Updated: Saturday July 01, 2017/AsSabt Shawwal 07, 1438/Sanivara Asadha 10, 1939, at 08:01:23 PM

PLD 2000 SC 869

 

[Supreme Court of Pakistan]

 

Present: Irshad Hasan Khan, C J., Muhammad Bashir Jehangiri, Sh. Ijaz Nisar, Abdur Rehman Khan, Sh.Riaz Ahmed, Ch. Muhammad Arif, Munir A. Sheikh, Rashid Aziz Khan, Nazim Hussain Siddiqui, Iftikhar Muhammad Chaudhary, Qazi Muhammad Farooq and Rana Bhagwan Das, JJ

 

Syed ZAFAR ALI SHAH and others---Petitioners

 

versus

 

General PERVEZ MUSHARRAF, CHIEF EXECUTIVE OF PAKISTAN and others---Respondents

 

Constitutional Petitions Nos. 62, 63, 53, 57, 66, 64 of 1999 and 3 of 2000, decided on 12th May, 2000.

 

(Constitution petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973).

 

(a) Constitution of Pakistan (1973)---

 

----Art.184---Provisional Constitution Order (1 of 1999), Preamble---Oath of Office of (Judges) Order (1 of 2000), Art.3---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Power of judicial review of Supreme Court---Concept and scope---Restriction imposed by Provisional Constitution Order, 1999 does not in any way restrict the power of judicial review of Supreme Court whereunder the Court has an inherent power to interpret any provision of the Constitution or any other legislative instrument or law, even if that particular provision is the one which seeks to oust the jurisdiction of Supreme Court---No form of oath taken by or administered to the Judges of superior Courts can restrict the judicial power and derogate from the legal position that the Courts, as final arbiters in any constitutional controversy, retain their power and jurisdiction to say as to what a particular provision of the Constitution or the law means or does not mean even if that particular provision is one seeking to oust such jurisdiction of the Court---On no principle of necessity could powers of the judicial review vested in the superior Courts under Constitution of Pakistan (1973) be taken away---Any provision purporting to restrain the power of judicial review of the superior Courts is to be ignored altogether--Principles.

 

Judicial power means that the superior Courts can strike down a law on the touchstone of the Constitution. The nature of judicial power and its relationship to jurisdiction are all allied concepts and the same cannot be taken away. It is inherent in the nature of judicial power that the Constitution is regarded as the supreme law and any law or act contrary to it or infringing its provisions is to be struck down by the Court in that the duty and function of the Court is to enforce the Constitution.

 

The basic question, which needs to be resolved in the present case is whether the restriction imposed by the Provisional Constitution Order 1 of 1999 on the jurisdiction of Supreme Court does in anyway restrict the power of judicial review of Supreme Court whereunder if has an inherent power to interpret any provision of the Constitution. or any other legislative instrument or law, even if that particular provision is a provision which seeks to oust the jurisdiction of Supreme Court.

 

Judiciary is the only forum recognized by both the rulers and the ruled where: (1) questions of validity and legitimacy are capable of being resolved finally with a view to controlling the recklessness of the Government in power and where (2) declining to resolve it would tantamount to self-condemnation, self-destruction and betrayal of the trust of the people of Pakistan. No form of oath taken by or administered to the Judges of the superior Courts can restrict the judicial power and derogate from the legal position that the Courts, as final arbiters in any constitutional controversy, retain their power and jurisdiction to say as to what a particular provision of the Constitution or the law means or does not mean even if that particular provision is one seeking to oust such jurisdiction of the Court. Any attempt to control or circumscribe the judicial power of the superior Courts with a view to denying them the right to decide the validity and the quantum of legislative power of the new regime, would be an exercise in futility. Changing the form of oath will neither take away power of judicial review nor the jurisdiction of Supreme Court. Notwithstanding the new oath or its language, the Courts shall continue to have jurisdiction to decide the controversy involved as if the new oath and the “new constitutional documents” under which the oath is administered, do not adversely affect the jurisdiction and power of the Court. Superior Courts follow the Code of Conduct prescribed for the Judges and inherently owe allegiance to the State of Pakistan, which requires Supreme Court to decide the issue of validity of the new regime under which the Judges are being asked to take new oath inasmuch as such allegiance cannot be taken away. The oath administered under the Constitution has to be respected because that draws its authority from the people of Pakistan whereas the oath under the Constitution to defend the same has a different meaning than an oath administered under a document, validity whereof is yet to be determined and thus the two are incomparable.

 

The Objectives Resolution recognises the `Islamic doctrine of sovereignty’ as expounded in the Holy Book (Qur’an), that sovereignty belongs neither to the ruler nor the ruled but Almighty Allah alone which is to be exercised by the people of Pakistan through their chosen representatives. The Objectives Resolution also envisages that the independence of Judiciary is to be fully secured. It is a fundamental principle of jurisprudence that Courts must always endeavour to expand their jurisdiction so that the rights of the people are guarded against arbitrary violations by the executive. The orders of the Chief Executive are subject to the jurisdiction of the Constitutional Courts of the land. By including paragraphs 2(b) and 7 in the Provisional Constitution Order, 1999, it has been recognized that the superior Courts, which are respected by the people being an embodiment of the ideals of justice and guardian of the rights of the people are not merely entitled to continue but have, in fact, done so in the past as well. The Oath of Office (Judges) Order, 2000 (Order 1 of 2000), dated 25th January, 2000 allows all the Courts to continue to function and exercise powers, which is a reiteration of what was earlier stated by the Oath of Office (Judges) Order, 1999 (Order 10 of 1999), paragraph 3 whereof states that Order 1 of 2000 shall apply to:. (1) newly appointed Judges; (2) that Oath shall be made before the constitutional authority; and (3) that it would be in accordance with the appropriate form set out in the Third Schedule to the Constitution. This required the newly appointed Judges to take oath before the constitutionally designated authority and as per the procedure prescribed by the Constitution and not by the Order 1 of 2000. Any provision purporting to restrain the power of judicial review of the superior Courts is to be ignored altogether. A Judge acting in his conscience and in good faith may decide to resign or he may decide that in the higher public interest he would retain office as has been done by the Judges of Supreme Court and other Judges of the Superior Judiciary.

 

Contention that after having taken oaths -of their offices under the Provisional Constitution Order, 1999 as amended, the Judges of the superior Courts are bound to defend the Proclamation of Emergency and the Provisional Constitution Order, 1999 as amended, in that, the old Constitution has been replaced by a new revolutionary order on the basis of the verdict earlier given by Supreme Court in the case of Begum Nusrat Bhutto PLD 1977 SC 657, is totally misconceived in that it was clearly stated in the said judgment that on no principle of necessity could powers of the judicial review vested in the superior Courts under 1973 Constitution be taken away. The old Order has not been replaced by a new Order but it was merely a case of constitutional deviation for a temporary period.

