The Constitution of Pakistan, 1973 Developed by Zain Sheikh

(f) Constitution of Pakistan, 1973, Article 260(1)

Learned Attorney General also lost sight of another important aspect of the case, namely, the President of Pakistan after entering into his office obtained the status which falls under the definition of a person who is in the “Service of Pakistan”. According to Article 260 of the Constitution, service of Pakistan means any service. [p. 92] N

(g) Constitution of Pakistan, 1973, Article 260(1)

Besides the office of the President, the Judges and Chief Justices of the superior courts are also included in the scope of service of Pakistan by failing to make reference to them among the exclusions from ‘Service of Pakistan’ in Article 260. [p. 95] O

(h) Constitution of Pakistan, 1973, Article 225

It may be observed that any violation of the oath of office or any other illegal act committed by a State functionary is a personal act for which the individual concerned would be liable in accordance with law, and the institution to which such individual may belong would not be involved in it in any way. [p.100] Q

(i) Constitution of Pakistan, 1973, Articles 243(1) & 245(1)

Any action of the Armed Forces undertaken without a direction by the Federal Government shall be unconstitutional, illegal, void ab initio and consequently of no legal effect. [p.100] R

(j) Constitution of Pakistan, 1973, Articles 243(1), 244, & 245(1)

Within the prescribed parameters, a soldier must remain committed to defending Pakistan until the last drop of his blood against external aggression or threat of war, and subject to law, acting in aid of civil power when called upon to do so under the directions of the Federal Government. In the course of the discharge of his duties, a soldier, therefore, is obligated to seeing that the Constitution is upheld, it is not abrogated, it is not subverted, it is not mutilated. If a member of the Armed Forces does any of the above acts, or any other similar act, he violates his oath and renders himself liable to action under and in accordance with the Constitution and the law. [p. 101] S

(k) Constitution of Pakistan, 1973, Articles 17(2), 243(2), 244, 245(1) & 184(3)

Thus, it is held that the President could not have issued any command to the Army Chief or the DG ISI as the President did not have any operational authority with respect to the Armed Forces even after the Eighth Constitutional Amendment. While as per Article 243 of the Constitution, the Supreme Command of the Armed Forces was said to vest in the President, no independent executive authority was given to the President. The said Constitutional Amendment had created two broad categories of functions as regards the President.

It is clear that the vesting of the Supreme Command in the President did not empower the President, even after the Eighth Amendment, to act in his discretion or upon his satisfaction. Consequently, no question of a command, let alone a lawful command having been made by the President to make disbursements of money among favoured politicians arises.

Thus, it is clear that respondents No. 1 & 2 were required to comply with only those orders/directions of their superiors which were legal and within their competence. Compliance with an illegal or an incompetent direction/order from the then President can neither be justified on the plea that it came from a superior authority nor could it be defended on the ground that its non-compliance would have exposed them to the risk of disciplinary/adverse action. [pp. 104, 109] T, U & BB

(l) Constitution of Pakistan, 1973, Article 5 & Third Sched

It is to be noted that Article 5 imposes upon every citizen of Pakistan an inviolable obligation to obey the Constitution. Furthermore, any earlier oath that required allegiance to Pakistan necessarily includes allegiance to the present Constitution of Pakistan. Pakistan as a nation state is defined by its Constitution. There can be no allegiance to Pakistan without allegiance to the Constitution of Pakistan. [p. 105] W

(o) Constitution of Pakistan, 1973, Articles 244 & 245(1)

However, ISI, MI or any other Agency like IB have no role to play in the political affairs of the country such as formation or destabilization of government, or interfere in the holding of honest, free and fair elections by Election Commission of Pakistan. Involvement of the officers/members of secret agencies i.e. ISI, MI, IB, etc. in unlawful activities, individually or collectively calls for strict action being, violative of oath of their offices, and if involved, they are liable to be dealt with under the Constitution and the Law. [p. 119] JJ