The Constitution of Pakistan, 1973 Developed by Zain Sheikh

(PART 2)

151. 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.”

 

152. 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: –

 

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 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 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.

 

153. 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, Attorney 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, 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 & 12th 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.

 

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 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 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 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, 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 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 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 anyimprovement 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.

 

164. 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 referenceArticles 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:

 

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-e-Shoora (Parliament)] would not but for the issue of a Proclamation of Emergency have been competent to make, shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation of Emergency has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period.

 

(6) While a Proclamation of 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 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 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 Consolidated 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 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 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.

 

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 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, 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 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 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 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.

 

653. 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.

 

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 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 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 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 Judiciary ‘providing impartial, fair and just adjudicatory framework i.e. judicial hierarchy. 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;

 

“(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 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.”

 

170. 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.

 

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.

 

(iii) 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.

 

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 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 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 organized 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 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 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 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 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 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 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 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 emphasized 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 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 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 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 others held in 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 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 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 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 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.

 

181. 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 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 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 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 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 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 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 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 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 order 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 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, 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 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 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 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 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 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 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; 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 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 345

 

3. 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

 

i) 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. No person shall be deprived of life or liberty save in accordance with law.

 

10. 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 353

 

177. (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: Power to issue Proclamation in case of failure of constitutional machinery in a Province.

 

235: 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 354

 

238: Subject to this Part, the Constitution may be amended by Act of Majlis-e-Shoora (Parliament).

 

239: 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.

 

243. (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.

 

244. Every member of the Armed Forces shall make oath in the form set out in the Third Schedule.

 

245. 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-e- Azam Malik)

Const. P. 9 & 8/2009 356

 

11. 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) Legislature

2) Executive

3) Judiciary

4) People of Pakistan

12. 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 :-

 

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).

 

17. 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 360

 

(3) 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:-

 

a) 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 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 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 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 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).

 

26. 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 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) Wajihuddin Ahmed Vs. Chief Election commissioner & others (PLD 2008 SC 25)

 

ii) Jamat e Islami thr. Amir and others Vs. Federation of Pakistan and others (PLD 2008 SC 30)

 

iii) Tika Iqbal Muhammad Khan’s case Vs. General Pervez Musharaf and others (PLD 2008 SC 178)

 

iv) Tika Iqbal Muhammad Khan Vs. General Pervez Musharraf, Chief of Army Staff, Rawalpindi and 2 others (PLD 2008 SC 615).

 

27. 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) Review petition was not signed by Sr. Counsel.

 

28. 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 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.

 

29. 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) State of U.P. and another Vs. Synthetics Chemicals Ltd. & another (1991 Vol. 4 SCC 139),

 

ii) State of Manipur Vs. Thingujam Brojen Meetei (AIR 1996 SC 2124).

 

iii) Ajit Kumar Rath Vs. State of Orissa & others (1999 Vol. 9 SCC 596 para 32).

 

iv) State of Gujarat & another Vs. S.S. Murthy and others (AIR 1998 SC 2735 para 2).

 

v) Gouranga Mohan Sikdar Vs. The Controller of Import and Export and 2 others ( PLD 1970 SC 158).

 

vi) Mollah Ejahar Ali Vs. Government of East Pakistan and others (PLD 1970 SC 173).

 

30. The following are three basic ingredients of every decision:-

 

a) Findings of fact both direct and inferential.

 

b) Statement of principles of law applicable to the legal terms disclosed by the facts.

 

c) 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)

 

31. 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) It decides a question of law

 

b) It is passed upon the basis of law

 

c) 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).

 

32. 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 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) REVIEW.

 

34. 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 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) MAXIM “PER INCURRIUM”.

 

37. ‘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 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) MAXIM “SUB-SILENTIO”.

 

40. 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 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) “LARGER BENCH”

 

42. 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) “SOURCE AND AUTHORITY OF JUDICIAL PRECEDENTS HAVE A BINDING EFFECT”.

 

44. 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 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) “PRECEDENTS”

 

46. 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 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 Al- Tnatawi 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 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)

 

377

 

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. 378

 

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 them. 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 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