 

The evolution of judicial power is coterminous with the evolution of civilization and this is so because judicial power has to check the arbitrary exercise of powers by any organ or authority. Provisional Constitution Order, 1999 purports to suspend the Constitution on the one hand and, on the other, it says that the country will be governed in accordance with the provisions of the Constitution as nearly as possible. What emerges from this is that the Fundamental Rights are left intact except those which had been suspended by the earlier Proclamation of Emergency dated 28-5-1999 i.e. Articles 15 to 19 and 24 of the Constitution.

 

The Court must take into account before determining the legitimacy of a revolutionary regime, the two oblique arguments, which would attempt to undermine it: one relating to collapse of its jurisdiction with the disappearance of .the old Constitution; and the other relating to subservience of the Judiciary to the new regime.

 

Judicial review, must, therefore, remain strictly judicial and in its exercise, Judges must take care not to intrude upon the domain of the other branches of Government.

 

The power of judicial review should be exercised with caution.

 

The Army take-over of 12th October, 1999 was extra constitutional. The superior Courts of Pakistan retain the power of judicial review despite the ouster of jurisdiction which came either from within the Constitution, or by virtue of Martial Law Orders or by legislation. Even non obstante clauses in these cases would fail to prevent such objectives of the incumbent administrations.

 

Thus visualised, the purported ouster in the Proclamation and the Provisional Constitution Order, 1 of 1999 of the jurisdiction of the superior Courts is an exercise in futility and the power of judicial review remains intact. Both under Islamic doctrines as well as under its constitutional/ juridical personality, the superior Courts would continue to exercise this power.

 

Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division 1994 SCMR 2142; William Marbury v. James Medison 2 Law Ed. 60; Spirit of Law by Montesquieu; Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657; Principles of Revolutionary Legality by J.M. Eekelaar and Constitutional Legitimacy---A Study of the Doctrine of Necessity by Leslie Wolf-Phillips ref.

(b) Constitution of Pakistan (1973)---

----Arts.2A & 175---Independence, of Judiciary---Concept---Independence of Judiciary is basic principle of the constitutional system of governance--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--Efficient and independent Judiciary 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 caste, creed, colour, culture, gender or place of origin etc. ---Such a legal and judicial environment, is conducive to economic growth and social development---Principles.

 

The Objectives Resolution contained in the Preamble to the Constitution, which now forms substantive part thereof by virtue of Article 2A as well as declaration of Quaid-e-Azam about democratic set-up and social justice, envisage independence of Judiciary.

 

The basic functions of the Judiciary are to promote the administration of justice, to protect Human Rights and to maintain Rule of Law in the country.

 

The 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 caste, 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.

 

The independence of Judiciary requires that the Judiciary shall decide matters before it in accordance with its impartial assessment of the facts and its understanding of the law without improper influences, direct or indirect; from any source. The Judiciary in Pakistan is, independent. It claims and has always claimed that it has the right to interpret the Constitution and any legislative instrument and to say as to what a particular provision of the Constitution or a legislative instrument means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of the Supreme Court.

 

Al-Qur’an: Sura Al-Nisa, Verses 135-136 by Allama Abdullah Yousaf. Ali; Letter sent by Hazrat Umar to Abu Musa Al-ash’ari, Governor Basra/Chief Qazi; Beijing Statement of Principles of the Independence of Judiciary in the LAWASIA Region (6th Conference of Chief Justices of Asia and the Pacific held at - Beijing on 19-8-1995); Government of Sindh v. Sharaf Faridi PLD 1994 SC 105; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Malik Asad Ali v. Federation, of Pakistan PLD 1988 SC 161; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 and Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504 and The Federalist Papers by Alexander Hamilton-James Madison-John Jay ref.

 

(c) Corruption---

 

---- Connotation and scope---Effect of corruption on society and way of life of the people.

 

`Corruption’ is generally defined as the abuse of public office for private gain. In view of the fact that scope of corruption has widened, this definition would include the abuse of all offices of trust. It has diverse meanings and far-reaching effects on society, government and the people. Of late, the culture of corruption and bribe has embedded in the society to the extent that even routine works which should be done without any approach or influence, are commonly known to be done only on some such consideration. This bribe culture has plagued the society to the extent that it has become a way of life.

 

Values in public life and perspective of values in public life, have undergone serious changes and erosion during the last few decades. What was unheard before is commonplace today. A new value orientation is being undergone in our life and culture.’ People are at the threshold of the crossroads of values. It is for the sovereign people of the country to settle these conflicts yet the Courts have a vital role to play in these matters.

 

Once corruption pervades in the body politic and official circles, then the entire Government/administration becomes completely crippled and paralyzed.

 

When corruption permeates in the social, political and financial transactions to such an extent that even proper and honest orders and transactions are suspected to the point of belief, being a result of corruption, one is compelled to infer all is not well and corruption has gone deep in the roots. No doubt, this is an age of “corruption eruption”, but during the last few years there have been large scale prosecutions of former world leaders in various countries on the charges of corruption and corrupt practices, in some cases leading to convictions, which phenomenon must not be taken lightly and the issue must be addressed adequately and effectively through transparent institutionalized processes.

 

(1988) 2 SCC 602; Kh. Ahmed Tariq Rahim’s case PLD 1992 SC 646; Mian Muhammad Nawaz Sharif’s case PLD 1993 SC 47~ and Benazir Bhutto’s case PLD 1998 SC 388 ref.

 

(d) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Allegations of corruption etc. against parliamentarians or politicians or members from the general public---Proceedings commenced against all said persons were to be decided on their own merits in accordance with law and on the basis of the legally admissible material brought before the concerned fora in those proceedings and only after the finalisation of the said proceedings that the country will be geared up for resort to democratic principles and corruption-free society which are prerequisites for good governance.

 

(e) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan ---Factors---Validity---Misdeclaration of assets before the Wealth Tax Authorities qua the Election Commission and allegations of massive corruption and corrupt practices by the large number of politicians by itself may not be a ground for intervention of the Armed Forces but such aspect of the matter, when viewed in the overall context and with particular reference to the alleged massive corruption and corrupt practices, becomes a relevant factor.

