courts and judges.
In a wide-scale backlash against the courts, judges and lawyers
were arrested and soldiers entered the Supreme Court where Chief
Justice Iftikhar Muhammad Chaudhry and six other judges had
reportedly declared the state of emergency illegal. The Chief
Justice, who had previously been suspended by President
Musharraf and then reinstated earlier this year, is reportedly under
house arrest.
Today, lawyers in Lahore, Karachi and Rawalpindi have held
protests against the Government. Lawyers’ associations across the
country are understood to be calling for a three-day protest and
boycott of courts. It is reported that throughout Pakistan protests
have been broken up by the police using tear gas and batons, and
an estimated 200 lawyers have been arrested. There is a
clampdown on media reporting with Pakistani TV news channels
being prevented from broadcasting.
The past year has seen President Musharraf face various crises.
Prior to the presidential elections and in light of his declining
popularity, President Musharraf faced mounting public protests.
Const. P 9 & 8/2009
187
Various legal challenges to his presidential candidacy were issued
before the courts and after the results in early October, in which
President Musharraf received 98 per cent of the vote, a further
petition was lodged with the Supreme Court challenging the result.
Critics are suggesting that the introduction of a state of emergency
was acting to pre-empt the decision of the Supreme Court as to the
legality of the Presidential elections. The past months have also
seen a rise in extremist violence and suicide attacks.
The calls from IBAHRI to the Pakistani Government to reinstate the
constitution are further to recommendations made in a recently
released IBAHRI report addressing violations of the fundamental
principles of the rule of law and the independence of the judiciary
in Pakistan.
The report dealt specifically with the issues of General Musharraf
preventing the Chief Justice, Iftikhar Muhammad Chaudhry, from
carrying out his judicial day-to-day functions and the placing of
Mr. Chaudhry incommunicado under house arrest for three days
when he refused to resign his post. The report entitled, The
Struggle to Maintain an Independent Judiciary: A Report on the
Attempt to Remove the Chief Justice of Pakistan is available from
the IBA website.
In its report to the House of Delegates, the American Bar Association, New
York State Bar Association (Criminal Justice Section), the following
resolutions were passed: RESOLVED, that the American Bar Association expresses its
support for and solidarity with the Pakistani bar and Bench; and
FURTHER
RESOLVED,
that
given
the
importance
of
an
independent bar, an independent judiciary, and a just constitution
as cornerstones of the rule of law, the American Bar Association
calls upon President Pervez Musharraf to restore Pakistan’s
constitution as it existed before the November 3, 2007, emergency
Const. P 9 & 8/2009
188
decree; reinstate Pakistan’s Supreme Court justices and high court
judges who were removed from office and refused to take oaths of
loyalty to the executive branch; and release all judges, lawyers and
other people who were wrongly arrested.
The Australian Bar Association, in its media release of 3rd December, 2007
called for the return of the rule of law in Pakistan as under: “The Australian Bar Association yesterday joined with the leaders
of the Bars of England and Wales, Scotland, Northern Ireland and
Ire and in calling for the return of the Rule of Law in the Islamic
Republic of Pakistan.
The President-Elect of the Australian Bar Association, Mr. Tom
Bathurst QC said “The suspension of the Constitution, the
interference with the independence of the judiciary and the legal
profession and the denial of fundamental rights strike at the very
heart of a fair and just society.”
“The dismissal and detention of Chief Justice Iftikhar Chaudhry is
of particular concern to the Australian Bar”, he said. It is
understood that 60% of Pakistan’s appellate court is currently
under house arrest and thousands of lawyers have been
imprisoned, some in solitary confinement. “It is a deplorable
situation that cannot be allowed to continue”, Mr. Bathurst said. He
noted that “People are being imprisoned, denied their fundamental
rights for doing no more than during their duty to the Constitution,
ensuring the maintenance of the rule of law and the securing an
independent voice for the people of Pakistan”.
The Australian Bar Association called on the Commonwealth
Government to use its best endeavours to ensure that diplomatic
pressure was maintained on the military regime to respect the rule
of law and to honour the promise of an overdue return to
democratic rule in Pakistan.”
114.
The Commonwealth Judicial Education Institute as a mark of
solidarity with the Judges of Pakistan issued a detailed report highlighting
Const. P 9 & 8/2009
189
the imposition of state of emergency on 3rd November, 2007 and the
courageous stand taken by the Chief Justice of Pakistan and Judges of
superior Courts in the country. The report, which was titled as “A Coup
against Judicial Independence” carried message of the Right Honourable Sir
Dennis Barren, President of the Commonwealth Judicial Education
Institute. The resolution of the International Commission of Jurists, inter
alia, demanded as follows: “The ICJ therefore calls on the Human Rights Council to:
…
? Repeal the amendments to the Constitution and laws
passed during State of, including post-Emergency laws
reaffirming or continuing emergency measures;
? Release all judges and lawyers remaining in detention,
reinstate the justices and judges dismissed during the
State of Emergency, and restore the licenses of all
lawyers suspended or disbarred during the State of
Emergency;
? Restore all rights under the Constitution, withdraw
charges
arising
from
peaceful
protest
and
lift
restrictions on the media….”
115.
Mr. William H. Neukom, President, American Bar Association
along with a delegation of ABA leaders presented a statement signed by
nearly 13,000 concerned American lawyers in the Embassy of Pakistan in
Washington D.C. on 13th December, 2007, which read as under: “House of Delegates Chair Laurel Bellows, ABA President-elect H.
Thomas Wells Jr., and I had a constructive dialogue with
Ambassador Mahmud Ali Durrani.
In a conversation lasting nearly an hour, Ambassador Durrani
agreed that the rule of law, including an independent judiciary, is
Const. P 9 & 8/2009
190
crucial to his nation’s future. In turn, we offered to help Pakistan
develop a judiciary and bar free from political interest, as the ABA
has done in other nations.
But as we made clear during the conversation, the core concerns of
the ABA petition have not been addressed. As we told Ambassador
Durrani, the ABA remains committed to three outcomes:
(1)
Restoration of the Pakistani constitution (as it existed before
the Nov. 3 emergency decree);
(2)
Reinstatement of the Supreme Court justices and high court
judges who were removed from office;
(3)
Release of all protesters wrongly arrested during the state of
emergency.
While America’s lawyers and judges are inspired by the bravery of
their counterparts in Pakistan, we seek to serve the interests of the
people of Pakistan, not just one professional group.
Since our meeting with Ambassador Durrani, the assassination of
Benazir Bhutto has shaken Pakistan, and made the future of that
nation even more uncertain.
The ABA continues to believe that the rule of law offers the best
future for Pakistan, and is the path to lasting security. America’s
lawyers are committed to advancing the rule of law in Pakistan and
other nations.
I am proud of, and grateful to, all American lawyers for your
response.
Working together, we delivered our message with force. The ABA
will continue to do so, until the rule of constitutional law is fully
reestablished in Pakistan.”
In his letter of 6th November, 2007 addressed to General Pervez
Musharraf, Mr. William H. Neukom, President of the American Bar
Association wrote as under: -
Const. P 9 & 8/2009
191
“Mr. President:
The American Bar Association (BA) is gravely concerned at the
indefinite state of emergency you declared in Pakistan on
November 3, particularly as it relates to your suspension of the
constitution, dismissal of Chief Justice Iftikhar Muhammad
Chaudhry, and detention of lawyers and human rights advocates.
The ABA is an independent, non-governmental organization
representing more than 413,000 members worldwide. It regards the
rule of law as the cornerstone of a free and fair society. It has a
longstanding commitment to supporting the rule of law in the U.S.
and abroad.
The Constitution of Pakistan and numerous international human
rights instruments, including the Universal Declaration of Human
Rights, the International Covenant on Civil and Political Rights,
and the UN Basic Principles on the Independence of the Judiciary,
hold judicial independence and human rights indispensable to the
just rule of law. While the ABA appreciates the serious challenges
your government currently faces, it is in such situations that
adherence to the rule of law is most important.
Indeed, judicial independence may be the most important element
of the rule of law to preserve in trying times, as it ensures the
legitimacy
of
government
action
in
response
to
difficult
circumstances.
Without
an
impartial
judiciary,
governmental
claims
of
commitment to the rule of law, such as you made when declaring
the state of emergency, ring hollow. Disbanding the Supreme
Court, and arresting lawyers and human rights advocates,
undermines popular support for the government.
The ABA therefore respectfully urges you to restore judicial
independence in Pakistan, to heed the rulings of the Supreme Court
and other judicial authorities, and to leave lawyers and human
rights advocates free to do their vital work in defence of the rule of
law.
Const. P 9 & 8/2009
192
Sincerely,
William H. Neukom”
116.
The support extended by the American Bar Association
culminated in conferral of its most prestigious award i.e. the Rule of Law
Award for the year 2008, “to those judges and lawyers in Pakistan who
demonstrated courage in upholding the rule of law in their country.” In August
2008 at New York, the American Bar Association held the Award giving
Luncheon function which was participated among others by Judges of the
Superior Courts from Untied States and leaders of the Bars from the world
over. On behalf of the Judges, one of us (Tassaduq Hussain Jillani, J) was
invited and on behalf of lawyers the President of Supreme Court Bar
Association (Barrister Aitezaz Ahsan) was invited to receive the award. As
a mark of solidarity with those courageous Judges in Pakistan, the speech
sent by one of us (as Tassaduq Hussain Jillani, J, was unable to attend) was
read out at the function by a sitting Judge of U.S. Court of Appeal (Judge
Cliffard Wallace of U.S. Court of Appeal, 9th Circuit). It was a gesture
unprecedented in the judicial history of the United States and was a tribute
to independence of judiciary in our country.
117. We have waded through a momentous and inspirational period in
Pakistan’s constitutional history. If one were to distinguish a headline from
a trend line in assessing change, the Movement launched was a pointer to
a moral renaissance and augured well for the spiritual health of the nation.
Never before has so much been sacrificed by so many for the supremacy of
law and justice. The assertion of judicial conscience, the rise of a vibrant
Bar, the emergence of a vigilant civil society imbued with a spirit of
idealism, the bold and moral profile of an independent media and the
Const. P 9 & 8/2009
193
support received from international civil society would ultimately
strengthen constitutional democracy, stable political institutions and
ensure an expanded enforcement of the rule of law.
118.
We have taken judicial notice of the fact that there was a
nationwide movement launched by the lawyers, members of the civil
society, political workers and the common man took to the streets.
Thousands of lawyers and political activists were arrested and detained.
The learned Attorney General for Pakistan submitted that Mohtarama
Benazir Bhutto, the slain leader of the Pakistan Peoples Party, the party in
power presently, had herself led rallies to protest against the action of 3rd
November, 2007 and on one such occasion had vowed to hoist the Pakistan
Flag at the residence of the Chief Justice of Pakistan. The learned Attorney
General further stated that he himself, as a lawyer and as a political
worker, had participated in such protests and had received injuries on his
head and other parts of his body and thus gave blood to this movement.
To show how severely the people had reacted against the action of 3rd
November, 2007 rather than acquiescing in or accepting the same,
reference may be made to the press clippings of the relevant period as
under: -
Civil society flays emergency, new PCO
The Daily Nation, November 05, 2007
KARACHI - The representatives of civil society organisations on
Sunday strongly condemned the emergency and the new
Provisional Constitutional Order (PCO) imposed by General
Pervez Musharraf.
Const. P 9 & 8/2009
194
The human right activists also slammed the reported curbs that
have been imposed on media and large-scale arrests of politicians
and lawyers including SCBA president Barrister Aitezaz Ahsan.
The
Sindh
Democratic
Forum,
Human
Rights
Protection
Organization, Lawyers Human Rights Legal Forum and other
organisations in their statements condemning the second coup of
Musharraf, alleged that PCO was imposed to save and prolong the
Presidential office.
“The new PCO and emergency is an illegal and unconstitutional
decision and an attempt by a dismissed General to continue his
illegal and unconstitutional rule” they stated and further said, the
action should be universally condemned and the ambitious
Generals in Pakistan should be forced to end their stranglehold on
the country. We pay our compliments to a larger Bench of the
Supreme Court that has taken up the issue and has declared the
PCO
and
the
imposition
of
emergency
illegal
and
unconstitutional”, they added. They said we pay homage to those
judges who rejected PCO including Mr. Justice Iftikhar Muhammad
Chaudhry, Mr. Justice Bhagwandas, Mr. Justice Javed Iqbal, Mr.
Justice Shakirullah Jan, Mr. Justice Ghulam Rabbani and Mr. Justice
Nasir-ul-Mulk.
“We think the country is being held hostage by a dictator that could
destroy the country. Such steps are against the will of the people
and the law of the land and should be resisted on all the forums,”
he observed. Justice (Retd) Fakhrudin G. Ebrhim on Sunday said
that there was no room for PCO in the constitution and that the
judges who took oath according to it were also breaking the
constitution.
Countrywide crackdown
The Daily Dawn, November 05, 2007
Police and other law-enforcement personnel launched a crackdown
Const. P 9 & 8/2009
195
across the country on Sunday, apparently fearing a large-scale
protest campaign against imposition of emergency.
Opposition politicians, prominent lawyers and rights activists were
detained in large numbers in several cities and towns of the
country.
Prominent among those detained included PML-N acting president
Javed Hashmi, ANP Chief Asfandyar Wali Khan, former ISI
Director-General Gen (Rtd.) Hameed Gul and human rights
activists I.A. Rehman and Iqbal Haider and hundreds of other
people on the second day.
Police detained over 600 people in Lahore. Javed Hashmi was
arrested from Multan. I.A. Rehman and Iqbal Haider were lodged
at Asma Jehangir’s house. Ms. Jehangir has been under housearrest since Saturday evening.
Around 70 civil society activists were arrested when they gathered
at a Joint Action Committee meeting of the HRCP in Garden Town
to discuss the situation after the imposition of emergency.
Lahore District Bar President Mohammad Shah, Lahore High Court
Bar Association President Ahsan Bhoon, advocates Ashtar Ausaaf,
Khalid Hussain and Iftikhar Bhatti were also arrested.
The Pakistan Mulsim League (Nawaz) and the Pakistan Tehrik-iInsaaf claimed that over 1200 and 50 activists, respectively, had
been detained in two days of crackdown.
In Rawalpindi, police rounded up nearly 60 people, including a
retired judge, the former ISI Director-General, lawyers and human
rights activists.
Officials said that around 400 preventive arrests had been made
across the country.
Const. P 9 & 8/2009
196
Police baton-charge students rally.
The Daily The News, November 06, 2007
Hundreds of people including students, lawyers, political activists
and members of the civil society staged a protest demonstration
against the government policies and demanded restoration of
deposed judges and lifting of ban on Geo TV.
The activists of Joint Students Movement and people belonging to
different walks of life gathered at Aabpara Chowk and started
chanting slogans against the government.
Police resorted to baton charge to disperse the mob when they
reached near Aabpara Police Station causing injuries to many
protesters. Angry people hurled stones at police and damaged two
police vehicles while two police officials including the driver of a
police vehicle were injured.
Demands of Pakistan's solidarity
The Daily The News, November 07, 2007
The writing is on the wall. At this juncture the numbers may not be
large but public rejection and resistance to General Pervez
Musharraf's imposition of martial law is growing. Despite the
unrelenting crackdown by the State machinery to prevent all forms
of protest public defiance is on the rise. The more the State applies
coercive force the more it accentuates public anger. They know its
'dictatorship on a roll. That must be stopped at all costs. It is now
just basic cause and effect cycle that is at work. The otherwise
docile peaceful educated middle class is bracing itself to face the
increasing State repression. If the March 9 dismissal of the Chief
Justice of Pakistan was a trigger for political activism for the lawyer
community, the November 3 imposition of technical martial law is
the trigger for a much wider scale of political activism.
No matter what the Musharraf regime may call the November 3
action, it is martial law. Violating the constitutional process used
for imposition of the PCO, Pakistan's army chief chose to declare
emergency himself. The calculation must have been that the use of
the term 'emergency' and use of the civilian law enforcement forces
would dilute international opposition to his move to take Pakistan
off the democratic path. Also by giving martial law a civilian facade
General Musharraf and his advisors may have hoped to keep the
army leadership out of the 'firing line' of public resentment. But
Pakistanis are hardened realists. With a decade of free media, the
growing realization that unaccountable power is at the core of the
dysfunctional state and of continuing political turmoil and
violence, their political senses cannot be blunted by facades and
propaganda.
We cannot let our country be at the mercy of an individual's
whims. The terrorism excuse for imposing martial law would have
Const. P 9 & 8/2009
197
been amusing had it not been actually adversely affecting the
future of a 160 million-strong nuclear-armed nation with
tremendous strategic significance and unlimited economic
potential. Equally preposterous is the argument that the judiciary's
attitude made martial law inevitable.
The Daily Frontier Post
The Dynamics of Musharraf’s Assault on Supreme Court
Now I will try to explain Musharraf's criminal assault on Supreme
Court justices within the calculus of 'Holy Trinity' of criminal
investigation. Obviously Musharraf has the means and coercive
tools for the perpetration of this crime. On November 3rd, Gen.
Musharraf as chief of Army Staff, a grade 22 officers with help of
his military gang, held in abeyance supreme law of the land i.e. the
1973 Constitution of the Islamic Republic of Pakistan second time.
Government lackeys euphemistically call it an extra-constitutional
act. Anything outside the constitution is unconstitutional and hence
criminal. PCO (provisional constitutional order) cannot make it
kosher or halal. If one recites the entire Quran before killing a
khinzir (pig), the khinzir will still remain haram. PCO is illegal and
somebody taking oath on an illegal document cannot legitimate a
usurper. The legal doctrine of "Fruit of the Poisonous Tree" says, if
source of law is illegal then anything emanating from that source
will be illegal. Anybody aiding or abetting such an illegal
dispensation is equally guilty of crime. Anybody trespassing on the
domain of the 1973 constitution is engaging in a treasonous act.
Treason is clearly defined in Article 6 of 1973 Constitution and it
says: High treason. (1) Any person who abrogates or attempts or
conspires to abrogate, subverts or attempts or conspires to subvert
the Constitution by use of force or show of force or by other
unconstitutional means shall be guilty of high treason. (2) Any
person aiding or abetting the acts mentioned in clause (1) shall
likewise be guilty of high treason. The motive behind subversion of
the constitution could be easily inferred from the crime scene i.e.,
the Supreme Court of Pakistan. In my opinion the Supreme Court
of Pakistan was the primary target of this treasonous act. ……..”
Lawyers keep up anti-govt protests
The Daily The News, November 07,2007
The lawyers throughout the country Tuesday vowed to continue
their struggle for supremacy of the constitution as opposition
leaders leave legal fraternity to protest alone for a second day and
bear the brunt of a police crackdown.
Opposition politicians, including PPP Chairperson Benazir Bhutto,
have denounced emergency rule but have taken no concrete action
so far, leaving public protests to the lawyers-hundreds of whom
have been beaten with police batons and arrested.
Unrest broke out in Multan, when hundreds of police blocked
about 1000 lawyers from leaving a district court complex to launch
Const. P 9 & 8/2009
198
a street rally. Both sides pelted each other with stones and police
swung batons to disperse the crowd.
Pakistan starves for information at a time
when news is the need of the hour
The Daily The News, November 07,2007
Since the state of emergency, cable television has become mindless
with all news channels off air people are getting news on the
internet and demand for newspapers is going up as people look at
print media to deliver real news of what is actually happening
Television has been dumped down and the only thing accessible is
the sanctimonious PTV which gives you the impression that
everything is coming up roses, when this is not the case at all.
Journalists have coined the term ‘Black Saturday’ for this last
weekend. While one agrees that it was a dark day that carries on
interminably, ‘Blank Saturday’ seems a far more apt label for it. The
horror of what had happened was driven home by TV screens
going blank. The nation watched in muted shock as news was
blocked out, at a time in history when the only thing you need and
want is news -real, reliable news, lively debate, opinions from every
side. On Blank Saturday, PTV returned Pakistan to a time warp in
the 1980s with the tilawat of Quranic verses, followed by the
national anthem and then a speech by a military dictator, self styled
President who hung up his army togs to doff an ominously black
sherwani.
Crackdown on politicians continues across NWFP
(9 political leaders arrested; former PHC judge put under
house arrest)
The Daily The News, November 07, 2007
Crackdown on politicians and lawyers continued across the
Frontier province on third consecutive day as senior leaders of the
Awami National Party (ANP) and Pakistan Muslim League-Nawaz
(PML-N) were arrested from the capital city after clashes between
police and protesters Tuesday.
Former provincial minister and senior leader of the ANP Bashir
Ahmad Bilour and former Senator Syed Aqil Shah were arrested by
police when they were going to lead a protest demonstration at
Bacha Khan Chowk.
PUTA Offers Support To Lawyers
The Daily The News, November 07, 2007
The Peshawar University Teachers Association (PUTA) has
condemned the imposition of emergency in the country and
observed that it would result in deterioration of the situation
instead of solving any problem.
Const. P 9 & 8/2009
199
A press release said the PUTA executive body in a meeting
presided over by its President Dr. Shafiqur Rehman also
condemned the suspension of the Constitution and basic rights. It
strongly supported the members of the higher judiciary who
sacrificed their positions for upholding the Constitution. The
meeting also offered full support to the lawyers in their struggle.
The PUTA executive demanded of the government to hold general
elections as per schedule, restore the democratic system in the
country and lift the recently imposed curbs on the media.
Police disallow entry to courts
The Daily The News, November 07, 2007
A heavy contingent of police besieged the district courts here and
did not allow anyone to enter the premises Tuesday while they
arrested some seven junior lawyers but later released them.
Police locked all the three gates of the courts and did not allow
lawyers, staff persons and litigants to enter the premises. A large
number of lawyers and litigants gathered in front of the gates from
where police arrested seven junior lawyers but later they were set
free. However, hide and seek between the lawyers and police
continued till late noon.
It was learnt that police have a list of 21 senior members of the legal
fraternity belonging to various political and religious parties.
Lawyers have announced to boycott courts till Thursday and the
litigants faced difficulties because of non-availability of lawyers
and the court clerks had to extend dates.
Meanwhile, Central Vice President of Awami National Party (ANP)
Khwaja Mohammad Khan Hoti condemned imposition of
emergency and said it would plunge the country into darkness and
uncertainty. He also criticized role of the political and religious
parties who are avoiding agitation and resistance of the emergency.
Four lawyers arrested in Karak
The Daily The News, November 07, 2007
Police have registered FIR against 28 lawyers and arrested four of
them while the rest went underground.
Amanullah, Ahmad Jan, Bahadur Sher and Sikandar advocates
were arrested in raids at their residence and were shifted to Kohat.
A total of 28 lawyers have been charged in the district but only four
have so far been arrested.
Meanwhile, the lawyers completely boycotted the
proceedings on the second consecutive day on Tuesday.
courts
Const. P 9 & 8/2009
200
Journalists, lawyers barred from entering SC
The Daily The News, November 07, 2007
Authorities Tuesday did not allow the media persons and lawyers
community to enter the Supreme Court building on the second day
and journalists were barred from covering the proceedings of the
apex court.
Despite the assurance given by Attorney General Malik
Muhammad Qayyum the other day that media would be allowed
to cover the proceedings of the Supreme Court, neither any media
person nor any one from the lawyers community was allowed to
enter the Supreme Court building.
The main Constitution Avenue remained blocked right from Radio
Pakistan Chowk as barbed wire and heavy blocks were put on the
main avenue and movement of all sorts of vehicles was banned on
this main important road.
Journalists approaching the Supreme Court building were stopped
at Radio Pakistan Chowk and were not allowed to move towards
the Parliament House area. Due to blockade of the Constitution
Avenue, large number of government employees could not attend
their offices in the locality.
Likewise the entrance to Constitution Avenue from the main Blue
Area was also blocked and people were not allowed to go through
the main road of Parliament Lodges, as a heavy contingent of
police was deputed at the entrance and barbed wire and heavy
blocks were placed on the road.
Representatives of Supreme Court Bar Association and Pakistan
Bar Council were not allowed to enter the Supreme Court premises.
The media person tried their best to prevail upon the law enforcing
agencies to let them perform their professional duties, but they
were told that they could not be allowed to enter the Supreme
Court building.
No arrested leader can get bail under PCO
The Daily The News, November 07, 2007
President General Pervez Musharraf has quietly clipped the powers
of the judiciary to grant bail to all those defiant political workers,
leaders, lawyers and members of the civil society who were
arrested after the imposition of emergency in the country on
November 3 and are now in jail.
Most of the top leaders including Aitezaz Ahsan, Javed Hashmi, Lt
Gen (r) Hamid Gul and hundreds of others who were arrested
during the last three days have been deprived of their basic human
right to approach the courts to seek justice.
Const. P 9 & 8/2009
201
Although a lot of hue and cry is being made all over the world over
the arrests of lawyers and political leaders in Pakistan, no court can
take up their bail cases under the new laws.
The oath taken by the judges under the PCO has further made it
constitutionally impossible for the judiciary to hear the cases of
these leaders and workers. Under the PCO oath administered to
these judges, every judge has declared that “I (judge) will abide by
the provision of proclamation of emergency of November 3, the
provisional constitutional order No.1, 2007 and the code of the
conduct issued by the supreme judicial council”.
Sedition charges made lawyers see red
The Daily Dawn, November 09, 2007
Police on Thursday arrested four members of the Karachi Bar
Association and at least one member of the Pakistan Bar Council
from the steps of the Sindh High Court in an ongoing crackdown
against lawyers outraged by the registration of sedition charges
against members of the legal fraternity.
Over a hundred lawyers gathered at the City Courts to demand the
release of incarcerated colleagues and protest the emergency rule
while police retaliated by subsequently storming the building.
Orders are also learnt to have been issued for the arrests of another
PBC members and two former presidents of the Sindh High Court
Bar Association (SHCBA).
Meanwhile, the SHCBA passed a resolution extending until Nov 12
the boycott of judges who recently took an oath under the
Provisional Constitution Order.
“The cases of treason lodged against lawyers, who had merely been
protesting, was what actually sparked Thursday’s protest,” said a
senior KBA member who attended the protest meeting but escaped
arrest. The impromptu gathering of concerned lawyers suggests
that the legal fraternity is reorganizing and notching up the pace of
its protest to the PCO imposed by General Musharraf on Nov 3.
“The lawyers took the initiative themselves, after they came to
know the offence their colleagues have been accused of” the KBA
member told Dawn.
Resistance develops (Following the suspension of the
Constitution, the resistance at home and pressure from
the international community has been mounting)
The Daily The News, November 11, 2007
“Given the resistance at home against the so-called emergency and
mounting pressure from the United States, it would not be
surprising if Gen Pervez Musharraf backtracks on some of his
recent steps by suspending the Constitution. The speculation is that
Gen Musharraf is likely to remove his uniform by Nov 12 when he
Const. P 9 & 8/2009
202
expects to get a favourable verdict on his election as president from
the newly-installed judges of the apex court under the Provisional
Constitution Order (PCO).
“Political parties seem to have geared up their protest after initial
lukewarm response to Gen Musharraf’s second coup. PML-N and
the Jamaat-i-Islami leaders are either under detention or
underground. Only the PPP and the JUI-F have been spared the
wrath of the administration. After the PCO, these two opposition
parties had been high on rhetoric and short on action. Once the
reports of postponing the general elections started pouring from
the ruling Muslim League officials, Bhutto started putting heat on
Gen Pervez Musharraf. She warned him that she would take to
streets in protest if he does not retire as military chief till Nov 15
and does not announce holding of general elections till January 15.
Once Musharraf quits the army, some PPP leaders expect the
current assemblies would be dissolved and an interim government
would be set up to hold elections.
“For many it is again doubtful that he would keep his word. It is
also feared that he may leave the military post but under the PCO
may acquire substantial powers of the army chief such as making
transfers and posting-thus effectively keeping the army under his
command without being the chief of army staff. For many the mass
movement and protests on the streets could be the effective way to
get constitutional and democratic order restored. In their protest
against the imposition of PCO and the sacking of disobedient
judiciary, lawyers have again shown unity and boycotted the
judicial work countrywide. The first time in the history of the
country, a large number of judges of the superior courts who
refused to take oath under the PCO have been detained at their
homes that too without written orders.
“The long closure of the judicial system hurts not only the common
man but the government and businesses as well. If this tempo
continues for a few weeks, it will be hard for the government to run
the business of state as usual. A section of university students in
Lahore, Karachi and Islamabad have also joined the resistance
movement by organizing demonstrations which is unprecedented
in the recent history of the country. The media has so far not made
any compromise on the newly introduced restrictions on its
working and the journalists have started protesting against the
media curbs.”
GT Road turns into battlefield as Jamaat activists clash
with police
The Daily The News, November 14, 2007
The main Grand Trunk (GT) Road turned into battlefield as the
police swooped down upon Jamaat-e-Islami workers who were
rallying against the imposition of emergency here Tuesday.
Const. P 9 & 8/2009
203
Over 100 political leaders and workers were arrested as police fired
teargas shells and resorted to baton-charge to disperse the
unyielding protesters.
The GT Road near Hashtnagri and Firdos as well as different
nearby streets looked like a battlefield when Jamaat workers
clashed with heavy contingent of law enforcers.
Chanting anti-government slogans, the Jamaat workers marched
from Chowk Yadgar to Nishterabad and from there to Firdos
throughout the day and police resorted to baton-charge them to
open the main highway for traffic.
Police, according to eyewitnesses, fired teargas shells to disperse
the protesters but failed as the demonstrators used to appear in
other areas where there were no police cops. Demonstrators
included young students as well as senior party workers in the 70s.
The infuriated Jamaat workers clashed with law enforcers on a
number of occasions and pelted them with stones. The hide and
seek between the cops and demonstrators continued for several
hours that kept the GT Road blocked in intervals till evening.
Dozens of Jamaat workers were held during protest. Many of them
were later released while several were taken to the lockups and
then shifted to central prison.
The Awami National Party (ANP) also staged a protest
demonstration in Malgu Mandai where nationalist workers
chanted slogans demanding restoration of the Constitution. Police
baton-charged the protesters and fired teargas shells in a bid to
disperse the ANP supporters, ANP Provincial President Afrasyab
Khattak and Khwaja Hoti were among few leaders who were
arrested on the occasion. An ANP workers was also injured during
the rally.
Lawyers hold protest rally at District Courts
The Daily The News, November 14, 2007
The lawyers of Rawalpindi Bar Association, members of civil
society, students and leaders of some political parties staged a rally
in District Courts premises here on Tuesday to mark their protest
against the imposition of emergency in the country.
Hundreds of protesters including prominent lawyers, like
President Rawalpindi Bar Association Raja Khalid Ismael Abbasi,
Joint Secretary Shahbaz Rajpoot, senior lawyers Sardar Ishaq Khan,
Sanaullah Zahid, Rafaqat Bhatti, Farooq Awan, Malik Rab Nawaz
Noon, General Secretary, Jamaat-e-Islami, Rawalpindi Division,
Sham-ur-Rehman, Amir Jamaat-e-Islami Dr Kamal, workers of
PML-N and students of Quaid-e-Azam University attended the
rally.
Const. P 9 & 8/2009
204
The protestors carrying black flags and placards inscribed with
anti-government slogans condemned the imposition of emergency
in the country.
The lawyers tried to leave the premises of District Courts to stage a
demonstration outside, however, a heavy contingent of Punjab
police cordoning the area did not permit them to do so.
Lawyers’ protest gains momentum
The Daily Dawn, November 14, 2007
Lawyers anti-emergency protests here on Tuesday gained
momentum as a number of workers of all opposition parties,
students and media-persons joined their struggle.
As police crackdown on lawyers continued, more than 500 lawyers
along with representatives of civil society, workers of political
parties, students and media-persons staged rallies in the premises
of the courts. They were not allowed to come on the roads by the
heavy police deployed at the gates of the district courts.
The protesters chanted anti-Musharraf and pro-deposed judges
slogans. They had black flags in their hands as sign of protest
against the ‘unconstitutional’ steps of the regime. The lawyers also
boycotted district and high courts on the call of Pakistan Bar
Council.
Later, a protest meeting was held at the hall of District Bar
Association (DBA) where speakers castigated the unconstitutional
steps of the government and demanded immediate restoration of
constitution in its real form, reinstatement of all deposed SC judges,
release of all arrested lawyers, journalists, civil society members
and political workers, formation of a Bench consisting of same 11
judges, to decide the case of eligibility of president, free and fair
election under an independent election commission and end to
blockade of all private TV channels.
PBC declares Monday ‘day of solidarity’ with media
The Daily The News, November 17, 2007
The Pakistan Bar Council (PBC) Friday declared Monday,
November 19, 2007, as a day of solidarity with the media and called
upon lawyers to hold functions in honour of media-persons in the
Bar Association building and joined them in their protest meetings
and rallies.
Top KBA leader arrested
The Daily Dawn, Islamabad
The general secretary of the Karachi Bar Association, Naeem
Qureshi, who escaped detention since the launch of an operation
against protesting lawyers following the imposition of emergency
rule by Gen Pervez Musharraf over two weeks back, was finally
Const. P 9 & 8/2009
205
arrested when he emerged from hiding to address the association’s
general body meeting on Monday afternoon.
Lawyers continue hunger strike, protest.
The Daily The News, November 27, 2007
Lawyers, members of civil society, students and workers of
different political parties here on Monday continued their hunger
strike and protest against imposition of emergency in the country.
During the protest, they demanded reopening of Geo TV.
The protesters welcomed the lawyers who were released from
different jails late Sunday night. They included High Court Bar
Association President Sardar Asmat-ullah Khan, Shaukat Aziz
Siddiqui, Mustafa Kanwal and General Secretary High Court Bar
Association Sajid Ilyas Bhatti. The lawyers showered petals on their
colleagues who were released from different jails of Pakistan. Some
lawyers were dancing to celebrate the release of their colleagues.
Former MNA Zamarud Khan was also present on the occasion.
The lawyers held a protest march in the District Courts premises. A
large number of lawyers, members of civil society and students
took part in the rally. They raised anti-government slogans and
condemned judges who took oath under the PCO. Expressing
solidarity with the media, they raised slogans in favour of Geo TV
and demanded reopening of its transmission as early as possible.
The emotionally-charged lawyers beat their chests during the
protest march.
The protesters carried black flags and placards inscribed with
slogans against the imposition of emergency rule in the country.
The lawyers tried to leave the premises of District Courts to stage a
protest demonstration outside, however, a heavy contingent of the
Punjab Police did not allow them to do so. When lawyers were
protesting in District Courts, many of their colleague and civil
society representatives showered petals on them.
Musharraf unacceptable even as civilian president:
PHCBA
The Daily The News, November 29, 2007
The epoch-making movement of lawyers has made Gen Pervez
Musharraf doff his uniform, which he dubbed as his second skin,
Peshawar High Court Bar Association (PHCBA) said Wednesday.
“Hats off to the legal fraternity across the country, which
compelled …… general to quit the post of chief of army staff……
We’ve succeeded in the second phase of our countrywide drive
against military rule,” said PHCBA President Abdul Lateef Afridi
while addressing jubilant lawyers.
At a meeting held at the PHC building, Afridi said that Musharraf
is not acceptable to the nation even as a civilian president. The
Const. P 9 & 8/2009
206
NWFP Bar Council, PHCBA and Peshawar District Bar Association
jointly arranged the meeting.
Lawyers’ body calls for protest today
The Daily The News, November 29, 2007
Pakistan Bar Council (PBC) Wednesday asked the lawyers and Bar
Associations throughout Pakistan to observe Thursday, the 29th
November 2007 as a protest day against the illegal assumption of
office of President by Pervez Musharraf.
President Pervez Musharraf who doffed his military uniform
Wednesday is scheduled to take oath as civilian President today
(Thursday). “As the legal fraternity does not recognize Gen
Musharraf as qualified to hold the office of president, we call upon
the lawyers and Bar Associations across the country to observe
today (Thursday) as protest day against the illegal assumption of
office of president by Pervez Musharraf,” said Mirza Aziz Akbar
Baig, vice chairman PBC
Lawyers observe completed strike
(Stage rallies, hold meetings, demand reinstatement of
deposed judges)
The Daily The News, December 14, 2007
The lawyers on Thursday took out rallies and boycotted courts
proceeding throughout the country to protest against the
imposition of emergency, Provisional Constitution Order (PCO)
and removal of the judges.
In Lahore, Lahore Bar Association and High Court Bar Association
staged a joint protest rally against the imposition of emergency and
sacking of the judges.
The rally started from Aiwan-e-Adal and terminated in front of the
Punjab Assembly building.
The protesters were carrying placards and banners inscribed with
different slogans in favour of independence of judiciary and
supremacy of law.
The rally was also joined by the members of the civil society at the
GPO Chowk where its participants staged a sit-in for half an hour.
The bar leaders urged all the political parties to boycott the
upcoming elections for the sake of democracy and independence of
the judiciary in the country.
In Karachi, the lawyers boycotted Sindh High Court, City court and
Malir court on the call of Pakistan Bar Council (PBC) against the
imposition of emergency and deposition of the judges.
