P L D 2005 SC 719




Frame (2)

Per Nazim Hussain Siddiqui, C.J.

(a) Constitution of Pakistan (1973) Articles 270AA, 41, 58, 63A, 70, 71, 75101, 140A, 152A, 224, 243 & 268

It is significant to note that the petitioners have contended that this Court had held in above case that the Referendum Order did not amend the Constitution and that by using it as a basis for Constitutional amendments, the President violated the spirit of above judgment. Above plea runs directly contrary to the actual finding in said case. What this Court had held in that case was that the Referendum Order could not be challenged on the basis that it was tantamount to an amendment of the Constitution. It was further observed that was nothing undemocratic in referring an issue directly to the electorate, rather than to the representatives of the electorate, and it was finally observed that referendums were regularly held in various western countries to decide matters of public interest. Under the circumstances, we are of the view that it is no longer open to the petitioners to question the vires or validity of the Referendum Order. Besides, the Referendum Order subsequently has been validated by Parliament through a specific reference in Article 270- AA, which has been inserted in the Constitution through the 17th Amendment. [p.751] C

The issue as to whether or not amendments to the Constitution made through the LFO were the competence of the then Chief Executive has now become academic with the passage of the 17th Amendment. Further, the amendments made to the Constitution through the LFO have been left unchanged by the 17th Amendment. These have been specifically validated and are now to be examined, not with respect to the competence of the Chief Executive, but with respect to the constituent powers of Parliament. Earlier this point was raised before High Court of Sindh in two judgment reported as Nazar Muhammad Khan v/s Pakistan PLD 1986 Karachi 301 at 305 and Nazar Muhammad Khan v/s Pakistan PLD 1986 Karachi 516 at 519 in which it was held that actions of the martial law authorities under General Zia-ul-Haq were, after the passage of the Eighth Amendment, to be examined not on the touchstone of Begum Nusrat Bhutto’s case, but with reference to the powers and competence of Parliament. After the enactment of the Eighth Amendment “the judgment in Begum Nusrat Bhutto’s lost its efficacy”. The Full Bench of the High Court of Sindh clearly held:–

“In view of the amendment of the Constitution, by insertion of Article 270-A therein …reference to Begum Nusrat Bhutto’s case.. has become unnecessary”. [p. 752] D

The argument that General Parvez Musharraf acted in violation of Syed Zafar Ali Shah’s case is misconceived for the reason that it ignores all the Constitutional developments in Pakistan over the past two years. For example, the argument ignores the fact that elections were held to the National and Provincial  Assemblies as per the schedule given by this Court in Syed Zafar Ali Shah’s case, that elections

were subsequently held to the Senate, that an elected Prime Minister was sworn in along with a full cabinet of elected ministers and above all, that the Constitution was fully restored. Ignoring all these developments, the petitioners stick to their misconception that power has not been handed over to the Parliament. There is no evidence to support this argument but the petitioners want this Court to believe as such.

It was strenuously argued that no democracy can exist unless the Prime Minister has complete and undiluted control over the Armed Forces. The simple answer to this proposition is that it can be done only by amending the Constitution and for that Parliament and not this Court is the appropriate forum. It is not the function of this Court to re-write the Constitution. Democracy is not a set of mathematical formula. The principles of democracy differ from country to country. On the strength of subjective consideration, this Court is not legally competent to reverse the process/Constitution. [p. 752 &753] E