 

(f) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan ---Factors---Validitiy---Combined effect of the overall policies and methodology adopted by the former Government was the total collapse of the country’s economy inasmuch as G. D. P. growth during the past three years had hardly kept pace with the growth of population and Pakistan had a debt burden which equalled the country’s entire national income---Supreme Court also took judicial notice of the fact that the trade imbalance was persistent and due to defective economic policies and lack of economic discipline by the previous regime, the industrial sector had suffered a great set back.

 

Federation of Pakistan v. Shaqkat Ali Mian PLD 1999 SC 1026 ref.

 

(g) Provisional Constitution Order (1 of 1999)--

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity-=-On the day when the Army took over and for years prior to that time there was merely a feigned appearance of what could be called a form of “oligarchy” which means a Government in which the authority constitutionally reposes in a few individuals and families and a small coterie of individuals who, because of economic and other power, could influence measurably the policy of the Government.

 

New Dictionary of American Politics by Smith and Zucher, First Edn., p.114 and The Politics of American Democracy by M. Irish, Third Edn., pp. 52 to 81 ref.

 

(h) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity---Low turnout of voters during past elections---Effect---General apathy and indifference is discernible and has a direct nexus with the unenviable performance of the former Governments--Had appropriate steps been taken by the Governments in the past to undo the damage done to the general thinking of the people, the things would have been totally different---Proportions which the misrule had taken beginning before the take-over by the Army, were to the discredit of all concerned.

 

(i) Provisional Constitution Order (1 of 1999)---

 

---Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Arts.184(3). & 91(4), (5)---Extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Suspension of Assemblies and the Senate through extra-constitutional measures by the Chief of Army Staff--Factors---Validity---Doctrine of State necessity---Applicability---Role of public representatives---Principle of joint and ministerial responsibility in Parliamentary system---Rest of the members of representative bodies cannot be absolved of their responsibility if, despite wrongdoings by the cabinet, they remained silent spectators---Suspension of the Assemblies and the Senate through extra-constitutional measures taken by the Chief of Army Staff, warrants validation on the ground of State necessity and State survival.

 

(j) Constitution of Pakistan (1973)---

 

----Art.58(2)(b) [since repealed]---Dissolution of National Assembly--Balance governing the powers of the President and the Prime Minister--Never safe to confer unfettered powers on a person who was holding the reins of the affairs of the country as “power corrupts and absolute corrupts absolutely”---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 Art.58(2)(b) of the Constitution of Pakistan (1973).

 

(k) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Arts.184(3) & 63(2)--­Extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity---Ridiculing the Judiciary and tapping of telephones of Judges of superior Courts---Debates of Parliament of the relevant period clearly demonstrated that integrity and independence of the Judiciary of Pakistan were challenged by the Members of Parliament which had the effect of defaming and bringing the Judges into ridicule and disparaging remarks against the Judiciary crossed all limits and no Reference was made to the Chief Election Commissioner for their disqualification as Members of the Parliament under Art.63(2) of the Constitution of Pakistan (1973)---Such acts of tapping the telephones of Judges of the superior Courts and maligning the Judiciary were most detestable, immoral, illegal and unconstitutional.

 

Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504 and Mohtarama Benazir Bhutto’s case PLD 1998 SC 388 ref.

 

(1) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity---Doctrine of State necessity--Applicability---Machinery of the Government at the Centre and the Provinces had completely broken down and the Constitution had been rendered unworkable, and a situation had arisen for which the Constitution provided no solution and the Armed Forces had to intervene to save the State from further chaos, for maintenance of peace and order, economic stability, justice and good governance and to safeguard integrity and sovereignty of the country dictated by highest considerations, of State necessity and welfare of the people.

 

(m) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Precedents from foreign jurisdictions--Applicability ---Precedents from foreign jurisdictions, though entitled to reverence and respect but are not ipso facto applicable to the facts and circumstances prevailing on the day of taking over by the Armed Forces.

 

(n) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Doctrine of State necessity---Applicability---To save and maintain the integrity, sovereignty and stability of the country and having regard to the welfare of the people while interpreting the legislative instruments i.e.. Provisional Constitution Order, 1999 and Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999, Court has to make every attempt to save “what institutional values remained to be saved” with a view to maintaining and upholding the independence of Judiciary which in turn would protect the State fabric and guarantee Human/Fundamental Rights---Doctrine of State necessity had not been rejected in the judgment of Supreme Court in Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504---Prerequisites of doctrine of State necessity stated.

 

Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Attorney-General of the Republic v. Mustafa Ibrahim Cypress Law Reports 105; Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657 and Miss Asma Jilani’s case PLD 1972 SC 139 ref.

 

(o) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity---Doctrine of State necessity ---Application--All the elements viz. inevitable necessity; exceptional circumstances; no other remedy to apply, measures taken being proportionate to the necessity and of temporary character limited to the duration of exceptional circumstances, were present, inasmuch as, the Constitution provided no solution to meet the extraordinary situation prevailing on 12th October, 1999 when the Armed Forces took over the affairs of Pakistan.

 

Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Attorney-General of the Republic v. Mustafa Ibrahim Cypress Law Reports 105 and Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657 ref.

 

(p) State necessity, doctrine of---

 

----Applicability---Elements---Inevitable necessity; exceptional circumstances; no other remedy to apply; measures taken being proportionate to the necessity and of temporary character limited to the duration of exceptional circumstances, were the elements for application of the doctrine.

 

Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Attorney-General of the Republic v. Mustafa Ibrahim Cypress Law Reports 105 and Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657 ref.

 

(q) Provisional Constitution of Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity- -;.Doctrine of State necessity ---Applicability--Intervention by the Armed Forces on 12th October, 1999 was an imperative and inevitable necessity in view of the exceptional circumstances prevailing at that time, and, therefore, there was no valid justification for not validating the extra-constitutional measure of the Armed Forces on the technical distinction between “doctrine of necessity” and the “doctrine of State necessity”.

 

Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC. 657; The Classics of International Law by Hugo Grotius; A Treatise on the Law of the Prerogative of the Crown and the Relative Duties and Rights of the Subject by Joseph Chitty; The Gabcikovo-Nagymaros Project, decided by International Court of Justice; Corpus Juris Secundum, Vol.65, p.387; Constitutional and Administrative Law by Stanley De Smith and Rodney Brazier, 8th Edn. 1998; Makenete v. Lekhanya and others (1993) 3 LRC; Attorney-General of the Republic v: Mustafa Ibrahim Cypress Law Reports 105; Mitchell and others v. Director of Public Prosecutions and another 1986 LRC. (Grenada); States of Emergency---Their Impact on Human Rights; From Military to Civilian Rule, Edited by Constantine P. Danopoulos and Democracy, the Rule of Law and Islam, Edited by Eugene Cotran and Adel Omar Sherif ref.