Const. P 9 & 8/2009
207
The lawyers held a protest rally in Sindh High Court, which was
led by President Sindh High Court Bar Association Rashid Rizvi.
The protesting lawyers carried banners and placards inscribed with
the slogans. They chanted slogans against the government.
Another protest rally led by President Karachi Bar Association
Iftikhar Javed Qazi and General Secretary Naeem Qureshi was held
in the premises of the City court. The lawyers attended the rally in
large number. The demonstrators called for immediate
reinstatement of the deposed judges.
The general body meetings of Sindh High Court Bar Association
and Karachi Bar Association were held in Lahore High Court and
City court.
The leading lawyers while addressing the meetings said their
struggle would continue till the reinstatement of the deposed
judges
Bars ask PBC to resume week-long court boycott
The Daily The Nation, January 25, 2008
All four provincial bar councils and Azad Jammu Kashmir Bar
Council have raised a common demand to restore the weeklong
boycott of the PCO-Judges.
As per reports, the lawyers, through their movement, would press
the government to restore neutral national government to hold fair
and transparent elections.
Talking to the newsmen here on Thursday, members of Bar Council
demanded that General (Rtd.) Pervez Musharraf should quit
immediately because his further stay in power would be a security
risk for the country.
Vice Chairman Punjab Bar Council Ch. Tariq, vice Chairman
NWFP Bar Council, Qazi Muhammad Naeem, representatives of
Sindh Bar Council, Aqil Lodhi, Chairman Executive Committee of
the Bar, BC Arbab Syed, Chairman Ex Committee NWFP BC, Saeed
Akhtar Khan, and Mian Imran, Chairman Co-ordination
Committee also addressed a press conference.
After the meeting, they asked the PBC to review its January 13
decision regarding the boycott of the PCO judges.
They said the lawyer’s community would never accept the PCO
judges as they were not constitutional ones.
Lawyers march for restoration of judges
The Daily The Nation, January 25, 2008
Lawyers, civil society, human rights activists and politicians on
Thursday held a joint protest rally from Aiwan-e-Adl courts to
Const. P 9 & 8/2009
208
Punjab Assembly building to press their demand for the restoration
of deposed judges and release of detained lawyers.
Lahore High Court Bar Association (LHCBA) and Lahore Bar
Association (LBA) held their separate general house meetings at
their respective buildings and later took out rallies.
They were chanting slogans against the government and in favour
of the deposed judges and their detained leaders-Barrister Aitezaz
Ahsan, Munir A Malik, Tariq Mahmood and Ali Ahmed Kurd.
Police tear-gas lawyers
The Daily The Nation, January 25, 2008
Several lawyers were injured when police baton-charged and
teargassed to disperse them here Thursday at judges Colony. They
had gathered to show solidarity with deposed Chief Justice Iftikhar
Muhammad Chaudhry.
A number of lawyers belonging to Rawalpindi, Talagang, Taxila
and Chakwal Bar Associations brought out rallies from the
residence of President Supreme Court Bar Association, Aitezaz
Ahsan, for expressing solidarity with the deposed judges who had
refused to take oath under the PCO.
A heavy contingent of police besieged the rally when it reached
outside the Judges colony. Waving black flags and chanting antiMusharraf slogans, the lawyers tried to break through a barricade
outside Judges Colony. Police first baton charged and then
teargassed to disperse lawyers. Several lawyers got injured in the
incident.
Two coups in a row
The Daily Dawn
GENERAL Musharraf has once again imposed ‘martial law’ in the
country and suspended the Constitution of Pakistan. Eight years
ago when the elected prime minister had dismissed him from the
office of COAS, he had responded by overthrowing the
government and placing the Constitution in abeyance.
Now in 2007 he has once again put the Basic Law aside in what is
believed to be an attempt to pre-empt the judgment of the Supreme
Court which may have found him ineligible and disqualified to be
re-elected as President of Pakistan.
With this coup, he has achieved the distinction of overthrowing the
Constitution twice over — which even General Ayub Khan and
General Ziaul Haq did not do. He is likely to even surpass the
legacy of General Yahya Khan.
While his first coup in 1999 was aimed at displacing the parliament
and the elected government, his second coup is aimed at the
Const. P 9 & 8/2009
209
judiciary. As usual the media also took the brunt of this coup and
all independent television channels were immediately restrained
from broadcasting within the country.
The 1973 Constitution of Pakistan, the judiciary and the media were
the major obstacles in the road to power. With the Proclamation of
Emergency, the Provisional Constitution Order and amendment to
the PEMRA Ordinance, the general has achieved all his goals in one
stroke or so he believes.
A simple reading of the proclamation reveals that its allegations
against the judiciary are misleading. It is equally intriguing in its
reference to the sources of the general’s action. It is declared to be
his deliberations with the prime minister, the provincial governors
and the military leadership of the country.
It completely omits any reference to his consultations with the
source of much of his strength namely the Americans. It also
attributes this action to deliberations with the prime minister who,
only hours before the coup, had categorically dispelled rumours of
emergency or martial law. So much for the authenticity of the
proclamation.
The Oath of Office (Judges) Order, 2007, has been promulgated
with the effect that most of the judges of the Supreme Court and
the provincial high courts have either refused to take oath under
the PCO or were considered too independent and dangerous to be
invited to join the new compliant judiciary. The new dispensation
does not need judges, it needs judicial actors following the military
rulers’ line.
It was indeed heartening to see that judges with unimpeachable
integrity, dignity and ability led by the Chief Justice flatly refused
to be part of this drama enacted in the name of the rule of law.
Their names will be forever engraved in the hearts and minds of
the people.
The Proclamation of Emergency and the PCO are not only
unconstitutional instruments but are patently misconceived.
Contrary to the false and frivolous allegations made in the
proclamation against the judiciary, the primary motive behind this
coup was to subdue and silence the courts which were beginning to
redeem the constitutional pledge of an independent judiciary.
119.
From a perusal of the above excerpts from the print media, it
is evident that the nation had stood up against the unconstitutional and
illegal acts of 3rd November, 2007. Not only those actions were not
accepted by all and sundry, but they were repelled with an equal and
opposite force and were thus rejected with vehemence and firmness, rather
Const. P 9 & 8/2009
210
with contempt. All this was a healthy sign in the nation’s journey on the
path of rule of law, constitutionalism and democracy.
120.
However, we are inclined to take the view that in a situation
where people did not show any reaction or failed to hold even peaceful
rallies or protests against the unconstitutional, illegal and void ab initio acts
of a usurper of power, such inaction and apathy could not be pressed into
service to justify such unconstitutional and illegal acts, as was done in the
previous cases. Indeed peaceful rallies and protests are acknowledged all
over the world as the proper means of giving vent to the well-founded
grievances of the people against the denial of their Fundamental Rights
guaranteed under the Constitution. It is the duty of the law enforcing
agencies to provide the requisite setting to the protesting crowds so that
they remain peaceful and are not compelled or allowed to resort to
violence. Resort to violence and use of force for the attainment of legal
rights and entitlements cannot be approved. It is the duty of each organ of
the State and each institution of the government to ensure that the
grievances of the people are redressed by the mechanisms provided under
the law and by recourse to peaceful constitutional and legal means so that
they do not resort to protests or violence. It was equally wrong in the
earlier cases to refer to the stray incidents of jubilations and sweet
distributions at the military takeovers of July 1977 and October 1999 by
certain quarters, which would always be politically motivated. We hold
and declare that the unconstitutional and illegal acts would remain
unconstitutional and illegal even though nobody comes up to challenge
the same in a court of law, or nobody takes to the streets to protest against
Const. P 9 & 8/2009
211
them, or the political opponents or other disgruntled elements resort to
jubilations and sweet distributions at the unconstitutional and illegal
ouster of those in power by means of imposition of martial law,
Proclamation of Emergency, PCO, Oath Order, etc. This country owes its
existence to a peaceful struggle launched and pursued by the Quaid-eAzam Muhammad Ali Jinnah within the constitutional and legal
framework. We, thus, disapprove the approach adopted in the said cases.
121.
Proclamation of Emergency, PCO No. 1 of 2007 and Oath
Order, 2007 per se having been found to be unconstitutional, illegal and
ultra vires, the next limb of the contention of Mr. Hamid Khan, Sr. ASC was
that all the acts based upon, or flowing from, the actions of 3rd November,
2007 were too, unconstitutional, illegal and ultra vires, therefore, all such
acts including the appointment of Abdul Hameed Dogar, J, as the Chief
Justice of Pakistan, the oath made by other Judges of the Supreme Court
and High Courts, including Chief Justices, etc., and the appointment of
Judges of the Supreme Court and High Courts in violation of the order
dated 3rd November, 2007 passed by a seven – member Bench of this
Court in Wajihuddin Ahmed’s case and the appointments made in
consultation with Abdul Hameed Dogar, J, were a nullity in the eye of law
and of no legal effect and were liable to be so declared by this Court and
such Judges had also rendered themselves liable for action under and in
accordance with the Constitution and the law including action for
contempt of Court.
122.
We have considered this aspect of the matter in depth. Indeed,
the 3rd of November, 2007 was not the first time that the Constitution was
Const. P 9 & 8/2009
212
violated and unconstitutional and illegal Proclamation of Emergency, PCO
and Oath Order issued. In a similar setting of imposition of martial laws in
the country in 1958 and 1969, the superior courts were continued under the
new dispensation with restriction on their powers to issue any writ against
the Chief Martial Law Administrators. In Dosso’s case, it was held that the
legality of the actions taken under the martial law regulations and other
laws was to be judged on the basis of the new law creating fact, viz., the
Laws (Continuance in Force) Order, 1958, and not on the touchstone of the
old legal order (Constitution of 1956), which had effectively been
suppressed. In Asma Jilani’s case, the Proclamation of Martial Law and the
PCO of 1969 held the field until they were declared to be unconstitutional
and illegal in the said case in 1972. There is no report that any Judge
refused to abide by the above new dispensations. In 1977, the superior
courts were continued on the above pattern, but the Judges of the Supreme
Court were required to make oath, which they made en bloc. In 1981, a
Provisional Constitution Order was issued in pursuance whereof certain
Judges of the Supreme Court and the High Courts ceased to hold office,
while few others including Fakhruddin G. Ebrahim (now Senior Advocate
Supreme Court) did not make oath under it. In 1999, a somewhat similar
pattern was followed. On 26th January 2000, Saiduzzaman Siddiqui, CJ,
with five Judges of the Supreme Court did not make oath under PCO No.
1 of 1999 and Oath Order, 2000 while a few of the Judges of the High
Courts also did not ma ke the said oath. All such Judges including
Saiduzzaman, CJ, were declared to have ceased to hold office. However,
all the Judges so not making oath were left to fend for themselves, without
Const. P 9 & 8/2009
213
the unprecedented outpouring of support which Judges have received
from the public before and after 3rd November, 2007. Justice Dorab Patel, a
leading light and respected figure of our constitutional history, has been
quoted by Mr. Muneer A. Malik, Sr. ASC, in his book “The Pakistan
Lawyers’ Movement – An Unfinished Agenda”. Justice Patel, he says, “felt
compelled …… to defend his brethren. He justified previous judicial decisions
…… on the grounds that they were made by a few old men left alone in face of
entire army’s might”. It is reassuring that the previous pattern of judicial
decisions has been reversed. It is noteworthy that all such Judges who did
not make oath either in 2000 or in 1981 are still greatly respected and
admired by all and sundry throughout the length and the breadth of the
country. On the foundation so laid by very few first in 1981, and by a
larger number in 2000, the largest block of the edifice of the rule of law and
the supremacy of the Constitution came on 3rd November, 2007 when a
vast majority of the Judges of the Supreme Court and the High Courts
including the Chief Justice of Pakistan and two Chief Justices of the High
Courts of Sindh and Peshawar did not make oath in pursuance of the
order dated 3rd November, 2007 passed by a seven – member Bench of this
Court in Wajihuddin Ahmed’s case, though many of such Judges had to
undergo house arrests from 3rd November, 2007 until 24th March, 2008.
The restrictions placed on the movement of the concerned Judges and their
family members were lifted only after an announcement was made by the
newly elected Prime Minister on the floor of the National Assembly. The
Daily Dawn webpage of 24th March, 2008 carried the following news: “PM Yusuf Gilani orders detained judges freed ISLAMABAD,
March 24 (Reuters): Newly elected Pakistani Prime Minister
Const. P 9 & 8/2009
214
Yousaf Raza Gilani ordered on Monday the immediate release
of all judges detained by President Pervez Musharraf after he
imposed
emergency
rule
in
November.
“I
order
the
immediate release of detained judges of the superior
judiciary,” Gilani told the National Assembly, shortly after it
overwhelmingly voted for him to become prime minister.
Gilani also appealed to judges to resolve disputes through
parliament, not through protests. The prime minister also said
he will ask parliament to pass a resolution seeking a U.N.
probe into the assassination of Benazir Bhutto.”
While The Voice of America reported as under: “Mr. Yousaf Raza Gilani, in his first act as prime minister, ordered
all deposed judges to be freed from house arrest. Barricades and
barbed wire were moved aside in the judges' enclave in the capital.
The deposed chief justice of Pakistan and 60 other judges had been
under house arrest in the compound and elsewhere for more than
four months. Mr. Musharraf had replaced them with judges he
considered less likely to invalidate his re-election as president. Mr.
Musharraf, who came to power in a 1999 military coup, was also
army chief when the election was held last October.”
Thus, on 3rd November, 2007 certainly it was the first time in the history of
Pakistan that the judiciary, instead of accepting or acquiescing in the
situation as per past practice, acted boldly and independently and took the
most ever needed step, which conspicuously lacked in the past. A seven–
member Bench of this Court, constituted and convened in the evening of
the fateful day after the issuance of Proclamation of Emergency, PCO No. 1
of 2007 and Oath Order, 2007, passed the restraint order in Wajihuddin
Ahmed’s case. This was the most striking distinction between the action of
3rd November, 2007 on the one hand and those of 12th October, 1999, 5th
July, 1977, 25th March, 1969 and 7th October, 1958 on the other. In
Const. P 9 & 8/2009
215
pursuance of the said order, a vast majority of the Judges of the superior
courts rejected the actions of 3rd November, 2007 and did not make oath in
pursuance with the order dated 3rd November, 2007 passed by a seven –
member Bench of this Court in Wajihuddin Ahmed’s case. The lawyers,
members of the civil society, political activists, the print and the electronic
media personnel and the general public played their role for upholding the
rule of law and supremacy of the Constitution in the country. Abdul
Hameed Dogar, J, and some other Judges violated the aforesaid order
dated 3rd November, 2007 passed by a seven – member Bench of this
Court in Wajihuddin Ahmed’s case. These Judges, whether they were in this
Court or in the High Courts, have all rendered themselves liable for
consequences under the Constitution for their disobedience of the
aforesaid order of 3 rd November, 2007.
123.
The learned counsel for the petitioners also submitted that
there was no vacancy either in the office of Chief Justice of Pakistan or any
other Judge of the Supreme Court, therefore, the said appointments were
unconstitutional, illegal and ultra vires. The learned counsel attacked the
increase of number of Judges of Supreme Court from 16 to 29 on the
ground that the same was unconstitutionally and illegally effected through
Finance Act, 2008, rather than doing it by an Act of
Majlis-e-Shoora
(Parliament) in terms of Article 176 of the Constitution. The learned
Attorney General for Pakistan submitted that much water having flown
under the bridge in the interregnum, the de facto doctrine would call for
judicial restraint because complete annulment would create chaos and
confusion of great magnitude. Regarding the increase of strength, he took
Const. P 9 & 8/2009
216
up the position that the objection with regard to increase of number of the
Judges of the Supreme Court was neither part of the pleadings nor was
any prayer made for annulment of section 13 of the Finance Act, 2008; in
law, the striking down of a legislative instrument could not be pleaded
collaterally; the Money Bill even otherwise was simultaneously sent to the
Senate of Pakistan and their recommendations solicited; money bill as a
matter of fact was unanimously passed by the National Assembly in terms
of Article 73 of the Constitution after consideration of the Senate and was
duly assented to by the President of Pakistan; the Finance Act, 2008 was
passed in line with the consistent and constant practice, inasmuch as laws
were amended through the Money Bills so as to work out the financial
implications and to budget the expenditure from the national exchequer,
hence, no exception could be taken to it.
124.
To appreciate the above contention, it is necessary in the first
instance to examine the relevant provisions of the Constitution. To begin
with, Article 176 of the Constitution provides that the Supreme Court shall
consist of a Chief Justice to be known as the Chief Justice of Pakistan and
so many other Judges as may be determined by Act of
Majlis-e-Shoora
(Parliament) or, until so determined, as may be fixed by the President.
Thus, there is a provision of one Chief Justice of Pakistan alone. Next
provision relating to the office of Chief Justice of Pakistan is Article 180. It
provides that at any time when (a) the said office is vacant; or (b) he is
absent or is unable to perform the functions of his office due to any other
cause, the President shall appoint the most senior of the other Judges of the
Supreme Court to act as Chief Justice of Pakistan. On 3rd November, 2007,
Const. P 9 & 8/2009
217
the Chief Justice of Pakistan was unconstitutionally and illegally prevented
from the execution of the functions of his office. Mr. Akram Sheikh, Sr.
ASC was right in contending that the Constitution envisaged only one
office of Chief Justice of Pakistan and the incumbent Chief Justice had
already been appointed. On account of a forcible restraint placed upon the
movement of the Chief Justice, it could not be said that vacancy had
occurred in that office so as to appoint anyone else as permanent Chief
Justice. Further, he was neither absent nor unable to perform the functions
of that office due to any other cause within the contemplation of Article
180. Therefore, nobody else could be appointed as the Acting Chief Justice
of Pakistan. In the circumstances, Abdul Hameed Dogar, J, could neither
be appointed as permanent Chief Justice nor Acting Chief Justice. For the
same argument, it may be mentioned that in case of a temporary vacancy,
he could not be appointed as Acting Chief Justice in presence of Rana
Bhagwandas, J, (as he then was) and Javed Iqbal, J, who were senior to
him. The office of the Chief Justice of Pakistan never fell vacant throughout
except as and when he was out of the country and an Acting Chief Justice
was appointed under the Constitution. Therefore, it is held and declared
that the Chief Justice of Pakistan had continued in office without
interruption of a single day until the 17th March, 2009 when he was
formally restored to the position he was holding prior to 3rd November,
2007. In illegally occupying the office of Chief Justice of Pakistan and
taking upon himself the execution of the functions of that office in the
presence and availability of its permanent incumbent, knowing fully well
that the same had not fallen vacant, Abdul Hameed Dogar, J, became a
Const. P 9 & 8/2009
218
usurper and he exercised the usurped powers and jurisdiction of the office
of Chief Justice. His purported appointment as Chief Justice of Pakistan per
se is, therefore, declared to be unconstitutional, illegal and ultra vires. It is
further held and declared that Abdul Hameed Dogar, J, was never a
constitutional Chief Justice of Pakistan.
125.
Under Article 176 of the Constitution, the number of the
Judges of the Supreme Court is to be determined by an Act of Majlis-eShoora (Parliament). Until the number of Judges is so determined, it may
be such as may be fixed by the President. By the Supreme Court (Number
of Judges) Act, 1997 (Act XXXIII of 1997), it was provided that the number
of Judges of the Supreme Court of Pakistan other than the Chief Justice
shall be sixteen. However, by section 13 of the Finance Act, 2008, the Act
No. XXXIII of 1997 was amended and the words “be sixteen”, the words
“not be more than twenty-nine” were substituted with a deeming clause
that the same shall be deemed always to have been so substituted on the
3rd day of November, 2007. We have considered the contention of the
learned counsel for the petitioners and the submission made in reply by
the learned Attorney General for Pakistan. Clearly, under Article 176, the
number of Judges is liable to be determined in two modes, viz. by an Act
of Parliament, and until so determined, by the President. An Act of
Parliament is different to and distinct from a Finance Act. All substantial
legislation is made by an Act of Parliament, that is to say, the passing of
the relevant bill by the two houses of Parliament as defined in Article 50 of
the Constitution. On the other hand, a Finance Act, in general, is concerned
with fiscal matters. Since the Constitution, through its Article 176,
Const. P 9 & 8/2009
219
authorises only the Parliament to determine the number of Judges of the
Supreme Court of Pakistan and since the Parliament had so done through
the Supreme Court (Number of Judges) Act XXXIII of 1997, the increase in
the strength of Judges through the Finance Act of 2008, which was not
passed by
Majlis-e-Shoora (Parliament), but by the National Assembly
alone, the same would be deemed valid only for financial purposes and
not for the purposes of Article 176 of the Constitution. Increase of number
of Judges in such a manner also militates against the independence of the
judiciary. Strength of Judges is only to be increased keeping in view its
needs. It is also to be ensured that the courts are not packed with persons
in disregard of merit. It may be noted that after 3rd November, 2007, after
the purported increase of number of Judges of the Supreme Court by
means of Finance Act, 2008, Judges of High Courts who did not possess
the requisite qualification or who were not men of integrity, were
appointed on quid pro quo basis. Against one such appointee, there were
serious allegations of misconduct and impropriety. However, after
restoration of the Judges to the position they were holding prior to 3rd
November, 2007, he resigned from office. Thus, it is declared that the
number of Judges of the Supreme Court for purposes of the said Article
176 would continue to remain sixteen.
126.
At the relevant time, the Supreme Court was functioning with
its full strength, i.e. Chief Justice plus 16 Judges. Even one Ad hoc Judge,
namely, Ghulam Rabbani, J, had also been appointed as such. Thus,
neither there was any vacancy in the office of Chief Justice of Pakistan nor
any vacancy existed in the office of Judge Supreme Court, against which
Const. P 9 & 8/2009
220
Abdul Hameed Dogar, J, or other Judges, as purportedly appointed, could
have been appointed under the Constitution and the law.
127.
Further, the purported appointment of Abdul Hameed Dogar,
J, as the Chief Justice of Pakistan also stood vitiated by virtue of
notification No. F.12(4)/2007-A.II dated 17th March, 2009 whereby the
Chief Justice of Pakistan was restored to the position he was holding
immediately before 3rd November, 2007. For reference, the notification is
reproduced below: “Islamabad, the 17th March, 2009
NOTIFICATION
WHEREAS the Prime Minister of Pakistan was pleased to
announce on 16th day of March, 2009 that the deposed Judges of
the Supreme Court and High Courts including Mr. Justice Iftikhar
Muhammad Chaudhry, the deposed Chief Justice of Pakistan, shall
be restored to the position they were holding immediately before
3rd day of November, 2007.
NOW, THEREFORE, the President of Pakistan is pleased to restore
Mr. Justice Iftikhar Muhammad Chaudhry, CJ, the deposed Chief
Justice of Pakistan to the position he was holding immediately
before 3rd day of November, 2007. Mr. Justice Iftikhar Muhammad
Chaudhry will assume office of Chief Justice of Pakistan on 22nd
March, 2009, after retirement of Mr. Justice Abdul Hameed Dogar,
Chief Justice of Pakistan on 21st March, 2009.
Sd/Justice Agha Rafiq Ahmed Khan
Secretary”
By a separate notification No. F.12(4)/2007-A.II of even date, following
Judges were restored to the position they were holding immediately before
3rd November, 2007: SUPREME COURT OF PAKISTAN
(1)
Mr. Justice Javed Iqbal
Const. P 9 & 8/2009
221
(2)
Mr. Justice Khalil-ur-Rehman Ramday
(3)
Mr. Justice Raja Fayyaz Ahmed
(4)
Mr. Justice Ch. Ijaz Ahmad
LAHORE HIGH COURT
(1)
Mr. Justice Khawaja Muhammad Sharif
(2)
Mr. Justice Ijaz Ahmed Chaudhry
(3)
Mr. Justice Iqbal Hameed-ur-Rehman
HIGH COURT OF SINDH
(1)
Mr. Justice Mushir Alam
(2)
Mr. Justice Maqbool Baqar
PESHAWAR HIGH COURT
Mr. Justice Ejaz Afzal Khan
By notification No. F.12(4)/2007-A.II dated 13th April, 2009, the following
deposed/retired Judges of the Supreme Court were restored to the
position they were holding immediately before 3rd November, 2007 so
that they drew their salaries and other benefits as per their entitlement in
accordance with law during the intervening period: (1)
Mr. Justice Rana Bhagwandas
(2)
Mr. Justice Falak Sher
(3)
Mr. Justice Ghulam Rabbani
By notification No. F.12(4)/2007-A.II. dated 4th June, 2009, following
Judges of the Supreme Court and High Courts were restored to the
position they were holding immediately before 3rd November, 2007 so
that they drew their salaries and other benefits as per their entitlement in
accordance with law: -
Const. P 9 & 8/2009
222
SUPREME COURT
(1)
Mr. Justice Mian Shakirullah Jan
(2)
Mr. Justice Tassaduq Hussain Jilani
(3)
Mr. Justice Syed Jamshed Ali
(4)
Mr. Justice Sardar Muhammad Raza Khan
(5)
Mr. Justice Nasir-ul-Mulk
LAHORE HIGH COURT
(1)
Mr. Justice Mian Saqib Nisar
(2)
Mr. Justice Asif Saeed Khan Khosa
(3)
Mr. Justice Sh. Azmat Saeed
(4)
Mr. Justice Umar Ata Bandial
HIGH COURT OF SINDH
128.
(1)
Mr. Justice Anwar Zaheer Jamali
(2)
Mr. Justice Khilji Arif Hussain
(3)
Mr. Justice Amir Hani Muslim
(4)
Mr. Justice Faisal Arab
(5)
Mr. Justice Sajjad Ali Shah
(6)
Mr. Justice Zafar Ahmed Khan Sherwani
(7)
Mr. Justice Salman Ansari
(8)
Mr. Justice Abdul Rasheed Kalwar
(9)
Mr. Justice Sarmad Jalal Osmany
(10)
Mr. Justice Gulzar Ahmed
(11)
Mr. Justice Muhammad Ather Saeed
The learned counsel for the petitioners contended that
notwithstanding the restoration of the Chief Justice of Pakistan to the
position he was holding before 3rd November, 2007, by the terms of the
said notification a wrong impression was created that the appointment of
Abdul Hameed Dogar, J, as Chief Justice of Pakistan could be interpreted
to have been recognized on the de facto doctrine, because the assumption of
Const. P 9 & 8/2009
223
office by the incumbent Chief Justice of Pakistan was made effective from
22nd March, 2009, i.e. after the retirement of Abdul Hameed Dogar, J,
which was taking place on 21st March, 2009. In the first instance, the
purported appointment of Abdul Hameed Dogar, J, or for that matter the
appointments of other Judges have already been declared to be
unconstitutional, illegal and void ab initio. Further, the above recital in the
notification, which is a contradiction in terms, stands nullified by the
dominant intent and spirit of the notifications, which was the restoration
of the Chief Justice of Pakistan and other Judges to the position they were
holding prior to 3rd November, 2007. It was a loud and clear recognition
of the fact that the Chief Justice of Pakistan and all other Judges of the
Supreme Court and High Courts continued to be such Chief Justice and
Judges despite their unconstitutional, illegal and forcible removal from
office in violation of Article 209 of the Constitution and the said position,
on the same considerations, was reversed in totality. A wrong stood
declared wrong with no mincing of words, for all times to come.
129.
The learned counsel contended that Abdul Hameed Dogar, J,
and other Judges could not be regarded even as de facto Judges under the
Constitution and the law. In this behalf reference was made, inter alia, to
the following cases: Muhammad Ayub Khuhro v. Pakistan (PLD 1960 SC 237 at 251)
“When a person is not competent to take cognizance of an offence,
the entire proceedings before him would be void and
coram non
judice.”
At page 248 of the report, it was observed as under: “A judgment is void if it is pronounced by an incompetent
Const. P 9 & 8/2009
224
Tribunal.”
Farzand Ali v. Province of West Pakistan (PLD 1970 SC 98 at 127)
“An officer de facto is defined by Cooley in his book on
Constitutional Limitations, Vol. 2, page 1355 as “one who by some
color of right is in possession of an office and for the time being
performs its duties with public acquiescence, though having no
right in fact”. An intruder is defined in the same book at p. 1357 as
“one who attempts to perform the duties of an office without
authority of law and without the support of public acquiescence.”
Mahmood Khan Achakzai v. Federaion of Pakistan (PLD 1997 SC 426 at
435)
“The acts of the officers de facto performed by them within the
scope of their assumed official authority in the interest of the public
or third persons and not for their own benefit are generally as valid
and binding as if they were the acts of officers de jure. This doctrine
can be applied if the Parliament is declared to be illegally
constituted and an enactment passed by such Parliament is
declared unconstitutional. It is only such situation that to preserve
continuity, prevent disorder and protect private rights, this
doctrine can be pressed in service.”
Asad Ali v. Federation of Pakistan (PLD 1998 SC 161)
“142.
From the above discussion, it follows that the
recognition of the principle of de facto exercise of power by a holder
of the public office is based on sound principle of public policy to
maintain regularity in the conduct of public business, to save the
public from confusion and to protect private right which a person
may acquire as a result of exercise of power by the de facto holder of
the office. However, in the present cases only the acts done and
orders passed by respondent No.2 in his de facto capacity of Chief
Justice of Pakistan before 26-11-1997 will be protected under the
doctrine of de facto exercise of power as on that date, he was
restrained by a Bench of this Court through a judicial order from
exercising any judicial or administrative function as the Chief
Const. P 9 & 8/2009
225
Justice of Pakistan.”
Re James (an insolvent) [(1977) 1 All ER 364, at 378-379]
“In my judgment, it is immaterial whether the Rhodesian judges
were appointed before or after UDI. The court whose jurisdiction
they were exercising in 1974 was not a British Court but one
established by persons who had cast off their allegiance with the
British Crown. I think the High Court of Rhodesia was and is a
court but not a British one.”
Coppard v. C & E Commissioners [(2003) 3 All ER 351 at p. 356]
“A de facto judge cannot be someone who knows that he is not a
judge even if the world believes him to be a judge. The person who
knows that he lacks authority includes a person who has shut his
eyes to that fact when it is obvious. Such a person is a usurper.”
The ratio of the above case-law fully fits Abdul Hameed Dogar, J, and
other Judges. They all knew that they were not Judges under the
Constitution; they knew that they lacked authority, but they shut their
eyes to that fact when it was obvious; they knew that some others were the
rightful holders of those offices; they had no right in fact and they were not
in possession of office by some colour of right; and they were usurpers.
They were also intruders because they attempted to perform the duties of
an office without authority of law and without the support of public
acquiescence. Thus, looked at from whatever angle, the purported
appointments of Abdul Hameed Dogar, J, and such other Judges were
unconstitutional, illegal and void ab initio. The same are so held and
declared.
130.
The other four Judges of the Supreme Court, namely,
Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar, M. Javed Buttar
Const. P 9 & 8/2009
226
and Saiyed Saeed Ashhad, JJ and the Judges including the Chief Justices of
High Courts, who made oath in violation of the order dated 3rd
November, 2007 passed by a seven – member Bench of this Court in
Wajihuddin Ahmed’s case were fully aware of the aforesaid restraint order,
which was passed immediately after the announcement made on the TV
channels regarding issuance of Proclamation of Emergency, PCO No. 1 of
2007 and Oath Order, 2007. No sooner the order was passed, its copies
were delivered to all the Judges of the Supreme Court at their residences.
Copies of the order were sent to the Registrars of all High Courts by fax so
as to bring the same to the notice of the Chief Justices and Judges of High
Courts at once for compliance. The detail of faxes sent on 3rd November,
2007 from telephone/fax No. 9213452, installed in the office of Registrar,
Supreme Court is given below: DATE
TIME
NO CALLED
03.11.2007
19:25:29
03.11.2007
19:29:51
03.11.2007
19:40:18
03.11.2007
20:19:51
0219203263
[Sindh High Court]
0429212279
[Lahore High Court]
0919210482
[Peshawar High Court]
0819201365
[Balochistan High Court]
DURATION
00:00:29
00:01:02
00:02:14
00:01:12
The TV channels repeatedly televised the contents of the aforesaid order
before and after the taking of oath by Abdul Hameed Dogar, J, and other
Judges. That continued even after 4th November, 2007. As seen above, the
order was also published in the newspapers of 4th November, 2007. It
formed the subject matter of various articles written in the newspapers and
comments in the TV talk shows. Reference is here made to excerpts from
the news clippings of 4th November, 2007 and onward, as also excerpts of
Const. P 9 & 8/2009
227
the records of TV programmes: -
EXCERPTS FROM THE NEWSPAPERS
Seven judges reject PCO before being sent home
The Daily Dawn, November 04, 2007
ISLAMABAD, No. 3: In an unprecedented move, seven judges of the
Supreme Court on Saturday overturned the Provisional Constitutional
Order and restrained the Chief of Army Staff, corps commanders, staff
officers and other civil and military officers from acting under the decree.
The judges restrained President Gen Pervez Musharraf and Prime
Minister Shaukat Aziz from taking actions contrary to the independence
of the judiciary and asked the judges of the Supreme Court and the high
courts, including their chief justices, not to take an oath under the PCO or
follow any other extra-constitutional step.
Headed by Chief Justice Iftikhar Muhammad Chaudhry, the Bench that
handed down the unanimous two page order consisted of Justice Ran
Bhagwandas, Justice Javed Iqbal, Justice Mian Shakiullah Jan, Justice
Nasir-ul-Mulk, Justice Raja Fayyaz and Justice Ghulam Rabbani.
Anticipating something unusual, the judges remained in the Supreme
Court till late afternoon on a day when the court never assembles. It
otherwise would not have been possible for them to pass the order. “We
feel that the government has no ground or reason to take extra
constitutional steps, particularly for the reasons being published in
newspapers that a high-profile case is pending and is not likely to be
decided in favour of the government, although the matter is still pending,
“ the order said.
Appointment of the chief justice or judges of the Supreme Court or chief
justice of the high courts under the new PCO would be unlawful and
without jurisdiction, it said.
Copies of the order were sneaked out to the awaiting newsmen outside
the court premises.
The order came on an application of Supreme Court Bar Association
president Barrister Aitezaz Ahsan. The application was fixed for Monday
to be taken up by a full court.
A constitutional expert, who wished not be named, said the oath taking
of the new chief justice was illegal because the PCO was struck down the
moment it was issued.
More than seven judges of the Supreme Court were required to reverse
the restraining order, he said, adding that to the best of his knowledge
only four judges were available in the capital till late Saturday night.
SC turns down PCO
The Daily News, November 04,2007
ISLAMABAD: Setting aside the Provisional Constitution Order
(PCO), a seven member Bench of the Supreme Court headed by
Const. P 9 & 8/2009
228
Chief Justice Iftikhar Muhammad Chaudhry here on Saturday
evening barred the president and prime minister from taking any
action contrary to the independence of the judiciary.
It may be mentioned here that President General Pervez Musharraf
by imposing emergency in the country suspended the constitution
by issuing Provisional Constitutional Order Saturday evening.
A copy of the two-page Supreme Court order, which was handed
over by an unidentified man on behalf of the court to journalists
including The News, noted that no judge of the Supreme Court or
high courts including chief justice should take oath under the PCO
or any other extra constitutional step.
A chit carrying names of the chief justice and judges signing the
order was afterwards provided to media persons, keenly waiting
close to a small gate adjacent to the parking lot of the Supreme
Court to see a glimpse of the chief justice. Other members of the
Bench were Justice Rana Bhagwandas, Justice Javed Iqbal, Justice
Mian Shakirullah Jan, Justice Nasir-ul-Mulk, Justice Raja Fayyaz
and Justice Ghulam Rabbani.
Till the filing of this report, it was widely believed that the chief justice
and other members of the Bench were inside the court building. Heavy
security was around and no one was allowed to step in or step out of the
SC premises.
The Bench also said that the chief of army staff, corps commanders, staff
officers and all concerned of the civil and military authorities were
thereby restrained from acting under the PCO, which has been issued, or
from administering fresh oath to the chief justice of Pakistan or judges of
the Supreme Court, and chief justice or judges of the high courts.
They were also restrained from undertaking any such action, which was
contrary to the independence of judiciary.
Any further appointment of the chief justice and judges of the apex court
and chief justices of high courts or judges of provinces under the new
development shall be unlawful and without jurisdiction, the order said.
Earlier, after the unidentified person gave a copy of the order to
journalists, a few minutes later he asked the policemen to let them inside
as the honourable chief justice wanted to talk to the media. But the cops
declined to do so saying they could not allow them until they got
clearance from their seniors.
One of them did talk to someone for advice and later told media persons
that they were not given permission to let them inside the apex court.
All the road leading to the Constitution Avenue, on which besides the
apex court, the Parliament House, Prime Minister House and other
important offices are located, were blocked with boulders and barbed
wire.
Only jeeps and trucks of rangers and the police were allowed to ply on
the Constitution Avenue, which were seen carrying security personnel
and rolls of barbed wire.
