The Constitution of Pakistan, 1973 Developed by Zain Sheikh

CONSTITUTIONAL PETITION NO. 21 OF 2007

ORDER

For detailed reasons to be recorded later, the following issues arising out of this petition are decided as under :—

(I) MAINTAINABILITY OF COP NO. 21 OF 2007 FILED UNDER ARTICLE 184(3) OF THE CONSTITUTION.

This petition is unanimously declared to be maintainable.

(II) VALIDITY OF THE DIRECTION (THE REFERENCE) IS SUED BY THE PRESIDENT UNDER ARTICLE 209(5) OF THE CONSTITUTION.

By majority of 10 to 3 (Faqir Muhammad Khokhar, J., M. Javed Butter, J. and Saiyed Saeed Ashhad, J. dissenting), the said direction (the Reference) in question dated March 9, 2007, for separate reasons to be recorded by the Hon. Judges so desiring, is set aside.

(III) VIRES OF JUDGES (COMPULSORY LEAVE) ORDER BEING PRESIDENT’S ORDER NO. 27 OF 1970 AND THE CONSEQUENT VALIDITY OF THE ORDER DATED 15.3.2007 PASSED BY THE PRESIDENT DIRECTING THAT THE CHIEF JUSTICE OF PAKISTAN SHALL BE ON LEAVE.

The said President’s Order No. 27 of 1970 is, unanimously declared as ultra vires of the Constitution and consequently the said order of the President dated 15.3.2007 is also, unanimously declared to have been passed without lawful authority.

(IV) VALIDITY OF THE ORDER OF THE PRESENT DATED 9.3.2007 AND OF THE ORDER OF THE SAME DATE OF THE SUPREME JUDICIAL COUNCIL RESTRAINING THE CHIEF JUSTICE OF PAKISTAN FROM ACTING AS A JUDGE OF THE SUPREME COURT AND/OR CHIEF JUSTICE OF PAKISTAN.

Both these orders are, unanimously, set aside as being illegal. However, since according to the minority view on thequestion of the validity of the direction (the Reference, in question, the said Reference had been competently filed by the President, therefore, this Court could pass a restraining order under Article 184(3) read with Article 187 of the Constitution.

(V) VALIDITY OF THE APPOINTMENT OF THE HON’BLE ACTING CHIEF JUSTICES OF PAKISTAN IN VIEW OF THE ANNULMENT OF THE TWO RESTRAINING ORDERS AND THE COMPULSORY LEAVE ORDER IN RESPECT OF THE CHIEF JUSTICE OF PAKISTAN.

The appointments in question of the Hon’ble Acting Chief Justices of Pakistan vide notification dated 9.3.2007 are, unanimously, declared to have been made without lawful authority. However, this in-validity shall not affect the ordinary working of the Supreme Court or the discharge of any other Constitutional and/or legal obligations by the Hon’ble Acting Chief Justices of Pakistan during the period in question and this declaration is so made by applying the de-facto doctrine.

(VI) ACCOUNTABILITY OF THE HON’BLE CHIEF JUSTICE OF PAKISTAN.

It has never been anybody’s case before us that the Chief Justice of Pakistan was not accountable. The same issue, therefore, does not require any adjudication.

All other legal and Constitutional issues raised before us shall be answered in due course through the detailed judgment/judgments to follow.

ORDER OF THE COURT

By majority of 10 to 3 (Faqir Muhammad Khokhar, J., M. Javed Butter, J. and Saiyed Saeed Ashhad, J. dissenting), this Constitutional Original Petition NO. 21 of 2007 filed by Mr. Justice Iftikhar Muhammad Chaudhry, the Chief Justice of Pakistna, is allowed as a result whereof the above-mentioned direction (the Reference) of the President dated March 9, 2007 is set aside. As a further consequence thereof, the petitioner CJP shall be deemed to be holding the said office and shall always be deemed to have been so holding the same.

Islamabad, the 20th July, 2007.