 

(r) Constitution of Pakistan (1973)---

 

----Art.232---Proclamation of Emergency---State of emergency--Interpretation---State of emergency includes “regimes of exception” i.e. regimes which have overthrown and not merely suspended the previous constitutional order and have assumed legislative and executive powers analogous to those under a formal state of emergency---Government to take steps to ensure that the Fundamental Rights of citizens are not affected and derogation must be proportionate to the emergency, while adopting constitutional as well as extra-constitutional means---Effort to be made to minimize emergencies and to induce the authorities concerned to respect. the Fundamental Rights.

 

Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657; The Classics of International Law by Hugo Grotius; A Treatise on the Law of the Prerogative of the Crown and the Relative Duties and Rights of the Subject by Joseph Chitty; The Gabcikovo-Nagymaros Project decided by International Court of Justice; Corpus Juris Secundum, Vol.65, p.387; Constitutional and Administrative Law by Stanley De Smith and Rodney Brazier, 8th Edn. 1998; Makenete v. Lekhanya and others (1993) 3 LRC; Attorney-General of the Republic v. Mustafa Ibrahim Cypress Law Reports 105; Mitchell and others v. Director of Public Prosecutions and another 1986 LRC (Grenada); States of Emergency---Their Impact on Human Rights; From Military to Civilian Rule, Edited by Constantine P. Danopoulos and Democracy, the Rule of Law and Islam, Edited by Eugene Cotran and Adel Omar Sherif ref.

 

(s) Provisional Constitution Order (1 of 1999)--

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Doctrine of State necessity ---Applicability--Invocation of the “doctrine of State necessity” depends upon the peculiar and extraordinary facts and circumstances of a particular situation---Superior Courts alone can decide as to whether any given peculiar and extraordinary circumstances warrant the application of doctrine of State necessity or not--Such dependence has a direct nexus with what preceded the action itself--Material available on record generally will be treated at par with the “necessity/State necessity/continuity of State” for the purposes of attaining the proportions justifying its own scope as also the future and expected course of action leading to restoration of democracy.

 

Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657; The Classics of International Law by Hugo Grotius; A Treatise on the Law of the Prerogative of the Crown and the Relative Duties and Rights of the Subject by Joseph Chitty; The Gabcikovo-Nagymaros Project, decided by International Court of Justice; Corpus Juris Secundum, - Vol.65, p.387; Constitutional and Administrative Law by Stanley De Smith and Rodney Brazier, 8th Edn. 1998; Makenete v. Lekhanya and others (1993) 3 LRC; Attorney-General of the Republic v. Mustafa Ibrahim Cypress Law Reports 105; Mitchell and others v. Director of Public Prosecutions and another 1986 LRC (Grenada); States of Emergency---Their Impact on Human Rights; From Military to Civilian Rule, Edited by Consiantine P. Danopoulos and Democracy, the Rule of Law and Islam,, Edited by Eugene Cotran and Adel Omar Sherif ref.

 

(t) Doctrine of necessity---

 

---- Not restricted to criminal prosecution alone.

 

(u) State necessity, doctrine of---

 

----Invocation---Conditions detailed.

 

The invocation of the doctrine of State necessity depends upon the peculiar and extraordinary facts and circumstances of a particular situation. It is for the superior Courts alone to decide whether any given peculiar and extraordinary circumstances warrant the application of the above doctrine or not. This dependence has a direct nexus with what preceded the action itself. The material available on record generally will be treated at par with the “necessity/State necessity/continuity of State” for the purposes of attaining the proportions justifying its own scope as also the future and expected course of action leading to restoration of democracy.

 

Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657; The Classics of-International Law by Hugo Grotius; A Treatise on the Law of the Prerogative of the Crown and the Relative Duties and Rights of the Subject by Joseph Chitty; The Gabcikovo-Nagymaros Project decided by International Court of Justice; Corpus Juris Secundum, Vol.65, p.387; Constitutional and Administrative Law by Stanley De Smith and Rodney Brazier, 8th Edn. 1998; Makenete v. Lekhanya and others (1993) 3 LRC; Attorney-General of the Republic v. Mustafa Ibrahim Cypress Law Reports 105; Mitchell and others v. Director of Public Prosecutions and another 1986 LRC (Grenada); States of Emergency---Their Impact on Human Rights; From Military to Civilian Rule, Edited by Constantine P. Danopoulos and Democracy, the Rule of Law and Islam, Edited by Eugene Cotran and Adel Omar Sherif ref.

 

(v) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validation accorded to the action of the Armed Forces by Supreme Court---Effect---Held, though initially the status of the Government after taking over the affairs of Pakistan was de facto, but in view of the validation accorded by the Supreme Court through its short order, it had attained the status of a de jure Government.

 

(w) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Doctrine of State necessity---Applicability---All that is required to be considered that the extra-constitutional action should have nexus with the facts on the ground---Duty of superior Court is that it recognizes the evil, suggests remedial measures therefor and lays down infrastructure for a journey leading to the restoration of the democratic processes/institutions as expeditiously as possible---If, however, those responsible for achieving said objectives fall short of the measures within the contemplation of the law during their tenures respectively, then the remedy lies in identifying the facts on the ground and taking remedial measures to suppress the evil---Prolonged involvement of the Army in civil affairs runs a grave risk of politicizing it, which would not be in national interest and civilian rule in the country must be restored within the shortest possible time after achieving the declared objectives as reflected in the speeches of the Chief Executive dated 13th and 17th October, 1999 which necessitated the military take-over---Action of Armed Forces of taking over the affairs of Pakistan qualified for validation on the ground of State necessity/survival in circumstances,

 

Recognition of a situation of whatever magnitude does call for remedial measures to be considered/contemplated with a view to purging the situation on the- ground. All that is required to be considered is that the action should have a nexus with the facts on the ground. Such consideration can be undertaken only by the superior Courts in the exercise of their powers under Articles 199 and 184 of the Constitution. It is the duty of the superior Courts that they recognize the evil, suggest remedial measures therefore and lay down infrastructure for a journey leading to the restoration of the democratic processes/institutions as expeditiously as possible. If those responsible for achieving these objectives fall short of the measure within the contemplation of the law during their tenures respectively, then the remedy lies in identifying the facts on the ground and taking remedial measures to suppress the evil. The action of 12th October, 1999 being what it is, qualifies for validation on the ground of State necessity/survival. It is for the representatives of the people to see to it that everything is in order and nobody can raise his little finger when their actions are in dine with the fundamentals of the Constitution. No rule except that by the representatives of the people within the contemplation of the Constitution and the law has the support of the Superior Judiciary. Courts are firmly committed to the governance of the country by the people’s representatives and the definition of the term `democracy’ to the effect that “it is Government of the people, by the people and for the people” and not by the Army rule for an indefinite period. Prolonged involvement of the Army in civil affairs runs a grave risk of politicizing it, which would not be in national interest and that civilian rule in the country must be restored within the shortest possible time after achieving the declared objectives as reflected in the speeches of the Chief Executive, dated 13th and 17th October, 1999, which necessitated the military take-over.