Const. P 9 & 8/2009
231
EXCERPTS FROM RECORDS OF ELECTRONIC MEDIA
DAWN NEWS
3rd November, 2007: 18:00 hours
“We had just received report that as Aitezaz Ahsan … it is
probably find out … into as he was into …the announcement
that a warrant of his arrest has also have been made. So it is to
sum up what is being going on this last hour or hour and hour
an half been arrived this team might explore surely things are
moving in the direction of the imposition of an emergency
Chief Justice along with number of his judges are still in the
Supreme Court our correspondence Kamran Yousaf is saying
that there was a large number of security forces arsenal
movement have been seen inside the federal capital now a
high level meeting of the president along senior PML-Q
leadership is taking place ….. we also heard that there would
be cabinet meeting now a lots going on here in federal capital
so go over to our correspondent Mateen Haider for the latest
updates. Mateen we just have heard this a warrant of arrest
has been issued for Aitezaz Ahsan and we were just speaking
to him short a while ago what details you have observed and
anything which make transform in next …..”
18:02 hours
“Yes you are right Chief Justice of Pakistan Iftikhar
Muhammad Chaudhry along with some of the judges …. And
we tried to go into the Supreme Court right now along with
the main gate of Supreme Court of Pakistan two military
personal there are two soldiers from the Pakistan Army they
are right at the front gate of the Supreme Court of Pakistan
along with police right to we have just witnessing number of
cameras, photographers who are capturing that short. Two
soldiers from the Pakistan Army they are at the Supreme
Court’s main gate so the media and the cameramen and
reporters they are not being allowed to go inside the Supreme
Court of Pakistan then we contacted to the security staff
they’ve said that they’ve got instructions from the higher that
no media person should be allowed to come inside in the
Supreme Court and earlier in the day full fledge media entry
has been banned into the Supreme Court right now.”
18:03 hours
“So the meeting at the presidency which general Pervez
Musharraf for chairing right now is come to at end and the
decision about the imposition of emergency that is been
checked in now. But the formal announcement will be made
Const. P 9 & 8/2009
232
right by some top governed functionaries and there are report
that president general Pervez Musharraf may address to the
nation shortly in which he will announce definitely the
position of emergency will make formal announcement and
the there are also report about the extra ordinary emergency
cabinet meeting which is chaired by prime minister Shoukat
Aziz at prime minister house security on the constitution
avenue is still tight there is police van which is patrolling and
at number of important entry points there is definitely a
deployment of security personals.
OK. Mateen Haider, thank you for that update.”
18:04 hours
“Just for anyone who may have joined or tuned on the Dawn
News that there wide speculated in that the state of
emergency is very eminent now and cable operators have
incidentally and they have taken a large number of private
television channels off and there is lot of different reports
coming in different part of the country there is a slow build up
of the security personal entry and exit point in and around
Islamabad have been tightened up and most interesting news
which is coming out now recently from Mateen Haider that he
just told us the Chief Justice of Pakistan along with number of
his judges is inside in the Supreme Court building he says that
there is at least two army officials standing outside guard of
the front of the Supreme Court building and entry for the
media personals have been gathered outside the Supreme
Court building have been prevented from entering.”
18:12 hours
“The government has imposed a state of emergency plus
following cabinet meeting in capital there are reports that a
new PCO is being introduced this would mean judges in the
Supreme Court of Pakistan will have to take a new oath for
office. The Chief Justice of Pakistan is out the Supreme Court
Attorney General is now with him. Pickets are being set up by
the army key positions across the country. The broadcast of
independent channels has been stopped in the capital. Now
the PCO has been passed by the president as his capacity of
the Chief of the Army Staff that is the latest breaking news it
has been confirmed that the state of emergency has been
imposed in Pakistan. The state of emergency can’t be
challenged in any court of law. There are reports coming in
the Chief Justice and other judges are reportedly being
removed by the armed forces from the Supreme Court
building a short while ago our spokesman correspondent
Mateen Haider reported at the steps of the Supreme Court
where he said that at least two to three military officials there
Const. P 9 & 8/2009
233
is now been confirmed that the Chief Justice of Pakistan and
number of judges are being escorted out of the Supreme Court
building by army officials this is the latest development.”
18:16 hours
“Let’s go to our senior correspondent Mubashar Zaidi for the
latest developments. Mubashar what do you understand in
this latest situation has there been informal announcement
yet? Formal announcement still being awaited which PTV has
already announced that Chief of the Army Staff that is
president general Pervez Musharraf has proclaimed
emergency in the country and he has issued a PCO but all the
development right now happening in the Supreme Court
where Chief Justice Iftikhar Muhammad Chaudhry along with
couple of judges are still present inside and written orders
have been issued from the interior ministry by the chief
commissioner to police to remove the Chief Justice and other
judges from the Supreme Court and Army troops have
already entered the Supreme Court building and they are
trying to remove the staff of the Chief Justice, Registrar and
other staff and they are unlikely to remove the Chief Justice
and other judges who are present in the Court………”
20:01 hours
“President General Pervez Musharraf who is also the Chief of
the Army Staff of Pakistan has imposed a state of Emergency
and suspended the Constitution and introduced Provisional
Constitutional Order however several judges who are inside
the Supreme Court building in the time of the imposition of
the emergency declared the PCO has unconstitutional and at
least eight of those judges have refused to take oath under this
new PCO. Un-official announcement is to at some point later
on in the evening but there is a fact that a state of emergency
obvious hasn’t officially announced it is quit evidently in
place throughout the whole of Pakistan. Right time now go
over twelve studio in Islamabad where Zafar Abbas the Editor
of Dawn standing by with Farhan Bukhari to discuss what
this means and what had happened today over the course of
the whole of today when November the 3rd two thousand
seven is the moment of the day when the state of emergency
has been declared in Pakistan. Well Farhan obviously what
the general mood like in the federal capital commentator is
saying ? well Addel it is obviously very tense time in
Islamabad last couple of hours since it became clear that
another state of emergency has been imposed lots of people
are comparing this to 12th October 1999 the day the coup when
president Musharraf took over and lots of people are saying
that more than eight years later this is a replay of what
Const. P 9 & 8/2009
234
happened on that day troops are reports… moment that
people are waiting for its president Musharraf’s speech which
would come later any time I am joined in our Islamabad
studio by Zafar Abbas resident editor of Dawn. Zafar just for
the sake of this discussion if we tried to compare what is
happened today or what is happening today with 12th October
1999? In somewhere yes mainly in terms of the kind of action
that has been taken but it is really a very different situation it
is situation where a government is not being removed and
army is not stepping in to remove the government general
Pervez Musharraf was already the president of Pakistan prime
minister Shoukat Aziz was working under him what he is
done is to impose emergency rule acting as the Chief of the
Army Staff to prolong his stay in power because of the fear
that the supreme court may declare his move to get himself
elected for the second time as unconstitutional or illegal so it
is an attempt to prolong his rule it is not attempt to remove a
government which on 12th October 1999 that is the main
different and the other difference is that this emergency rule
has been brought in or imposed at the time when we have
witnessed unprecedented action by the country superior
judiciary and even as we speak some of the senior most judges
are sitting inside the supreme court refusing to go away and
as you all know they have already passed an order Chief
Justice of Pakistan Chaudhry Iftikhar and other senior judges
have passed an order declaring the emergency rule as illegal.”
20:04 hours
“Zafar a very interesting aspect of this situation; it is almost an
eyeball to eyeball type of a situation. What is being well
finally happened to the judges I mean they can’t stay inside
the Supreme Court indefinitely they have passed an order
which legal experts say in time would have its on significance
but what do you think what will happen to the judges? You
there are two things one is the judicial side of the whole
matter the legal side of the whole matter and the other is
administrative side. Obviously when we talk about the
administrative side of this matter president Musharraf is also
the Army Chief, the army is behind him and the security
forces are with him the government is with him so the
Supreme Court Chief Justice can’t do much about it; to be very
honest. He and some of his brother judges as they are halt
may continue to sit in the Supreme Court for a while and they
will have to go to their respective residences and in all
probability they will not be asked to take oath under the new
PCO and they as the system had been in the past whenever
marshal law has been imposed or emergency rule or this kind
of an extra constitutional order has been imposed new set of
Const. P 9 & 8/2009
235
judges have come and new Chief Justice has been appointed
and this may happen again………………”
Dawn News
03rd November, 2007: 21:08 hours
Correspondence 2
“Well first of all let me explain that no body is allow to access
in the Supreme Court and media is standing outside and we
are depending on whatever information we are getting to our
sources within the Supreme Court that we just got report that
Chief Justice of Pakistan Justice Iftikhar Muhammad
Chaudhry has constituted full court to hear the case of
position of emergency in one day so Chief Justice is still
resisting and he denied that the Government Pressure that his
services are no more required because after issuing the
Provision Constitution Order the General Musharraf the Chief
Justice and some Judges who are belief to be who have given
the decision against the Musharraf in the case were asked that
their services are no more required by the government and it
was expected that those judges included Chief Justice, Justice
Rana Bhagwandas Justice Shakirullah Jan and few other
judges would not be invited by the Government to take a
fresh oath under the PCO right now the pressure is being
mounted on the Chief Justice of Pakistan and he was asked by
the Government that he must accept the decision he must
accept the position of emergency in which General Musharraf
has issued this evening so but we have got reports that full
court was constituted by the Chief Justice and we have seen a
convoy coming out of Supreme Court and going towards the
Judge’s residences and we are not sure whether the Chief
Justice was inside the car or not but it quite confusing
situation in which no body is allow access to Supreme Court
and we are relying on these information…………”
21:16
Correspondence 1
“Absolutely the situation is evolving here as you can hear the
reports that Justice Abdul Hameed Dogar has taken oath as
Acting Chief Justice of Pakistan so this is indeed very
significant development after Government’s decision to
impose emergency in the country and somewhat its seems
that Chief Justice Iftikhar Muhammad Chaudhry opposed the
decision and some other Judges as well.”
Const. P 9 & 8/2009
248
of press reports, quoted with approval by this Court in the case of Watan
Party (supra) were laid down: (i)
Where direct evidence is not available;
(ii)
Where it is sought to be proved that a person has notice
of the contents of the newspaper report;
(iii)
Where it is sought to be shown that a person is an
author or otherwise responsible for the statement or
article published in a newspaper, which is to be used
against him;
(iv)
In cases of defamation; and
(v)
If the issue/occurrence is rather old and eyewitnesses
are either wanting or less reliable.
Even CMA No. 2874 of 2007 was moved by the Federation in Wajihuddin
Ahmed’s case on 6th November, 2007 seeking clarification regarding the
order dated 3rd November, 2007 passed by a seven–member Bench of this
Court in the said case stating, inter alia, therein that certain news items had
appeared in the newspapers that after issuance of Proclamation of
Emergency, PCO No. 1 of 2007 and Oath Order, 2007, “some of the former
Judges, reportedly seven in number including the then Chief Justice” had
passed some order restraining, inter alia, the Judges of the Supreme Court
and High Courts, including Chief Justices from making oath under PCO or
any other extra-constitutional step. Thus, all the Judges knew that a
restraint order had been passed by the Supreme Court and also that Abdul
Hameed Dogar, J, and some other Judges had made oath in violation of the
said order. In fact, all and sundry in the length and breadth of the country
knew about it. All such Judges, therefore, willfully violated the order
dated 3rd November, 2007 passed by a seven – member Bench of this Court
Const. P 9 & 8/2009
249
in Wajihuddin Ahmed’s case.
132.
We next take up the purported appointments of Judges post
3rd November, 2007. Mr. Muhammad Akram Sheikh, Sr. ASC, contended
that having unconstitutionally and illegally installed Abdul Hameed
Dogar, J, in the office of the Chief Justice of Pakistan, General Pervez
Musharraf unconstitutionally and illegally made purported appointments
of Judges in the Supreme Court in a so-called consultation with Abdul
Hameed Dogar, J, and ‘packed the courts’ with dozens of persons on and
after 3rd November, 2007 in disregard of merit, competence or repute.
According to the learned counsel, since the said appointments were made
in consultation, not with the Chief Justice of Pakistan who was holding
office under the Constitution, but with Abdul Hameed Dogar, J, who was
holding office under PCO No. 1 of 2007 and Oath Order, 2007, and was not
authorized to be consulted for appointment of Supreme Court and High
Court Judges under Articles 177 and 193 of the Constitution, for which
even a duly appointed Acting Chief Justice was not authorized as laid
down in Al-Jehad Trust case, therefore, the same too, were of no legal effect.
133.
The appointment of Judges of the superior Courts indeed is a
matter of great significance in ensuring the independence of the judiciary.
The Constitution provides that appointment of Judges of the Supreme
Court shall be made by the President in consultation with the Chief Justice
of Pakistan, while that of Judges of the High Court shall be made in
consultation with the Chief Justice of Pakistan, the Governor of the
Province and the Chief Justice of the concerned High Court. It was held in
Al-Jehad Trust case that the consultative process was mandatory and
Const. P 9 & 8/2009
250
without it no appointment or confirmation could be made and that in
absence
of
consultation
as
contemplated
and
interpreted,
the
appointment/ confirmation of a Judge in the superior Court shall be
invalid. It was further held that the independence of the judiciary was
inextricably linked and connected with the constitutional process of
appointment of Judges of the superior judiciary. It was also held that an
Acting Chief Justice was not a consultee as envisaged by the relevant
Articles of the Constitution and, therefore, mandatory constitutional
requirement of consultation would not be fulfilled by consulting an Acting
Chief Justice except where the permanent Chief Justice concerned was
unable to resume his functions within 90 days from the date of
commencement of his sick leave because of his continuous sickness.
Accordingly, at declaration No. (xiii) of the Short Order passed in Al-Jehad
Trust
case,
it
was
held
that
since
consultation
for
the
appointment/confirmation of a Judge of a superior Court by the
President/Executive with consultees mentioned in the relevant Articles of
the Constitution was mandatory, any appointment/confirmation made
without consulting any of the consultees as interpreted above would be
violative of the Constitution and, therefore, would be invalid. In the
instant case, the permanent Chief Justice of Pakistan was very much
available and able to perform the functions of his office. At page 528 of the
cited case, it was unequivocally held that to have access to free, fair and
independent court/tribunal would be a fundamental right enforceable by
the Courts. Any deviation from the methods prescribed under the
Constitution for appointment to the high office of Chief Justice of Pakistan
Const. P 9 & 8/2009
251
would give rise to the infringement of the fundamental right of the citizens
to have free, fair and equal access to justice through an independent and
impartial Court/Tribunal, thus violating the right guaranteed under
Articles 9 and 25 of the Constitution.
134.
We, therefore, uphold the contention of the learned counsel
that Abdul Hameed Dogar, J, who was holding office in violation of the
order dated 3rd November, 2007 passed by a seven – member Bench of this
Court in Wajihuddin Ahmed’s case, was not authorized to be consulted for
such appointments. All the appointments of Judges of the Supreme Court
and High Courts made in consultation with him during the period from
3rd November, 2007 to 21st March, 2009 were violative of the provisions of
the Constitution as interpreted in Al-Jehad Trust case. Therefore,
appointments of Judges made in consultation with Abdul Hameed Dogar,
J, are held and declared to be unconstitutional, illegal, void ab initio and of
no legal effect.
135.
Besides, the purported appointment of four persons as Judges
on 5th November, 2007, noted above, two such Judges, namely,
Muhammad Akhtar Shabbir, J, a retired Judge of the Lahore High Court
and Zia Pervez, J, a former Judge of the High Court of Sindh, though as a
Judge of the High Court he had not made oath in violation of the order
dated 3rd November, 2007 passed by a seven – member Bench of this Court
in Wajihuddin Ahmed’s case, were appointed vide notification No.
F.1(1)/2007-A-II(A) dated 12th November, 2007 in this Court. Three such
Judges, namely, Mian Hamid Farooq and Syed Sakhi Hussain Bokhari,
sitting Judges of the Lahore High Court and Syed Zawwar Hussain Jaffery,
Const. P 9 & 8/2009
252
a retired Judge of the High Court of Sindh were appointed vide notification
No. F.1(1)/2007-A.II. dated 9th December, 2007. All these appointments
stood vitiated on account of the above declaration. Out of the above, the
Judges who were sitting Judges of the High Courts violated the order
dated 3rd November, 2007 passed by a seven – member Bench of this
Court in Wajihuddin Ahmed’s case, which was enforceable and binding
upon them under Articles 187, 189 and 190 of the Constitution, particularly
after it had come to their notice through the electronic and print media, or
through the respective Registrars, and thus rendered themselves liable to
action under and in accordance with the Constitution.
136.
As to the remaining Judges, who were retired Judges of the
High Courts or were taken on the basis of their practice, their
appointments stood vitiated because the same were not made in
consultation with the Chief Justice of Pakistan, but were made in
consultation with Abdul Hameed Dogar, J, who was not a consultee within
the ambit of Article 177 of the Constitution, as discussed hereinabove.
Furthermore, all these Judges were appointed against the vacancies
occupied by the Judges appointed under the Constitution, who were
available and able to perform the functions of their office. Accordingly, the
appointments of all the above Judges are held and declared to be
unconstitutional, illegal and void ab initio.
137.
Similarly, the appointments of Judges made in consultation
with Abdul Hameed Dogar, J, after the revocation of emergency up till
22nd March, 2009, the date of his retirement were too, violative of the
provisions of the Constitution as interpreted in Al-Jehad Trust case. Two
Const. P 9 & 8/2009
253
such Judges, namely, Sh. Hakim Ali, J, a sitting Judge of the Lahore High
Court and Muhammad Farrukh Mahmood, J, a retired Judge of the Lahore
High Court were appointed vide notification No. F.2(1)/2008-A-II(A) dated
7th February, 2008. Two Judges, namely, Sabihuddin Ahmed, CJ, and
Sarmad Jalal Osmany, J of the High Court of Sindh, who had not made
oath in violation of the order dated 3rd November, 2007 passed by a seven
– member Bench of this Court in Wajihuddin Ahmed’s case, were appointed
vide notification No. F.2(3)/2008-A-II. dated 19th September, 2008. One
Judge, namely, Sardar Muhammad Aslam, CJ, Islamabad High Court was
appointed vide notification No. F.2(1)/2009-A.II dated 7th March, 2009.
Their appointments too, stood vitiated because the same were not made in
consultation with the Chief Justice of Pakistan but were made in
consultation with Abdul Hameed Dogar, J, who was not a consultee within
the ambit of Article 177 of the Constitution, as discussed hereinabove. All
the aforesaid Judges shall immediately cease to hold office forthwith.
However, such Judges who were sitting Judges of the High Court prior to
their appointment in the Supreme Court in consultation with Abdul
Hameed Dogar, J, shall revert to their respective High Courts subject to
their age of superannuation.
138.
Another category of appointments made during the period
from 15th December, 2007 to 22nd March, 2009 relates to the
reappointment of certain deposed Judges of the Supreme Court and the
High Courts, who had not made oath in violation of the order dated 3rd
November, 2007 passed by a seven – member Bench of this Court in
Wajihuddin Ahmed’s case whose cases were processed by Abdul Hameed
Const. P 9 & 8/2009
254
Dogar, J, being in the office of Chief Justice of Pakistan at the relevant time.
However, the actions of 3rd November, 2007 per se having been held and
declared to be unconstitutional, illegal and void ab initio, it has further been
held and declared that the Chief Justice of Pakistan, the Judges of the
Supreme Court of Pakistan, any Chief Justice of High Court and Judges of
High Courts who were declared to have ceased to hold office in pursuance
PCO No. 1 of 2007 and Oath Order, 2007 shall be deemed never to have
ceased to be such Chief Justices or such Judges irrespective of any
notification issued regarding their reappointment or restoration. The
notification of restoration of such Judges has in fact superseded the earlier
notification of their reappointment and is a loud and clear recognition that
such Judges having been removed in violation of Article 209 of the
Constitution, have now been brought back to their original position by
force of the provisions of the Constitution itself. They continued to be such
Judges throughout without interruption of a single day.
139.
Zia Parwez J did not make oath as a Judge of High Court on
or after 3rd November, 2007 after the order dated 3 rd November, 2007 was
passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s
case, and was deposed from office. But his subsequent appointment as a
Judge of the Supreme Court was made, firstly, in violation of the order
dated 3rd November, 2007 passed by a seven – member Bench of this
Court in Wajihuddin Ahmed’s case, and secondly, in consultation with
Abdul Hameed Dogar, J, who was not competent or authorized under the
Constitution for such consultation. Therefore, his appointment as a Judge
of the Supreme Court has been found to be unconstitutional, illegal and
Const. P 9 & 8/2009
255
void ab initio. Accordingly, he would cease to hold office of Judge of the
Supreme Court.
140.
The Judges including Chief Justices of High Courts, who
made oath in violation of the order dated 3rd November, 2007 passed by a
seven – member Bench of this Court in Wajihuddin Ahmed’s case, or were
appointed in consultation with Abdul Hameed Dogar, J, whether during
the period from 3rd November, 2007 to 15th December, 2007, or thereafter,
shall be governed in the same terms. However, any of such Judges who
was District & Sessions Judges prior to his appointment as Judge of High
Court
shall
revert
to
his
original
positions
subject
to
age
of
superannuation.
141.
Now we proceed to determine the validity of the decisions
rendered by Abdul Hameed Dogar, J, and Judges of the Supreme Court,
Chief Justices and Judges of High Courts, who were Judges/Chief Justices
on 3rd November, 2007 and who made oath in violation of order dated 3rd
November, 2007 passed by a seven – member Bench of this Court in
Wajihuddin Ahmed’s case, as also Chief Justices/Judges appointed in
consultation with Abdul Hameed Dogar, J. The actions of 3rd November,
2007 have already been held and declared to be unconstitutional, illegal
and ultra vires. The appointment of Abdul Hameed Dogar, J, as Chief
Justice of Pakistan, appointments of Judges of Supreme Court and High
Courts including Chief Justices made in consultation with Abdul Hameed
Dogar, J, and oaths made in violation of the order dated 3rd November,
2007 passed by a seven – member Bench of this Court in Wajihuddin
Ahmed’s case all have been held to be unconstitutional, illegal and ultra
Const. P 9 & 8/2009
256
vires. Therefore, as rightly contended by Mr. Hamid Khan, the Supreme
Court manned by Abdul Hameed Dogar, J, and other Judges was coram
non judice and bereft of the power and jurisdiction vested in the Supreme
Court under the Constitution, as such they were not entitled to undertake
upon themselves the execution of the functions of Judges of the Supreme
Court. It has also been held that they exercised the usurped power and
jurisdiction of Judges of the Supreme Court including Chief Justice of
Pakistan and Chief Justices of High Courts. As such, the decisions
rendered by them would be illegal and nullity in the eye of law.
142.
A prime contention of the learned counsel for the petitioners
on the status of the order dated 6th November, 2007 passed in Wajihuddin
Ahmed’s case and the decisions rendered in Tikka Iqbal Muhammad Khan’s
case was that Abdul Hameed Dogar, J, and other Judges, who were
occupying the seats of the Chief Justice and Judges of the Supreme Court
were acting in collusion with General Pervez Musharraf and consequently
in their own interest because their own existence as such Chief Justice and
Judges was dependent on the continuity and enforceability of the
measures and instruments of General Pervez Musharraf of 3rd November,
2007. They, therefore, had no authority under the Constitution or in law to
pass any order in Wajihuddin Ahmed’s case, which lay at the root of the
actions of 3rd November, 2007. That is why, according to Mr. Hamid
Khan, the anxiety of Abdul Hameed Dogar, J, and other Judges was to at
once purportedly rescind the order dated 3rd November, 2007 passed by a
seven – member Bench of this Court in Wajihuddin Ahmed’s case. The said
order was not acceptable to General Pervez Musharraf and his camp
Const. P 9 & 8/2009
257
because it denuded him of the absolute powers he attempted to wield in
yet another coup, which proved to be the last of his successive coups, with
a view to once again maneouvring another term of five years in Presidency
before he relinquished the office of Chief of Army Staff. In presence of the
said order, Abdul Hameed Dogar, J, and other Judges were not
considering themselves secure or at ease to take upon themselves the
execution of the functions of Judges of the Supreme Court and to confer
validity on the actions of 3rd November, 2007. On 5th November, 2007, the
number of such Judges was five, i.e. Abdul Hameed Dogar, J, plus 4 others
out of whom one was not available at Islamabad, therefore, they could not
pass any order in the said case on that day. However, the same day, Abdul
Hameed Dogar, J, earnestly set himself unto the task of adding to the ranks
of such Judges and increase their strength. Indeed, Abdul Hameed Dogar,
J, was able to make some progress, in that, by notification of 5th November,
2007, four persons, namely, Ijaz-ul-Hassan, Muhammad Qaim Jan Khan,
Mohammad Moosa K. Leghari and Ch. Ejaz Yousaf were purportedly
appointed as the Judges of this Court. With it, the number was increased to
8 and thus they considered that they now would be able to rescind the
order of 3rd November, 2007. Accordingly, on 6th November, 2007, a
miscellaneous application (CMA No. 2874 of 2007) was moved on behalf of
the Federation in Wajihuddin Ahmed’s case stating, inter alia, that –
? An application was sought to be submitted in Court on behalf
of petitioner Wajihuddin Ahmed in Constitution Petition No.
73 of 2007 during its hearing, seeking a restraint order against
the respondents, but it was not entertained, rather it was
directed that the same be filed in the office and the same
would be heard when the matter was fixed;
Const. P 9 & 8/2009
258
? To the utter surprise of the applicant, a news item was
reported in a section of the press that after the issuance of
Proclamation of Emergency, PCO No. 1 of 2007 and Oath
Order, 2007, some of the former Judges including the Chief
Justice of Pakistan had passed the aforesaid order;
? To the best of the knowledge of the applicant, no such order
was passed, or if passed, the same was non est because the
said Judges had ceased to hold office in view of the actions of
3rd November, 2007 and they had no right or authority to
pass any such order;
? No notice was given to the applicant nor any hearing had
taken place, therefore, the order was totally without
jurisdiction; and
? Since the “so-called” order was published in the press, it had
created
confusion
and
had
the
potential
of
creating
complications:
Thus, a clarification was sought that no such order as aforesaid had been
passed, and if there was such an order, it was a nullity in the eye of law,
having no legal value or binding force. By order of even date, it was held
that in pursuance of Proclamation of Emergency, PCO No. 1 of 2007 and
Oath Order, 2007, Judges of the Supreme Court, Federal Shariat Court and
High Courts including Chief Justices of those Courts immediately on
Promulgation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007,
ceased to hold office and could not have performed their functions or
exercised judicial powers and consequently, the Chief Justice and Judges
who passed the order in question, could not have passed such an order as
they had ceased to be the Judges. It was further held that the order in
question was even otherwise not a valid order because it was passed
without notice to the parties, or to the Attorney General for Pakistan under
Const. P 9 & 8/2009
259
Order 27-A CPC read with Order XXIX of the Supreme Court Rules, 1980.
It was also held that the perusal of the order dated 3rd November, 2007,
prima facie, showed that the question of validity or otherwise of
Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, was
not as such examined and their operation was also not suspended,
therefore, they were not called upon to express any opinion on those
questions at that stage. Placing reliance on the case of Federation of Pakistan
v. Aitezaz Ahsan (PLD 1989 SC 61), it was held that in presence of
Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, the
order dated 3rd November, 2007 was a nullity in law. And finally,
allowing the application, the prayed for clarification issued was that the
impugned order dated 3.11.2007 was declared to be illegal and without
jurisdiction and that the same would be deemed to have never been
passed. [Underlining is for emphasis]
143.
In the first place, since the appointments of all such Judges,
including
Abdul
Hameed
Dogar,
J,
have
been
found
to
be
unconstitutional, illegal and ultra vires, all the decisions rendered by them
including the order dated 6th November, 2007 passed in Wajihuddin
Ahmed’s case as well as those in Tikka Iqbal Muhammad Khan’s case were
coram non judice and a nullity in the eye of law.
144.
Secondly, the order dated 6th November, 2007 marked the
presence of Mr. Arshad Ali Chaudhry, ASC/AOR on behalf of the
Federation (applicant), and the learned Attorney General for Pakistan was
shown to have appeared on Court’s call, but surprisingly no notice was
issued to the parties, nor even to the petitioner Wajihuddin Ahmed, or any
Const. P 9 & 8/2009
260
of his counsel/AOR, though one of them, namely, Barrister Aitezaz Ahsan
was in respondent Government’s own custody and it was quite convenient
to procure his attendance. Therefore, this order suffered from the very
flaw, which was wrongly alleged in respect of order dated 3rd November,
2007 passed by a seven – member Bench of this Court in Wajihuddin
Ahmed’s case, i.e. it was passed without notice to the other side.
145.
On 22nd July, 2009, when the above aspect was highlighted in
the course of arguments, it was noticed that repeated references were
being made by the learned counsel for the petitioners to the factual
background of the pre and post 3rd November, 2007 events revolving
around the person of General Pervez Musharraf. Therefore, it was inquired
from Mr. Hamid Khan, Sr. ASC, as to whether it would not be fair and
proper to issue notice of the instant proceedings to General Pervez
Musharraf? He stated that as the Federation of Pakistan was a party in
Constitution Petitions Nos. 8 & 9 of 2009 and was being represented by the
learned Attorney General for Pakistan, there was no need to issue the
aforesaid notice. At this, the learned Attorney General made a categorical
statement at the bar that he was neither representing General Pervez
Musharraf nor had he received any such instruction from the Government.
He further stated that the party in power (Pakistan Peoples Party) had all
along been opposing dictatorial/repressive regimes and anti-people forces
getting into the corridors of power through backdoor channels, therefore,
the present democratic government led by their Party would not
justify/support the action of 3rd November 2007. Therefore, vide order of
the said date, in terms of Rule 9 of Order XXV of the Supreme Court Rules,
Const. P 9 & 8/2009
261
1980, notice of the instant proceedings was issued to General Pervez
Musharraf at his residential address in Islamabad, leaving it up to him to
appear before the Court or otherwise and the hearing of the case
postponed to 29th July, 2009. In the order dated 22nd July, 2009, it was noted
that the instant proceedings were going on for several days and were
being widely publicized in the print and electronic media, therefore,
anyone interested therein or concerned with the promulgation of
Proclamation of Emergency and other measures of 3rd November 2007 had
ample notice/knowledge and was at liberty to appear before the Court.
The process serving officer was deputed to deliver a copy of the order at
the residential address of General Pervez Musharraf, viz. C-1-B, Park
Road, Chak Shahzad, Islamabad, who reported that the person present
there, namely, Muhammad Hussain son of Amir, refused to receive the
notice. The factum of issuance of the afore-referred notice, too, was widely
covered in the electronic and print media. However, no one appeared on
his behalf.
146.
However, we did not issue notices to the concerned Judges of
the Supreme Court and High Courts who made oath in violation of the
order dated 3rd November, 2007 passed by a seven – member Bench of this
Court in Wajihuddin Ahmed’s case, as also the Judges who were appointed
in consultation with Abdul Hameed Dogar, J, inter alia, on a consideration
of the law laid down in Supreme Court Bar Association’s case where this
Court examined the question of issuance of notice in a somewhat similar
situation with reference to the law laid down in the cases of Al-Jehad Trust
and Asad Ali (supra) and Ghulam Hyder Lakho v. Federation of Pakistan (PLD
Const. P 9 & 8/2009
262
2000 SC 179). It was held that the principle of natural justice would not be
violated if no notices were issued to the concerned Judges. Relevant
portion from the judgment is reproduced below: “32.
This brings us to the next common contention that the senior
Judges of the Lahore High Court were condemned unheard and
even in these petitions notices have not been issued to them. It is
rather unnecessary to consider the contention as we have already
held that the recommendations of the judicial consultee are not
justiciable. Be that as it may, the contention is misconceived. The
recommendations in question were manifestation of subjective
satisfaction of the judicial consultee, therefore, the principle of
natural justice 'audi alteram partem' was not attracted. Moreover,
the contention in essence is identical with contentions Nos.(iv) and
(vii) raised in the case of Ghulam Hyder Lakho which read as
under:
"(iv.) That the petitioners were de-notified or the
appointments were nullified by the Government without
hearing them and as such the action of Government
nullifying their appointments as Judges of the High Court
offended against the principles of natural justi ce. "
"(vii) That the removal of the petitioners from the office of
Judges of the High Court in the above manner amounted to
a stigma and as such the petitioners were entitled to be
heard."
The above contentions were held to be devoid of force as is evident
from the following observations at page 196 of the judgment:-"In these circumstances, we are inclined to hold that where
the Chief Justice of the High Court concerned and the Chief
Justice of Pakistan do not recommend a particular
incumbent for confirmation or appointment as a Judge of the
High Court and these recommendations are accepted by the
President/Executive the same cannot be brought under
challenge in the Court on the ground that the incumbent was
not `heard before making such recommendations."
33.
As regards the question of notices we are of the considered
view that issuance of notices to the concerned Judges will do more
harm than good. This question was considered in the Judges' case
also and it was clearly held at page 534 of the judgment that the
principle of natural justice is not violated if notice is not issued to
Const. P 9 & 8/2009
263
the concerned Judges. The observations in Asad Ali's case at page
327 of the judgment are also relevant which read as under:-"It must be borne in mind that Judges of superior Courts by
their tradition, maintain high degree of comity amongst
themselves. They are not expected to go public on their
differences over any issue. They are also not expected to
litigate in Courts like ordinary litigant in case of denial of a
right connected with their offices. Article VI of the Code of
Conduct signed by every Judge of the superior Courts also
enjoins upon them to avoid as far as possible any litigation
on their behalf or on behalf of others. Therefore, in keeping
with the high tradition of their office and their exalted image
in the public eye, the Judges of superior Courts can only
express their disapproval, resentment or reservations' on an
issue either in their judgment or order if the opportunity so
arises…….."
147.
Coming to the invalidity of the order dated 6th November,
2007 passed in Wajihuddin Ahmed’s case, it is noteworthy that the order of
3rd November, 2007 was passed in an entirely different setting. The
application was presented before the Bench on 2nd November, 2007, but it
was directed to be filed in office, to be taken up on the next date of
hearing, viz. 5th November, 2007. Since the apprehensions expressed in the
application came true and Proclamation of Emergency was issued, in view
of the urgency of the situation so presented by the circumstances of the
case, it was taken up by a Bench of 7 available Judges in the evening of 3rd
November, 2007 and the order was passed thereon, as prayed earlier. It
was not something, which was cooked up in the meantime. The filing of
application was an already existing fact to the notice of all parties,
including the learned Attorney General for Pakistan. No other option was
left with the Court except to pass an interlocutory restraint order, which
was within the power and jurisdiction of the Court. In any case, it was not
a final order and the matter was ordered to be put up before the Full Court
on 5th November, 2007. However, the situation on 6th November, 2007 was
Const. P 9 & 8/2009
264
entirely different. The unconstitutional acts of 3rd November, 2007 having
already been taken by General Pervez Musharraf, if it were a regular and
bona fide proceedings, notice would have been issued to the petitioner to
say the least, and order passed after providing him an opportunity of
hearing because no such pressing urgency existed on 6th November, 2007,
as it existed on 3rd November, 2007. But the point was that if the order of
6th November, 2007 was not passed, the purpose either of General Pervez
Musharraf or of Abdul Hameed Dogar, J, and other Judges would not have
been served.
148.
Now, two orders are before us. One was passed on 3rd
November, 2007 by a seven – member Bench of this Court in Wajihuddin
Ahmed’s case, i.e. by the Judges appointed under the Constitution, and the
other of 6th November, 2007 passed by Abdul Hameed Dogar, J, and other
Judges. The former order was passed to preserve, protect and defend the
Constitution and the law. The latter was passed in the discharge of duties
in accordance with Proclamation of Emergency of 3rd day of November,
2007, PCO No. 1 of 2007 and the law. The one had constitutional and moral
authority and power behind it. The other had the gun at its backing. The
Judges in the former case were bound to abide by the code of conduct
issued by the Supreme Judicial Council. The Judges in the latter case were
bound to abide by the provisions of Proclamation of Emergency and the
PCO, though cosmetically also by the same Code of Conduct. There is no
manner of doubt left that the order dated 6th November, 2007 was passed
to lend support to the unconstitutional and illegal acts of General Pervez
Musharraf of 3rd November, 2007 and onward. By all recognized
Const. P 9 & 8/2009
265
principles, the order dated 6th November, 2007 was collusive and mala fide
having been rendered by Abdul Hameed Dogar, J, and other Judges, who
were holding office in violation of the order dated 3rd November, 2007
passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s
case. Therefore, the order dated 6th November, 2007 is declared to be
unconstitutional, illegal and void ab initio.
149.
While considering the question of validity of the aforesaid
order dated 6 th November, 2007, we also discovered a grave error when we
examined the record and proceedings.
It appeared that Constitution
Petition No. 73 of 2007 along with another petition viz. Criminal Original
Petition No. 51 of 2007 filed by Wajihuddin Ahmed were taken up on 19th
November, 2007 by a subsequently constituted ten-member Bench, this time
too, headed by Abdul Hameed Dogar J, and were supposedly dismissed
the same day on merits as reported in PLD 2008 SC 13 (Wajihuddin Ahmed
v. Chief Election Commissioner, Islamabad & others) and (Wajihuddin Ahmed v.