As to the issue of striking down the 17th Amendment on procedural grounds, it is observed that an Amendment to the Constitution, unlike any other statute can be challenged only on one ground, viz., it has been enacted in a manner not stipulated by the Constitution itself. It is not disputed that this Court has the jurisdiction, as laid down in Ziaur Rehman’s case to strike down a Constitutional amendment on the ground that it has been promulgated in a manner other than that provided for by the Constitution itself. In these cases, the petitioners have challenged the 17th Amendment on grounds, both substantive and procedural. As regards procedural ultra vires, the argument of the petitioners is that the Amendment is invalid because the Parliament which enacted it was not properly constituted as required by the Constitution. Precisely stated, the argument is that Parliament has not been properly constituted, in that Parliament is defined by Article 50 of the Constitution to be comprised of the National Assembly, the Senate and the President. It is further argued that the Constitution itself has stipulated that only a person elected in accordance with the provisions of the Constitution and specifically in accordance with clauses (3) and (4) of Article 41 can be considered a valid President, and that since General Parvez Musharraf has not been so elected, he is not the President. At the time, the 17th Amendment was enacted, General Parvez Musharraf was the duly appointed President of Pakistan by virtue of Article 41(7)(b) of the Constitution of Pakistan. This provision contains a non obstante clause and it is to have effect notwithstanding anything contained in the Constitution. No procedural challenge to the 17th Amendment can therefore be sustained on the grounds that Parliament was not validly constituted at the time the said measure was enacted. Besides, it is noted that this Court in almost similar circumstances in Ziaur Rehman’s case held as follows:—

“The argument that, as a result of the decision of this Court in the case of Asma Jillani the Constitution of 1962 was again restored because of the illegal abrogation thereof by the usurper, can also not be accepted after the condonation of the Legal Framework Order and the elections held thereunder. Once the representatives of the people are held to have been validly elected, it must follow that they had been validly elected for the purpose of framing of the Constitution in accordance with the provisions of the Legal Framework Order and then the abrogation of the Constitution of 1962 has also to be impliedly accepted as a fait accompli for unless the existing Constitution could not be framed.”

The same issue arose with even greater force in the aftermath of the 1985 election, when the competence of various amendments made to the Constitution by an Assembly elected on the basis of non-party elections, was challenged before a seven-member Bench of the High Court of Sindh in Abdul Mujeeb Pirzada’s case. The following was observed by Saeeduzzaman Siddiqui, J (as he then was):–

“with regard to the contention of learned counsel that the general elections of 1985 were held during the rule of usurper and, therefore, they were not valid, it will suffice to say here that in view if what I have said above, it cannot be said that the general elections of 1985 were held under the rule  of  usurper.  However, if I assume only for the sake of argument in the case, that the elections of 1985 were held by a usurper, the result would not be different, as it cannot be denied that when a civilian Government is deposed or overthrown by a military dictator, the only recognized peaceful means to revert to the civilian rule, is through use of ballot even though such exercise is to be undertaken under the aegis of the military dictator or usurper.”

Above judgment was subsequently upleld by a seven member Bench of this Court in Mahmood Khan Achakzai’s case. It is thus, settled law that the validity and competence of elected Parliament cannot be challenged on the basis that the person conducting the election was not somehow qualified or authorized to hold that election.

In these cases, General Parvez Musharraf was clearly authorized to hold election, indeed he was under obligation to do so by virtue of the judgment of this Court in Syed Zafar Ali Shah’s case. The issue before this Court does not relate to the competence of General Parvez Musharraf as the Chief Executive to make Constitutional amendments but to the competence of a duly elected Parliament to make Constitutional choices.

It will not be out of place to mention here that the 17th Amendment is not merely a pro forma rubber-stamping by Parliament of the various Constitutional amendments made by General Parvez Musharraf through the LFO. Instead, it can be  seen from a clause by clause comparison of the LFO and the 17th Amendment that Parliament has independently applied its mind to each and every provision of the LFO and has then reached an independent conclusion as to whether to validate any particular provision, to amend it or even to repeal it. The LFO was a package of 31 Constitutional amendments, which were made by the then Chief Executive of Pakistan. Many of them have been validated by the 17th Amendment. For instance, the amendment to Article 17 of the Constitution by the LFO has been validated. In other cases through the 17th Amendment new provisions have been added or the LFO inserted provisions amended. A proviso to clause (7) of Article 41 has been added whereby the President could continue to be the COAS after 31st December, 2004 if a law was enacted to that effect by Parliament. A new clause (8) was added whereby the President was required to take a vote of confidence from the Parliament and the four Provincial Assemblies. The LFO has increased the size of the National Assembly from 217 to 342 seats, which included 60 seats for woman, and 10 for minorities. The size of the Senate was increased from 81 to 100. Likewise the size of all Provincial Assemblies was increased and seats were reserved for woman and minorities. The voting age was reduced from 21years to 18 years. Woman and non-Muslims on reserved seats have been elected through a system of proportional representation. The 17th Amendment validates these changes. By amendment through Article 58(2)(b), the LFO gave the President the power to dissolve the National Assembly if the Government could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate became necessary. Government were given similar powers in the Provinces. The 17th Amendment now makes it incumbent on the President or on the Governors, as the case may be, to refer the matter to the Supreme Court within 15 days after such dissolution and this court is required to answer the reference within 30 days. The qualifications and disqualification of the Members of Parliament and Provincial Assemblies were amended.