 

(x) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity---Doctrine of State necessity--Applicability---Whole spectrum of circumstances prevalent on or before 12th October, 1999, the day when Armed Forces took over the affairs of Pakistan, revealed that the representatives of the people, who were responsible for running the affairs of the State, were accused of corruption and corrupt practices and failed to establish good governance in the country as a result whereof a large number of references had been filed against the former Prime Minister, Ministers, Parliamentarians and members of the Provincial Assemblies for their disqualification on account thereof---Process of accountability carried out by the former Government was shady, inasmuch as, either it was directed against the political rivals or it was not being pursued with due diligence---All institutions of the State including Judiciary were being systematically destroyed in the pursuit of self-serving policies---Democratic institutions were not functioning in accordance with the Constitution, they had become privy to the one man rule and the very purpose for which they were established stood defeated by their passive conduct---Attempts were made to politicize the army, destabilize it and create dissension within its ranks and had the former Prime Minister been successful in his designs, there would have been chaos and anarchy rather a situation of civil war where some factions of Armed Forces were fighting against other---Action of Armed Forces of taking over the affairs of Pakistan having nexus with the facts on the ground, was qualified to be validated on the ground of State necessity/survival in circumstances.

 

An overall view of the whole spectrum of circumstances prevalent on or before 12th October, 1999 revealed that the representatives of the people who were responsible for running the affairs of the State were accused of corruption and corrupt practices and failed to establish good governance in the country as a result whereof a large number of references had been filed against the former Prime Minister, Ministers, Parliamentarians and members of the Provincial Assemblies for their disqualification on account thereof. The process of accountability carried out by the former Government was shady, inasmuch as, either it was directed against the political rivals or it was not being pursued with due diligence. All institutions of the State -including Judiciary were being systematically destroyed in the pursuit of self-serving policies. The democratic institutions were not functioning in accordance with the Constitution, they had become privy to the one man rule and the very purposes for which they were established stood defeated by their passive conduct. Attempts were made to politicise the army, destabilise it and create dissension within- its ranks. Had the former Prime Minister been successful in his designs, there would have been chaos and anarchy rather a situation of civil war where some factions of Armed Forces were fighting against others.

 

(y) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Arts. 91 & 184(3)--Term “Chief Executive”, import of---Constitution of Pakistan (1973) envisages Parliamentary form of Government where the Prime Minister acts as, the Chief Executive of the country---By means of Proclamation of Emergency dated 14-10-1999 as also the Provisional Constitution Order, 1999 the Constitution has been only held in abeyance and the country is to be run as nearly as may be ii-o accordance with the Constitution, therefore, Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff while taking over the affairs of the country assumed to himself the title of “Chief Executive”---Validity---Since practically the Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff was performing the functions of the Prime Minister, he held the position of Chief Executive in the scheme of the Constitution of Pakistan.

 

The term “Chief Executive” means President where there is a Presidential form of Government and Prime Minister in a Parliamentary form of Government. The Constitution of 1973 envisages Parliamentary form of Government where the Prime Minister acts as the Chief Executive of the country. By means of the Proclamation of Emergency as also the PCO 1 of 1999, the Constitution has only been held in abeyance and the country is to be run as nearly as may be in accordance with the Constitution, therefore, General Pervez Musharraf, while taking over the affairs of the country, assumed to himself the title of “Chief Executive”. Since practically, he is performing the functions of the Prime Minister, he holds the position of Chief Executive in the scheme of the Constitution.

 

Indian Constitutional Law by H.M. Seervai, 4th Edn., p,20; Fazalul Qadir Chaudhry’s case PLD 1963 SC 486 and American Constitutional Law, 1995 Edn., p.204 ref.

 

(z) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution -of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Nature---Coup d’etat or revolution---Coup d’etat and revolution are interchangeable in the context of step of taking over the affairs of Pakistan by the Armed Forces and nothing substantial would turn on considering it from one angle or another.

 

In coup d’etat as well in revolution, power changes from one man to another from one clique to another depending upon the facts and circumstances of each case. Coup d’etat is generally undertaken to achieve a particular objective motivated by various considerations.

 

In the context of the present case the terms coup d’etat and revolution are interchangeable and nothing substantial would turn on considering it from one angle or another.

 

Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Madzimbuto v. Lardner Burke (1968) 3 AER 561; Texas v. White 74 US (7 Wall) 700 (at p. 733), 1868; Madzimbuto v. Lardner Burke 1966 Rhodesian L. Rep. 228 (General Division); Revolution and Political Change by C. Welch and Bunker Taintor; Attorney-General v. Mustafa Ibrahim 1964 Cyprus LR 195 Sup. Ct.; Revolutions, published in the Irish Jurist, 1977 and Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657 ref.

 

(aa) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Grant of power to Chief Executive of Pakistan to amend the Constitution---Extent---Power of the Chief Executive of Pakistan to amend the Constitution is strictly circumscribed by the limitations laid down by the Supreme Court---Limitations with regard to amendment of the Constitution by Chief Executive of Pakistan as laid down by the Supreme Court enumerated.

 

If the Parliament cannot alter the basic features of the Constitution, power to amend the Constitution cannot be conferred on the Chief Executive of the measure larger than that which could be exercised by the Parliament. Clearly, unbridled powers to amend the Constitution cannot be given to the Chief Executive even during the transitional period even on the touchstone of `State necessity’. The Constitution of Pakistan is the supreme law of the land and its basic features i.e. independence of Judiciary, federalism and parliamentary form of Government blended with Islamic Provisions cannot be altered even by the Parliament. Resultantly, the power of the Chief Executive to amend the Constitution is strictly circumscribed by the limitations laid down by the Supreme Court.

 

Mahmood Khan Achakzai’s case PLD 1997 SC 426 ref.

 

Following are the limitations laid down by the Supreme Court with regard to the powers of Chief Executive of Pakistan to amend the Constitution:

 

(i) The Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff through Proclamation of Emergency, dated the 14th October, 1999, followed by PCO 1 of 1999, whereby he has been described as Chief Executive, having validly assumed power by means of an extra constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures as enumerated hereinafter, namely:--

 

(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including, the power to amend it.