Justice (R.) Qazi Muhammad Farooq, Chief Election Commissioner, Islamabad
and others).
The relevant portions from the order are reproduced as
follows: “4.
When the petition was taken up for hearing today i.e. 19-
11-2007, Mr. M.S Khattak, learned Advocate -on-Record for the
petitioner presented before the Full Court two applications dated
10-11-2007 and 19-11-2007, wherein, prima facie, derogatory and
contemptuous language was used. Soon after the learned
Advocate -on-Record had started addressing the arguments in
support of the applications he realized that he was running a risk
of
being
proceeded
against.
He,
therefore,
tendered
unconditional apology in writing as well as orally for submission
of both the applications and withdrew the same with permission
of this Court. He further stated that he had no instructions to
Const. P 9 & 8/2009
266
argue Constitutional Petition No.73 of 2007 and Criminal
Original Petition No.51 of 2007. He was repeatedly asked to
argue the same but he showed his inability to perform his legal
duty which he owed to the Court as laid down in the cases of
Messrs Pearl Builders (Pvt.) Ltd. v. Ardsher Cowasjee and others
(PLD 2003 SC 946), Dr. Saleem Javed and others v. Mst. Fauzia
Nasim and others (2003 SCMR 965) and Habib-Al-Wahab
Alkhairi and others v. Commissioner, Rawalpindi Division and
others (PLD 1992 SC 587).
5.
Be that as it may, we find that the impugned order dated
29-9-2007, was passed by the Chief Election Commissioner of
Pakistan in the light of the well-reasoned judgments of this Court
in the cases of Qazi Hussain Ahmed v. General Pervez
Musharraf (PLD 2002 SC 857) (by a 9 Member Bench) and
Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC
719) (by a 5-Member Bench). In the case of Qazi Hussain Ahmed
(supra), it was held as under:"It was also urged that under Article 62 of the
Constitution, which contains qualifications for being
elected as a member of the National Assembly, which are
also the qualifications for election to the office of the
President, cannot be read into Article 41 (2) of the
Constitution. The said Article only provides that the
President must be a person qualified to be elected as
Member of the National Assembly. The disqualifications
listed in Article 63 cannot be read into Article 41 (2) in
view of the judgment of this Court in Aftab Shaban Mirani
v. President of Pakistan (1998 SCMR 1863) which upheld
the judgment of the Lahore High Court in the case
reported as Muhammad Rafiq Tarrar v. Justice Mukhtar
Ahmad Junejo (PLD 1998 Lahore 414). The same view was
also expressed in Muhammad Shahbaz Sharif v.
Muhammad Iltaf Hussain (PLD 1995 Lahore 541).”
In Pakistan Lawyers Forum (supra), it was laid down that:"69. The provisions of Article 63 (1) (d) have been made
applicable to the continuation in office of the President
after 31 December, 2004 by virtue of the proviso to clause
(7) of Article 41, which was inserted by the 17th
Amendment.
70.
Any other clause or paragraph of Article 63 of the
course does not apply, to the President since it is settled
law that the President is only required to be qualified to be
a member of Parliament (as Provided by the Article 62)
Const. P 9 & 8/2009
267
and is consequently not hit by the disqualifications
contained in Article 63 of the Constitution. The argument
of the petitioners that the President is subject to all the
disqualifications contained in Article 63 of the
Constitution ignores the settled law on this point as
discussed and upheld most recently in the Qazi Hussain
Ahmed's case.
71.
The argument that the COAS could not have
assumed the office of the President because of the
definition of the "Service of Pakistan" in Article 260 and
the disqualifications in respect of such persons contained
in Article 63 is untenable as these have no application to
the President.
72.
The argument that on account of the oath made by
him as a member of the Armed Forces under Article 244
read with the Third Schedule to the Constitution
disqualified the COAS from being the President is
misconceived. It overlooks the fact that clauses (7) and (8)
of Article 41 carry non obstante clauses and these are to
have effect notwithstanding anything contained in the
Constitution. Clauses (7) and (8) of Article 41, therefore,
override Article 244 and the oath in the Third Schedule
like they override Articles 43 and 260 of the Constitution.
73.
Since Article 63 (1) (d) has now been made
specifically applicable to the continuance in office by the
President after 31st December, 2004 through the proviso, it
is, therefore, clear that the President would be disqualified
from continuing in office qua President if he was to hold
an office of profit in the service of Pakistan, except an
office declared by law not to disqualify its holder'. All that
has happened in the instant case is that by virtue of
Another Office Act, parliament has declared that the office
of the COAS is an office, which does not disqualify its
holder. The President is, .therefore, not barred by the
proviso to clause (7) of Article 41 from continuing in office
as both the Chief of Army Staff (COAS) and the President
because the position of COAS has been declared by law
not to disqualify its holder as expressly contemplated by
Article 63(1)(d)."
In our opinion, the President General Pervez Musharraf, the
respondent No.3 was qualified for and did not suffer from any
disqualification, under the Constitution or/and the law, for
presidential election, 2007. The view taken by the Chief Election
Commissioner is unexceptionable.
6.
As to the question of maintainability of this petition, it
would suffice to follow the majority judgment of this Court in
Const. P 9 & 8/2009
268
the recent case of Jamat-e-Islami v. Federation of Pakistan
(Constitutional Petition No.59 of 2007, decided on 28-9-2007)
(PLD 2008 SC 30) wherein it was held that "the questions
involved in the matter of election of the President did not relate
to any of the fundamental rights guaranteed in Part-II, Chapter I
of the Constitution (Articles 8 to 28). Therefore, the petitions
under Article 184(3) of the Constitution were not maintainable."
Even otherwise, in view of clause (6) of Article 41 of the
Constitution, the validity of the election of the President cannot
be called in question by or before any Court.
7.
For the foregoing reasons, Constitutional Petition No.73 of
2007 and Criminal Original Petition No.51 of 20007 are hereby
dismissed. Consequently, the interim stay order dated 5-10-2007
of withholding the issuance of final notification of the result of
election of the returned candidate to the office of the President is
hereby vacated. The Chief Election Commissioner of Pakistan
and Federal Government are directed to take all the necessary
steps by 1st December, 2007, for final announcement of the result
of the presidential election and issuance of public notification in
accordance with the Constitution and the law. As already
undertaken in writing on 18-9-2007 before this Court by Syed
Sharifuddin Pirzada, learned Senior Advocate Supreme Court for
'the respondent No.3 and Malik Muhammad Qayyum, learned
Attorney General for Pakistan, the President General Pervez
Musharraf shall relinquish the office of the Chief of Army Staff
before taking oath of office of President of Islamic Republic of
Pakistan, for the second term.” (Emphasis supplied)
150.
The record, however, showed that the same day the same
Bench had already dismissed the above mentioned two petitions for want
of instructions. Therefore, the petitions ought to have been consigned to
record but, seemingly, the Bench later preferred to frame anew the abovenoted order, surprisingly without making any reference to, rather ignoring
its own earlier order so passed.
Const. P 9 & 8/2009
151.
269
On 10th November, 2007 Mr. M. S. Khattak, the Advocate-on-
Record for the petitioner had made an application with the following
prayer: “It is therefore submitted that this Constitution Petition should not
be listed for hearing unless and until the Honourable Chief Justice
of Pakistan Justice Iftikhar Muhammad Chaudhry and other
Constitutional judges of Honourable Supreme Court resume their
duties and functions under the Constitution.”
Record showed that the said application was returned by the office with
the remarks, “Presented today.
However, the prayer made in this
application is without any basis. Hence, returned as not entertainable.”
Nevertheless, Mr. M.S. Khattak, AOR for petitioner, moved a fresh
application along with a copy of previous application dated 10th
November, 2007 with the following prayer: “That under the express instructions of the petitioner, it is
submitted as follows:
A.
That the titled constitution petition has been filed under
Article 184(3) of the Constitution which has been put in
abeyance. The aforesaid Constitution Petition could not be
heard by a Bench of this Hon’ble Court constituted under
PCO.
B.
That the petitioner does not recognize the Bench constituted
under PCO.
C.
That the petitioner’s counsel has already completed his
arguments and no further argument is necessary.
D.
That all counsel for the petitioners have been arrested except
one whose whereabouts is not known.
E.
That the office should not have returned the application. It
should have been entertained and considered by the
competent authority, allowed or rejected.
The above submissions are put up for consideration by this Hon’ble
Court for orders in the titled petition.”
Const. P 9 & 8/2009
152.
270
The petitions along with the miscellaneous application came
up for hearing on 19th November, 2007. The Bench considered the contents
of both the applications to be derogatory and contemptuous, expressed
displeasure and made the learned AOR withdraw these applications,
which he sought to do by means of his application of even date in the
following terms: “That I withdraw applications dated 10.11.2007 and 19.11.2007 filed
on behalf of the petitioner in the titled matters which are fixed
before larger Bench of this Hon’ble Court today the 19th Nov. 2007.
I apologize for submission of those applications. As regards the
original Const. Petition No. 73/2007 and Cr.O.P. No.51/2007, I
have no instructions to argue the case.”
From contents of above application it is quite obvious that Mr. Khattak,
learned AOR for the petitioner had unequivocally expressed his inability
to argue the case of the petitioner warranting the disposal of the petition as
per normal practice, such as when a counsel appearing for a party pleaded
no instructions, the lis would be disposed of as “dismissed for want of
instructions”. In the instant case, although, the concerned Bench, in actual
effect, did the same; to say, dismissed the petition for want of instructions,
as is confirmed by the relevant record, an altogether new order was
framed whereby the petitions were decided on merits (reported supra).
The fact that the two petitions stood already dismissed for want of
instructions was also evident from the noting made by the Court official
(Court Associate) on the file cover of Petition No. 73 of 2007 as well as in
the Court Register. Copies of the file cover and Court Register with notes
of Court Associate duly scanned are as follows: -
Const. P 9 & 8/2009
272
The fact that above petitions were dismissed for want of instructions gets
further support from the press reports appearing in the newspapers of 20th
November, 2007, excerpts wherefrom are given below: Daily Dawn, dated 20.11.2007
“A pre-emergency 11-judge Bench had on Oct 5 declined to stay the
presidential election, but directed the Election Commission not to
notify the results till the Bench gave its final verdict.
The main petitions of former Supreme Court judge Wajihuddin
Ahmed, who also contested the presidential election against Gen.
Pervez Musharraf, and of Advocate A.K. Dogar of the Pakistan
Lawyers Forum were dismissed for non-prosecution. A contempt of
the court petition of Mr. Wajihuddin against the CEC also stood
dismissed for non-prosecution.”
“The pre-emergency Supreme Court Bench had heard the petitions
for two weeks, but seven judges in the Bench were sent home under
the PCO after the emergency was imposed.
On Monday, an application filed by Advocate-on-Record (AOR)
M.S. Khattak on behalf of Mr. Wajihuddin annoyed the court and it
asked the applicant to tender an apology in writing for moving what
appeared to be a contemptuous application. The AOR withdrew the
application and tendered an apology in writing.
Though the Attorney-General accused the petitioner of maligning
the judiciary, he advised the court to accept the apology. “Being an
important case, it should be properly argued by the petitioners,” he
said, adding that the advocate-on-record being a former deputy
registrar should have been careful.
Mr. Khattak was also asked to argue the petition of his client in the
absence of counsel Barrister Aitezaz Ahsan and Hamid Khan. The
AG told the Bench that although Aitezaz Ahsan was under solitary
confinement, Hamid Khan, who had originally argued the case, was
not under custody.
The AOR said he had no instructions to argue the case, adding that
the whereabouts of Hamid Khan were not known. When he tried to
clarify that the counsel had already argued the case for two weeks
Const. P 9 & 8/2009
273
before the Supreme Court, Justice Faqir Mohammad Khokhar
observed that nothing had been argued before this Bench.
Justice M. Javed Buttar also observed that this was a new Bench.”
The Daily The News, Islamabad, 20th November, 2007
“Earlier, when the court took up the petitions, Advocate-on-Record
(AOR) M.S. Khattak told the court that whereabouts of Hamid Khan,
counsel for Justice (Rtd.) Wajihuddin, were not known. He also
moved an application, which carried some contemptuous material
against the SC judges, who took oath under the Provisional
Constitution Order (PCO).
The Bench admonished Mr. Khattak for filing such an application
carrying derogatory remarks against the judiciary. But he said he
was instructed by the petitioner to file the application. However, on
the order of the court, Khattak tendered an unconditional apology
and withdrew the application. The court asked Khattak to withdraw
the main petition, but he declined stating that he was not instructed
to do so.
Meanwhile, the court dismissed the petition of Justice (Rtd.)
Wajihuddin Ahmed for want of instructions, stating that it would be
considered dismissed as withdrawn. Attorney General Malik
Muhammad Qayyum while appearing before the court submitted
that the AOR was trying to malign the court, wondering how he
could refuse to argue the case. He said Hamid Khan was free and
not in the custody of any one.”
“The court, however, asked him to argue the case, but he declined.
Thus the court dismissed the petition due to no prosecution and
treated it dismissed as withdrawn.”
The Frontier Post
“Earlier, when the court took up the petitions, Advocate-on-Record
Mr. Khattak told the court that whereabouts of Hamid Khan,
counsel for Justice (Rtd.) Wajihuddin, were not known. He also
moved an application which carried some contemptuous material
against the SC judges, who took oath under the Provisional
Constitutional Order (PCO). The Bench admonished Mr. Khattak
for filing such an application carrying derogatory remarks and
Const. P 9 & 8/2009
274
asked him to argue the case. He, however, said that he has been
instructed by the petitioner to only file the application. Meanwhile
on the court orders, Mr. Khattak tendered an unconditional
apology for moving such a contemptuous application and
withdrew his application. However, the court asked Mr. Khattak to
withdraw the main petition, but he declined stating that he was not
instructed to do so. The court then dismissed the petition for non
prosecution stating that it would be considered dismissed as
withdrawn. Malik Muhammad Qayyum, Attorney General said
Mr. Khattak was trying to malign the court, adding that how he
could refuse to argue the case. He said Hamid Khan was free and
not in the custody of any one. The PPP vice chairman Makhdoom
Amin Fahim’s counsel Shafqat Abbasi also moved an application
requesting the court to take up his petition after restoration of
constitution. His application also contained some contemptuous
substance against the SC judges. The court however asked him
either to argue the case or withdraw the petitions under
unconditional reasons. Thus he also withdrew the petitions, which
the court dismissed as withdrawn.” (Emphasis supplied)
It will be noteworthy to state that in Petition No. 73 of 2007, the petitioner
had, inter alia, sought a declaration that “General Pervez Musharraf be
declared ineligible, lacking in qualifications under Article 62 and other
provisions of the Constitution and is disqualified under Article 63 of the
Constitution to contest the election of the office of the President of
Pakistan.” On 5th October, 2007, the Bench passed an injunctive order,
reproduced in the earlier part of the judgment, whereby it was directed
that final notification of the election of the returned candidate would not
be issued till the final decision of the petitions. The Bench had been
hearing learned counsel for parties on day-to-day basis till 2nd November,
2007 i.e. a day before General Pervez Musharraf proclaimed emergency,
held the Constitution in abeyance and issued PCO and Oath Order, 2007.
Const. P 9 & 8/2009
153.
275
After the issuance of Proclamation of Emergency, PCO No. 1
of 2007 and Oath Order, 2007 on 3rd November, 2007, Abdul Hameed
Dogar, J, and other members of the Bench again took up Petition No. 73 of
2007, dismissed the same for want of instructions, as is evident from
record yet framed the order supra without issuance of notice to the
petitioner. The order dated 19th November, 2007 so passed reflects that a
host of learned counsel, namely, Malik Muhammad Qayyum, Attor ney
General for Pakistan, Mst. Nahida Mehboob Ellahi, DAG, Raja Niaz
Ahmed Rathore, DAG, and five other advocates appearing for
respondent No.2, Federation of Pakistan, and Syed Sharifuddin Pirzada,
Sr. ASC, and Mr. Muhammad Ibrahim Satti, ASC, appearing for
respondent No.3, General Pervez Musharraf, were present, but
surprisingly, not a single argument is recorded in the order as if they
had said nothing at the hearing, yet, this petition along with Original
Petition No. 51 of 2007 was dismissed on merits. Palpably, the object
appears to be, as is evident from the order, to hold General Pervez
Musharraf immune from any disqualification under the Constitution,
for the Presidential Election 2007 and also to vacate the interim stay
order dated 5th October, 2007 earlier passed by a 10–member Bench
thereby enabling the Chief Election Commissioner of Pakistan and the
Federal Government to make final announcement of the result of the
election of President and to issue the necessary notification.
154.
In our estimation, the above order was framed for no
consideration other than for ulterior purposes, in a bid to please General
Pervez Musharraf, with whose blessings Abdul Hameed Dogar,
Const. P 9 & 8/2009
276
J, and other Judges were holding office unconstitutionally, unlawfully
and illegally. In such a situation, we are of the opinion that Constitution
Petition No. 73/2007 was dismissed for want of instructions, as is borne
out from the official record of this Court duly supported by the press
reports of 20th November, 2007.
155.
Mr. Hamid Khan submitted that the judgments/orders in
Tikka Iqbal Muhammad Khan’s case were rendered in violation of the
provisions of the Constitution and in complete disregard of the law
governing the issues discussed therein. He strenuously contended that
Constitution Petitions Nos. 87 & 88 of 2007 filed by
Tikka Iqbal
Muhammad Khan and Watan Party were mala fide and collusive, which
was apparent from the proceedings being conducted in the matter. The
said petitions, which were filed on 10th & 12 th November, 2007
respectively, were taken up on 15th November, 2007 initially by a tenmember Bench including Muhammad Nawaz Abbasi, Faqir Muhammad
Khokhar and M. Javed Buttar, JJ. Covering the Court proceedings of the
first day of hearing, the Daily Dawn of 16th November, 2007 reported, inter
alia, a dialogue between the lawyer of petitioner Tikka Iqbal Muhammad
Khan, namely, Mr. Irfan Qadir saying, “this is a difficult case” and a member
of the Bench, namely, Faqir Muhammad Khokhar, J, observing, “Yes, it is a
difficult case, (but) should we take it to be a case of friendly fire?” and later
encouraging him to be bold by saying “Why don’t you take a definite stand?”.
However, subsequently Muhammad Nawaz Abbasi, Faqir Muhammad
Khokhar and M. Javed Buttar JJ recused themselves from the proceedings.
Const. P 9 & 8/2009
277
Thereafter, the petitions were heard by the remaining seven Judges and
were decided by the Short Order dated 23rd November, 2007.
156.
The learned counsel submitted that the petitioners in the
earlier cases of military takeovers had a genuine cause and a viable and
visible interest in the proceedings, which was conspicuously absent in the
instant petitions. In Asma Jilani’s case, the petitions were filed by the
daughter and wife of the detenus respectively. In Begum Nusrat Bhutto’s
case, the petition was filed by the wife of the detenu, the deposed Prime
Minister while in Zafar Ali Shah’s case, the petition was filed by Syed Zafar
Ali Shah, a leading lawyer and an MNA of Pakistan Muslim League (N),
the political party in power at the time of the military takeover and ousted
thereby. On the other hand, according to the learned counsel, the
antecedents of
Tikka Iqbal Muhammad Khan petitioner in Constitution
Petition No. 87 of 2007 were not known to anybody whereas the petitioner
in Constitution Petition No. 88 of 2007, namely, Watan Party through its
Chairman Mr. Zafarullah Khan had already been found to be not
competent to invoke the jurisdiction of this Court under Article 184(3) of
the Constitution in the case of Watan Party v. Chief Executive/President of
Pakistan (PLD 2003 SC 74) wherein the vires of the Legal Framework Order,
2002 were challenged, notwithstanding the law laid down in Manzoor
Elahi’s case (PLD 1975 SC 66), Benazir Bhutto’s case (PLD 1988 SC 416), Asad
Ali’s case (PLD 1998 SC 161), etc. that the question raised before the Court
under Article 184(3) must be one of public importance with reference to
the enforcement of Fundamental Rights contained in Chapter 1, Part II of
the Constitution and that the person desiring to invoke the jurisdiction of
Const. P 9 & 8/2009
278
this Court under Article 184(3) of the Constitution need not necessarily be
an aggrieved person, but the person approaching the Court under the
aforesaid provision must demonstrate that the question raised concerned
the public at large.
157.
According to the submissions of the learned counsel, the
petitions in Tikka Iqbal Muhammad Khan’s case were collusive rather than
bona fide. In these two petitions, the validity of Proclamation of Emergency,
PCO No. 1 of 2007 and Oath Order, 2007 was questioned, inter alia, seeking
a direction that the deposed Judges of superior Courts and the
fundamental rights be restored; the general elections to the National
Assembly and Provincial Assemblies be held within the period stipulated
by the Constitution; detenus held under preventive detention be released
forthwith; and the restrictions on the media be withdrawn. The nexus
between the direction sought to restore the Judges deposed under
Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 and
a direction to hold the elections was not understandable other than that the
petitioners were alluding to an activity, which would detract the public
opinion from the issue of restoration of Judges, etc. Even otherwise, it had
not been possible for the courts constituted under the PCO and having
taken oath thereunder to adjudge the validity of the PCO or other
unconstitutional instruments on the touchstone of the provisions of the
Constitution. It had never been done. The futility of such exercise has been
dilated upon in earlier part of the judgment.
158.
The learned counsel for the petitioners next submitted that the
decisions in Tikka Iqbal Muhammad Khan’s case were rendered in violation
Const. P 9 & 8/2009
279
of the provisions of Articles 209 and 2A of the Constitution and were also
per incuriam in view of the law laid down in Zafar Ali Shah’s case wherein at
page 1211 it was laid down in clear terms that the Judges of the superior
judiciary enjoyed constitutional guarantee against arbitrary removal. They
could 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.
159.
There is force in the submissions of the learned counsel. The
decision appears to have been rendered in haste to confer validity on the
acts of 3rd November, 2007 and onward for the illegal and unlawful
personal benefit of General Pervez Musharraf and for the illegal and
unlawful personal benefit of the persons rendering it, without application
of judicial mind. Borrowing the relevant passage from Zafar Ali Shah’s case,
it was held, mutatis mutandis, that the learned Chief Justices and Judges of
superior Courts, (Supreme Court of Pakistan, Federal Shariat Court and
High Courts), who had not been given, and who had not made, oath under
PCO No. 1 of 2007 and Oath Order, 2007 had ceased to hold office on 3rd
November 2007 and their cases could not be re-opened being hit by the
doctrine of past and closed transaction. Again, borrowing another passage
from Zafar Ali Shah’s case, it was said that the Judges of the Supreme Court
and High Courts could not be removed without resorting to the procedure
prescribed in Article 209 of the Constitution. Abdul Hameed Dogar, J, and
other Judges paid no heed to a clear pronouncement in the aforesaid case
that the appropriate course of action for the Court in those proceedings
was to declare the law to avoid the recurrence in future. They conveniently
Const. P 9 & 8/2009
280
ignored the words “to avoid the recurrence in future” and went on to put a
seal of approval on the actions of 3rd November, 2007. They also failed to
notice the observation made in that case that none of the Judges took any
remedial steps and accepted pension as also the right to practice law and
thereby acquiesced in the action, which was not the position in the instant
case. In the instant case, the Judges did not accept pension or in any way
acquiesced in the action of 3rd November, 2007. Dealing with the
unconstitutional and illegal removal of the Chief Justice of Pakistan and
the Judges of the Supreme Court and High Courts, at Para 61 of the
decision, the action of General Pervez Musharraf under PCO No. 1 of 2007 and
Oath Order, 2007 was reaffirmed, upheld and validated in the light of the law laid
down in Zafar Ali Shah’s case. It was a total misreading of the latter
judgment, inasmuch as, it was nowhere laid down in Zafar Ali Shah’s case
that whenever in future, Proclamation of Emergency, PCO and Oath Order
would be issued, the Judges would cease to hold office. They also failed to
appreciate that in pursuance of the action of 12th October, 1999, all the
three organs of the State, namely, executive, legislature and judiciary were
targeted, whereas the action of 3rd November, 2007 was directed at the
replacement of the existing judiciary alone. The learned counsel referred to
a number of countries where emergencies or martial laws were imposed,
but nowhere the judiciary alone was targeted. The action of 3rd
November, 2007, therefore, was unique in the history of the whole world.
If anyone had made oath earlier, it did not mean that he would continue to
make similar oaths in future as well. It was not so laid down in Zafar Ali
Shah’s case. What was laid down was that the action under the Oath Order,
Const. P 9 & 8/2009
281
2000 was a past and closed transaction, which could not be reopened.
Again, it was not laid down that if such an event occurred in future, that
too would be treated as past and closed transaction and would not be
reopened and the persons, who had made oath then, would continue
making similar oaths. Nothing could be more fallacious. Enough is
enough. There has to be an end to it somewhere. Fortunately, the end to a
vicious circle came on 3rd November, 2007. The order dated 3 rd November,
2007 passed by a seven – member Bench of this Court in Wajihuddin
Ahmed’s case built a stronghold around the Constitution, so as to save it
from its further mutilation and subversion at the hands of General Pervez
Musharraf.
160.
As mentioned at Para 15 of the main decision in Tikka Iqbal
Muhammad Khan’s case, Proclamation of Emergency was founded on two
main grounds, viz., the security situation prevalent in the country and the
alleged erosion of trichotomy of powers in consequence of increased
interference in the Government policies by some Judges of the superior
Courts, particularly the Chief Justice of Pakistan, which adversely affected
the economic growth and the law and order situation in the country.
161.
Surprisingly, not a single incident was discussed in the
decision so as to conclude that it was the result of the suo motu actions,
which were being taken by the Chief Justice of Pakistan. Syed Sharifuddin
Pirzada, learned counsel for the Federation in the said case referred to
certain incidents of terrorism that had taken place in the months of April to
July, 2007. He further referred to the incident of 18th October, 2007 when in
two bomb blasts on the rally of a former Prime Minister of Pakistan, who
Const. P 9 & 8/2009
282
had returned to Pakistan after an exile of 7 – 8 years, about 150 people
were killed and 350 seriously injured. It was stated by him that the said
incident had posed serious threat to the national security and also lowered
the image of Pakistan before the international community. He referred to
the cover story with the title "The Most Dangerous Nation in the World
isn't Iraq. It's Pakistan", published in the Newsweek of 29th October 2007
where following comments were made: "Today no other country on earth is arguably more dangerous than
Pakistan. It has everything Osama bin Laden could ask for: political
instability, a trusted network of radical Islamists, an abundance of
angry young anti-Western recruits, secluded training areas, access
to state-of-the-art electronic technology, regular air service to the
West and security services that don't always do what they're
supposed to do. (Unlike in Iraq or Afghanistan, there also aren't
thousands of American troops hunting down would-be terrorists.)
Then there's the country's large and growing nuclear program. "If
you were to look around the world for where Al Qaeda is going to
find its bomb, it's right in their backyard," says Bruce Riedel, the
former senior director for South Asia on the National Security
Council.
“The conventional story about Pakistan has been that it is an
unstable nuclear power, with distant tribal areas in terrorist hands.
What is new, and more frightening, is the extent to which Taliban
and Al Qaeda elements have now turned much of the country,
including some cities, into a base that gives jihadists more room to
maneuver, both in Pakistan and beyond."
On the above, Abdul Hameed Dogar, J, observed as under: The Pakistani nation needs to rise above all prejudices and stand
together against the menace of terrorism as well as the misleading
propaganda aimed at harming the vital interests of Pakistan at the
international level. The sovereignty, integrity and solidarity of the
nation need to be preserved and protected internally as well as
Const. P 9 & 8/2009
283
externally. The unabated gruesome terrorist activities worsened the
security as also the law and order situation in the country, which
called for zero tolerance approach. It is also clear from the letter of
the Prime Minister that the Government's efforts to combat
terrorism on the civil side unfortunately bore no fruit. It was an
extraordinary situation that called for taking such measures, which
were not provided by the Constitution.
One fails to understand what connection the above incidents referred to by
Mr. Sharifuddin Pirzada, or the cover story relied upon by him in the same
terrain had with the erosion of trichotomy of power, which was made a
ground for the unconstitutional and illegal Proclamation of Emergency,
PCO No. 1 of 2007 and Oath Order, 2007. On the other hand, as rightly
pointed out by the learned counsel for the petitioners, the law and order
situation had worsened and much deteriorated during the currency and
even after Proclamation of Emergency was revoked on 15th December,
2007.
162.
The learned counsel for the petitioners were hard pressed to
find a connection between the deteriorating law and order situation on the
one hand, and the action of 3rd November, 2007 on the other whereby an
unconstitutional, illegal and void ab initio action was taken against the
judicial organ of the State. The learned counsel contended that if any
action was called for, it would be against the executive branch of the
government and not the judiciary, that too, under and in accordance with
the Constitution by the authority designated therein. The learned counsel
submitted that the incidents of terrorism, extremism and militancy, after
Proclamation of Emergency, had neither come down after the imposition
of emergency and the sacking of the judiciary nor was there any
Const. P 9 & 8/2009
284
improvement in the overall law and order situation in the country. He
requested that a list of incidents of terrorism during the period of
emergency, i.e. from 3rd November, 2007 to 15th December, 2007 may be
obtained from the Secretary, Ministry of Interior, Government of Pakistan.
Accordingly, on the Court’s direction, the Secretary Interior submitted a
list and details of such incidents of that period, which was placed on
record. According to the said report, 160 incidents of terrorism occurred
during the above period. There were 116 casualties [45 Law Enforcing
Agencies (LEAs) personnel and 71 others] while 279 persons were injured
(125 LEAs and 154 others). Important personalities killed in the incidents
included one officer of the law enforcing agencies, Pir Muhammad Khan,
ex-MPA from Peshawar, Moulvi Masoodur Rehman from FATA and one
DSP from Khuzdar, Balochistan. The injured included two officers of the
law enforcing agencies, Lt. Col Raja Tahir Yaseen and one Inspector of
Police from Quetta. As per annexure A of the report, 3 incidents occurred
in Punjab, 78 in NWFP, 38 in Balochistan and 41 in FATA. Complete
details of the incidents were given in Annexures B, C & D to the report of
the Secretary, Ministry of Interior.
163.
It is noteworthy that in the post emergency period, the law
and order situation had further deteriorated. As is apparent from the
report of the Interior Secretary, terrorism, extremism, militancy and
suicide attacks continued to rise to such an extent that the Government
was required to call the Armed Forces in aid of civil power. But even in
such a situation, emergency as permitted by the Constitution was not
proclaimed in the terrorism affected areas of Swat, Malakand, etc.
Const. P 9 & 8/2009
164.
285
Be that as it may, the remedies for curbing terrorism,
extremism and militancy lay elsewhere and not in imposing an
unconstitutional, illegal and void ab initio Proclamation of Emergency, PCO
No. 1 of 2007 and Oath Order, 2007, the effect of which was to eliminate
the existing Judges of the Supreme Court and High Courts and bring in
their place compliant Judges under the PCO and the Oath Order. As noted
earlier, Proclamation of Emergency, if any, could be promulgated within
the ambit of the Emergency Provisions contained in Part X of the
Constitution by the authority mentioned therein. For facility of reference
Articles 232 to 234 are reproduced below: 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.
(2) Notwithstanding anything in the Constitution, while a
Proclamation of Emergency is in force,
(a) 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;]
(b) the executive authority of the Federation shall extend to the
giving of directions to a Province as to the manner 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:
Const. P 9 & 8/2009
286
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 [ Majlis-e-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-eShoora (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 Emergency is 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 period 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
(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
Const. P 9 & 8/2009
287
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.
233. Power to suspend Fundamental Rights, etc., during
emergency period.
(1) Nothing contained in Articles 15, 16, 17, 18, 19, and 24 shall,
while a proclamation of Emergency is in force, restrict the power of
the State as defined in Article 7 to make any law or to take any
executive action which it would, but for the provisions in the said
Articles, be competent to make or to take, but any law so made
shall to the extent of the incompetency, cease to have effect, and
shall be deemed to have been repealed, at the time when the
Proclamation is revoked or has ceased to be in force.
(2) While a Proclamation of Emergency is in force, the President
may, by Order, declare that the right to move any Court for the
enforcement of such of the Fundamental Rights conferred by
Chapter 1 of Part II as may be specified in the Order, and any
proceeding in any Court which is for the enforcement, or involves
the determination of any question as to the infringement, of any of
the Rights so specified, shall remain suspended for the period
during which the Proclamation is in force, and any such Order may
be made in respect of the whole or any part of Pakistan.
(3) Every Order made under this Article shall, as soon as may be, be
laid before a joint sitting for approval and the provisions of clauses
(7) and (8) of Article 232 shall apply to such an Order as they apply
to a Proclamation of Emergency.
234. Power to issue Proclamation in case of failure of
constitutional machinery in a Province.
(1) If the President, on receipt of a report from the Governor of a
Province or otherwise, is satisfied that a situation has arisen in
which the Government of the Province cannot be carried on in
accordance with the provisions of the Constitution, the President
may, or if a resolution in this behalf is passed at a joint sitting shall,
by Proclamation,
(a) assume to himself, or direct the Governor of the Province to
assume on behalf of the President, 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;
(b) declare that the powers of the Provincial Assembly shall be
exercisable by, or under the authority of, [ Majlis-e-Shoora
(Parliament)]; and
(c) make such incidental and consequential provisions as appear to
the President to be necessary or desirable for giving effect to the
objects of the Proclamation, including provisions for suspending in
Const. P 9 & 8/2009
288
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 this Article shall authorize the President
to assume to himself, or direct the Governor of the Province to
assume on his 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.
(2) The Provisions of Article 105 shall not apply to the discharge by
the Governor of his functions under clause (1).
(3) A Proclamation issued under this Article shall 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 and 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 six months.
(4) Notwithstanding anything contained in clause (3), if the
National Assembly stands dissolved at the time when a
Proclamation is issued under this Article, the Proclamation shall
continue in force for a period of three 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.
(5) Where by a Proclamation issued under this Article it has been
declared that the powers of the Provincial Assembly shall be
exercisable by or under the authority of [ Majlis-e-Shoora
(Parliament)], it shall be competent(a) to [ Majlis-e-Shoora (Parliament)] in joint sitting to confer on the
President the power to make laws with respect to any matter
within the legislative competence of the Provincial Assembly;
(b) to [ Majlis-e-Shoora (Parliament)] in joint sitting, or the President,
when he is empowered under paragraph (a), 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 thereof;
(c) to the President, when [ Majlis-e-Shoora (Parliament)] is not in
session, to authorize expenditure from the Provincial Consolidate d
Fund, whether the expenditure is charged by the Constitution upon
that fund or not, pending the sanction of such expenditure by [
Majlis-e-Shoora (Parliament)] in joint sitting; and
(d) to [ Majlis-e-Shoora (Parliament)] in joint sitting by resolution to
sanction expenditure authorized by the President under paragraph
(c).
(6) Any law made by [ Majlis-e-Shoora (Parliament)] or the President
which [ Majlis-e-Shoora (Parliament)] or the President would not,
but for the issue of a Proclamation under this Article, have been
Const. P 9 & 8/2009
289
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 under this Article has ceased to be in force, except as
to things done or omitted to be done before the expiration of the
said period.”
165.
The law and order being a provincial subject, necessary
legislative and administrative steps would be required to be taken under
the provisions of Article 234, which empowered the President to assume to
himself or direct the Governor of the Province to assume on his behalf, 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, etc, in a situation in which the government of the province could
not be carried on in accordance with the provisions of the Constitution.
But the imposition of any such emergency too, would be subject to judicial
review, as held in Farooq Ahmed Khan Leghari’s case. Relevant portion
from the said judgment is reproduced below: “Notwithstanding the ouster of jurisdiction of the Court and the
fact that the formation of opinion in terms of the relevant provision
of the Constitution or of a statute is to be based on the satisfaction
of a State functionary mentioned therein, the Court has the
jurisdiction to examine whether the prerequisites provided for in
the relevant provision of the Constitution/statute for the exercise of
the power thereunder existed, when the impugned order was
passed. If the answer of the above question is in the negative, the
exercise of power will be without jurisdiction calling for
interference by the Court.
The satisfaction provided for in clause (1) of Article 232 of the
Constitution is the subjective satisfaction of the President. The said
subjective satisfaction of the President is final subject to judicial
review to the limited extent. The satisfaction of the President is a
condition precedent to the exercise of power and if it can be shown
that there was no satisfaction of the President at all, or that the
Const. P 9 & 8/2009
290
satisfaction was absurd or perverse or mala fide or based on
extraneous or irrelevant grounds, it would be no satisfaction.”
166.