A new provision was inserted for the old Article 63-A, which provided for disqualification on grounds of defection. Under Articles 70 and 71, a Mediation Committee has been set up and under Article 73 the Senate is enable to make recommendations in respect of Money Bills. On the return of a bill by the President under Article 75 the requirement that it be considered by a Joint Sitting of the Parliament has been omitted and bills are now to be reconsidered by the Parliament sitting in separate Houses. By an amendment in Article 101, the Governor of a province is now to be appointed by the President in consultation with the Prime Minister and under Article 140-A Local Government has been entrenched in the Constitution. Article 152-A relating to the National Security Council inserted in the Constitution by the LFO was omitted by the Seventeenth Amendment. The clog on the power of the High Court not to pass an interim  order  for  a  period of more than six months was removed. The service of the Judges of the Federal Shariat Court was made pensionable. The Supreme Judicial Council was given suo motu powers. The composition of the Election Commission of Pakistan was changed. In Article 224 specific powers were conferred on the President to appoint a Care-taker Cabinet on the dissolution of the National Assembly and on the Governor to appoint such a Cabinet at the provincial level with the approval of the President. Under Article 243 the appointments of the Chairman, Joint Chiefs of Staff Committee and the three service Chiefs are now to be made by the President in consultation with the Prime Minister. By an amendment in Article 268 of the Constitution, entries 27 to 30 and 35 in the Sixth Schedule are to stand omitted after six years.

The 17th Amendment adds a new Article 270-AA providing validation to all Orders, Ordinance, proclamations and actions of the transitional period of extra-Constitutional deviation including the Referendum Order and the LFO. Entries 25 to 35 were added in the Sixth Schedule of the Constitution. This list of changes is not exhaustive. It is merely illustrative. It is specifically noted that the Constitution had earlier been amended through the LFO to provide for a National Security Council by insertion of Article 152A. That Article has been omitted by the 17th Amendment. Likewise, the power of the President to dissolve the National Assembly as contained in Article 58(2)(b) has been qualified by making such decision compulsorily referable to this Court. Even Article 270-AA as originally provided in the LFO has been deleted in its entirety and replaced with an entirely different Article.

The present Constitutional structure rests on the foundation of the 17th Amendment. Without it, the civilian rule may not have been possible. In similar circumstances, while examining the validity of the 8th Amendment in Abdul Pirzada’s case, Ajmal Mian, J. [p. 753,754,755 &756] F, G, H& I

(b) Constitution of Pakistan (1973) Article 6

The petitioners also submitted that it is imperative to take action against the President under Article 6 of the Constitution because under section 3 of the High Treason Act, 1973, no Court can examine a charge on grounds of treason unless a reference is forwarded to the Court by the President, which in this case is not possible. It is noted that section 3 (ibid) does not require a reference from the President but this duty has been assigned to the Federal Government. This provision remains in its original form since enacted. The petitioners’ argument is misplaced. The petitioners do not seek a striking down but virtually insist on re-writing the same and pray that after doing so, this Court may take cognizance of the matter and initiate a prosecution against the President. Suffice it to say that it is not the function of the Courts of law. Even otherwise, on facts, which are incontrovertible, there is no basis for initiating such a prosecution. [p. 775] FF

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