 

(b) All acts which tend to advance or promote the good of the people.

 

(c) All acts required to be done for the ordinary orderly running of the State; and

 

(d) All such measures as would establish or lead to the establishment of the declared objectives of the Chief Executive.

 

(ii) That Constitutional Amendments by the Chief Executive can be resorted to only if the Constitution fails to .provide a solution for attainment of his declared objectives and further that the power to amend. the Constitution by virtue of clause (6), sub-clause (i) (a) ibid is controlled by sub-clauses (b), (c) and (d) in the same clause.

 

(iii) That no amendment shall be made in the salient features of the Constitution i.e. independence of Judiciary, federalism, parliamentary form of Government blended with Islamic provisions.

 

(iv) That Fundamental Rights provided in Part II, Chapter 1 of the Constitution shall continue to hold the field but the State will be authorized to make any law or take any, executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 as contemplated by Article 233 (1) of the Constitution, keeping in view the language of Articles 10, 23 and 25 thereof.

 

(v) That these acts, or any of them, may be performed or carried out by means of orders issued by the Chief Executive or through Ordinances on his advice;

 

(vi) 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.

 

(vii) That the Courts are not merely to determine whether there exists any nexus between the orders made, proceedings taken and acts done by the Chief Executive or by any authority or person acting on his behalf, and his declared objectives as spelt out from his speeches, dated 13th and 17th October, 1999, on the touchstone of State necessity but such orders made, proceedings taken and acts done including the legislative measures, shall also be subject to judicial review by the superior Courts.

 

(bb) Provisional Constitution Order (I of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--Constitution of Pakistan (1973), Arts.209 & 184(3)---Extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Supreme Judicial Council---Judges of the Supreme Court and High Courts cannot be removed without resorting to the procedure prescribed in Art.209 of the Constitution-Cases of the Judges who ceased to be Judges of the Supreme. Court and High Courts by virtue of Oath of Office (Judges) Order, 2000, however, was hit by the doctrine of past and closed transaction and could not be re-opened.

 

(cc) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Restoration of democratic institutions---Supreme Court, in view of the circumstances explained by the Attorney-General, observed that there wag no choice but to grant reasonable time to enable the Chief Executive to restore the democratic institutions to the rightful holders of the public representations under the Constitution.

 

Contention of the Attorney-General was that the Federation intended to restore true representative democracy in the country as early as possible. It was, however, not possible to give specific timeframe for the above, among others, for the reasons that the Authorities/Government require time for:

 

(a) Revival of country’s economy, which stands ruined.

 

(b) For completion of the process of accountability.

 

(c) Recovery of huge plundered national wealth including bank loans running into billions of rupees and foreign exchange abroad worth billions of US dollars.

 

(d) The task of unavoidable electoral reforms including preparation of fresh electoral rolls.

 

(e) To ensure harmonious and efficient working of the important organs of the State, stable and good governance including maintenance of law and order, to prevent abuse of power, and to ensure and safeguard smooth functioning and enjoyment of democracy by the people.

 

Supreme Court observed that the Court was not in favour of an Army rule in preference to a democratic rule. There were, however, evils of grave magnitude with the effect that the civilian Governments could not continue to run the affairs of the country in the face of complete breakdown. The remedy to the said evil was the holding of fair and impartial elections by the Chief Election Commissioner at the earliest possible time, but the same could not be achieved till the electoral rolls were updated. Ordinarily, Court would have allowed minimum time for holding of fresh elections as contemplated under the. Constitution, but the Attorney-General made a statement at the Bar that as per report. of the Chief Election Commissioner, updating of the electoral rolls could not be done before two years and thereafter objections and delimitation process etc. were to be attended to. In the absence of proper and authentic electoral rolls, millions of people will be disenfranchised. This statement of the Attorney-General was not rebutted. This being so, there was no choice but to grant reasonable time to enable the Chief Executive to restore the democratic institutions to the rightful holders of the office of public representatives under the Constitution.

 

(dd) Constitution of Pakistan (1973)---

 

----Art. 2A---Independence of Judiciary---Extent---Stability in the system, success of the Government, democracy, good governance, economic stability, prosperity of the people, tranquillity, peace and maintenance of law and order depend, to a considerable degree, on the interpretation of Constitution and legislative instruments by the superior Courts and it is, therefore, of utmost importance that the Judiciary was independent and no restraints were placed on its performance and operation---Interpretation of Constitution by superior Courts---Scope and extent.

 

Stability in the system, success of the Government, democracy, good governance, economic stability, prosperity of the people, tranquillity, peace and maintenance of law and order depend to a considerable degree on the interpretation of Constitution and legislative instruments by the superior Courts. It is, therefore, of utmost importance that the judiciary is independent and no restraints are placed on its performance and operation. It claims and has always claimed that it has the right to interpret the Constitution or any legislative instrument and to say as to what a particular provision of the Constitution or a legislative instrument means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court. Under the mandate of the Constitution, the Courts exercise their jurisdiction as conferred upon them by the Constitution or the law. Therefore, so long as the superior Courts exist, they shall continue to exercise powers and functions within the domain of their jurisdiction and shall also continue to exercise power of judicial review in respect of any law or provision of law, which comes for examination before the superior Courts to ensure that all persons are able to live securely under the rule of law; to promote, within the proper limits of judicial functions, the observance and the attainment of human and Fundamental Rights; and to administer justice impartially among persons and between the persons and the State, which is a sine qua non for the maintenance of independence of judiciary and encouragement of public confidence in the judicial system.

 

(ee) Constitution of Pakistan (1973)---

 

----Arts. 184 & 199---Judicial review by superior Courts---Powers and scope.

 

Superior Courts have the right to interpret the Constitution or any legislative instrument and to say as to what a particular provision of the Constitution or a legislative instrument means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of Supreme Court. Under the mandate of the Constitution, the Courts exercise their jurisdiction as conferred upon them by the Constitution or the law. Therefore, so long as the superior Courts exist, they shall continue to exercise powers and functions within the domain of their jurisdiction and shall also continue to exercise power of judicial review in respect of any law or provision of law, which comes for examination before the superior Courts to ensure that all persons are able to live securely under the rule of law; to promote, within the proper limits of judicial functions, the observance and the attainment of human and Fundamental Rights; and to administer justice impartially among persons and between the persons and the State, which is a sine qua non for the maintenance of independence of judiciary and encouragement of public confidence in the judicial system.