The learned counsel contended that the other ground for
imposing unconstitutional and illegal emergency, PCO No. 1 of 2007 and
Oath Order, 2007 was the alleged erosion of trichotomy of powers
enshrined in the Constitution as a result of suo motu actions taken and
orders passed in some cases by some of the Judges of the Supreme Court
and High Courts, particularly the Chief Justice of Pakistan and the
Supreme Judicial Council having been rendered ineffective and redundant
by the Supreme Court. The learned counsel vehemently contended that
such flimsy and baseless grounds for the unconstitutional and illegal acts
of 3rd November, 2007 could only be pleaded before, and upheld and
approved by, a forum comprising Abdul Hameed Dogar, J, and other
Judges of the same hue. Had the matter been heard by the Judges
appointed under the Constitution, they would certainly have acted
independently to preserve, protect and defend the Constitution. Such
flimsy grounds would not have found favour with them as a basis for the
decision of the case. In Tikka Iqbal Muhammad Khan’s case, the scope of the
exercise of power of judicial review by the superior Courts was examined
in an unconstitutional perspective and the material relied upon was either
irrelevant or would lend support to the contrary view, viz., the jurisdiction
of the Courts would be used to further the rights of the people against
arbitrary infringements by the executive.
167.
At this stage, it is necessary to elucidate through our own
jurisprudence and that of other jurisdictions the principle of trichotomy of
powers and the power of judicial review vested in the superior Courts.
Const. P 9 & 8/2009
291
Case-law from the Indian jurisdiction is particularly instructive on account
of
the
common
origins
of
constitutionalism
springing
from
the
Government of India Act, 1935 read with the Indian Independence Act,
1947. The Supreme Court of India, in the case of Minerva Mills Ltd v. Union
of India (AIR 1980 SC 1789) held that the judiciary was the interpreter of the
Constitution and was assigned the delicate task of determining the extent
of the power conferred on each branch of the government, its limits and
whether any action of that branch transgressed such limits. It may be
advantageous to reproduce below relevant excerpts from the judgment of
the Indian Supreme Court delivered by Bhagwati J, in the said case: “92.
……….. Parliament too, is a creature of the Constitution and
it can only have such powers as are given to it under the
Constitution. It has no inherent power of amendment of the
Constitution and being an authority created by the Constitution, it
cannot have such inherent power, but the power of amendment is
conferred upon it by the Constitution and it is a limited power
which is so conferred. Parliament cannot in exercise of this power
so amend the Constitution as to alter its basic structure or to change
its identity. Now, if by constitutional amendment, Parliament were
granted unlimited power of amendment, it would cease to be an
authority under the Constitution, but would become supreme over
it, because it would have power to alter the entire Constitution
including its basic structure and even to put an end to it by totally
changing its identity. It will therefore be seen that the limited
amending power of Parliament is itself an essential feature of the
Constitution, a part of its basic structure, for if the limited power of
amendment were enlarged into an unlimited power, the entire
character of the Constitution would be changed. It must follow as a
necessary corollary that any amendment of the Constitution which
seeks, directly or indirectly, to enlarge the amending power of
Parliament by freeing it from the limitation of unamendability of
Const. P 9 & 8/2009
292
the basic structure would be violative of the basic structure and
hence outside the amendatory power of Parliament.
93.
It is a fundamental principle of our constitutional scheme,
and I have pointed this out in the preceding paragraph, that every
organ of the State, every authority under the Constitution. Derives
its power from the Constitution and has to act within the limits of
such power. But then the question arises as to which authority
must decide what are the limits on the power conferred upon each
organ or instrumentality of the State and whether such limits are
transgressed or exceeded. Now there are three main departments of
the State amongst which the powers of Government are divided;
the Executive, the Legislature and the Judiciary. Under our
Constitution we have no rigid separation of powers as in the
United States of America, but there is a broad demarcation, though,
having regard to the complex nature of governmental functions,
certain degree of overlapping is inevitable. The reason for this
broad separation of powers is that "the concentration of powers in
any one organ may" to quote the words of Chandrachud, J. (as he
then was) in Smt. Indira Gandhi's case (AIR 1975 SC 2299) "by
upsetting that fine balance between the three organs, destroy the
fundamental premises of a democratic Government to which were
pledged." Take for example, a case where the executive which is in
charge of administration acts to the prejudice of a citizen and a
question arises as to what are the powers of the executive and
whether the executive has acted within the scope of its powers.
Such a question obviously cannot be left to the executive to decide
and for two very good reasons. First, the decision of the question
would depend upon the interpretation of the Constitution and the
laws and this would pre-eminently be a matter fit to be decided by
the judiciary, because it is the judiciary which alone would be
possessed of expertise in this field and secondly, the constitutional
and legal protection afforded to the citizen would become illusory
if it were left to the executive to determine the legality of its own
action. So also if the legislature makes a law and a dispute arises
whether in making the law the legislature has acted outside the
area of its legislative competence or the law is violative of the
fundamental rights or of any other provisions of the Constitution,
Const. P 9 & 8/2009
293
its resolution cannot, for the same reasons, be, left to the
determination of the legislature. The Constitution has, therefore,
created an independent machinery for resolving these disputes and
this independent machinery is the judiciary which is vested with
the power of judicial review to determine the legality of executive
action and the validity of legislation passed by the legislature. It is
the solemn duty of the judiciary under the Constitution to keep the
different organs of the State such as the executive and the
legislature within the limits of the power conferred upon them by
the Constitution. This power of judicial review is conferred on the
judiciary by Articles 32 and 226 of the Constitution. Speaking about
draft Article 25, corresponding to present Article 32 of the
Constitution, Dr. Ambedkar, the principal architect of our
Constitution, said in the Constituent Assembly on 9th December,
1948:
"If I was asked to name any particular article in this Constitution as
the most important – an article without which this Constitution
would be a nullity – I could not refer to any other article except this
one. It is the very soul of the Constitution and the very heart of it
and I am glad that the House has realized its importance". (CAD
debates, Vol. VII, p, 953) It is a cardinal principle of our
Constitution that no one howsoever highly placed and no authority
however lofty can claim to be the sole judge of its power under the
Constitution or whether its action is within the confines of such
power laid down by the Constitution. The judiciary is the
interpreter of the Constitution and to the judiciary is assigned the
delicate task to determine what is the power conferred on each
branch of Government, whether it is limited, and if so, what are the
limits and whether any action of that branch transgresses such
limits. It is for the judiciary to uphold the constitutional values and
to enforce the constitutional limitations. That is the essence of the
rule of law, which inter alia requires that "the exercise of powers by
the Government whether it be the legislature or the executive or
any other authority, be conditioned by the Constitution and the
law". The power of judicial review is an integral part of our
constitutional system and without it, there will be no Government
of laws and the rule of law would become a teasing illusion and a
Const. P 9 & 8/2009
294
promise of unreality. I am of the view that if there is one feature of
our Constitution which, more than any other, is basic and
fundamental to the maintenance of democracy and the rule of law,
it is the power of judicial review and it is unquestionably, to my
mind, part of the basic structure of the Constitution. Of course,
when I say this I should not be taken to suggest that however
effective alternative institutional mechanisms or arrangements for
judicial review cannot be made by Parliament. But what I wish to
emphasise is that judicial review is a vital principle of our
Constitution and it cannot be abrogated without affecting the basic
structure of the Constitution. If by a Constitutional amendment, the
power of judicial review is taken away and it is provided that the
validity of any law made by the Legislature shall not be liable to be
called in question on any ground, even if it is outside the legislative
competence of the legislature or is violative of any fundamental
rights, it would be nothing short of sub- version of the Constitution,
for it would make a mockery of the distribution of legislative
powers between the Union and the States and render the
fundamental
rights
meaningless
and
futile.
So
also
if
a
constitutional amendment is made which has the effect of taking
away the power of judicial review and providing that no
amendment made in the Constitution shall be liable to be
questioned on any ground, even if such amendment is violative of
the basic structure. and, therefore, outside the amendatory power
of Parliament, it would be making Parliament sole judge of the
constitutional validity of what it has done and that would. in effect
and substance, nullify the limitation on the amending power of
Parliament and affect the basic structure of the Constitution. The
conclusion must therefore inevitably follow that clause (4) of
Article 368 is unconstitutional and void as damaging the basic
structure of the Constitution.
94.
That takes us to clause (5) of Article 368. This clause opens
with the words "For the removal of doubts" and proceeds to declare
that there shall be no limitation whatever on the amending power
of Parliament under Article 368. It is difficult to appreciate the.
meaning of the opening words "For the removal of doubts" because
Const. P 9 & 8/2009
295
the majority decision in Kesavananda Bharati's case (AIR 1973 SC
1461) clearly laid down and left no doubt that the basic structure of
the Constitution was outside the competence of the mandatory
power of Parliament and in Smt. Indira Gandhi's case (supra) all
the Judges unanimously accepted theory of the basic structure as a
theory by which the validity of the amendment impugned before
them, namely, Article 329A(4) was to be judged. Therefore, after the
decisions in Kesavananda Bharati's case and Smt. Indira Gandhi's
case, there was no doubt at all that the amendatory. power of
Parliament was limited and it was not competent to Parliament to
alter the basic structure of the Constitution and clause (5) could not
remove the doubt which did not exist. What A clause (5) really
sought to do was to remove the limitation on the amending power
of Parliament and convert it from a limited power into an unlimited
one.”
In A.K. Kaul v. Union of India (AIR 1995 SC 1403), justiciability of an action
of an authority functioning under the Indian Constitution was discussed as
under: “The extent of those limitations on the powers has to be determined
on an interpretation of the relevant provisions of the Constitution.
Since the task of interpreting the provisions of the Constitution is
entrusted to the Judiciary, it is vested with the power to test the
validity of an action of every authority functioning under the
Constitution on the touchstone of the constitution in order to
ensure that the authority exercising the power conferred by the
constitution does not transgress the limitations placed by the
Constitutions on exercise of that power. This power of judicial
review is, therefore, implicit in a written constitution and unless
expressly excluded by a provision of the Constitution, the power of
judicial review is available in respect of exercise of powers under
any of the provisions of the Constitution. Justiciability relates to a
particular field falling within the purview of the power of judicial
review. On account of want of judicially manageable standards,
there may be matters which are not susceptible to the judicial
Const. P 9 & 8/2009
296
process. Such matters are regarded as non-justiciable. In other
words, during the course of exercise of the power of judicial review
it may be found that there are certain aspects of the exercise of that
power which are not susceptible to judicial process on account of
want of judicially manageable standards and are, therefore, not
justiciable.”
168.
In the case of Raja Ram Pal v. Speaker, Lok Sabha [(2007) 3 SCC
184] while dilating upon the role of the Supreme Court of India, it was
held that it was the solemn duty of the Court to protect the fundamental
rights guaranteed by the Constitution zealously and vigilantly. Relevant
portion from the judgment is reproduced below: “651. We have a written Constitution which confers powers of
judicial review on this Court and on all High Courts. In exercising
power and discharging duty assigned by the Constitution, this
Court has to play the role of a 'sentinel on the qui vive' and it is the
solemn duty of this Court to protect the fundamental rights
guaranteed by Part III of the Constitution zealously and vigilantly.
652.
It may be stated that initially it was contended by the
respondents that this Court has no power to consider a complaint
against any action taken by Parliament and no such complaint can
ever be entertained by the Court. Mr. Gopal Subramaniam,
appearing for the Attorney General, however, at a later stage
conceded (and I may say, rightly) the jurisdiction of this Court to
consider such complaint, but submitted that the Court must always
keep in mind the fact that the power has been exercised by a coordinate organ of the State which has the jurisdiction to regulate its
own proceedings within the four walls of the House. Unless,
therefore, this Court is convinced that the action of the House is
unconstitutional or wholly unlawful, it may not exercise its
extraordinary jurisdiction by re-appreciating the evidence and
material before Parliament and substitute its own conclusions for
the conclusions arrived at by the House.
Const. P 9 & 8/2009
653.
297
In my opinion, the submission is well-founded. This Court
cannot be oblivious or unmindful of the fact that the Legislature is
one of three organs of the State and is exercising powers under the
same Constitution under which this Court is exercising the power
of judicial review. It is, therefore, the duty of this Court to ensure
that there is no abuse or misuse of power by the Legislature
without overlooking another equally important consideration that
the Court is not a superior organ or an appellate forum over the
other constitutional functionary. This Court, therefore, should
exercise its power of judicial review with utmost care, caution and
circumspection.”
It was further held as under: “656. In this connection, I may only observe that in Searchlight
[Pandit Sharma (1)] as well as in Keshav Singh, it has been
observed that there is no doubt that Parliament/State Legislature
has power to punish for contempt, which has been reiterated in
other cases also, for instance, in State of Karnataka v. Union of
India, (1977) 4 SCC 608, and in P. V. Narasimha Rao v. State, (1998)
4 SCC 626. But what has been held is that such decision of
Parliament/State Legislature is not 'final and conclusive'. This
Court in all earlier cases held that in view of power of judicial
review under Articles 32 and 226 of the Constitution, the Supreme
Court and High Courts have jurisdiction to decide legality or
otherwise of the action taken by State- authorities and that power
cannot be taken away from judiciary. There lies the distinction
between British Parliament and Indian Parliament. Since British
Parliament is also 'the High Court of Parliament', the action taken
or decision rendered by it is not open to challenge in any court of
law. This, in my opinion, is based on the doctrine that there cannot
be two parallel courts, i.e. Crown's Court and also a Court of
Parliament ('the High Court of Parliament') exercising judicial
power in respect of one and the same jurisdiction. India is a
democratic and republican State having a written Constitution
which is supreme and no organ of the State (Legislature, Executive
or Judiciary) can claim sovereignty or supremacy over the other.
Const. P 9 & 8/2009
298
Under the said Constitution, power of judicial review has been
conferred on higher judiciary (Supreme Court and High Courts).”
In the case of I.R. Coelho v. State of Tamil Nadu (AIR 2007 SC 861), while
referring to L. Chandra Kumar v. Union of India [(1997) 3 SCC 261] and S.R.
Bommai v. Union of India [(1994) 3 SCC 1], it was held that the judicial
review was a basic feature of the Constitution and that the power of
judicial review was a constituent power which could not be abrogated by
judicial process of interpretation. It was further held that it was a cardinal
principle of the Constitution that no one could claim to be the sole judge of
the power given under the Constitution and that its actions were within
the confines of the powers given by the Constitution.
169.
On the above survey of the case-law, it is clear that the power
of judicial review is a cardinal principle of the Constitution. The Judges, to
keep the power of judicial review strictly judicial, in its exercise, do take
care not to intrude upon the domain of the other branches of the
Government. It is the duty of the judiciary to determine the legality of
executive action and the validity of legislation passed by the Legislature.
At this stage, reference may also be made to our own jurisdiction where a
robust defence of judicial review has been expounded: Government of Balochistan through Additional Chief Secretary v.
Azizullah Memon and 16 others (PLD 1993 SC 341 at p. 369)
“The Constitution provides for separation of Judiciary from the
Executive. It aims at an independent Judiciary which is an
important organ of the State within the Constitutional sphere. The
Constitution provides for progressive separation of the Judiciary
and had fixed a time limit for such separation. It expired in the year
1987 and from then onwards, irrespective of the fact whether steps
have been taken or not, judiciary stands separated and does not
Const. P 9 & 8/2009
299
and should not seek aid of executive authorities for its separation.
Separation of judiciary is the cornerstone of independence of
judiciary and unless judiciary is independent, the fundamental
right of access to justice cannot be guaranteed. One of the modes
for blocking the road of free access to justice is to appoint or hand
over the adjudication of rights and trial of offence in the hands of
the Executive Officers. This is merely a semblance of establishing
Courts which are authorised to decide cases and adjudicate the
rights, but in fact such Courts which are manned and run by
executive authorities without being under the control and
supervision of the judiciary can hardly meet the demands of
Constitution. Considering from this point of view we find that the
impugned Ordinance II of 1968 from the cognizance of the case till
the revision is disposed of, the entire machinery is in the hands of
the executive from Naib-Tehsildar to the official of the Government
in the Ministry: Such a procedure can hardly be conducive to the
administration of justice and development of the area nor will it
achieve the desired result of bringing law and order, peace and
tranquility
or
economic
prosperity
and
well-being.
The
Constitution envisages independent Judiciary separate from the
Executive. Thus any Tribunal created under the control and
superintendence of the executive for adjudication of civil or
criminal cases will be in complete conflict with Articles 175, 9 and
25.
“The lower judiciary is a part of the judicial hierarchy in Pakistan.
Its separation and independence is to be equally secured and
preserved as that of the superior judiciary. The lower judiciary is
more dependent and prone to financial dependence and
harassment at the hands of the executive. In practice and effect the
separation of judiciary is the main problem of the lower judiciary
which under several enactments and rules is practically under the
control and supervision of the executive. Articles 175 and 203 lay
down that the judiciary including lower judiciary shall be
separated from the executive and 'High Court shall supervise and
control all Courts subordinate to it'. Such control and supervision
can be achieved only when the judiciary is administratively and
financially separate from the executive. The next step should be
Const. P 9 & 8/2009
300
taken to devise proper scheme and frame rules dealing with
financial problems within the framework of the Constitution. So
long financial independence is not achieved, it will be difficult to
improve the working conditions, accommodation, building and
expansion to meet the growing needs of the people.”
Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324)
“Adverting to the above second peculiar feature that our country
has Federal system of Government which is based on trichotomy of
power, it may be observed that each organ, of the State is required
to function/operate within the bounds specified in the Constitution
though one can say that the Judiciary is the weakest limb as it does
not have the resources or power which the Legislature or the
Executive enjoy but it has been assigned very important and
delicate role to play, namely, to ensure that none of the organs or
the Government functionaries acts in violation of any provision of
the Constitution or of any other law and because of the above
nature of the work entrusted to the Judiciary, it was envisaged in
the Constitution that the Judiciary shall be independent. I may
reiterate that the independence of Judiciary is inextricably linked
and connected with the Constitutional process of appointment of
Judges of the superior Judiciary. The relevant Constitutional
provisions are to be construed in a manner which would ensure the
independence of Judiciary. At this juncture, it may be stated that a
written Constitution, is an organic document designed and
intended to cater the need for all times to come. It is like a living
tree, it grows and blossoms with the passage of time in order to
keep pace with the growth of the country and its people; Thus, the
approach, while interpreting a Constitutional provision should be
dynamic, progressive and oriented with the desire to meet the
situation, which has arisen, effectively. The interpretation cannot be
a narrow and pedantic. But the Court's efforts should be to
construe the same broadly, so that 'it may be able to meet the
requirement of ever changing society. The general words cannot be
construed in isolation but the same are to be construed in the
Const. P 9 & 8/2009
301
context in which, they are employed. In other words, their colour
and contents are derived from their context.
“24. The above principles will have to be kept in view while
construing the, provisions of the Constitution relating to the
appointments/transfers of Judges of the superior Judiciary.
“The Constitution contemplates trichotomy of power inter se the
pillars of the State, namely, Legislature, Executive and the
Judiciary, each of the organs of the State has to function within the
limits provided in Constitution. The Constitutional provisions
relating to the appointments transfers of Judges of the superior
Courts, therefore, need to be examined in light of the Islamic
concept of justice. Islam had always attached unparalleled
importance to the concept of justice.”
Mehram Ali and others v. Federation of Pakistan
(PLD 1998 SC 1445)
“(v)
That the hallmark of our Constitution is that it envisages
separation of the Judiciary from the Executive (which is founded on
the Islamic Judicial System) in order to ensure independence of
Judiciary and. therefore, any Court or Tribunal which is not subject
to judicial review and administrative control of the High Court
and/or the Supreme Court does not fit in within the judicial
framework of the Constitution;
“(vi) That the right of 'access to justice to all' is a fundamental
right, which right cannot be exercised in the absence of an
independent
adjudicatory
Judiciary
'providing
framework
i.e.
impartial,
judicial
fair
and
hierarchy.
just
The
Courts/Tribunals which are manned and run by Executive
Authorities without being under the control and supervision of the
High Court in terms of Article 203 of the Constitution can hardly
meet the mandatory requirement of the Constitution;
Const. P 9 & 8/2009
302
“(vii) That the independence of judiciary is inextricably linked and
connected with the process of appointment of Judges and the
security of their tenure and other terms and conditions.”
Liaquat Hussain v. Federation of Pakistan (P L D 1999 SC 504)
“Now take up the main controversy arising in these petitions,
whether setting up of Military Courts for trial of civilians for
offences not connected with the Armed Forces, is constitutionally
valid? As stated above, our Constitution is based on the theory of
trichotomy of power which makes the three limbs of the State, the
Legislature, the Executive and the Judiciary, independent of each
other in their respective spheres. Chapter I of Part VII of the
Constitution deals with the judicature. The judicature according to
Article 175(1) of the Constitution, consists of the Supreme Court, a
High Court for each Province and such other Courts as may be
established by law. The Courts created under Article 175(1) (ibid)
exercise such jurisdiction which is conferred on them either by the
Constitution or by or under any law as provided in Article 175(2)
ibid. The judicature stands separated from the executive as
provided in Article 175(3) of the Constitution. Creation of Courts
outside the control and supervision of Supreme Court or the High
Courts, therefore, not only militates against the independence of
Judiciary but it also negates the principle of trichotomy of power
which is the basic feature of the Constitution.”
Syed Zafar Ali Shah v. General Pervez Musharraf (PLD 2000 SC 869)
“It is also mentioned in the Objectives Resolution that principles of
democracy, freedom, equality, tolerance and social justice as
enunciated by Islam shall be enabled to order their lives in
accordance with teachings and requirements of Islam as set out in
the Holy Qur'an and Sunnah and independence of judiciary shall
be fully secured. Objectives Resolution was even retained in the
Interim Constitution of 1972 as Preamble.
“Independence of Judiciary is a basic principle of the constitutional
system of governance in Pakistan. The Constitution of Pakistan
Const. P 9 & 8/2009
303
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 cast; 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.”
Const. P 9 & 8/2009
170.
304
The exercise of suo motu powers has been dwelt at length by
the superior Courts of Pakistan in a large number of cases. Reference may
usefully be made to the following cases: Darshan Masih v. State (PLD 1990 SC 513 at page 544)
“It is necessary at this stage to clarify certain aspects of this case. It
is indeed necessary because, this being the first case of its nature,
the procedural and other elements thereof are likely in due course,
to come under discussion.
(i)
True, a telegram, it has never been earlier made the basis by
the Supreme Court of Pakistan for action, as in this case; but, there
is ample support in the Constitution for the same. Under Article
184 (3) "Without prejudice to the provisions of Article 199, the
Supreme Court shall, if it considers that a question of public
importance with reference to the enforcement of any of the
Fundamental Rights conferred by Chapter I of Part II is involved,
have the power to make an order of the nature mentioned in the
said Article." The questions of procedural nature relating to the
entertainment of proceedings and/or cognizance of a case under
this provision, have been dealt with in the case of Miss Benazir
Bhutto (PLD 1988 SC 416). The acceptance of a telegram in this case
is covered by the said authority as also by the due extension of the
principles laid therein. Such extension/s would depend upon the
facts and circumstances of each case and nature of public interest
involved and importance thereof. The element of "public
importance" in this case now stands demonstrated by the resume (a
part only) of the proceedings, given earlier.
It needs to be mentioned that in our Supreme Court, though letters
and telegrams are sent to individual Judges, but it is not considered
as an appropriate and proper method of initiating proceedings.
Some times it leads to embarrassment. Accordingly such an
information has to go to the Hon'ble Chief Justice for initiating
proceedings. In this case the telegram was addressed directly to
him and he marked it to me.
Const. P 9 & 8/2009
305
As to what other form/s of taking cognizance of a matter under
Article 184 (3) are possible, will depend upon the nature and
importance thereof.
(ii) The "nature" of the orders which can be passed in such cases is
also indicated in Article 184 (3); that is: such as can be passed under
Article 199. Even if for the time being it be assumed that the
"nature" of the order is confined only to the Orders under
sub-clause (c) of Article 199(l) and not to the other Orders under
"Article 199", it would be seen that any conceivable just and proper
order can be passed in a case like the present one. The principle of
extension involved in the relevant phrase used in Art. 199(1)(c): "an
order giving such directions to any person or authority ------- as
may be appropriate for the enforcement of the Fundamental Rights
cannot be abridged or curtailed by the law. As to how far it can be
extended, will depend upon each case.
It is so also because of the other provisions of the Constitution, the
rules of this Court and the principles and Rules comprising the
Constitutional set up of Pakistan. For instance, according to Article
187 (1) this Court some times has to satisfy the dictates of
"Complete Justice". What goes with it, is the subject or ample
authority as well as of future application in given cases. When this
power is exercised the Court will have the necessary additional
power to "issue such directions, orders or decrees as may be
necessary.” Besides the binding effect of the judgment/order of this
Court on all other "Courts" when it "decides" a question of law or it
is based upon or enunciates a principle of law under Article 189;
another provision Art. 190, gives a similar command to all
executive and judicial "authorities" throughout Pakistan". This is, so
as to act "in aid of Supreme Court". When Art. 199(l) (c) is read
together with Articles, 187, 189 and 190, as stated above, it becomes
clear that in a fit case of enforcement of Fundamental Rights, the
Supreme Court has jurisdiction, power and competence to pass all
proper/ necessary orders as the facts justify.
Const. P 9 & 8/2009
(iii)
306
The question as to whether this is a case of enforcement of
Fundamental Right/s has not been raised. Everybody accepted that
it is so. The provisions of Article 9 relating to security of person;
Article 11 in so far as it relates to forced labour, traffic in human
beings and child labour; Article 14 relating to dignity of man;
Article 15 ensuring freedom of movement; Article 19 relating to
freedom of trade, business or profession; and Article 25 relating to
equality, particularly in the protection of law and bar against
discrimination on the basis of sex, as also the safeguards for women
and children, amongst others, are applicable to the various aspects
of the matter. However, it is a different matter that some
Fundamental rights are more directly attracted than the others and
some elements involved in any one of them are relevant while the
others are meant for other situations. In view of lack of contest on
this issue it is not necessary to go into a detailed discussion in this
behalf. It is, however, remarked that for purposes of convenience of
all concerned, it might be necessary to define the expression "forced
labour with illustrations of its different forms; in such a manner, so
as to minimize any confusion about its real purport as also the
resultant unproductive litigation. For the same purpose the other
important elements in these Fundamental Rights may be collected
together and put in a self-contained Code. It might cover all aspects
of human dignity, deprivations and misery, including those rights
in this behalf which are ensured, in addition, as basic human rights
in Islam. This Court has in the Shariat jurisdiction dealt with some
of them. There is no bar in the Constitution to the inclusion in such
law of these rights, in addition to the Fundamental rights contained
in Chapter I Part II thereof. This comprehensive law should deal
with the compulsory education of the classes concerned for making
them aware of their rights; the detection of the infringement thereof
as the duty of the State; and providing remedial mechanism also at
the instance of the State whenever the will to assert or exercise
them is lacking on the part of a citizen. These aspects of the
enforcement of Fundamental rights guaranteed by the Constitution
and other basic human rights ensured by Islam can, by law be
made also into an independent inalienable right, with self operating mechanism for enforcement as well.
Const. P 9 & 8/2009
307
Muhammad Nawaz Sharif v. President of Pakistan
(
P L D 1993 Supreme Court 473 at page 805)
“First, we may understand the nature of Article 184(3). This
provision confers power on the Supreme Court to consider
questions of public importance which are referable to the
enforcement of any Fundamental Rights guaranteed by the
Constitution and enumerated in Chapter 1 of Part II. This power is
without prejudice to the provisions of Article 199 which confer
similar power with certain restrictions on the High Court. The
power conferred depends upon two questions; one, that the case
sought to be heard involves question of public importance and two,
the question of public importance relates to the enforcement of
Fundamental Rights. It is not every question of public importance
which can be entertained by this Court, but such question should
relate to the enforcement of Fundamental Rights. This provision
confers a further safety and security to the fundamental rights
conferred and guaranteed by the Constitution. This shows the
importance which Fundamental Rights have in the scheme of the
Constitution. They cannot be curtailed or abridged and any
provision of law or action taken which violates Fundamental Rights
conferred by the Constitution shall be void. The nature of
jurisdiction and the relief which can be granted under this Article is
much wider than Article 199. It confers a power to make an order
of the nature mentioned in Article 199. The word 'nature' is not
restrictive in meaning but extends the jurisdiction to pass an order
which may not be strictly in conformity with Article 199 but it may
have the same colour and the same scheme without any restrictions
imposed under it. Article 184 is an effective weapon provided to
secure and guarantee the fundamental rights. It can be exercised
where the Fundamental Right exists and a breach has been
committed or is threatened. The attributes of Article 199 of being an
aggrieved person or of having an alternate remedy and depending
upon the facts and circumstances even laches cannot restrain the
power or non-suit a petitioner from filing a petition under Article
184 and seeking relief under it. The relief being in the nature
mentioned in Article 199 can be modified and also consequential
Const. P 9 & 8/2009
308
reliefs can be granted which may ensure effective protection and
implementation of the Fundamental Rights. Even disputed
questions of facts which do not require voluminous evidence can
be looked into where Fundamental Right has been breached.
However, in case where intricate disputed questions of facts
involving voluminous evidence are involved the Court will desist
from entering into such controversies. Primarily, the questions
involved are decided on admitted or prima facie established facts
which can be determined by filing affidavits. Evidence in support
of allegations can be taken orally in very exceptional cases where
the breach is of a very serious nature affecting large section of the
country and is of great general importance.
Shehla Zia v. WAPDA (
PLD 1994 SC 693 at page 712)
“The learned counsel for the respondent has raised the objection
that the facts of the case do not justify intervention under Article
184 of the Constitution. The main thrust was that the grid station
and the transmission line are being constructed after a proper study
of the problem taking into consideration the risk factors, the
economic factors and also necessity and requirement in a particular
area. It is after due consideration that planning is made and is
being executed according to rules. After taking such steps
possibility of health hazards is ruled out and there is no question of
affecting property and health of a number of citizens nor any
fundamental right is violated which may warrant interference
under Article 184. So far the first part of the contention regarding
health hazards is concerned, sufficient discussion has been made in
the earlier part of the judgment and need not be repeated. So far the
fundamental rights are concerned, one has not to go too far to find
the reply.
Article 9 of the Constitution provides that no person shall be
deprived of life or liberty save in accordance with law. The word
`life' is very significant as it covers all facets of human existence.
The word `life' has not been defined in the Constitution but it does
not mean nor can it be restricted only to the vegetative or animal
life or mere existence from conception to death. Life includes all
Const. P 9 & 8/2009
309
such amenities and facilities which a person born in a free country,
is entitled to enjoy with dignity, legally and constitutionally. For
the purposes of present controversy suffice to say that a person is
entitled to protection of law from being exposed to hazards of
electromagnetic fields or any other such hazards which may be due
to installation and construction of any grid station, any factory,
power station or such like installations. Under the common law a
person whose right of easement, property or health is adversely
affected by any act of omission or commission of a third person in
the neighbourhood or at a far off place, he is entitled to seek an
injunction and also claim damages, but the Constitutional rights are
higher than the legal rights conferred by law, be it municipal law or
the common law. Such a danger as depicted, the possibility of
which cannot be excluded, is bound to affect a large number of
people who may suffer from it unknowingly because of lack of
awareness, information and education and also because such
sufferance is silent and fatal and most of the people who would be
residing near, under or at a dangerous distance of the grid station
or such installation do not know that they are facing any risk or are
likely to suffer by such risk. Therefore, Article 184 can be invoked
because a large number of citizens throughout the country cannot
make such representation and may not like to make it due to
ignorance, poverty and disability. Only some conscientious citizens
aware of their rights and the possibility of danger come forward
and this has happened so in the present case.
13.
According to Oxford dictionary, `life' meant state of all
functional activity and continual change peculiar to organised
matter and specially to the portion of it constituting an animal or
plant before death and animate existence."
In Black's Law Dictionary, `life' means "that state of animals,
humans, and plants or of an organised being in which its natural
functions and motions are performed, or in which its organs are
capable of performing their functions. The interval between birth
and death, the sum of the forces by which death is resisted, "life"
protected by the Federal Constitution includes all personal rights
Const. P 9 & 8/2009
310
and their enjoyment of the faculties, acquiring useful knowledge,
the right to marry, establish a home and bring up children, freedom
of worship, conscience; contract, occupation, speech, assembly and
press".
The Constitutional Law in America provides an extensive
and wide meaning to the word `life' which includes all such rights
which are necessary and essential for leading a free, proper,
comfortable and clean life. The requirement of acquiring
knowledge to establish home, the freedoms as contemplated by the
Constitution, the personal rights and their enjoyment are nothing
but part of life. A person is entitled to enjoy his personal rights and
to be protected from encroachments on such personal rights,
freedom and liberties. Any action taken which may create hazards
of life will be encroaching upon the personal rights of a citizen to
enjoy the life according to law. In the present case this is the
complaint the petitioners have made. In our view the word ‘life’
constitutionally is so wide that the danger and encroachment
complained of would impinge fundamental right of a citizen. In
this view of the matter the petition is maintainable.
Dr. Pervez Hasan, learned counsel has referred to various
judgments of the Indian Supreme Court in which the term `life' has
been explained with reference to public interest litigation. In
Kharak Singh v. State of UP (AIR 1963 SC 129) for interpreting the
word `life' used in Article 21 of the Indian Constitution, reliance
was placed on the judgment of Field, J. in Munn v. Illinois (1876) 94
US 113 at page 142 where it was observed that `life' means not
merely the right to the continuance of a person's animal existence
but a right to the possession of each of his organs --his arms and
legs etc." In Francis Corgi v. Union Territory of Delhi (AIR 1981 SC
746) Bhagvati, J. observed that right to life includes right to live
with human dignity and all that goes along with it, namely, the
bare necessaries of life such as adequate nutrition, clothing and
shelter and facilities for reading and writing in diverse form". Same
view has been expressed in Olga Tellis and others v. Bombay
Municipal Corporation (AIR 1986 SC 180) and State of Himachal
Const. P 9 & 8/2009
311
Pradesh and another v. Umed Ram Sharma and others (AIR 1986
SC 847). In the first case right to life under the Constitution was
held to mean right to livelihood. In the latter case the definition has
been extended to include the "quality of life' and not mere physical
existence. It was observed that "for residents of hilly areas, access to
road is access to life itself. Thus, apart from the wide meaning
given by US Courts, the Indian Supreme Court seems to give a
wider meaning which includes the quality of life, adequate
nutrition, clothing and shelter and cannot be restricted merely to
physical existence. The word `life' in the Constitution has not been
used in a limited manner. A wide meaning should be given to
enable a man not only to sustain life but to enjoy it. Under our
Constitution, Article 14 provides that the dignity of man and
subject to law the privacy of home shall be inviolable. The
fundamental right to preserve and protect the dignity of man under
Article 14 is unparalleled and could be found only in few
Constitutions of the world. The Constitution guarantees dignity of
man and also right to `life' under Article 9 and if both are read
together, question will arise whether a person can be said to have
dignity of man if his right to life is below bare necessity like
without proper food, clothing, shelter, education, health care, clean
atmosphere and unpolluted environment. Such questions will arise
for consideration which can be dilated upon in more detail in a
proper proceeding involving such specific questions.
Dr. Pervaz Hasan has also referred to several judgments of
the Indian Supreme Court in which issues relating to environment
and ecological balance were raised and relief was granted as the
industrial activity causing pollution had degraded the quality of
life. In Rural Litigation & Entitlement Kendra and others v. State of
UP and others (AIR 1985 SC 652) mining operation carried out
through blasting was stopped and directions were issued to
regulate it. The same case came up for further consideration and
concern was shown for the preservation and protection of
environment and ecology. However, considering the defence need
and for earning foreign exchange some queries were allowed to be
operated in a limited manner subject to strict control and
Const. P 9 & 8/2009
312
regulations. These judgments are reported in AIR 1987 SC 359 and
2426 and AIR 1988 SC 2187 and AIR 1989 SC 594. In Shri
Sachidanand Pandey and another v. The State of West Bengal and
others (AIR 1987 SC 1109) part of land of zoological garden was
given to Taj Group of Hotels to build a five-star hotel. This
transaction was challenged in the High Court without success. The
appeal was dismissed. Taking note of the fact that society's
interaction with nature is so extensive that "environmental question
has assumed proportion affecting all humanity", it was observed
that: -"Obviously, if the Government is alive to the various
considerations requiring thought and deliberation and has
arrived at a conscious decision after taking them into
account, it may not be for this Court to interfere in the
absence of mala fides. On the other hand, if relevant
considerations are not borne in mind and irrelevant
considerations influence the decision, the Court may
interfere in order to prevent a likelihood of prejudice to the
public."
In M.C. Mehta v. Union of India (AIR 1988 SC 1115) and
M.C. Mehta v. Union of India (AIR 1988 SC 1037) the Court on
petition filed by a citizen taking note of the fact that the municipal
sewage and industrial effluents from tanneries were being thrown
in River Ganges whereby it was completely polluted, the tanneries
were closed down. These judgments go a long way to show that in
cases where life of citizens is degraded, the quality of life is
adversely affected and health hazards are created affecting a large
number of people, the Court in exercise of its jurisdiction under
Article 184(3) of the Constitution may grant relief to the extent of
stopping the functioning of factories which create pollution and
environmental degradation.
