The Constitution of Pakistan, 1973 Developed by Zain Sheikh

I have given my anxious thought to the arguments of both the learned counsel. The points raised by the learned counsel for the petitioner relate to the interpretation of the judgment of the Hon’ble Supreme Court. I would not like to dwell upon them lest I should trespass on the jurisdiction of the Hon’ble Supreme Court of Pakistan. I agree with the learned Deputy Attorney-General that under para. 17 of the short order passed by the Supreme Court, the Chief Executive was to appoint a date, not later than 90 days before the expiry of the period of 3 years for holding a general election to the National Assembly, the Provincial Assemblies and the Senate of Pakistan. In fact the elections to the National Assembly and Provincial Assemblies have been held and the elections to the Senate are scheduled for 12th November, 2002 which is no too far away. To me there appears to be no infringement of the judgment of the Hon’ble Supreme Court. The learned counsel is losing sight of the statement of Mr. Sharifuddin Pirzada in answering the question put to him by the Hon’ble Supreme Court of Pakistan which is reproduced as under :

“Ans. Time-frame, you see, it is a Supreme Court decision which we accept in its right spirit. It is balanced judgment. They have given this time-frame according to their own judgment. And, as I said we will try our level best to meet this time-frame, and if there occurs any fluctuation then we will see it afterwards. With our best efforts we will certainly meet the time-frame since this is the decision of the Supreme Court”.

The Supreme Court also observed :-

“So, the date is to be appointed not later than 90 days before the expiry of aforesaid period of three years. Now this was accepted by General Musharraf in Press Conference on 25-5-2000 at Islamabad when the Short Order was already announced.”[p. 379] A & B
The preliminary objection raised by the learned Dy. A.G. that the petitioner is not an aggrieved person and has no locus standi to assail the Legal Framework Order is devoid of any force. The petitioner is a registered body of the lawyers who are the Hon’ble citizens of this country groomed in law and Constitution, have every right to assail the Legal Framework Order. In order that a person be considered an “aggrieved person” within the meaning of Article 199, h may not have a right in strict juristic sense but he must show that he had a personal interest in the performance of a legal duty. The amendment in the Constitution will affect the entire nation and the petitioner is a body of the lawyers, who are citizens of this country and likely to be affected by amendments in Constitution. [p. 384] D

I find no substance in the preliminary objection raised by the learned Dy. A.G. that the respondent no. 2 has an immunity under Article 248 of the Constitution and he should be struck off from the array of the respondents. Suffice to say that respondent no. 2 is also the Chief Executive and the Legal Framework Order has been issued by the Chief Executive.

The Hon’ble Supreme Court in Zafar Ali Shah’s case (supra) in its Short Order stated :–

“That the Superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Armed Forces, if challenged, in the light of the principles underlying the law of State necessity as stated above. Their powers under Article 199 of the Constitution, thus, remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any legislative instrument enacted by the Chief Executive and/or any order issued by the Chief Executive or by any person or authority acting on his behalf”. [p. 34] E & F

Similarly the argument of the learned Dy. A.G that the amendment of the Constitution is a political question and this Court has no power of judicial review has not impressed me. In the case of Mehmood Khan Achakzai (supra) the Hon’ble Supreme Court observed :-

“The judiciary is the custodian of the Constitution …..The fact that any question is a political question will not deter the Court from determining it provided it involves the interpretation of Constitution or validity of such question is to be determined on the touchstone of the Constitution. The Court should not adopt ‘political question doctrine’ for refusing to determine difficult and knotty questions having political overtones. This would amount to abdication of judicial power which neither the Constitution permits nor the law allows”. [p. 384 & 385] G

The Chief Executive was vested with the power to amend the Constitution by the apex Court in Zafar Ali Shah’s case (supra). It is for the same Court to see whether he has transgressed the authority conferred upon him by promulgating the Legal Framework Order.

The case can be looked at from another aspect. Elections to the National Assembly and the Provincial Assemblies have been held and the notifications of the successful candidates have been issued. The Houses will be complete within a short time. All eyes are set on the formation of the Civilian Government. The revival of the Constitution and the restoration of democracy is in sight. In my view an appeal to elected representatives is necessary. The standpoint of the Government in the making and the incoming Parliament would be very important in the prevailing circumstances. The provisions of the Constitution are still in abeyance and have not been revived yet. It is not yet clear whether the Legal Framework Order will be further amended and what final shape of the Constitution emerges. The country cannot be plunged into chaos, confusion and instability. At this juncture the question may be left to be determined by the proper forum. Transfer of power from the armed forces to civil society has always been difficult but not impossible. The Government in the offing and the leadership emerging from the recent polls should be able to find the solution to this problem. It is hoped that the inaugural session of the National Assembly is called at the earliest lest the despondency and despair rock the people of Pakistan. [p. 385 & 387] H & I

As far as the contention that National Security Council has been made a superior body is concerned suffice to say that it is only a consultative forum. Its decisions/resolutions have no binding effect on the Government or the President of Pakistan. This Article cannot be declared as unconstitutional merely on the ground that some Members of the National Security Council are the servants of the State.

For all that has been stated above this petition has no merit and is dismissed in limine. [p. 386 & 387] K

(b) Constitution of Pakistan (1973) Art. 184-

The delay in the transfer of power to the civilian Government in the making appears to be due to lack of majority in the Parliament by any single party and due to the lack of consensus on formation of the coalition Government. Even otherwise no positive action has been suggested against respondent no.2 by the Hon’ble Supreme Court in its judgment for his failure to implement the judgment within the time-frame given to him. Whether the respondent no. 2 has committed treason or contempt of Court it is for the Supreme Court to judge and not for this Court. A direction with regard to time is generally considered as directory in nature and not mandatory. It is well-settled that if a period for doing an act or thing is fixed but it non-compliance is not visited with penalty or the consequences t flow and the act or thing is not done within that period, the delay will not defeat the action or performance of the duty. [p. 379] C
(c) Constitution of Pakistan (1973) Arts. 199 & 58(2)(b)-

We are of the view that it is never safe to confer unfettered powers on a person who is holding the reins of the affairs of the country as is embedded in the saying, power corrupts and absolute power corrupts absolutely’. Accordingly, while upholding the judgment in Mehmood Khan Achakzai’s case (supra) we would like to observe that probably the situation could have been avoided if checks and balances governing the powers of the President and the Prime Minister had been in the field by means of Article 58(2)(b). [p. 386] J
A.K. Dogar for Petitioner.

Sher Zaman Khan, Deputy Attorney-General for Respondents.

Dates of hearing : 2nd, 3rd, 7th, 8th, 9th, 14th, 15th, 16th, 17th, 21st, 22nd
29th, 30th, 31st October and 4th, 6th and 7th November, 2002.