1999 SCMR 1598


Per Saeeduzzaman Siddiqui, J.(a) Constitution of Pakistan (1973), Articles 232 & 184(3)

Proclamation of Emergency by the President—Jurisdiction of Supreme court to examine the Proclamation under Art. 184(3), of the Constitution— Scope and extent—Held, notwithstanding the ouster of jurisdiction of the Supreme Court and the fact that the formulation of opinion in terms of relevant provisions of the Constitution or of a statute was to be based on the satisfaction of a State functionary mentioned therein, Supreme Court had the jurisdiction to examine whether the prerequisites provided for in the relevant provisions of the Constitution/statute for the exercise of the power thereunder existed, when the order was passed—If the answer of the question is in the negative, the exercise of power will be without jurisdiction calling for interference by the Supreme court. [p. 1601] A

(b) Constitution of Pakistan (1973), Articles 233 & 184

Power of President to suspend fundamental rights during period of emergency—Addition of Arts. 10,23 & 25 of the Constitution in the order of the President under Art. 233(2) of the Constitution—Suspending operation of said Articles—Validity—Held, suspension of enforcement of fundamental rights guaranteed under Arts. 10,23 & 25 of the Constitution when under Art. 233(1) of the Constitution the State had already acquired power to make any law or take any executive action in deviation of Arts. 15, 16, 17, 18, 19 & 24 of the Constitution, was not justified and warranted by law and, thus, the same was of no legal effect. [p. 1602] B

(c) Constitution of Pakistan (1973), Articles 47 & 184

Removal or impeachment of the President—Procedure prescribed in Art. 47 of the Constitution for removal of the President, could not be enforced through Court proceedings—Just for the reason that the Court had struck down any action of the President partially or wholly on the ground that same was not in accordance with the provisions of the Constitution, it could not be held that the President was guilty of the charge of violating the Constitution. [p. 1604, 1605] C & D

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