Employees of the Pak. Law Commission v. Ministry of Works
( 1994 S C M R 1548 at page 1551)
“Before dealing with the merits of the case, it seems necessary to
first dispose of the preliminary objection raised by the learned
Standing Counsel. The learned counsel for the respondents
contended that the Court has no jurisdiction to grant the relief
Const. P 9 & 8/2009
313
under Article 184 (3) of the Constitution and the present case is not
covered by the said provision. The scope and object of Article 184
(3) has been comprehensively discussed in several judgments of
this Court including Ms. Benazir Bhutto's case (PLD 1988 SC 416)
and Mian Muhammad Nawaz Sharif s case (PLD 1993 SC 473). It is
now well-settled that if there is violation of fundamental rights of a
class of persons who collectively suffer due to such breach and
there does not seem to be any possible relief being granted from
any quarter due to their inability to seek or obtain relief, they are
entitled to file petition under Article 184 (3). The dispute should not
be mere an individual grievance, but a collective grievance which
raises questions of general public importance. In Benazir Bhutto's
case it was observed as follows:-"The plain language of Article 184 (3) shows that it is
open-ended. The Article does not say as to who shall have
the right to move the Supreme Court nor does it say by what
proceedings the Supreme Court may be so moved or
whether it is confined to the enforcement of the
Fundamental Rights of an individual which are infracted or
extends to the enforcement of the rights of a group or a class
of persons whose rights are violated."
It was further observed that "the inquiry into law and life cannot, in
my view, be confined to the narrow limits of the rule of law in the
context of constitutionalism which makes a greater demand on
judicial functions. Therefore, while construing Article 184 (3), the
interpretative approach should not be ceremonious observance of
the rules or usages of interpretation, but regard should be had to
the object and the purpose for which this Article is enacted, that is,
this interpretative approach must receive inspiration from the triad
of provisions which saturate and invigorate the entire Constitution,
namely the Objectives Resolution (Article 2A), the Fundamental
Rights and the directive principles of State Policy so as to achieve
democracy, tolerance, equality and social justice according to
Islam". While further dilating upon the provisions of the
Constitution, particularly Articles 3, 37 and 38 of the Constitution,
which enshrine socio-economic principles, it was observed that
"these provisions become in an indirect sense enforceable by law
and thus, bring about a phenomenal change in the idea of
Const. P 9 & 8/2009
314
co-relation of Fundamental Rights and directive principles of State
Policy". In this background it was observed as follows: -"The liberties, in this context, if purposefully defined will
serve to guarantee genuine freedom; freedom not only from
arbitrary restraint of authority, but also freedom from want,
from poverty and destitution and from ignorance and
illiteracy. That this was the purport of the role of the rule of
law which was affirmed at Lagos in 1961 in the World Peace
Through Law Conference:
‘Adequate levels of living are essential for full
enjoyment of individual's freedom and rights. What is
the use of freedom of speech to under-nourished
people or of the freedom of press to an illiterate
population? The rule of law must make for the
establishing of social, economic and cultural
conditions which promote men to live in dignity and
to live with aspirations’. ”
“The Court will be in a position, if the procedure is flexible, to
extend the benefits of socio-economic change through this medium
of interpretation to all sections of the citizens.
“This approach is in tune with the era of progress and is meant to
establish that the Constitution is not merely an imprisonment of the
past, but is also alive to the unfolding of the future. It would thus,
be futile to insist on ceremonious interpretative approach to
Constitutional interpretations as hitherto undertaken which only
served to limit the controversies between the State and the
individual without extending the benefits of the liberties and the
Principles of Policy to all the segments of the population.
“It is thus clear that Article 9 of the Constitution which guarantees
life and liberty according to law is not to be construed in a
restricted and pedantic manner. Life has a larger concept which
includes the right of enjoyment of life, maintaining adequate level
of living for full enjoyment of freedom and rights. In this
background the petitioners' claim to be provided accommodation
during tenure of service, which is necessary for maintaining
Const. P 9 & 8/2009
315
adequate level of living, in our opinion, is covered by Article 9. It is
true that the terms and conditions of service perhaps do not require
the respondents to provide residential accommodation to the
petitioners, but if other Government servants similarly placed are
being provided accommodation there is no reason to deprive the
petitioners from such relief. In this view of the matter petition
under Article 184(3) is competent.”
General Secretary v. Director, Industries
(1994 SCMR 2061 at page 2071)
“It is well-settled that in human rights cases/public interest
litigation under Article 184(3), the procedural trappings and
restrictions, precondition of being an aggrieved person and other
similar technical objections cannot bar the jurisdiction of the Court.
This Court has vast power under Article 184(3) to investigate into
questions of fact as well independently by recording evidence,
appointing commission or any other reasonable and legal manner
to ascertain the correct position. Article 184(3) provides that this
Court has the power to make order of the nature mentioned in
Article 199. This is a guideline for exercise of jurisdiction under this
provision without restrictions and restraints imposed on the High
Court. The fact that the order or direction should be in the nature
mentioned in Article 199, enlarges the scope of granting relief
which may not be exactly as provided under Article 199, but may
be similar to it or in the same nature and the relief so granted by
this Court can be moulded according to the facts and circumstances
of each case.”
Asad Ali v. Federation of Pakistan (PLD 1998 SC 161 at 294)
“It is obvious from the language of Article 184(3) that it provides a
direct access to the highest judicial forum in the country for the
enforcement of Fundamental Rights. It caters for an expeditious
and inexpensive remedy for the protection of the Fundamental
Rights from Legislative and Executive interference. It gives the
Court very wide discretion in the matter of providing an
appropriate order or direction including declaratory order to suit
the exigencies of particular situation. There can be no doubt that
Const. P 9 & 8/2009
316
declaration of Fundamental Rights is meaningless unless there is an
effective machinery for the enforcement of the rights. It is the
'remedy' that makes the right real. It is often said that without
'remedy' there is no right. It is for this reason that Constitutionmakers provided a long list of Fundamental Rights and the
machinery for their enforcement. That machinery is the Superior
Courts, namely, the High Courts so far as the Provincial territory is
concerned, and the Supreme Court at the apex having jurisdiction
over the entire length and breadth of Pakistan.”
Masroor Ahsan v. Ardeshir Cowasjee
(PLD 1998 SC 823 at page 1005)
“It will not be out of context at this stage to observe that our
country has a Federal System of Government which is based on
trichotomy of power, each organ of the State is required to
function/operate within the bounds specified in the Constitution.
Though one can say that Judiciary is the weakest limb as it does not
have the resources or powers which the Legislature or the
Executive enjoy, but it has been assigned very important and
delicate role to play, namely, to ensure that none of the organs or
the Government functionaries acts in violation of any provision of
the Constitution or any other law and because of the above nature
of work entrusted to the Judiciary, the framers of the Constitution
envisaged an independent Judiciary. However, I may add that the
Judiciary is also constitutionally obliged to act within the limits of
its jurisdiction as delineated by the Constitution inter alia in Article
175 thereof. Clause (2) of the above Article provides that no Court
shall have any jurisdiction save as is or may be conferred on it by
the Constitution or by under any law. In this view of the matter, the
relevant Constitutional provisions are to be construed in a manner
that neither the Judiciary nor the Legislature transgresses its own
limit and an equilibrium is to be maintained inter se between the
three organs of the State. However, at the same time, it should not
be overlooked that our Constitution has enshrined and emphasised
independence of Judiciary and, therefore, the relevant provisions
are to be construed in a manner which would ensure the
independence of Judiciary. We have a written Constitution, which
Const. P 9 & 8/2009
317
is an organic document designed and intended to cater to the needs
for all times to come. It is like a living tree; it grows and blossoms
with the passage of time in order to keep pace with the growth of
the country and its people. Thus the approach while interpreting a
Constitutional provision should be dynamic, progressive and
oriented with the desire to meet the situation, which has arisen
effectively. The interpretation cannot be narrow and pedantic but
the Courts' efforts should be to construe the same broadly, so that it
may be able to meet the requirements of an ever changing society.
The general words cannot be construed in isolation but the same
are to be construed in the context in which they are employed. In
other words, their colour and contents are derived from the
context.”
Watan Party v. Federation of Pakistan (PLD 2006 SC 697 at page
717)
“19.
Syed
Sharif-ud-Din Pirzada learned counsel for the
Privatization Commission contended that to invoke jurisdiction of
this Court under Article 184(3) of the Constitution, two conditions
are required to be fulfilled namely infringement of the fundamental
rights and absence of alternate remedy. In the case in hand no
fundamental right has been infringed and under the scheme of
Privatization Commission Ordinance No. LII, 2000 (hereinafter
referred to as "Ordinance"), two alternate remedies are available in
terms of section 27 and section 28 of the Ordinance. According to
learned counsel the judgment relied upon by the petitioner in S.P.
Gupta's case ibid, in the circumstances of the instant case is not
applicable because thereafter the Indian Supreme Court in the case
of BALCO Employees Union (Regd.) v. Union of India (AIR 2002
SC 350) has explained the scope of the public interest litigation.
“20.
Learned Attorney General, however, at the outset contended
that after hearing the case at length by this Larger Bench for a long
period, it will not be fair on his part to say that, "no point of public
importance is involved in this case", therefore, he will not be
questioning locus standi of the petitioners particularly in view of
the judgments in the cases of Multiline Associates and Ardeshir
Const. P 9 & 8/2009
318
Cowasjee ibid.
“21.
This Court in the referred cases and the Indian Supreme
Court in the case of S.P. Gupta ibid have laid down a rule namely
that any member of the public having sufficient interest can
maintain an action for judicial redress of public injury arising from
breach of the public duty or from violation of some provision of the
Constitution or the law and for enforcement of such public duty
and observance of such Constitutional provision.
“In the case of Benazir Bhutto ibid, it was held that only when the
element of public importance is involved, the Supreme Court can
exercise its power to issue the writ while sub Article 1(c) of Article
199 of the Constitution has a wider scope as there is no such
limitation therein.
“In Al-Jehad Trust ibid, it has been held that, "question of locus
standi is relevant in a High Court but not in the Supreme Court
when the jurisdiction is invoked under Article 184(3) of the
Constitution.
“In Malik Asad Ali ibid it was observed that under Article 184(3) of
the Constitution, this Court is entitled to take cognizance of any
matter which involves a question of public importance with
reference to the enforcement of any of the fundamental rights
conferred by Chapter I Part II of the Constitution even suo motu,
without having any formal petition.
“In Multiline Associates ibid this Court held that requirement of
the locus standi in the case of pro bono publico (public interest
litigation is not so rigid) has extended scope. This principle has
been reiterated in Wukala Mahaz Barai Tahafuz Dastoor v.
Federation of Pakistan (PLD 1998 SC 1263).”
At page 739, it is further held –
“Thus it is held that in exercise of the power of judicial review, the
courts normally will not interfere in pure policy matters (unless the
policy itself is shown to be against Constitution and the law) nor
Const. P 9 & 8/2009
319
impose its own opinion in the matter. However, action taken can
always be examined on the well established principles of judicial
review.”
171.
It is clear from the above survey of the case law that it is a
fundamental principle of our jurisprudence that Courts must always
endeavour to exercise their jurisdiction so that the rights of the people are
guarded against arbitrary violations by the executive. This expansion of
jurisdiction is for securing and safeguarding the rights of the people
against the violations of the law by the executive and not for personal
aggrandizement of the courts and Judges. It is to this end that the power of
judicial review was being exercised by the judiciary before 3rd November,
2007. Indeed the power of judicial review was, and would continue to be,
exercised with strict adherence governing such exercise of power,
remaining within the sphere allotted to the judiciary by the Constitution.
172.
Though the exercise of suo motu powers and alleged
consequential erosion of trichotomy of powers enshrined in the
Constitution was made a ground for imposing the unconstitutional and
illegal Proclamation of Emergency, which was upheld in
Tikka Iqbal
Muhammad Khan’s case, not a single case taken up suo motu was referred
to, or discussed in the detailed reasons of the said decision – except a bald
reference in Para 2(ii) of the short order – to point to any undue
interference in the functioning of the other branches of the government.
In any event, it was open to the Federation in all such cases to have
availed the remedy provided under the Constitution and the law against
the judgments of the Supreme Court. But, no such step was ever taken
in any case whatsoever. Surprisingly, Abdul Hameed Dogar, J, and
Const. P 9 & 8/2009
others held in
320
Tikka Iqbal Muhammad Khan’s case that the suo motu
actions were destructive of the constitutional principle of trichotomy of
power, but he himself continued to take similar actions from time to
time, which fact was established from the record of the Supreme Court
after 3 rd November, 2007. It was a contradiction in terms.
173.
As to the institution of the Supreme Judicial Council, which
was allegedly rendered ineffective, the argument was not available in view
of the judgment of a thirteen-member Bench reported as PLD 2007 SC 578.
Even otherwise, Abdul Hameed Dogar, J, and 6 other Judges were legally
and constitutionally debarred from commenting upon the matter.
174.
As seen above, the whole grievance was nurtured against the
Judges of the Supreme Court who were hearing the disqualification case of
General Pervez Musharraf, but in issuing the unconstitutional and illegal
Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 all
Judges of the Supreme Court, Federal Shariat Court and High Courts were
declared to have ceased to hold office and only such Judges were allowed
to occupy the seats of Judges who made oath in violation of the order
dated 3rd November, 2007 passed by a seven – member Bench of this Court
in Wajihuddin Ahmed’s case.
175.
The detailed reasons in support of the short order passed in
Tikka Iqbal Muhammad Khan’s case were released on 13th February, 2008. The
same day, Civil Review Petition No. 7 of 2008 was filed, which was heard
on 15th February, 2008 by a thirteen-member Bench and was dismissed by
a short order of even date. The learned counsel for the petitioner
contended that the entire proceedings lacked in bona fides, which were
Const. P 9 & 8/2009
321
conducted by persons who were acting in collusion with General Pervez
Musharraf and consequently in their own interest. We find force in the
submission of the learned counsel. A perusal of the record of the aforesaid
review petition shows that the office had raised objection that the
Constitution Petition was not entertainable, inasmuch as the main petition
was argued by Mr. Irfan Qadir, ASC, whereas Mr. Arshad Ali Chaudhry,
who had drawn, and was filing, the review petition, was only AOR at the
main petition stage and had not argued the matter. Further, security
amount of Rs.10,000/- was also not deposited. However, on 14th February,
2008, the security amount was deposited and Abdul Hameed Dogar, J,
granted the learned AOR special permission to draw and file the review
petition contrary to the provisions of Order XXVI rule 6 of the Supreme
Court Rules, 1980 and the law laid down in Muhammad Younas v. State
(PLD 2005 SC 93), Mukhtar Ahmad v. State (PLD 2003 SC 126) and Feroze
Din v. Mehr Sardar Muhammad (2002 SCMR 1993). It is noteworthy that no
application was filed by the learned AOR seeking permission to draw and
file the review petition or argue the same in absence of the learned counsel
who had argued the main petition. In the circumstances, the entire exercise
was done in haste with the sole objective of purportedly conferring
validity and legitimatization on the unconstitutional and illegal actions
taken by General Pervez Musharraf on 3rd November, 2007 and onward.
176.
It has already been held that Abdul Hameed Dogar, J, and
other Judges who made oath, or were appointed, in violation of the order
dated 3rd November, 2007 passed by a seven – member Bench of this Court
in Wajihuddin Ahmed’s case were not even de facto Judges, inter alia, on the
Const. P 9 & 8/2009
322
ground that the actions taken by General Pervez Musharraf from 3rd
November, 2007 to 15th December, 2007, including the appointments
and/or oaths of such Judges, were mala fide as the same were taken by him
for his own benefit, and did not fall within the scope of his authority under
the Constitution and the law and in any case, they were not taken in the
interest of the State, or for the welfare of the people.
177.
In the light of the above discussion, the judgments/orders
passed by Abdul Hameed Dogar, J, and other Judges in
Tikka Iqbal
Muhammad Khan’s case and Wajihuddin Ahmed’s case, that is to say, the short
order dated 23rd November, 2007 passed in Tikka Iqbal Muhammad Khan’s
case, reported as PLD 2008 SC 6, the detailed reasons in support of the
aforesaid short order, reported as PLD 2008 SC 178, judgment dated 15th
February, 2008 passed in Civil Review Petition No. 7 of 2008 in the said
case, reported as PLD 2008 SC 615 and the order dated 6th November, 2007
passed in Wajihuddin Ahmed’s case, reported as PLD 2008 SC 25 are hereby
declared to be illegal, mala fide, coram non judice and void ab initio.
178.
However, the judgments and orders passed, and proceedings
taken in the cases of other litigants involving their rights and interests in
civil, criminal and other matters, any function performed under the
Constitution including administering of oath to the President, and other
acts, whether administrative or financial, done or performed by Abdul
Hameed Dogar, J, and such other Judges or by any authority, or by any
person, whether in the Supreme Court or a High Court, which were
passed, taken, done or performed, or purported to have been passed,
taken, done or performed under the Constitution or law from 3rd
Const. P 9 & 8/2009
323
November, 2007 to 31st July, 2009, i.e. the date of this judgment would not
be affected on the principle laid down in Asad Ali’s case (supra).
179.
All the acts/actions done or taken by General Pervez
Musharraf from 3rd November, 2007 to 15th December, 2007 (both days
inclusive), that is to say, Proclamation of Emergency and the subsequent
acts/actions done or taken in pursuance thereof, having been held and
declared to be unconstitutional, illegal, ultra vires and void ab initio are not
capable of being condoned. These include Proclamation of Emergency and
the PCO No.1 of 2007 issued by him as Chief of Army Staff and Oath
Order, 2007 issued by him as President of Pakistan in pursuance of the
aforesaid two instruments, all dated 3rd November, 2007; Provisional
Constitution (Amendment) Order, 2007 dated 15th November, 2007;
Constitution (Amendment) Order, 2007 (President’s Order No.5 of 2007
dated 20th November, 2007); Constitution (Second Amendment) Order,
2007 (President’s Order No.6 of 2007 dated 14th December, 2007);
Islamabad High Court (Establishment) Order 2007 (President’s Order No.7
of 2007 dated 14th December 2007); High Court Judges (Pensionary
Benefits) Order, 2007 (President’s Order No.8 of 2007 dated 14th December,
2007) and Supreme Court Judges (Pensionary Benefits) Order, 2007
(President’s Order No.9 of 2007 dated 14th December, 2007). The aforesaid
actions of General Pervez Musharraf are also shorn of the validity
purportedly conferred upon them by the decisions in
Tikka Iqbal
Muhammad Khan’s case. The said decisions have themselves been held and
declared to be
coram non judice and nullity in the eye of law. The
amendments purportedly made in the Constitution in pursuance of PCO
Const. P 9 & 8/2009
324
No. 1 of 2007 themselves having been declared to be unconstitutional and
void ab initio, all the actions of General Pervez Musharraf taken on and
from 3rd November, 2007 till 15th December, 2007 (both days inclusive) are
also shorn of the validity purportedly conferred upon them by means of
Article 270AAA.
180.
The Chief Justice and Judges of the Islamabad High Court
shall cease to hold office immediately for the reasons: (1) the amendments
introduced in the relevant Articles of the Constitution under which they
were appointed have also been annulled; (2) the High Court to which they
were appointed has ceased to exist on account of the annulment of the
acts/actions of General Pervez Musharraf of 3rd November, 2007 and
other instruments including Islamabad High Court (Establishment) Order,
2007 (President’s Order No. 7 of 2007 dated 14th December, 2007) by means
of this judgment; and (3) they were appointed in consultation with Abdul
Hameed Dogar, J, who was not authorized to be consulted for such
purpose under the provisions of Article 193 of the Constitution, as held in
the Al-Jehad Trust case. However, if the Chief Justice, or any Judge of that
Court, prior to his appointment in the said Court, was a Judge of any other
High Court, he shall stand repatriated to his respective High Court subject
to the age of superannuation. The finding recorded in the preceding part of
this judgment regarding the Judges of other High Courts who made oath
in violation of the order dated 3rd November, 2007 passed by a seven –
member Bench of this Court in Wajihuddin Ahmed’s case shall apply to a
Judge of the Islamabad High Court if he was a Judge of any High Court
prior to 3rd November, 2007 and had made such an oath.
Const. P 9 & 8/2009
181.
325
However, the judgments and orders passed, proceedings
taken in the cases and other acts, whether financial or administrative,
passed or done in the ordinary orderly running of the day-to-day business
of the Islamabad High Court from 15th December, 2007 till 31st July, 2009,
i.e. the date of announcement of this judgment, would not be affected on
the principle laid down in Asad Ali’s case. All judicial matters pending
before the erstwhile Islamabad High Court at the passing of this judgment,
whether they were transferred to the said Court from any other court, or
were instituted before it, shall stand transferred to the courts which had
jurisdiction in such matters before its establishment.
182.
The Islamabad High Court having ceased to exist as
mentioned above, all posts on its establishment stand abolished. In
consequence, all the officers and employees of the said Court have become
surplus. They, therefore, shall become part of the Federal Government
Surplus Pool for their further appointment/posting/absorption in
accordance with law. However, if any such officer or employee was an
officer or an employee of some other court, department or office, such
officer or employee shall revert to his respective court, department or
office to which he belonged before joining service in the Islamabad High
Court, subject to his age of superannuation.
183.
Under Article 37 of the Constitution, State is obliged, inter alia,
to ensure inexpensive and expeditious justice. In Govt. of Balochistan v.
Azizullah Memon (PLD 1993 SC 341), it was held that the right of access to
justice was a human right universally recognized, which was being
implemented and executed by granting relief under the provisions of the
Const. P 9 & 8/2009
326
Constitution. Similarly, in the case of Al-Jehad Trust (supra) and Sharaf
Faridi v. Federation of Pakistan (PLD 1989 Karachi 404) it was held that the
right to have access to justice through an independent judiciary was a
Fundamental Right. The establishment of the Islamabad High Court was a
commendable step in aid of the right of access to justice in line with the
above constitutional mandate and the law laid down in the aforesaid cases.
However, it was unfortunate that the said court was not established in
accordance with the provisions of the Constitution, rather it was so done
by a person not empowered under the Constitution to do so, with ulterior
motive. General Pervez Musharraf, as held in the preceding paragraphs,
mixed up his mala fide acts of removal of Judges of the superior Courts in
violation of the Constitution and his own purported validation of all such
unconstitutional and illegal acts by means of Article 270AAA, with the act
of establishing a High Court for the Islamabad Capital Territory, otherwise
an act, which would tend to advance or promote the good of the people, so
that he was able to get validation and affirmation from the Parliament, as
had happened in the cases of Begum Nusrat Bhutto and Zafar Ali Shah. Thus,
having been so unconstitutionally established in a highly objectionable
manner, it was not possible to protect it.
It is, therefore, added that
notwithstanding what has been declared and ordered above, the relevant
and competent authorities may take steps to establish such a court in
accordance with the Constitution and law.
184.
This brings us to the question of protection, if any, of other
acts done during the period of the unconstitutional and illegal
Proclamation of Emergency, i.e. from 3rd November, 2007 to 15th
Const. P 9 & 8/2009
327
December, 2007 (both days inclusive). A distinct feature of the instant case
was that though on 3rd November, 2007 the Constitution was held in
abeyance and Pakistan made to be governed, as nearly as may be, in
accordance with the Constitution, but subject to PCO No. 1 of 2007 and
any other Order issued by General Pervez Musharraf as President, the fact
remained that the other two branches of the government, namely, the
executive and the legislative were continued. The Federal and the
Provincial Governments, i.e. Prime Minister, Federal and State Ministers,
Chief Ministers and Provincial Ministers all continued in office. The
Chairman/Deputy Chairman, Senate and Speaker/Deputy Speaker,
National Assembly also continued in office. The National Assembly and
the Provincial Assemblies continued and were dissolved on completion of
their term of five years. Thereafter, caretaker governments at the Federal
and Provincial levels were formed and ultimately the election of 18th
February, 2008 was held. Thus, all along the day-to-day business of the
executive and legislative branches of the government was carried on under
and in accordance with the Constitution. Therefore, all acts/actions of the
said branches of the government from 3rd November, 2007 to 15th
December, 2007, as aforesaid, were done in the ordinary orderly running
of the State under and in accordance with the Constitution and the law.
Thus, they would be presumed to be validly and competently done unless
challenged on grounds of vires, mala fides, non-conformity with the
Constitution or violation of the Fundamental Rights or on any other
available ground. The umbrella of Proclamation of Emergency and PCO
No. 1 of 2007 was an eyewash and a blackmailing tool. Though emergency
Const. P 9 & 8/2009
328
as purportedly proclaimed was in force and the Constitution was held in
abeyance, General Pervez Musharraf made oath of President under the
Constitution and not under PCO No. 1 of 2007. The Proclamation of
Emergency having been revoked on 15th December, 2007, the acts/actions
done or taken from 16th December, 2007 onward until the swearing in of
the elected representatives and formation of governments at the federal
and the provincial levels were even otherwise done or taken under and in
accordance with the Constitution and the law, and were, therefore, valid
and were not affected in any way.
185.
It may be noted that Article 4 of PCO No. 1 of 2007 provided
that notwithstanding the abeyance of the provisions of the Constitution,
but subject to the Orders of the President, all laws other than the
Constitution, all Ordinances, Orders, Rules, Bye-laws, Regulations,
Notifications and other legal instruments in force in any part of Pakistan,
whether made by the President or the Governor of a Province, would
continue in force until altered, or repealed by the President or any
authority designated by him. Clause (1) of Article 5 ibid provided that an
Ordinance promulgated by the President or by the Governor of a Province
shall not be subject to any limitations as to duration prescribed in the
Constitution. Likewise, under clause (2) of the said Article, an Ordinance
issued by the President or by a Governor which was in force immediately
before the commencement of Proclamation of Emergency of the 3rd day of
November, 2007 shall also not be subject to aforesaid limitations. As a
result, all the Ordinances, which were in force on 3rd November, 2007 as
well as the Ordinances which were promulgated on or after 3rd
Const. P 9 & 8/2009
329
November, 2007 up to 15th December, 2007 were continued in force as
permanent laws and were not laid before the respective legislatures during
the period prescribed by the Constitution.
186.
Proclamation of Emergency and PCO No. 1 of 2007 having
been declared unconstitutional and void ab initio and the validity
purportedly conferred on all such Ordinances by means of Article 270AAA
and by the judgment in Tikka Iqbal Muhammad Khan’s case also having been
shorn, such Ordinances would cease to be permanent laws with the result
that the life of such Ordinances would be limited to the period specified in
Articles 89 and 128 of the Constitution, viz., four months and three months
respectively from the date of their promulgation. Under Article 89 of the
Constitution, an Ordinance issued by the President, if not so laid before
the National Assembly, or both Houses of Parliament, stands repealed on
expiration of four months from its promulgation. Similarly, under Article
128 of the Constitution, an Ordinance issued by the Governor, if not so laid
before the concerned Provincial Assembly, stands repealed on expiration
of three months from its promulgation.
187.
It may be noted that such Ordinances were continued in force
throughout under a wrong notion that they had become permanent laws.
Thus, the fact remains that on the touchstone of the provisions of Articles
89 and 128 read with Article 264 of the Constitution and section 6 of the
General Clauses Act, 1897, only such rights, privileges, obligations, or
liabilities would lawfully be protected as were acquired, accrued or
incurred under the said Ordinances during the period of four months or
three months, as the case may be, from their promulgation, whether before
Const. P 9 & 8/2009
330
or after 3rd November, 2007, and not thereafter, until such Ordinances
were enacted as Acts by the Parliament or the concerned Provincial
Assembly with retrospective effect.
188.
In the light of the above, the question of validation of such
Ordinances would be required to be decided by the Parliament or the
concerned Provincial Assemblies. However, the period of four months and
three months mentioned respectively in Articles 89 and 128 of the
Constitution would be deemed to commence from the date of short order
passed in this case on 31st July, 2009 and steps may be taken to lay such
Ordinances before the Parliament or the respective Provincial Assemblies
in accordance with law during the aforesaid periods. This extension of
time has been allowed in order to acknowledge the doctrine of trichotomy
of powers as enshrined in the Constitution, to preserve continuity, to
prevent disorder, to protect private rights, to strengthen the democratic
institutions and to enable them to perform their constitutional functions,
which they were unconstitutionally and illegally denied under PCO No. 1
of 2007. Needless to say that any validation whether with retrospective
effect or otherwise, shall always be subject to judicial review on the well
recognized principles of ultra vires, non-conformity with the Constitution
or violation of the Fundamental Rights, or on any other available ground.
189.
Referring to the holding of general elections of February, 2008,
the swearing in of the elected members and the formations of the
governments at the Federal and the Provincial levels, the learned Attorney
General for Pakistan submitted that the people had spoken and the
mandate so given by them needed to be respected, therefore, any
Const. P 9 & 8/2009
331
declaration by the Court, which would, in any way, affect the democratic
system would not be in the interest or welfare of the people. In a
somewhat similar situation, in Asma Jilani’s case, the Court held as under:“The National Assembly has met and ratified the assumption of
power by the new President who is an elected representative of the
people and the leader of the majority party in the National
Assembly as now constituted.”
190.
We make it clear that the present decision is confined to the
questions in issue before this Court, namely, the constitutionality of
Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, etc.
It is noteworthy that the elections of 18th February, 2008 were held after
dissolution of the National Assembly and Provincial Assemblies on
completion of their term of five years under the Constitution. Accordingly,
in pursuance of the said elections, assemblies came into existence and
governments at the Federal and Provincial levels were formed. Further, the
elections were held after the revocation of emergency and not during the
currency of PCO No. 1 of 2007. The fact that the initial announcement
regarding holding of elections may have been made under an instrument
issued by General Pervez Musharraf in pursuance of the actions of 3rd
November, 2007 in no way affects the process whereby elections were held
and the people of Pakistan expressed their will. Nor are the elections
affected by Article 6 of the Revocation of Proclamation of Emergency
Order, 2007 which purported to provide that the general elections to the
National Assembly and Provincial Assemblies would be held as
scheduled, and thereafter the National and Provincial Assemblies would
meet on the dates to be specified by the President for the election of
Const. P 9 & 8/2009
332
Speaker and Deputy Speaker and for transaction of such other business as
the President may specify, in no way, affects the validity of the general
elections. We, therefore, hold that the elections of 18th February, 2008 were
held in accordance with the Constitution and the law. This Court
acknowledges and respects the mandate given by the sovereign authority
i.e. the electorate to the democratically elected government on 18th
February, 2008 and would continue to jealously guard the principle of
trichotomy of powers enshrined in the Constitution, which is the essence
of the rule of law.
191.
This Court hopes that all institutions, on the well known
principles
of
good
governance,
and
without
transgressing
their
constitutional bounds, will endeavour to eradicate corruption and selfenrichment, and will devote themselves to the service of the people.
Needless to add that the Courts will, at all times, remain vigilant in this
behalf and will always come to the rescue of any beleaguered citizen or
class of citizens whenever and wherever an occasion arises.
192.
In any case, it is made clear that any declaration made in this
judgment shall not, in any manner, affect the holding of the general
elections, formation of governments and the swearing in of the elected
representatives of the people, viz. President, Prime Minister, Parliament,
Provincial Governments, or anything duly done by these institutions in the
discharge of their functions. However, any validation whether with
retrospective effect or otherwise, shall remain subject to judicial review on
the well recognized principles of ultra vires, non-conformity with the
Const. P 9 & 8/2009
333
Constitution or violation of the Fundamental Rights or on any other
available ground.
193.
Reverting to the cases of the respondents Nos. 3 & 4, it may be
noted that they were appointed as Additional Judges of the High Court of
Sindh for a period of one year vide notification dated 15th September, 2007
on the recommendation of the then Chief Justice of High Court of Sindh
and the Chief Justice of Pakistan. They took oath of their office on 18th
September, 2008. However, in pursuance of the actions of 3rd November,
2007 they were declared to have ceased to hold office vide notification
dated 3rd December, 2007 because they complied with the or der dated 3rd
November, 2007 passed by a seven – member Bench of this Court in
Wajihuddin Ahmed’s case and as a consequence did not make oath under
PCO No. 1 of 2007 read with Oath Order, 2007. In pursuance of the
declaration made in this judgment in respect of the actions of 3rd
November, 2007, all Judges who were declared to have ceased to hold
office, are to be deemed never to have ceased to be such Judges. Moreover,
all such Judges including the respondents Nos. 3 & 4 have been restored to
the position they were holding prior to 3rd November, 2007. Their
reappointment vide notification dated 26th August, 2008 and extension of
tenure for a period of six months vide notification dated 15th September,
2008 were of no consequence because such purported appointments were
made in consultation with Abdul Hameed Dogar, J, who was not
authorized to be consulted for the said appointments. Accordingly, their
reappointment and extension of tenure for a period of six months have
been declared to be unconstitutional and of no legal effect. So, the tenure
Const. P 9 & 8/2009
334
of their original appointment as Additional Judges expired on 17th
September, 2008. The recommendations made by the Chief Justice, High
Court
of Sindh (Anwar Zaheer Jamali, CJ,) vide his letter dated 10th
September, 2008 for extension of the tenure of the respondents Nos. 3 & 4
as Additional Judges for a period of one year, and subsequently by letter
dated 25th February, 2009 and further reiterated in letter dated 13th March,
2009, for their appointment as Judges of that Court under Article 193 of the
Constitution were also invalid and of no consequence because his own
appointment as Chief Justice was not proper on account of invalid
consultation by Abdul Hameed Dogar, J. In this view of the matter, the
judgments and orders passed and the proceedings taken in the cases
and/or any other acts done by the respondents Nos. 3 & 4 during the
period from 17th September, 2008 onward until they worked as such
Additional Judges would not be affected on the principle laid down in
Asad Ali’s case (supra). It may be observed here that the matter of
appointment of the respondents Nos. 3 & 4 as permanent Judges, or
extension in their tenure as Additional Judges was never considered by the
proper judicial constitutional consultees, viz. Chief Justice of High Court
and the Chief Justice of Pakistan.
194.
An important issue raised in these proceedings requires to be
determined at this stage. The Chief Justice of the High Court
recommended extension in the tenure of the respondents Nos. 3 & 4 for a
period of one year, but the Governor of Sindh and Abdul Hameed Dogar,
J, who was occupying the office of Chief Justice of Pakistan, though
illegally and unconstitutionally, recommended six months’ extension,
Const. P 9 & 8/2009
335
which was acted upon. In the judgment passed by the High Court of Sindh
in Constitution Petition D-40 of 2009 (Sindh High Court Bar Association
through its Honorary Secretary v. Federation of Pakistan through
Secretary, Ministry of Law and Justice) a Full Bench of that Court held that
in the event where there was no identity of views between the Chief Justice
of the High Court concerned and the Chief Justice of Pakistan, the
recommendations of the Chief Justice of Pakistan would not be binding on
the executive and if the executive accepted his views without the
supporting views of the Chief Justice of the High Court concerned, the
action of the executive would become justiciable. According to the learned
High Court, it was so because in the Judges’ case it was held that the views
of the Chief Justice of the High Court concerned and the Chief Justice of
Pakistan could not be rejected arbitrarily for extraneous consideration, and
if the executive wished to disagree with their views, it had to record strong
reasons which would be justiciable, and that a person found to be unfit by
the Chief Justice of High Court concerned and the Chief Justice of Pakistan
for appointment as a Judge of High Court, could not be appointed and it
would not be a proper exercise of power under the Constitution. It was
further held that an appointment made without adhering to the
recommendation of the Chief Justice of High Court and giving no reasons
for such non-adherence would not be based upon mandatory consultation
as required by the Constitution and the law laid down in Al-Jehad Trust
case, which laid down that there should be participatory consultative
process between the consultees and also with the executive and it should
be effective, meaningful, purposive, consensus-oriented, leaving no room
Const. P 9 & 8/2009
336
for complaint of arbitrariness or unfair play and that the views of each of
the
consultees
were
binding
on
the
executive
and
if
the
executive/government wished to disagree with the views of any of the
consultees, they would be required to give strong reasons for it. Mr.
Rashid A. Rizvi, learned counsel for the petitioners supported the
judgment of High Court. According to him, the question was required to
be determined by this Court, as the same was not covered by the law laid
down in Al-Jehad Trust case inasmuch as the said case proceeded on the
premise of consensus between the Chief Justice of High Court and the
Chief Justice of Pakistan, whose recommendation would prevail as against
the views of the executive/government if the same were contrary to the
recommendation made by the two judicial consultees. The learned
Attorney General for Pakistan submitted that the opinion of the Chief
Justice of Pakistan, being the pater familias, deserved primacy, which was
not justiciable in view of the law laid down in Supreme Court Bar
Association’s case (supra).
195.
We have given our anxious consideration to this aspect of the
matter. The learned High Court appears to have misread the law laid
down in the cases of Al-Jehad Trust and Supreme Court Bar Association.