 

(ff) Interpretation of statutes-

 

---- Provision seeking to oust the jurisdiction of Supreme Court--Interpretation---Power of superior Courts---Scope---Superior Courts have right to interpret the Constitution or any legislative instrument and to say as to what a particular provision of the Constitution or a legislative instrument means or does not mean, even if that particular, provision is a provision seeking to oust the jurisdiction of Supreme Court.

 

(gg) Constitution of Pakistan (1973)            

 

----Art. 178---Provisional Constitution Order (1 of 1999), Preamble---Oath of Office of (Judges) Order (1 of 2000), Art.3---Oath of office by Judges of Supreme Court under Provisional Constitution Order, 1999 and Oath of Office of (Judges) Order, 2000---Object and beneficial effects necessitating such oath highlighted.

 

Fresh oath under Oath of Office (Judges) Order No. l of 2000, does not in any way preclude the Judges of Supreme Court from examining the questions raised in the Constitutional petitions under Article 184(3) of the Constitution of Pakistan (1973), which have to be decided in accordance with their conscience and law so as to resolve the grave crises and avoid disaster by preventing imposition of Martial Law for which the Constitution does not provide any remedy.

 

New oath of Office was taken by the Judges of Supreme Court under PCO No. l of 1999 read with Oath of Office (Judges) Order No. l of 2000 with ‘a view to reiterating the well-established principle that the first and the foremost duty of the Judges of the superior Courts is to save the judicial organ of the State. This was exactly what was done. By virtue of PCO No.l of 1999, the Constitution has not lost its effect in its entirety although its observance as a whole has been interrupted for a transitional period. The activity launched by the Armed. Forces through an extra Constitutional measure, involves the violation of “some of the rights” protected by the Constitution, which still holds the field but some of its provisions have been held in abeyance. A duty is cast upon the Superior Judiciary to offer some recompense for those rights which were purportedly violated in view of the promulgation of PCO No. 1 of 1999. This could be achieved only by taking the Oath and not by declining to do so and thereby becoming a party to the closure of the Courts, which would not have solved any problem whatsoever but would have resulted in chaos, anarchy and disruption of peaceful life. Independence of judiciary does not mean that Judges should quit their jobs and become instrumental in the closure of the Courts. Indeed, the latter course would have been the most detestable thing to happen. Independence of judiciary means that the contentious matters, of whatever magnitude they may be, should be decided/resolved by the Judges of the superior Courts according to their conscience. This Court, while performing its role as “the beneficial expression of a laudable political realism”, had three options open to it in relation to the situation arising out of the military take-over on twelfth day of October, 1999, firstly, it could tender resignation en bloc, which most certainly could be equated with sanctifying (a) chaos/anarchy and (b) denial of access to justice to every citizen of Pakistan wherever he may be; secondly, a complete surrender to the regime by dismissing Constitutional petitions for lack of jurisdiction in view of the purported ouster of its jurisdiction under PCO No. l of 1999 and thirdly, acceptance of the situation as it is, in an attempt to save what “institutional values remained to be saved”. Supreme Court, after conscious deliberations and in an endeavour to defend and preserve the national independence, the security and stability of Pakistan, sovereignty and honour of the country and to safeguard the interest of the community as a whole, decided to maintain and uphold the independence of judiciary, which, in its turn, would protect the State fabric and guarantee human rights/Fundamental Rights. It took the Oath under PCO No. l of 1999 so as to secure the enforcement of law, extend help to the law enforcing agencies for maintenance of public order and with a view to restoring democratic institutions, achieving their stability and guaranteeing Constitutional rights to the people of Pakistan.

 

Oath of Office prescribed under Articles 178 and 194 of the Constitution for the Judges of the superior Courts contains a specific provision that - a Judge shall abide by the Code of Conduct issued by the Supreme Judicial Council. Same is the position with regard to the provisions regarding Oath of Office (Judges) Order No. l of 2000. The precise provisions in the Oath of Office (Judges) Order, 2000 are that a Judge, to whom oath is administered, shall abide by the provisions of Proclamation of Emergency of Fourteenth day of October, 1999, PCO 1 of 1999, as amended, and the Code of Conduct issued by the Supreme Judicial Council. But there is specific omission of words, “to preserve and defend the Constitution”. Adherence to the Code of Conduct has not been subjected to any pre-conditions and there can be no deviation from it by a Judge who takes oath either under the Constitution or PCO No. l of 1999 or Oath of Office (Judges) Order 1 of 2000. One of the requirements of the Code of Conduct is that the oath of a Judge implies complete submission to the Constitution, and under the Constitution to the law. Subject to these governing obligations, his function of interpretation and application of the Constitution and the law is to be discharged for the maintenance of the Rule of Law over the whole range of human activities within the nation. Thus, the new Oath merely indicates that the Superior Judiciary, like the rest of the country, had accepted the fact that on 12th October, 1999, a radical transformation took place.

 

(hh) Provisional Constitution Order (1 of 1999)--

 

----Preamble---Effect of Provisional Constitution Order, 1999 on the Constitution of Pakistan (1973). ‘

 

By virtue of PCO No. 1 of 1999, the Constitution has not lost its effect in its entirety although its observance as a whole has been interrupted for a transitional period. The activity launched by the Armed Forces through an extra-Constitutional measure, involves the violation of “some of the rights” protected by the Constitution, which still holds the field but some of its provisions have been held in abeyance.

 

(ii) Constitution of Pakistan (1973)-- .

 

----Art. 2A---Independence of Judiciary means that the contentious matters of whatever magnitude they may be, should be decided/resolved by the Judges of the superior Courts according to their conscience.

 

Independence of judiciary means that the contentious matters, of whatever magnitude they may be, should be decided/resolved by the Judges of the superior Courts according to their conscience.

 

(jj) Provisional Constitution Order (1 of 1999)--

 

----Preamble---Oath of Office (Judges) Order (1 of 2000), Preamble--Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution of Pakistan (1973) before Supreme Court calling in question the validity of Provisional Constitution Order, 1999 [as amended], Oath of Office (Judges) Order, 2000 and Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Maintainability---Notwithstanding anything contained in the Proclamation of Emergency dated 14-10-1999, the Provisional Constitution Order, 1999 [as amended] and the Oath of Office (Judges) Order, 2000, all of which purportedly restrained Supreme Court from calling in question or permitting to call in question the validity of any of the provisions thereof, Supreme Court, in the exercise of its inherent powers of judicial review, has the right to examine validity of said instruments---Principles---Constitutional petitions before Supreme Court under Art. 184(3) of Constitution of Pakistan (1973) are therefore, maintainable.