In the latter case, analyzing the law laid down in the cases of Al-Jehad
Trust and Ghulam Hyder Lakho, this Court held as under: “28.
It was held in the Judges’ case that the views of the Chief
Justice of Pakistan cannot be rejected arbitrarily for extraneous
consideration and if the executive wished to disagree with his
views, it has to record strong reasons which will be justiciable. In
the present case while making the impugned appointments the
President of Pakistan had fully adhered to the recommendations
Const. P 9 & 8/2009
337
made by the Chief Justice of Pakistan. The main and vital question
which
arises
for
decision,
therefore,
is
whether
the
recommendations of the Chief Justice of Pakistan in the process of
Constitutional consultation in the matter of appointment of Judges
of the Supreme Court are justiciable. This question had arisen in the
Judges' case as well and was determined with the observation that
the recommendations of the Chief Justice were not justiciable. The
opinion rendered by Ajmal Mian. J. (as he then was) reads as
under:-"In any case, it is a matter for consideration by the Chief
Justice of the High Court concerned and the Chief Justice of
Pakistan. They have to decide, whether a particular
candidate has requisite experience and once they form the
view that the candidate has the requisite experience as
envisaged by sub-clause (a) of clause (2) of Article 193, this
issue will not be justiciable before the Court of law. The
Court cannot sit and decide, whether a particular person has
the requisite experience or not? It is a matter of subjective
satisfaction of the Chief Justice of the High Court concerned
and the Chief Justice of Pakistan."
This question had again arisen in Ghulam Hyder Lakho's case and
was answered in the negative by reiterating the law on the subject
laid down in the Judges' case. The observations made in this
context are worded thus:-"In view of the above-quoted observations of Ajmal Mian, J.
it is quite clear that the recommendations of the Chief Justice
of the High Court and that of Chief Justice of Pakistan are
not justiciable."
The rationale behind making the recommendations of the Chief
Justice of Pakistan non-justiciable is multifaceted. The main
justification is contained in the above-quoted observations of Ajmal
Mian. J. (as he then was) in the Judges' case that the
recommendations are the outcome of subjective satisfaction of the
Chief Justice of Pakistan. The other dimensions are that if the
recommendations are made justiciable the primacy of the opinion
of the Chief Justice of Pakistan will be undermined directly or
indirectly, embarrassment will be caused to the judicial consultee
as well as the recommendees, independence of judiciary and
smooth working of the Court will be affected, pressure groups will
emerge at different levels and we will go back to the situation
Const. P 9 & 8/2009
338
prevailing before the Judges' case, which will be more unsavoury
than the one portrayed in these petitions.”
196.
In Al-Jehad Trust case, the cases of S.P. Gupta v. President of
India (AIR 1982 SC 149) and Supreme Court Advocates-on-Record Association
v. Union of India (AIR 1994 SC 268) were also examined. The relevant
discussion on the primacy of the opinion of the Chief Justice of India
occurs at paragraphs 33 to 35 of the judgment, which are reproduced
below: “33.
In India the controversy arose inter alia on the question, as to
whether the opinion of the Indian Chief Justice has primacy over
the opinion of other Constitutional functionaries, inter alia in the
case of S.P. Gupta (supra). The majority consisting of Bhagwati,
Desai, S.M.F. Ali and Venkataramiah, JJ. held against the primacy
though they were of the view that the consultation contemplated
by the Constitution must be full and effective and by convention
the views of the concerned Chief Justice and Chief Justice of India
should
also
always
prevail
unless
there
are
exceptional
circumstances which may impel the President to disagree with the
advice given by the above Constitutional authorities. Desai, J. in his
opinion opined that independence of judiciary under the
Constitution has to be interpreted within the framework and
parameters of the Constitution and that there are various
provisions in the Constitution which indicate that the Constitution
has not provided something "hands off" attitude. P.N. Bhagwati, J.,
while concurring with the opinion of S.M.F. Ali J., opined that
clause (1) of Article 217 provides that the appointment of a High
Court Judge shall be made after consultation with all the three
Constitutional functionaries without assigning superiority to the
opinion of one over that of another. He further opined that "it is
true that the Chief Justice of India is the head of the Indian
Judiciary and may be figuratively paterfamilias of the brotherhood
of Judges but the Chief Justice of a High Court is also an equally
important Constitutional functionary and it is not possible to say so
Const. P 9 & 8/2009
339
far as the consultation process is concerned, in any way, less
important than the Chief Justice of India". The other questions as to
the right of Additional Judges and the validity of transfer of certain
High Court Judges were also considered. At this stage, it is not
necessary to refer the same.
34.
It seems that a Bench comprising Ranganath Misra, C.J. M.N.
Venkatachaliah and M.M. Punshhi, JJ. in the case of Subhesh
Sharma, petitioner v. Union of India, Respondent and Supreme
Court Advocates-on- Record Association and another Petitioners v.
Union of India (through its Secretary, Ministry of Law and Justice),
Respondent, and Firdaus Taleyarkhan Petitioner v. Union of India
and another Respondents (AIR 1991 SC 63 1) was of the view that
the majority opinion in the case of S.P. Gupta (supra) not only
seriously detracts from and denudes the primacy of the position
implicit under the Constitutional scheme, of the Chief Justice of
India, in the consultative process but also whittles down the very
significance of "consultation" as required to be understood in the
Constitutional scheme and context. They were, therefore, of the
view that the matter required reconsideration recommended the
constitution of a larger Bench to re-consider the view taken in S.P.
Gupta's case on two points as under: -"44. Judicial Review is a part of the basic Constitutional
structure and one of the basic features of the essential Indian
Constitutional policy. This essential Constitutional doctrine
does not by itself justify or necessitate any primacy to the
executive wing on the ground of its political accountability
to the electorate. On the contrary what is necessary is an
interpretation sustaining the strength and vitality of Judicial
Review.
46.
The correctness of the opinion of the majority in S.P.
Gupta's case (AIR 1982 SC 149), relating to the state is an
importance of consultation, the primacy of the position of
the Chief Justice of India and the view that the fixation of
Judge-strength is not justi ciable should be reconsidered by a
larger Bench.
35.
As a result of the above reference made by the aforesaid
Judges, the aforementioned points came up for consideration
before a larger Bench consisting of nine Judges which resulted in
the
above
judgment
in
the
case
of
Supreme
Court
Advocates-on-Record Association and another Petitioner v. Union
Const. P 9 & 8/2009
340
of India Respondent (supra). In the said case elaborate arguments
were advanced by the lawyers of standing/repute for and against
the question of primacy. The majority of the Judges comprising
seven Judges held inter alia that the Chief Justice of India's opinion
has primacy in the matter of appointments of the High Court and
Supreme Court Judges. "
J.S. Verma, J., who wrote his opinion for himself and also on
behalf of his four learned brethren, namely, Yogeshwar Dayal, G.N.
Ray, A.S. Anand and S.P. Bharucha, JJ, recorded inter alia the
following reasons for the majority for holding that the Chief Justice
of India's opinion has primacy:-"474. It is obvious, that the provision for consultation pith
the Chief Justice of India and, in the case of the High Courts,
with the Chief Justice of the High Court was introduced
because of the realisation that the Chief Justice is best
equipped to know and assess the worth of the candidate,
and his suitability for appointment as a superior Judge; and
it was also necessary to eliminate political influence even at
the stage of the initial appointment of a Judge, since the
provisions for securing his independence after appointment
were alone not sufficient for an independent judiciary. At
the same time, the phraseology used indicated that giving
absolute discretion or the power of veto to the Chief Justice
of India as an individual in the matter of appointments was
not considered desirable, so that there should remain some
power with the executive to be exercised as a check,
whenever necessary. The indication is that in the choice of a
candidate suitable for appointment, the opinion of the Chief
Justice 'of India should have the greatest weight; the
selection should be made as a result of a participatory
consultative process in- which the executive should have
power to act as a mere check on the exercise of power by the
Chief Justice of India, to achieve the Constitutional purpose.
Thus, the executive element in the appointment process is
reduced to the minimum and any political influence is
eliminated. It was for this reason that the word
‘consultation’ instead of ‘concurrence’ was used, but that
was done merely to indicate that absolute discretion was not
given to any one, not even to the Chief Justice of India as an
individual, muchless to the executive, which earlier had
absolute discretion under the Government of India Act.
475. The primary aim must be to reach an agreed decision
taking into account the views of all the consultees, giving the
greatest weight to the opinion of the Chief Justice of India
who, as earlier stated, is best suited to know the worth of the
appointee. No question of primacy would arise when the
decision is reached in this manner by consensus, without
any difference of opinion. However, if conflicting opinions
Const. P 9 & 8/2009
341
emerge at the end of the process, then only the question of
giving primacy to the opinion of any of the consultees arises.
For reasons indicated earlier, primacy to the executive is
negatived by the historical change and the nature of
functions required to be performed by each. The primacy
must, therefore, lie in the final opinion of the Chief Justice of
India, unless for very good reasons known to the executive
and disclosed to the Chief Justice of India, that appointment
is not considered to be suitable.”
The case of Supreme Court Advocates-on-Record Association was considered
In Re: Special Reference No. 1 of 1998 [(1998) 7 SCC 739] wherein it was
held that the majority view in the former case was that in the matter of
appointments to the Supreme Court and High Courts, the opinion of the
Chief Justice of India had primacy because it was reflective of the opinion
of the judiciary. It was further held that for an appointment to be made, it
had to be in conformity with the final opinion of the Chief Justice of India.
197.
On a perusal of the above case-law, some propositions emerge
very clearly: The Chief Justice of Pakistan is the pater familias, i.e. the head
of the judiciary, therefore, his views definitely deserve due deference; the
recommendation of the Chief Justice of Pakistan is non-justiciable for the
reasons discussed in the Supreme Court Bar Association’s case reproduced
above; and last, but not the least, non-justiciability of the opinion of the
Chief Justice of Pakistan is inextricably linked with the independence of
judiciary. Correct, that the consultation envisaged by Articles 177 and 193
of the Constitution, as interpreted in Al-Jehad Trust case, has to be effective,
meaningful, purposive, consensus-oriented, leaving no room for complaint
of arbitrariness or unfair play; it was a participatory consultative process
between the consultees and also with the executive; and the views of the
two judicial consultees would be binding on the executive in absence of
strong reasons to be recorded in writing, which would be justiciable;
Const. P 9 & 8/2009
342
however, to make the opinion of the Chief Justice of Pakistan justiciable on
the ground that it is not fully supported by the opinion of the Chief Justice
of the concerned High Court is a proposition, which cannot be
countenanced on account of its being violative of the principle of
independence of judiciary. At the same time, it is necessary that to achieve
the primary objective of mandatory, effective, meaningful, purposive and
consensus-oriented consultation, by all means the first priority has to be
directed to evolving consensus between the consultees by mutual
discussion of the merits and demerits of the concerned candidates.
However, if the opinion of the Chief Justice of Pakistan is not fully
supported by the Chief Justice of the concerned High Court, it is the final
opinion of the Chief Justice of Pakistan, formed after taking into consider
the opinion of the Chief Justice of High Court and the report of the
Governor of the Province about the antecedents of the person concerned,
which shall be given primacy. The law laid down in Al-Jehad Trust case that
“the Chief Justice of Pakistan, being the pater familias, his views definitely
deserve due deference” admits of no other interpretation. In this view of
the matter, the view taken by the learned High Court, being contrary to the
independence of judiciary cannot be sustained. Accordingly, the same is
set aside.
198.
In Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84), it
was held that in respect of appointments of Judges as contemplated under
Articles 177 and 193 of the Constitution, advice of the Cabinet or Prime
Minister under Article 48(1) would be attracted, but the same would be
further qualified by, and subject to the ratio decidendi of the judgment
Const. P 9 & 8/2009
343
passed in AI-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324).
Following the principles enunciated in the aforesaid two judgments, it is
declared that in the matter of appointment of Judges of the High Courts,
the Governor could act only on the advice of the Chief Minister in terms of
Article 105 of the Constitution. In this view of the matter, the
recommendations of the Governor in the case of the respondents Nos. 3
and 4 acting otherwise than on the advice or in absence of the advice of the
Chief Minister were invalid even though the same coincided with the
recommendation of Abdul Hameed Dogar, J.
199.
Before parting with this judgment, we would like to place on
record our appreciation for the valuable assistance rendered by the learned
counsel appearing on behalf of the petitioners and the learned Attorney
General for Pakistan, Deputy Attorney General and Advocate General
Sindh to the Court in the decision of the instant petitions involving issues
having far reaching effects.
200.
The petitions are disposed of accordingly.
CHIEF JUSTICE
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
Islamabad, 31st July, 2009
APPROVED FOR REPORTING
Const. P. 9 & 8/2009
344
CONST. PETITIONS # 8 & 9 OF 2009.
DECIDED ON 31.7.2009
CH. IJAZ AHMED, J. I have had the benefit and privilege of going
through the judgment recorded by Hon’ble Chief Justice of Pakistan and
generally agree therewith. In view of importance of the case, I deem it
prudent to add few words in support thereto.
2.
Society cannot exist without justice and justice cannot prosper
without independent judges. Justice is a holy romance and, therefore, every
goodness emanates from it. Human history is replete with events that
whenever, justice was shackled, the result was chaos. The genesis of Pakistan
is based on justice and for its enunciation I recapitulate some historical
events. It was the injustice prevailing in the Sub-continent which compelled
the Muslims to come to the rescue of Muslim women who were disgraced
and confined in Daibal by Raja Dahir. Governor Hujjaj Bin Yousif sent some
force under the judicious command of young General Muhammad Bin
Qasim who not only got the women released from the clutches of Raja Dahir
but also captured Sindh and area upto Multan. His good behaviour and
dispensation of equal justice persuaded non-Muslims to embrace Islam.
Adherence to the principles of justice enabled Muslim to establish its rule in
Sub-continent. The young Soldier’s just governance, humility and attitude
towards the non-muslim, magnetized them towards Islam and its teachings.
Consequently a large number of non-muslim inhabitants of the land
embraced Islam. Meanwhile, with the change of Governor, Muhammad Bin
Qasim was called back. Having known the consequences of his return in
view of his relationship with the previous Governor Hajjaj Bin Yousif, he
showed complete obedience to the orders. Though people insisted and
requested him to stay back but he refused for the supremacy of law.
Const. P. 9 & 8/2009
3.
345
Subsequently, British established its rule in the sub-continent
with active support and connivance of Hindus and few Muslim phonies. Bal
Gangadhar Tilak, first popular independence fighter after war of
Independence of 1857 was convicted and sentenced by the trial Court where
Founder of Pakistan appeared as his counsel. Interestingly, Bal Gandadhar
Tilak again engaged Quaid-e-Azam at the appellate stage in the High Court
where Quaid-e-Azam for the first time distinguished between the offence
against the state and the offence against public functionaries on ground of
which appeal was accepted. See Bal Gangadhar Tilak V. Emperor (AIR 1916
Bombay 9). This episode of Muslim counsel of a Hindu convict gave birth to
a little lived assumption that both the nations can together toil hard for self
rule.
4.
British Government gave India its first constitution by
promulgation of Government of India Act, 1919 which was repealed by
Government of India Act, 1924. The discriminatory provisions, injustice and
bias compelled the Muslims to start a movement for the creation of separate
homeland where they could live according to principles of justice. Finally,
Government of India Act, 1935 was promulgated which was adopted by both
Pakistan and India by virtue of Independence Act, 1947, portioning subcontinent and justifying two nation theory.
5.
Human life may be conveniently divided into three segments
i.e. social, economic and political, and, therefore, the Constitution of Islamic
Republic of Pakistan, 1973 guarantees social justice, economic justice and
political justice. In fact the basic salient feature of our Constitution is justice
and independence of judiciary. The glance of Constitutional history of
Pakistan reveals that our political leaders could not frame a constitution in
accordance with the principles enshrined in the Objective Resolution. They
Const. P. 9 & 8/2009
i)
348
Legislative history is relevant for interpreting Constitutional
Provisions (Historical Modality). See M/s Syed Bhaies Pvt.
Ltd’s case (1999 PCTLR 1328) & Seven-Up Bottling
Company Pvt. Ltd’s case (2003 CLC 513).
ii)
While interpreting the Constitution the Court is entitled to
apply well recognized principles of Islamic Common Law
(Ethical Modality).
iii)
Any interpretation which seeks to comply with or advance
principle of policy enumerated in the Constitution should be
adopted as against an interpretation which goes against such
principles (Structural and Ethical Modality).
iv)
In case of a Federal Constitution the powers of Government
established there under are enumerated i.e. that the
Government can exercise only the powers granted to it and
any other exercise of power could be invalidated as colorable
exercise of legislative power (Structural Modality). But the
legislative list is not to be interpreted in any narrow pedantic
senseand should be construed in broader manner Pir Sabir
Shah’s case (PLD 1995 SC 66 at 179, 193).
v)
What cannot be done directly cannot be done indirectly applies
more rigorously to the Constitutional provision. So, it was
held in ‘Cumming V. Missoori’ 71 US (4 Wall) 277, 325
(1867) that ‘constitution deals with substance not shadows’
(Structural Modality). Also see Nawaz Sharif’s case (PLD
1993 SC 473).
vi)
The principle that the enumeration of certain specified things
in a provision will exclude all things not so included, would
not apply to Constitutional provision Pir Sabir Shah’s case
(PLD 1995 SC 66 at 179 to 193) & Messrs Haider
Automobile Ltd. Vs. Pakistan (PLD 1969 SC 623); Corpus
Juris Secundum Vol. 17, pp. 86 and 89).
8.
The efforts of Supreme Court of Pakistan to revitalize the
judiciary for ensuring social justice, economic justice and political justice for
the welfare of the people of Pakistan did not find favour with General (Retd)
Pervaiz Musharraf who despite Order dated 3.11.2007 passed by this Court
but following ill-advice, in his capacity as Chief of Army Staff, promulgated
Const. P. 9 & 8/2009
349
Provisional Constitution Order No.1 of 2007 followed by the oath of Office
(Judges) Order, 2007, the details whereof and their aftermath have been
narrated in the erudite judgment of the Hon’ble Chief Justice, hence,
reiteration is not required. However, certain facts are necessary to highlight
circumstances for imposition of emergency. The late Chief Justice of Lahore
High Court Sardar Muhammad Iqbal had granted bail to Ahmed Raza
Kasuri on phone and such type of decisions of the court could not be
accepted by the government by the core of the heart. Due to which 5th and 6th
amendments were passed according to which tenure of Chief Justice of
Pakistan and the Chief Justices of High Courts was restricted to 5 years with
the option either to accept the elevation to the Supreme Court or accept,
stepping down as senior pusine Judger otherwise he would seized to be
judge of superior court. Late Sardar Muhammad Iqbal exercised the last
option and returned home inspite of the fact that he would have remained as
a judge of superior court for 11 years and in case of acceptance of elevation of
Supreme Court, he would have been Chief Justice of Pakistan for a very long
time. The amendment had finally shown its obvious results and resultantly it
has to be omitted through item No.34 and 37 of the Schedule to the President
Order No.14/1985. When General Pervaiz Musharraf was enjoying in full
swing of his power when he had restricted the Chief Justice of Pakistan to
perform judicial and administrative work by filing reference against him by
violating provisions of the Constitution. The Chief Justice of Pakistan filed a
constitutional petition before apex Court which was fixed before a 5 member
bench consisting of Justice ® M. Javed Buttar, Justice Nasir-ul-Mulk, Justice
Raja Fayyaz Ahmed, Justice Ch. Ijaz Ahmed and Justice ® Hamid Ali Mirza
who directed Supreme Judicial Council not to proceed in the matter till the
decision of the Court. This was the first order in the history of Pakistan
Const. P. 9 & 8/2009
350
which was passed in the time when the General Pervaiz Musharraf was
enjoying a power in full swing. Subsequently bench of 13 judges restored
him vide judgment dated 20 July, 2007. Similarly in Qazi Hussain Ahmed’s
case, where in it was challenged that General Pervaiz Musharraf could not
hold two offices i.e. President of Pakistan and Chief of Army Staff, therefore,
it was prayed that he was disqualified to contest the election of President on
account of his holding the office of Chief of Army Staff in service of Pakistan,
before the Supreme Court. This was fixed before a bench consisting of 9
judges. Six judges had dismissed the petition as not maintainable whereas 3
judges had observed that petition was not only maintainable but also
accepted the same on merits that General Pervaiz Musharaff could not hold
two offices. It is proper to note that out of 6 judges, one of the judges, Mr.
Justice Falak Sher (as then he was) had accepted the petition on merits but
dismissed the petition as not maintainable. On 3rd of November, 2007 seven
member bench of Supreme Court has restrained all the authorities not to take
any action including imposition of emergency over and above the
Constitution.
9.
History repeats itself. The purpose and object of reading
history is to understand the events of past and to analyze the present and
future for making right path by removing the mistakes committed in the
past. In this Perspective, it is better and appropriate to reproduce the
relevant Articles of the Constitution to resolve the controversy in question
between the parties:
Preamble
Wherein the principles of democracy, freedom, equality, tolerance and social justice, as
enunciated by Islam, shall be fully observed;
Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity
and before law, social economic and political justice, and freedom of thought, expression,
belief, faith worship and association, subject to law and public morality;
Wherein the independence of the judiciary shall be fully secured.
2A.
The principles and provisions set out in the Objectives Resolution
reproduced in the Annex are hereby made substantive part of the
Constitution and shall have effect accordingly.
Const. P. 9 & 8/2009
351
3.
Elimination of exploitation.
4.
(1)
To enjoy the protection of law and to be treated in accordance
with law is the inalienable right of every citizen, wherever he may be, and
of every other person for the time being within Pakistan.
(2)
In particular –
(a)
no action detrimental to the life, liberty, body, reputation or
property of any person shall be taken except in accordance with law;
(b)
no person shall be prevented from or be hindered in doing that
which is not prohibited by law; and
(c)
No person shall be compelled to do that which the law does not
required him to do.
5.
(1)
Loyalty to the State is the basic duty of every citizen.
(2)
Obedience to the Constitution and law is the inviolable obligation
of every citizen wherever he may be and of every other person for the time
being within Pakistan
9.
10.
No person shall be deprived of life or liberty save in accordance with law.
Safeguards as to arrest and detention.
14.
(1)The dignity of man and, subject to law, the privacy of home, shall be
inviolable.
(2)No person shall be subjected to torture for the purpose of extracting
evidence.
15.
Every citizen shall have the right to remain in, and, subject to any
reasonable restriction imposed by law in the public interest, enter and
move freely throughout Pakistan and to reside and settle in any part
thereof.
29.
Principles of Policy.
30.
Responsibility with respect to Principles of Policy.
38.
Promotion of social and economic well-being of the people.
41.
(3)The President shall be elected in accordance with the provisions of the
Second Schedule by the members of an electoral college consisting of
(a)
the members of both Houses; and
(b)
the members of the provincial Assemblies.
(4) Election to the office of the President shall be held not earlier than sixty
days and not later than thirty days before the expiration of the term of the
President in office:
Provided that, if the election cannot be held within the period aforesaid
because the national Assembly is dissolved, it shall be held within thirty
days of the general election to the Assembly.
(7) The Chief Executive of the Islamic Republic of Pakistan –
(a)
shall relinquish the office of Chief Executive on such day as he
may determine in accordance with the judgment of the Supreme Court of
Pakistan of the 12th May, 2000 and
(b)
having received the democratic mandate to serve the nation as
President of Pakistan for a period of five years shall, on relinquishing the
office of the Chief Executive, notwithstanding anything contained in this
Const. P. 9 & 8/2009
352
Article or Article 43 or any other provision of the Constitution or any
other law for the time being in force, assume the office of President of
Pakistan forthwith and shall hold office for a term of five years under the
Constitution, and Article 44 and other provisions of the Constitution shall
apply accordingly:
Provided that paragraph (d) of clause (1) of Article 63 shall become
operative on and from the 31st day of December, 2004.
44.
Term of office of President
48.
President to act on advice etc.
50.
There shall be a Majlis-e-Shoora (Parliament) of Pakistan consisting of the
President and two Houses to be known respectively as the National
Assembly and the Senate.
63.-(1)
(d)he holds an office of profit in the service of Pakistan other than an office
declared by law not to disqualify its holder; or
(k)he has been in the service of Pakistan or of any statutory body or any
body which is owned or controlled by the Government or in which the
Government has a controlling share or interest, unless a period of two
years has elapsed since he ceased to be in such service; or
89.
(a)
shall be laid –
(i)
before the National Assembly if it {contains provisions dealing
with all or any of the matters specified in clause (2) of Article 73}, and
shall stand repealed at the expiration of four months from its promulgation
or, if before the expiration of that period a resolution disapproving it is
passed by the Assembly, upon the passing of that resolution.
ii)
before both Houses if it does not contain provisions dealing with
any of the matters referred to in sub-paragraph (i), and shall stand repealed
at the expiration of four months from its promulgation or, if before the
expiration of that period a resolution disapproving it is passed by either
House, upon the passing of that resolution; and
(3)
Without prejudice to the provisions of clause (2), an Ordinance
laid before the National Assembly shall be deemed to be a Bill introduced in
the National Assembly.
128.
(a)
shall be laid before the Provincial Assembly and shall stand
repealed at the expiration of three months from its promulgation or, if
before the expiration of that period a resolution disapproving it is passed by
the Assembly, upon the passing of that resolution; and
(3)
Without prejudice to the provisions of clause (2), an Ordinance
laid before the Provincial Assembly shall be deemed to be a Bill introduced
in the Provincial Assembly
175
.
Establishment and jurisdiction of courts.
176.
The Supreme Court shall consist of a Chief Justice to be known as the
Chief Justice of Pakistan and so many other Judges as may be determined
by Act of Majlis-e-Shoora (Parliament) or, until so determined, as may be
fixed by the President.
Const. P. 9 & 8/2009
177.
353
(1)
The Chief Justice of Pakistan shall be appointed by the President,
and each of the other Judges shall be appointed by the President after
consultation with the Chief Justice.
180.
The President shall appoint the most senior of the other judges of the
Supreme Court to act as Chief Justice of Pakistan.
181.
The President may, in the manner provided in clause (1) of Article 177,
appoint a Judge of a High Court who is qualified for appointment as a
Judge of the Supreme Court to act temporarily as a Judge of the Supreme
Court.
184(3): Without prejudice to the provisions of Article 199, the Supreme Court
shall, if it considers that a question of public importance with reference to
the enforcement of any of the Fundamental Rights conferred by Chapter I
of Part II is involved, have the power to make an order of the nature
mentioned in the said Article.
187.
Subject to clause (2) of Article 175, the Supreme Court shall have power to
issue
such directions, orders or decrees as may be necessary for doing
complete justice in any case or matter pending before it, including an order
for the purpose of securing the attendance of any person or the discovery or
production of any document.
189.
Any decision of the Supreme Court shall, to the extent that it decides a
question of law or is based upon or enunciates a principle of law, be
binding on all other courts in Pakistan.
190.
All executive and judicial authorities throughout Pakistan shall act in aid
of the Supreme Court.
193.
(1)
A Judge of a High Court shall be appointed by the President after
consultation(a)
with the Chief Executive of Pakistan;
(b)
with the Governor concerned; and
(c)
except where the appointment is that of Chief Justice, with the
Chief Justice of the High Court;
197
(c):- for any reason it is necessary to increase the number of Judges of a
High Court, the President may, in the manner provided in clause (1) of
Article 193, appoint a person qualified for appointment as a Judge of the
High Court to be Additional Judge of the Court for such period as the
President may determine, being a period not exceeding such period, if any,
as may be prescribed by law.
200.
Transfer of High Court Judges.
203C.
The Federal Shariat Court.
232
Proclamation of emergency on account of war, internal disturbance, etc.
233:
Power to suspend Fundamental Rights etc., during emergency period.
234:
235:
Power to issue Proclamation in case of failure of constitutional machinery
in a Province.
Proclamation in case of financial emergency.
236:
Revocation of Proclamation etc.
237:
Majlis-e-Shoora (Parliament) may make laws of indemnity etc.
Const. P. 9 & 8/2009
238:
354
Subject to this Part, the Constitution may be amended by Act of Majlis-eShoora (Parliament).
A bill to amend the Constitution may originate in either House and, when
the Bill has been passed by the votes of not less than two -thirds of the total
membership of the House, it shall be transmitted to the other House.
(1)
The Federal Government shall have control and command of the
Armed Forces.
(1A)
Without prejudice to the generality of the foregoing provision, the
Supreme Command of the Armed Forces shall vest in the President.
(2)
The President shall subject to law, have power (a) to raise and maintain the Military, Naval and Air Forces of Pakistan;
and the Reserves of such Forces, and
(b)
to grant Commissions in such Forces.
(3)
The President shall in consultation with the Prime Minister,
appoint
(a)
the Chairman, Joint Chiefs of Staff Committee;
(b)
The Chief of the Army Staff;
(c)
The Chief of the Naval Staff; and
(d)
the Chief of the Air Staff
and shall also determine their salaries and allowances.
239:
243.
244.
245.
Every member of the Armed Forces shall make oath in the form set out in
the Third Schedule.
The Armed Forces shall, under the directions of the Federal Government
defend Pakistan against external aggression or threat of war, and subject to
law, act in aid of civil power when called upon to do so.
260:
‘Chief Justice’ in relation to the Supreme Court or a High Court, includes
the Judge for the time being acting as Chief Justice of the Court.
‘Consultation’ shall, save in respect of appointments of Judges of the
Supreme Court and High Courts, means discussion and deliberation which
shall not be binding on the President.
‘Judge’ in relation to the Supreme Court or a High Court includes the
Chief Justice of the Court and also includes(a)
in relation to the Supreme Court, a person who is acting as a
Judge of the Court;
‘President’ means the President of Pakistan and includes a person for the
time being acting as, or performing the functions of, the President of
Pakistan and, as respects anything required to be done under the
Constitution before the commencing day, the President under the Interim
Constitution of the Islamic Republic of Pakistan.
‘Service of Pakistan’ means any service, post or office in connection with
the affairs of the Federation or of a Province, and includes an All-Pakistan
Service, service in the Armed Forces and any other service declared to be a
service of Pakistan by or under Act of Majlis-e-Shoora (Parliament) or of a
Provincial Assembly, but does not include service as Speaker, Deputy
Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister,
Minister of State, Chief Minister, Provincial Minister, Attorney General,
Advocate-General, Parliamentary Secretary or Chairman or member of a
Law Commission, Chairman or member of the Council of Islamic Ideology,
Special Assistant to the Prime Minister, Adviser to the Prime Minister,
Special Assistant to a Chief Minister, Adviser to a Chief Minister or
member of a House or a Provincial Assembly.
280.
Continuance of Proclamation of Emergency.
Const. P. 9 & 8/2009
355
Third Schedule: Oaths of Office President:
That, as President of
Pakistan, I will discharge my duties and perform my functions, honestly,
to the best of my ability, faithfully in accordance with the Constitution of
the Islamic Republic of Pakistan and the law, and always in the interest of
the sovereignty, integrity, solidarity, well-being and prosperity of
Pakistan;
10.
Mere reading of the aforesaid Articles of the Constitution it is
crystal clear that each and every organ of the state is bound to discharge its
duties within the command of the constitution.
The moment when one
organ interferes or encroaches the sphere of the other organ then situation
will automatically arise when constitutional organs mentioned hereinabove
would not discharge their duties and obligations due to which the only net
result is chaos. It is a settled principle of jurisprudence that when system is
disturbed then destruction is must as abnormal situation creates an
opportunity for the adventurers to get the benefit of the situation which was
created on account of incompetency of the three organs of the state which do
not perform their functions within their parameters. Our constitution has a
very beautiful scheme which consists of rights and obligations. When any
person, body, organ is not vigilant about its rights then he is also not vigilant
and aware about his obligations and duties. In fact 1400 years ago Almighty
Allah ordained through His last Prophet Hazrat Muhammad (S.A.A.W) and
The Holy Book ‘Al-Quran’ vide Surah Rehman verse Nos. 5 to 9 to the
following effect:“The sun and the moon move along their computed courses.
The shrubs and the trees prostrate in adoration. He has raised
the heaven on high and created the balance; don’t ever tamper
with this balance. Therefore, you also establish weight with
justice and do not give less measure” (See Eng. Translation
of the meaning of Al-Qur’an by Muhammad Farooq-eAzam Malik)
Const. P. 9 & 8/2009
11.
356
Balance must be maintained in each and every sphere of life
otherwise destruction is must. As mentioned above once the constitution
machinery has broken on account of interference by one of the organs into
the sphere of the other organs, then destruction is must. This Court has laid
down a principle by interpreting provisions of the Constitution that our
constitution is based on trichotomy, i.e. Legislature, executive and judiciary.
Role has also been defined with regard to the function of the said organs.
According to my opinion there are four organs which are as follows:1)
2)
3)
4)
12.
Legislature
Executive
Judiciary
People of Pakistan
It is the paramount duty and obligation of first organ of the
State to perform duties for the welfare of the people of Pakistan.
But
unfortunately since the creation of Pakistan this principle has not been acted
upon in letter and spirit and that is why the nation has not progressed in real
sense in every sphere of life. This Court has laid down a law by interpreting
Article 5(2) of the Constitution read with Article 4 of the Constitution that no
body is above the Constitution. Even the Chief Executive of the Country is
bound to obey the command of the Constitution as law laid down by this
court in Ch. Zahoor Ellahi’s case (PLD 1975 SC 383).
13.
What is constitution. Constitution is a social binding contract.
Conduct of all organs has to be in terms of the constitution subject to the
condition that you accept the constitution from the core of your heart.
Nobody is above the constitution and cannot imagine to do anything in
violation of the constitution and rule of law. Rule of law defined by Roberto
M. Unger is as under:-
Const. P. 9 & 8/2009
357
“Governmental power must be exercised within the constraints of
rules that apply to ample categories of persons and acts, and these
rules, whatever they may be, must be uniformally applied”.
14.
Rule of law as defined by Aristotle is “Rule of law is to be
preferred to that of any individual” whereas in the words of the
Massachusetts Constitution it means “a Government of laws and not of men”
which described in one word means supremacy of law. Supremacy of law
defined with the Divine Command in the Holy
Quran 4:59 which is
translated in English as under:“O ye who believe!
Obey Allah and obey the Apostle,
And those charged with authority among you”.
15.
Hazrat Abu Bakr Siddique (R.A.A) in his first speech as Caliph
explained the above words; the nub of it is that obedience to persons in
authority is an obligation only if what they require you to do so is in
accordance with the Holy Quran and Sunnah of the Holy Prophet (S.A.W.S).
See Chapter-4, Judicial Review of Public Actions by Justice ® Fazal Karim.
This is the highest authority in the power to judicial review Haq Nawaz &
Others Vs. Province of Punjab thr. Chief Secretary, Lahore & 2 others (1997
MLD 299 at 374).
16.
The President has to appoint the judges of the superior courts
after consultation with the following consultees.
i)
According to Article 177 Chief Justice of Pakistan is appointed
by the President and each of the other Judges are appointed by
the President after consultation with the Chief Justice of
Pakistan whereas judges of the High Court are appointed by
the President after consultation with the Chief Justice of
Pakistan, Governor concerned and except appointment of the
Chief Justices of the High courts, with the Chief Justices of the
High Courts.
The consultation must be meaningful and
Const. P. 9 & 8/2009
358
executive
has
no
authority
whatsoever
to
ignore
the
recommendations of the chief justices. The Governor has no
right to disagree with the recommendations of the chief Justice.
However executive has authority to judge/evaluate the
antecedents of the appointees. See :-
17.
i)
P.L. Lakhanpal V. Ajit Nath Ray Chief Justice of India (AIR
1975 Delhi 66 at 73).
ii)
Tara Singh and others V. The State of Punjab (AIR 1991 SC 63 at
640 to 641, 645 to 646).
iii)
L. Kalra and others Vs. President of India and others etc (AIR
1982 SC 149).
iv)
Presidential Reference. (AIR 1999 SC 1)
v)
S.P. Gupta V. Union of India (AIR 1994 SC 268 at
437,342,431,434,438,439,356)
vi)
Al-Jehad Trust thr. Raeesul Mujahideen Habib ul Wahabb ul
Khairi and others Vs. Federation of Pakistan and others (PLD
1996 SC 324).
vii)
Al-Jehad Trust thr. Raeesul Mujahideen Habib ul Wahabb ul
Khairi and others Vs. Federation of Pakistan and others (PLD
1997 SC 84).
viii)
Malik Asad Ali and others V. Federation of Pakistan thr.
Secretary, Law, Justice & Parliamenmt Affairs, Islamabad &
others (PLD 1998 SC 161).
ix)
Mr. Justice Ghulam Hyder Lakho, High Court of Sindh,
Karachi & others Vs. Federation of Pakistan thr. Secretary Law,
Justice and Parliamentary Affairs, Islamabad & others (PLD
2000 SC 179).
The ratio of the aforesaid cases is that opinion of the Chief
Justices must be given preference and the Governor has no right to directly
send the proposal for appointment of Supreme Court or High Courts Judges.
In this regard, I reproduce some extracts from my articles. Article
‘Independence of Judiciary’ published in (PLJ 2007 Mag. 195 at 195 & 198):
“The judge occupies a pre-eminent position in the modern
state. He is the guardian of the rights and privileges of the
people against the encroachment of private persons and the
aggression of executive officers. His function consists in
Const. P. 9 & 8/2009
359
interpreting the laws of the country and applying them to
individual cases. He has got to settle not only private disputes
but to bring under review executive action. The way he
discharges his duty is of vital importance to the people. The
legislature may lay down good and wholesome laws. But they
would not be of any avail if they are not ably, promptly and
impartially applied. Without right administration of justice,
good government is out of the question (1) “There is, ‘says
Lord Bryce, “no better test of the excellence of a government
than the efficiency of its judicial system, for nothing more
nearly touches the welfare and security of the average citizen”.
----------------------“Independence of judiciary truly means that the judges are in
a position to render justice in accordance with their oath of
office and only in accordance with their own sense of justice
without submitting to any kind of pressure or influence be it
from executive or legislative or from the parties themselves or
from the superiors and colleagues”
(2)
Article under the heading ‘Judicial Independence’
written by me and published in PLJ 2007 Mag. 162 at
163):
“The respect for the judiciary is significant in Pakistan due to
the beneficent legacy of the Islamic concept of justice, the
predominance of the legal spirit and the concept of
sovereignty. The legislature being astute, taking cue from the
precedents of Khulfa-e-Rashidin has provided provisions for
administrating justice for people of Pakistan in the
Constitution of Islamic Republic of Pakistan, 1973 i.e.
Preamble, Art 2-A, Art. 37, Art 175, Art 177, Art 193, Art
209 in view of aforesaid provisions of the Constitution a very
heavy duty is cast on the Chief Executive of the country to
deliver justice to the people of Pakistan by establishing
independent judiciary keeping in view their qualifications,
duties and obligations which have already been highlighted by
me in my book “Separation and independence of judiciary”
and my Article under the caption of “Methods of educating
newly appointed judges” (PLD 2005 Journal 1).
Const. P. 9 & 8/2009
(3)
360
Article under the heading ‘Methods of Educating newly
appointed Judges) written by me and published in (PLD
2005 Journal 1):
“Islam, as a way of life, provides comprehensive legal code for
justice apart from general exhortation of justice. The salient
features in Judicial System in Islam are discussed apart from
other high values and principles”.
(4)
Passage from Book “Separation and Independence of
Judiciary” authored by me:
“The Supreme Court assumed the power, notably by the
historic decision of Chief Justice Marshall in Marbury Vs.
Madison of declaring both the acts of the legislature and the
acts of the President to be unconstitutional”
------------------“The notion that the third arm of constitution, the Judiciary,
should be entirely separated from both the legislative and
executive powers, seemed, however, to be based on mere solid
foundations than the some what arbitrary division between the
legislature and the executive”.
18.
According to Article 243 (1) the Federal Government has
control and command of the armed forces whereas the supreme command
of the armed forces shall be vested in the President in terms of Article 243(1)
(A).
The aforesaid Article was interpreted by this court in Sh. Liaqat
Hussain’s case (PLD 1999 SC 504) and laid down the following principles:i)
The personnel of the armed forces are under the final
administrative control of the Federal Government.
ii)
Every member of the armed forces has to take oath in
the term stated in the 3rd Schedule in term of “Article 244
which has already been reproduced hereinabove.
19.
The aforesaid Article was also interpreted by the Lahore High
Court in Darwesh M. Arbey, Advocate Vs. Federation of Pakistan Thr. The
Law Secretary and 2 others (PLD 1980 Lah. 206) and laid down the following
principles:-
Const. P. 9 & 8/2009
a)
361
Armed forces which owe allegiance to Pakistan cannot be used
for political motive by the party in power.
b)
It not only is violative of the oath prescribed in the third
Schedule which prohibits engagement of the army in political
activities and further tarnishes the image of the Army.
20.
It is pertinent to mention here that the Constitution of 1973 for
the first time has prescribed Oath for the members of the armed forces.
Earlier they only took oath prescribed in the Army Act, 1952. Article 245 was
also
interpreted by this Court reported as Mehram Ali & others Vs.
Federation of Pakistan & others (PLD 1998 SC 1445) and laid down a
principle that military courts cannot be equated with the original courts on
the basis of well known principle that establishment of military courts
militates the independence of judiciary. The aforesaid Articles of the
constitution do not show that the Chief of Amy Staff has any authority
whatsoever to impose emergency which is in violation of Articles 232 to 236.
Even the emergency which was imposed by Chief of Army Staff cannot be
imposed by the President of Pakistan in terms of the aforesaid provisions of
the Constitution.
There are certain parameters and restrictions upon the
President to impose emergency wherein fundamental rights were
suspended.
The President of Pakistan had no authority whatsoever to
interfere or remove the judges of the superior courts through extra
constitutional instruments i.e. Proclamation of emergency, PCO and oath of
judges order. It is also interesting to note that President of Pakistan is the
supreme commander of the forces. Chief of Army Staff has imposed
emergency through extra constitutional measures and thereafter delegated
powers to the President.
21.
It is settled law that delegation ought not to be permitted
unless it is authorized by Statute or by necessary implication meaning
thereby whereas specific officer or authority is authorized to exercise his
Const. P. 9 & 8/2009
362
discretion, exercise of that power by a different body in the absence of
statutory provision to the effect. See Ghulam Mohi ud Din Vs. Chief
Settlement Commissioner (Pakistan) Lahore etc. (PLD 1964 SC 829), M/s
Oberoi Motors & another Vs. The Union Territory Administration,
Chandigarh and others (AIR 1978 Punjab Haryana 294). In view of the rules
of business Minister has authority to delegate power to any Officer of that
department. See H Lavender and Son Ltd. Vs. Minister of Housing and Local
Government (1970 Vol. III AELR 871) R v Police Complaints Board, (1983
Vol. II AELR 353), B.Rajagopala Naidu V. The State Transport (AIR 1964 SC
1573), Ellis Vs. Dubowski (1921 Vol. 3 KB 621). It is not known to any cannon
of justice in any part of the world that subordinate can delegate powers to
superior. Extra constitutional steps were taken by Gen. Musharraf when his
own case for the candidature for the office of the President was fixed before
this Court. Bench was constituted by the Hon’ble Chief Justice of Pakistan
consisting of 11 judges. Counsel of the petitioner had concluded their
arguments and according to the newspapers till 16.10.2007 Government was
happy qua the performance of the Supreme Court of Pakistan. Thereafter, it
appears that views of the government were changed qua performance of
apex Court. This fact was borne out from the order especially as his counsel
did not want to conclude the case. In spite of the request of the Bench that
the Bench was ready to hear the case even after Friday Prayer. The counsel
did not agree. Therefore, case of Justice ® Wajjahuddin was adjourned for
5.11.2007 vide order dated 2.11.2007. Justice ® Wajjahuddin has filed
application in main case with the prayer that General Pervez Musharraf and
other authorities be restrained to impose emergency or any action beyond
the parameters of the Constitution. This application was heard by a Bench
Const. P. 9 & 8/2009
363
consisting of 7 Judges and the restraining order was passed on 3.11.2007
which was communicated immediately to all concerned.
22.
Actions of 3-11-2007 are based on mlafide therefore they are not
sustainable in the eyes of law. In fact it was admitted by the Gen. Pervez
Musharaf that he had taken extra constitutional actions which tantamounts
to amend the constitution, which is not permissible. It is pertinent to mention
here that power to amend the Constitution is vested in the parliament by
part II vide Articles 238 and 239. Constitution may be amended by
Parliament vide Article 238 whereas Article 239 prescribes procedure for
amending the Constitution. Even the parliament cannot change the salient
features of the constitution to destroy one organ of the judiciary in view of
Article 238 and 239 of the Constitution. See Mehmood Achakzai’s case (PLD
1997 SC 426).
23.
In case all the three instruments be read together then
emergency plus, does not remain within the parameters of emergency as
constitution was in fact abrogated under the garb of emergency coupled with
the fact that action was taken by him for his personal benefit which does not
fall in the category of good faith. Pakistan is a very rich country where in
short span of 52 years three martial laws were imposed i.e. by late
Muhammad Ayub Khan, Gen. Yayha Khan
and
Zia-ul-Haq whereas
Musharaf had imposed martial law firstly on 14-10-1999 and subsequently
on 3-11-2007.
24.
The said actions were taken by him at night in spite of the fact
that the order dated 3-11-2007 of this Court was communicated to all
concerned as is evident from news clippings, published on, all electronic
media and the daily evening news papers dated 3.11.2007 which contained
this news. This fact was further borne out that all the daily news papers
Const. P. 9 & 8/2009
364
contained this news in the news papers published on 4-11-2007. Almost more
than 60 judges had refused to take oath under the provisions of Proclamation
of Emergency, (PCO) and Oath of Office of Judges order, 2007. Mr. Abdul
Hameed Dogar had taken oath on the night of 3.11.2007 as Chief Justice of
Pakistan and 4 other judges of this Court had taken oath on the said night as
judges of the Supreme Court under PCO inspite of the restraining order and
the fact that post of Chief Justice was not vacant as the chief justice had not
resigned or removed or had gone out of the country. Four other judges had
also taken oath as the order dated 3-11-2007 was passed by seven judges
Bench, therefore new four judges were also appointed with the consultation
of Chief Justice Abdul Hameed Dogar for the purpose to complete the
quorum.
The said application was taken up for hearing on 6-11-2007
wherein the said order set-aside by the Court and subsequently petition was
also dismissed. The case was decided by the Court which was coram non
judice in terms of Articles 175, 177 and 184(3). See Chittaranjan Cotton Mills
Ltd. Vs. Staff Union (PLD 1971 S.C 197). The relevant observation is as
follows:
“Where the Court is not properly constituted at all the
proceedings must be held to be coram non judice and,
therefore, non-existence in the eye of law. There can also be no
doubt that in such circumstances ‘it could never be too late to
admit and give effect to the plea that the order was a nullity’
as was observed by the Privy Council in the case of Chief
Kwame Asante, Tredahone V. Chief Kwame Tawia {9 DLR
686 (PC)}”,
25.
The judges who had not taken oath under the command of the
Chief of Army Staff, were detained in their houses. This fact was also known
to every one. Not only in this country but also in the whole world it was
considered a unique
action that the judges of the superior courts were
Const. P. 9 & 8/2009
365
detained. According to me Judges and Advocates are two parts of one body
i.e. Judiciary. Every part of the body had played un precedented historical
role for the supremacy of Constitution & law. Their struggle was highly
supported by media without fear and favour by showing their courage for
the welfare of the country and for supremacy of Constitution & law, duly
supported by the civil society. People of Pakistan had also joined hand in the
struggle of the lawyers. On account of this unprecedented struggle by
sacrificing even lives of the Advocates, consequently the dictator had to go
and the Prime Minister of Pakistan had restored the judges of the superior
courts vide notification dated 17-3-2009. All the appointments of the judges
of the Superior Courts from 3-11-2007 to 24-3-2009 were made with the
consultation of Chief Justice Mr. Abdul Hameed Dogar which was not in
terms of the mandate of the Constitution. He was not even holding status of
Acting Chief Justice as he was not senior puisne Judge on 3-11-2007,
therefore, appointees were appointed after consultation with a stranger in
terms of the law laid down by this Court as well as Indian Supreme court.
See:i)
Al-Jehad Trust thr. Raeesul Mujahideen Habib ul Wahabb ul
Khairi and others Vs. Federation of Pakistan and others (PLD
1996 SC 324 at 408).
ii)
Malik Asad Ali and others V. Federation of Pakistan thr.
Secretary, Law, Justice & Parliamenmt Affairs, Islamabad &
others (PLD 1998 SC 161).
iii)
Al-Jehad Trust thr. Raeesul Mujahideen Habib ul Wahabb ul
Khairi and others Vs. Federation of Pakistan and others (PLD
1997 SC 84).
iv)
L. Kalra and others Vs. President of India and others etc (AIR
1982 SC 149).
v)
S.P. Gupta V. Union of India AIR 1994 SC 268)
vi)
Presidential Reference. (AIR 1999 SC 1 at 1).
Const. P. 9 & 8/2009
26.
366
When the constitution of the Court falls in the category of
coram non judice then any order passed by such tribunal comes within the
purview of without lawful authority as law laid down by this Court
mentioned hereinabove. General Muhmmad Yahya Khan was declared as
usurper in Asma Jillani case (PLD 1972 SC 139) when he was not in power
whereas General Musharaf was restrained to pass any order on 3-11-2007
when he was in full power. It is pertinent to mention here that this Court has
been validating actions of the usurper since imposition of Martial Law by
General Muhammad Ayub Khan in Dooso’s case (PLD 1958 SC 533) till Zafar
Ali Shah’s case (PLD 2000 SC 869). General Pervez Musharraf wanted to
contest the election of the President of Pakistan while in service of Pakistan
as Chief of Army Staff. Justice ® Wajjauddin Ahmed had also filed
nomination papers to participate in the election of President and had filed
objections before the Chief Election Commissioner qua his candidature. On
rejection by the Chief Election Commissioner he filed petition before this
Court which was pending adjudication at that time before the Bench
consisting of 11 Judges of this Court. As mentioned above, General Pervez
Musharraf had the apprehension that case would be decided against him as
his counsels were not ready to conclude their arguments inspite of the
suggestion of the Bench to hear the case after Jummah Prayer and even on
Saturday. The
manner of appointing the judges after 3-11-2007 for the
purpose to complete the strength to form a bench of seven judges as the
earlier order was passed by a Bench of this Court consisting of seven judges
whereas the other case was fixed before a Bench of 11 Judges. Therefore,
assumption of jurisdiction by this Court to decide the case of Wajihuddin
Ahmed, Tikka Muhammad Iqbal and Wattan Party are not synonymous
with the precedents of this court apart from the orders passed for their
Const. P. 9 & 8/2009
367
benefit, therefore, such type of judgments are not sustainable in the eyes of
law as submitted by the learned counsel for the petitioner and such types of
orders/judgments are without lawful authority as is evident from the
contents of the orders reported in the following cases as per submissions of
the learned counsel for the petitioner:i)
ii)
iii)
iv)
27.
Wajihuddin Ahmed Vs. Chief Election commissioner & others
(PLD 2008 SC 25)
Jamat e Islami thr. Amir and others Vs. Federation of Pakistan
and others (PLD 2008 SC 30)
Tika Iqbal Muhammad Khan’s case Vs. General Pervez
Musharaf and others (PLD 2008 SC 178)
Tika Iqbal Muhammad Khan Vs. General Pervez Musharraf,
Chief of Army Staff, Rawalpindi and 2 others (PLD 2008 SC
615).
It is interesting to note that petition filed by Muhammad Iqbal
Tikka and Wattan party did not seriously challenge the proclamation of
emergency, PCO and Oath of Judges Order, 2007 as is evident from the
contents of the judgment mentioned hereinabove. It is better to note here
that review was filed by Tikka Muhammad Iqbal as the main petition was
decided by seven judges bench simply to increase the number of the judges
of this Court. Review was filed in violation of the Supreme Court Rules.
Office had raised four objections which are as follows:a)
Rs. 10,000/- as security have not been deposited.
b)
Review was time barred by 39 days
c)
Certificate by the Sr. Counsel was not filed alongwith the
review petition.
d)
28.
Review petition was not signed by Sr. Counsel.
Inspite of the aforesaid objections review petition was
entertained in the Chambers. After filing one objection regarding fee as
security was removed as the Rs. 10,000/- were deposited on 14.11.2007
whereas review petition was filed on 13-12-2007.
Review petition was
argued by the AOR without securing permission from the court in violation
of Supreme Court Rules and the law laid down by this Court. Finally review
petition was dismissed by merely re-affirming earlier order by observing that
Const. P. 9 & 8/2009
368
judges who had not taken oath under the PCO ceased to be the judges of the
superior courts. Main order was passed by seven judges Bench in violation
of the dictum laid down by this Court by 12 judges Bench in Zaffar Ali Shah
case (PLD 2000 SC 869) wherein it was categorically without ambiguity held
that judges of the superior courts cannot be removed without adopting the
procedure prescribed in Article 209 of the Constitution. Simply rectifying
that mistake, review was filed which was dismissed by 13 judges of this
Court. This fact shows that the matter was not decided in good faith. Even if
review was competent and while deciding by 13 judges bench and reaffirming the judgment/order of the seven judges bench cannot be termed as
decided by 13 judges bench. The main order remains passed by seven judges
bench, who had decided the same in violation of the dictum laid down in
Zaffar Ali Shah’s case Supra particularly without adverting to the relevant
paragraphs of the judgment of the Zafar Ali Shah case, therefore, both the
orders/judgments in Tikka Muhammad Iqbal’s case are judgments per
incurrium.
This court has ample power to review such type of
orders/judgments which are not sustainable in the eyes of law. It is settled
principle of law that judgment of larger Bench of this Court has binding
effect on the bench consisting of lesser number. See Multinine Associates Vs.
Ardeshir Cowasjee and others (PLD 1995 SC 423) and Ardeshir Cowasjee
and 10 others Vs. Karachi Building Control Authority & others (1999 SCMR
2883 at 2912) & N.S. Giri Vs. The Corporation of City of Mangalore and
others (AIR 1999 SC 1958). The aforesaid judgments/orders of this Court are
not sustainable in the eyes of law and in terms of well known maxim per
incurrium and Sub-silentio. These doctrines parted as exceptions to the rule
of precedents.
Const. P. 9 & 8/2009
29.
369
It is also settled principle of law that decision which is not
based on reason is not judgment in the eyes of law. See:i)
ii)
iii)
iv)
v)
vi)
30.
State of U.P. and another Vs. Synthetics Chemicals Ltd. &
another (1991 Vol. 4 SCC 139),
State of Manipur Vs. Thingujam Brojen Meetei (AIR 1996 SC
2124).
Ajit Kumar Rath Vs. State of Orissa & others (1999 Vol. 9 SCC
596 para 32).
State of Gujarat & another Vs. S.S. Murthy and others (AIR
1998 SC 2735 para 2).
Gouranga Mohan Sikdar Vs. The Controller of Import and
Export and 2 others ( PLD 1970 SC 158).
Mollah Ejahar Ali Vs. Government of East Pakistan and others
(PLD 1970 SC 173).
The following are three basic ingredients of every decision:a)
b)
c)
31.
Findings of fact both direct and inferential.
Statement of principles of law applicable to the legal
terms disclosed by the facts.
The judgment passed on the combined effect of the
above ingredients.
See Uttaranchal Road Transport
Crop. Vs. Manseram Nainwal (2006 Vol. 6 SCC 366 at
370)
It is pertinent to mention here that the reasons or principles on
which the question is decided is alone binding as precedent. The word
decision or decisions means decision of Supreme court binding only when it
fulfills the following three conditions:a)
b)
c)
32.
It decides a question of law
It is passed upon the basis of law
It enunciates a principle of law. See Maj. Gen. (Retd)
Mian Ghulam Jilani Vs. The Federal Government Thr.
The Secretary, Govt. of Pakistan, Interior Division,
Islamabad (PLD 1975 Lahore 65).
To determine whether the decision has ‘declared law’, it is
immaterial whether the Supreme Court gave the decision ex-parte or after a
hearing. But no law is laid down when a point is disposed of on the
concession. Lakshmi Shanker Srivastava Vs. State (Delhi Administration)
(AIR 1979 SC 451). However, if the Supreme Court is satisfied that the earlier
judgments have resulted in deprivation of fundamental right of a citizen or
Const. P. 9 & 8/2009
370
rights created under any substantive law; it can take a different view not
withstanding the earlier judgments; Lily Thomas etc. Vs. Union of India and
others (AIR 2000 SC 1650).
33.
Since the judgment of Tikka Muhammad Iqbal’s case is under
review, therefore, I intend to highlight certain principles for the purpose of
re-visiting/re-examining the judgment of the aforesaid case.
i)
34.
REVIEW.
It is pertinent to re-capitulate the principles of re-consideration
and review of the earlier judgments and other principles which are as
follows:“This court has ample power to reconsider, revise its earlier
decisions, nothing in the constitution to prevent the Supreme
Court from departing from a previous decision of its own if it
is satisfied of its error particularly constitutional or other
matters, its effect on the general interests of the public as
perpetuation of a mistake will be harmful to public interests.
This power vests in this Court in terms of Article 188 of the
Constitution. See K. Mills Co. case (AIR 1965 SC 1636 at
1643 and 1644), Corporation of Calcutta case (AIR 1967 SC
997 at 1001 para 5), Lt. Col. Nawabzada Muhammad Ameer
Khan’s case (PLD 1962 SC 336), Asima Jillani’s case (PLD
1972 SC 139), Greater Bombay Municipality’s case (AIR
1974 SC 2009 at 2043 and 2044 paras 44 & 45),
Dwarkadas’case (AIR 1954 SC 119 at 137), State of Bihar’s
case (AIR 1955 SC 661 at 672 ), State of Washington Vs.
Dasen and Com {1924 (264) U.S. 219}, London Street Tram
Ways Com.Ltd. Vs. London City Council (1898 A.C.375),
Municipal Committee Amritsar Vs. State of Punjab (AIR
1969 SC 1100) and Sajjan Singh’s case (AIR 1965 SC 845 at
855 para 21)”.
35.
The ratio of the aforesaid judgments is as follows:“Our power of review, which undoubtedly exists, must be
exercised with due care and caution and only for advancing
Const. P. 9 & 8/2009
371
the public well being in the light of the surrounding
circumstances of each case brought to our notice but we do not
consider it right to confine our power with rigidly fixed limits
as suggested before us. If on a re-examination of the question
we come to the conclusion as indeed we have that the previous
majority decision was plainly erroneous then it will be our
duty to say and not to perpetuate our mistake even when one
learned Judge who was party to the previous decision
considers it incorrect on further reflection. We should do so
all the more readily as our decision is on constitutional
question and our erroneous decision has imposed illegal tax
burden on the consuming public and has otherwise given rise
to public inconvenience or hardship, for it is by no means easy
to amend the Constitution. This Court is not powerless to
correct its error which has the effect of depriving a citizen of
his fundamental rights and more so, the right to life and
liberty, it is a fundamental right of the people of Pakistan to
have an independent judiciary”.
36.
It is no doubt that in Iqbal Tikka’s case, the earlier decision of
the larger bench was noted but it was neither followed in its true sense nor
made any attempt to distinguish it and infact had taken a counter view to the
one adopted by larger Bench in Syed Zafar Ali Shah’s case. Therefore,
judgment of Iqbal Tikka’s case is liable to be reviewed. See State of Bihar’s
case (AIR 1955 SC 661 at 672).
ii)
37.
MAXIM “PER INCURRIUM”.
‘Incuria’ literally means “carelessness”.
In practice per
incurrium is taken to mean per ignoratium and ignored if it is rendered “in
ignoratium of a statute or other binding authority.
38.
What is mean by giving a decision per incurrium is giving a
decision when a case or a statute has not been brought to the attention of the
court and they have given the decision in ignorance or forgetfulness of the
existence of that case or that statute or forgetfulness of some inconsistent
Const. P. 9 & 8/2009
372
statutory provision or of some authority binding on the court, so that in such
cases some part of the decision or some step in the reasoning on which it was
based was on that account demonstrably wrong, so that in such like cases,
some part of the decision, or some step in the reasoning on which it is based,
is found, on that account to be demonstrably wrong. See Nirmal Jeet Kaur’s
case {2004 SCC 558 at 565 para 21}, Cassell and Co. Ltd.’s case (LR 1972 AC
1027 at 1107, 1113,1131), Watson’s case {AELR 1947 (2) 193 at 196}, Morelle
Ltd.’s case (LR 1955 QB 379 at 380), Elmer Ltd.’s case {Weekly Law Reports
1988 (3) 867 at 875 and 878}, Bristol Aeroplane Co.’s case {AELR 1944 (2) 293
at page 294} and Morelle Ltd.’s case {AELR 1955 (1) 708}.
39.
The ratio of the aforesaid judgments is that once the court has
come to the conclusion that judgment was delivered per-incurrium then
Court is not bound to follow such decision on the well known principle that
the judgment itself is without jurisdiction and per-incurrium, therefore, it
deserves to be over-ruled at the earliest opportunity. In such situation, it is
the duty and obligation of the apex Court to rectify it. The law has to be
developed gradually by the interpretation of the Constitution then it will
effect the whole nation, therefore, this Court, as mentioned above, is bound
to review such judgments to put the nation on the right path as it is the duty
and obligation of the Court in view of Article 4, 5 (2) read with Article 189
and 190 of the Constitution.
iii)
40.
MAXIM “SUB-SILENTIO”.
When the particular point of law involved in the decision is not
perceived by the court or present to it its mind.
Any declaration or
conclusion arrived without application of mind or preceded without any
reason cannot be deemed to be declaration of law or authority of a general
nature binding as a precedent. Restraint in dissenting or overruling is for
Const. P. 9 & 8/2009
373
sake of stability and uniformity but rigidity beyond reasonable limits is
inimical to the growth of law. See State of U.P’s case {1991 (4) SCC 139 at
163}, State of Punjab Vs. Baldev Singh etc. (AIR 1999 SC 2378) and Lancaster
Motor Co.’s case {AELR 1941 (2) 11 at page 13}.
41.
The ratio of the aforesaid principle on the basis of the
mentioned judgments is that decisions rendered, without reference to crucial
words of rule and without any citation of authority are not binding and
would not be followed.
iv)
42.
“LARGER BENCH”
Principle laid down by any provision of law or constitution by
the larger Bench has binding effect over the smaller Bench. See All Pakistan
Newspapers Society’s case (PLD 2004 SC 600 at 618), Multilines Associates’
case (PLD 1995 SC 423), Muhammad Saleem’s case (1997 SCMR 314), Babar
Shahzad’s case (1999 SCMR 2518), Union of India’s case (AIR 1976 SC 2433 at
2437 para 12), Trilok Nath Mehrotra’s case {1982 (2) SCC 289 at 290 para 4},
Abdullah Kunhi’s case (AIR 1991 SC 574).
43.
The ratio of the aforesaid judgments is that it is a long standing
convention that decision of the larger Bench is binding upon the smaller
Bench. It is also duty and obligation of the larger Bench in the circumstances
if, however, the decision of the smaller Bench is erroneous the larger Bench
has necessarily to interfere with the decision as this Court will not permit a
wrong decision to operate as a good law of the land.
v)
44.
“SOURCE
AND
AUTHORITY
OF
JUDICIAL
PRECEDENTS HAVE A BINDING EFFECT”.
The binding nature of judicial decisions may be derived either
from a constitutional or statutory provision or it may be derived from the
conventions which the Courts observe in the administration of justice. The
judgment of this Court is binding on each and every organ of the State by
Const. P. 9 & 8/2009
374
virtue of Article 189 and 190 of the Constitution whereas the judgment of the
High Court is binding on each and every organ except this Court by virtue of
Article 201 of the Constitution. In case there is a conflict between the
judgment of this Court and the High Court, then the judgment of this Court
is binding on all state organs. See Judgment Debtor Vs. Central Bank of India
Ltd, Bombay {AIR 1943 Nag 340 (345) (FB)} & Kishori Lal Potdar Vs. Debi
Prasad Kejriwal and another {AIR 1950 Pat 50 (FB)}.
45.
Decision of this Court is binding not only under Article 189 of
the Constitution but also with the doctrine of binding precedents with one
exception that a decision which is not express and is not founded on reasons
nor it proceeds on consideration of issue cannot be deemed to be a law
declared to have binding effect as contemplated in terms of the aforesaid
Article.
vi)
46.
“PRECEDENTS”
Judgment is a precedent for what has been decided therein and
cannot become precedent what can be inferred from it. The purpose and
object of principle of precedent is to achieve consistency in judicial
pronouncements, the courts have evolved the role of precedents, principle of
stare decises etc. which are based on public policy and if these are not
followed by courts and not implemented in letter and spirit by the other
Organs of the State then there will be chaos in the administration of justice.
47.
A classic example of administration of justice and its verbatim
implementation found in the annals of Islamic History is reproduced which
portrays scenario prevalent similar in our country:
“The ills, the weaknesses of the nation and society have been diagnosed.
There may be any good legislation but it would not bear fruit unless it
receives whole hearted implementation from all organs of the State without
any nepotism, hesitation and reservation. Mere rendering good court
judgment, a well worded constitution and suitable legislation will not work
Const. P. 9 & 8/2009
375
unless all the organs of the State ensure its implementation and thus shun
the hypocracy and contradictions prevailing in the society. The antedote, I
venture to suggest is to act upon “Law of Torts” thus ensuring that all
organs, agencies and functionaries are kept within the laid down and
reasonable parameters. Before I conclude, I present a precedent of
implementation of Court judgment from Islamic History:
“Samarkand was conquered by Muslims and this
occupation was hated by the sons of the soil and especially
their clergy. The priests sent their ambassador to the Caliph
(Umar Bin Abdul Aziz, R.A), who met the Caliph and
presented a petition against the Mulsim Army Chief
Qateeba Bin Muslim who allegedly invaded Samarkand
without declaring Jehad or inviting them to the fold of
Islam. The Caliph wrote a message to be conveyed to his
Army Commander. Then petition was put before the Qazi.
A freak looking Qazi summoned the Commander and
explicitly asked him:1.
Did you give them a choice to embrace Islam?
2.
Alternatively did you ask them to agree on payment of
Jizia.
3.
On the negative answer to these questions, did you ask
them to fight against you?
The Commander replied in the negative. Qazi’s verdict
surprised people of Samarkand, especially their religious
leaders (Kahans) who ordered the Muslim Army to vacate
the city forthwith. After vacation of occupation, offered
them the above said three conditions. The judgment was
implemented without raising an eyebrow. The justice and
its straight implementation had the heartfelt effect on the
people and history is witness that there was no Jehad as
every
one
including
the
Kahans
embraced
Islam
voluntarily. (Extract from the book ‘Suneray Faislay’ under
the heading ‘Adul ka Krishma’ written by ‘Al-Sheikh Ali AlTnatawi R.A’. in his book ‘Qasus mun Al -Tareek’)”.
48.
It is pertinent to mention here that in case two irreconcilable
decisions of this Court are consisting of two different Benches i.e. earlier
judgment of larger Bench subsequent judgment of smaller Bench, not
considering decision of earlier larger Bench – Latter decision, per incurrium
Const. P. 9 & 8/2009
376
in that important aspect of the matter considered by earlier Bench not
considered by latter Bench.
49.
I have examined the judgment of Tikka Iqbal’s case keeping in
view the aforesaid principles and maxims. Judgment in Tikka Iqbal’s case is
not sustainable in the eyes of law inspite of the fact that in the latter
judgment reference was made to Zafar Ali’s case which was rendered by a
larger Bench. The judgment was delivered in Tikka Iqbal’s case in violation
of ratio of Syed Zafar Ali Shah’s case. The relevant paragraphs were not even
noted specially paragraphs No.282 and 283. The judgment of Tikka Iqbal’s
case is not sustainable in the eye of law on any canon of justice. The action of
3rd November, 2007 by General Pervaiz Musharraf former Chief of Army
Staff is not within the parameters of the constitution as highlighted herein
above and also accepted by him, therefore, the same is declared to be void
and is hereby set-aside.
50.
For what has been discussed above, I agree with the judgment
of the Hon’ble Chief Justice of Pakistan.
(Justice Ch. Ijaz Ahmed )
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JAWWAD S. KHAWAJA J.- I have gone through the judgment proposed to be
delivered by Hon’ble the Chief Justice. It forcefully asserts the independence of the
Judiciary as a cardinal principle of our Constitution. I respectfully agree with the
conclusions arrived at, but wish to record this additional note in support of this dominant
theme of the judgment.
2.
In my humble opinion, the whole case before us can be reduced to one foundational
question. Can Constitutional
legitimacy flow from the force of arms or - as is more
graphically put at times - from the barrel of a gun? This is the basic issue here because
General Musharaf, on 3rd November, 2007 took actions in his capacity as the Chief of Army
Staff (and then purportedly, as President) without the slightest pretence that these actions
were permitted to him by the Constitution. As noted in the main judgment, he was also
afforded an opportunity to appear in the case, personally or through counsel, to justify his
actions of 3rd November, 2007. He, however, chose not to avail this opportunity.
3.
For reasons which have been spelt out in the main judgment, there can be no doubt
at all that the aforesaid actions of 3rd November, 2007 were un-Constitutional. It is for this
obvious reason that General Musharaf, lacking legitimate authority abused the office of
Chief of Army Staff and relied on the physical force which had been placed under his
command. This constituted a frontal attack on the Constitution and directly undermined the
writ of the State. It is only through the unremitting struggle by the people, for their right to
be governed in accordance with the Constitution, that the assault on their guaranteed rights,
was thwarted. If reliance on coercive force in gaining power is legitimized or condoned,
there can be no rational basis for decrying the assault on the writ of the State by any band of
marauders, robbers, adventurers and zealots of varying extremes in the political spectrum,
who undoubtedly will be encouraged in adopting similar use of arms and violence to force
their ideological creeds on the people of Pakistan.
4.
It is not for this Court to embark on a discussion on questions which do not directly
arise in this case. It would, however, be for the representatives of the people and for all
thinking people to determine if the absence of the rule of law within the upper echelons and
formal structures of the State has, in a significant way, generated the lawlessness which so
permeates our society today. I can only venture to say that the causal connection very
strongly suggests itself.
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5.
In the main judgment, a letter addressed by the then Prime Minister of Pakistan, Mr.
Shaukat Aziz to the President, General Pervez Musharaf has been reproduced. The contents
of the letter have also been commented upon but at this stage I would like to make a few
observations in relation to the same. At two places in the said letter the term “ writ of the
government” has been used and interference with the said ‘writ’ by the judiciary has been
criticised. It is a measure of the abysmal lack of understanding of Constitutional rule on the
part of the then Prime Minister and President, that the distinction between the writ of the
government and the writ of the State has not been recognized by the m. It is the writ of the
State which has to be enfo rced and not the writ of the government because the government
represents only the executive organ of the State and in that capacity it can and must be
checked by the Judiciary if it starts acting in violation of the Constitution.
6.
It has to be noted that in a constitutional system such as ours, it is the duty of Courts
to call in question all executive measures which
transgress and are not in line with
constitutional norms. Instead of complaining of judicial interference, any politically
responsible government committed to the rule of law would have been appreciative of a
Court which had identified any shortcomings of the government, and in response would
have adopted measures to improve governance and adherence to constitutional principles.
The wholly specious and untenable reasoning in the Prime Minister’s letter was used by
General Musharaf with the sole object of launching an unashamed attack on the Constitution
and in particular on the judicial organ of the State. On 3.11.2007, with utter disdain for the
Constitution and in a manner which was brazenly imperious, General Musharaf arrogated
on himself the right to decide what was good for the people of Pakistan and the manner in
which they ought to be governed. This was an anachronistic throw-back to the notion
(discredited in all civilized dispensations) where an absolutist ruler could say “l’Etat, c’est
moi.” Surely, as President of Pakistan, General Musharaf cannot be presumed to have been
ignorant of the Constitution of the country. The people of Pakistan have consciously chosen
the method for their own governance. The Constitution is a document which at a conscious
level records, in classical terms, the social contract between the people and those who they
choose to entrust with the governance of the State.
The initial lines appearing in the
preamble to the Constitution stipulate, inter alia, “that it is the will of the people of Pakistan
to establish an order; wherein the State shall exercise its powers and authority through the
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chosen representatives of the people.” The operative part of the preamble in the clearest
possible terms, states that “we the people of Pakistan…do hereby adopt, enact and give to
ourselves this Constitution.” In this context it was nothing but haughty arrogance on the
part of General Musharaf to claim to be above the Constitution and to assume the power of
arbitrarily amending it. Even if the concept of salus populi and the best interest of the
people were to be invoked, it would inevitably demand adherence to the Constitution
because ignoring it necessarily implies the conceited notion that the people of Pakistan who
had chosen their own method of governance, were incapable of knowing what was best for
them. There can be no other explanation for the actions of 3rd November, 2007 when these
are examined in the context of the contents of the preamble referred to above. Fortunately
for the people of Pakistan, the troubled events starting on 9th March, 2007 enabled them to
see behind the false face and deceptive veneer of an essentially anti-people dispensation.
These events also enabled the people to realize, what heretofore had been mere rhetoric, viz.
that they were the sarchashma (fountain-head) of power. This heady realization must,
however, be tempered with the awareness that judges can exercise constitutional and moral
authority, but they alone cannot thwart un-Constitutional forces without the people actively
standing up in defence of their Constitution. As upholders of constitutional rule, and in the
context of the present case, Judges and society must have faith in themselves and take
courage from what Hafez said eight centuries ago in the face of Halaku and the Mongol
horde:
(Jawwad S. Khawaja)
Judge