 

Notwithstanding anything contained in the Proclamation of Emergency of the Fourteenth day of October, 1999, the Provisional Constitution Order No. l of 1999, as amended and the Oath of Office (Judges) Order No. l of 2000, all of which purportedly restrained Supreme Court from calling in question or permitting to call in question the validity of any of the provisions thereof, Supreme Court, in the exercise of its inherent powers of judicial review, has the right to examine the validity of the aforesaid instruments. Additionally, submission of the Federation in response to the Court’s notice concerning its own legitimacy, also suggests that Supreme Court has an inherent authority, arising from the submission of both the parties to its jurisdiction, notwithstanding the preliminary objection raised in the written statement as to the maintainability of the Constitutional petitions. In the exercise of its right to interpret the law, Supreme Court has to decide the precise nature of the ouster clause in the above instruments and the extent to which the jurisdiction of the Courts has, been ousted, in conformity with the well-established principles that the provisions seeking to oust the jurisdiction of the superior Courts are to be construed strictly with a pronounced leaning against ouster. The Constitution petitions under Article 184(3) of the Constitution are, therefore, maintainable.

 

(kk) Provisional Constitution Order (1 of 1999)--.

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---State necessity, doctrine of, and salus populi est suprema lex, principle of---Applicability---Supreme Court, while recording in detail the factors for action by Armed Forces validated the same on the basis of the doctrine of State necessity and the principle of salus populi est suprema lex for a transitional period to prevent any further destabilization, to create corruption-free atmosphere at national level through transparent accountability and revival of economy before restoration of democratic institutions under the Constitution, in that Constitution offered no solution to the prevailing crisis.

 

National Assembly is the highest representative body, which reflects the will and aspirations of the people of Pakistan. Similar is the status of a Provincial Assembly in a Province. Senate, being a symbol of unity of the federating units has its own utility for the country as a whole. It is, therefore, of utmost importance that the impugned suspension of the above democratic institutions is examined with great care and caution, otherwise it would adversely affect the democratic process in the country, which may cause instability, impair the economic growth and resultantly prove detrimental to the general well-being of the people. However, where the representatives of the people, who are responsible for funning the affairs of the State are themselves accused of  massive corruption and corrupt practices and in the public as well as private sectors are benefiting therefrom and resist establishing good governance; where a large number of references have been filed against the former Prime Minister, Ministers, Parliamentarians and Members of the Provincial Assemblies for their disqualification on account of corruption and corrupt practices; where there is a general perception that corruption is being practised by diversified strata including politicians, Parliamentarians, public officials and ordinary citizens and that a number of Parliamentarians and Members of the Provincial Assemblies misdeclared their assets before Election Commission and Tax Authorities; where there was no political and economic stability and bank loan defaults were rampant and that as per report of Governor, State Bank of Pakistan Rs.356 billion are payable by the bank defaulters up to 12-10-1999, having no accountability and transparency; where economic stability in Pakistan was highly precarious and there was an overall economic slowdown as GDP growth during the past three years had hardly kept pace with the growth of population; where Pakistan has a debt burden, which equals the country’s entire national income; where all the institutions of the State were being systematically destroyed and the economy was in a state of collapse due to self-serving policies of the previous Government, which had threatened the existence, security, economic life, financial stability and credit of Pakistan; where a situation had arisen under which the democratic institutions were not functioning in accordance with the provisions of the Constitution, inasmuch as, the Senate and the National and Provincial Assemblies were closely associated with the former Prime Minister and there was no real democracy because the country was, by and large, under one man rule; where an attempt was made to politicize the Army, destabilize it and create dissension within its ranks and where the judiciary was ridiculed, leaving no stone unturned to disparage and malign it by making derogatory and contemptuous. speeches by some of the members of the previous ruling party inside and outside the Parliament and no Reference was made to the Chief Election Commissioner for their disqualification as members of the Parliament under Article 63(2) of the Constitution; where the disparaging remarks against the judiciary crossed all limits with the rendering judgment by this Court in the case of Sh. Liaquat Hussain v Federation of Pakistan PLD 1999 SC 504, declaring the establishment of Military, Courts as ultra vires of the Constitution. which resulted into a slanderous campaign against the judiciary launched by the former Primc. Minister registering his helplessness in the face of the Judiciary not allowing him the establishment of Military Courts as. a mode of speedy justice; where the image of the judiciary’ was tarnished under a well-conceived design; where the telephones of the Judges of the superior Courts and other personalities were tapped in spite of the law laid down by this Court in the case of Mohtarma Benazir Bhutto v. President of Pakistan PLD 1999 SC 388, ‘that tapping of telephones and eaves-dropping was immoral, illegal and unconstitutional; where storming of the Supreme Court was resorted to allegedly by some of the leaders and activists of the Pakistan Muslim League which ultimately- led to the issuance of contempt notices against them/contemners by the Full Bench of Supreme Court in a pending appeal; where Mian Nawaz Sharif’s Constitutional and moral authority stood completely eroded and where situation was somewhat similar and analogous to the situation that was prevalent to July, 1977, the extra-Constitutional step of taking over the affairs of the country by the Armed Forces for a transitional period to prevent any further destabilization, to create corruption-free atmosphere at national level through transparent accountability and revive the economy before restoration of democratic institutions under the Constitution, is validated, in that, the Constitution offered no solution to the present crisis.

 

Probably, the situation could have been avoided if Article 58(2)(b) of the Constitution (1973) had been in the field, which maintained parliamentary form of Government and had provided checks and balances between the powers of the President and the Prime Minister to let the system run without any let or hindrance to forestall the situation in which Martial Law can be imposed. With the repeal of Article 58(2)(b) of the Constitution, there was no remedy provided in the Constitution to meet the situation like the present one with which the country was confronted, therefore, Constitutional deviation made by the Chief of the Army Staff, for the welfare of the people rather than abrogating the Constitution or imposing Martial Law by means of an extra-Constitutional measure is validated for a transitional period on ground of State necessity and on the principle that it is in public interest to accord legal recognition to the present regime with a view to achieving his declared objectives and that it is in the interest of the community that order be preserved. Legal recognition/legitimacy can be accorded to the present regime also on the principle that the Government should be by the consent of the governed, whether voters or not. Here there is an implied consent of the governed i.e. the people of Pakistan in general including politicians/parliamentarians, etc. to the Army take-over, in that, no protests worth the name or agitations have been launched against the Army take-over and/or its continuance. The Court can take judicial notice of the fact that the people of Pakistan have generally welcomed the Army takeover due to their avowed intention to initiate the process of across the board and transparent accountability against those, alleged of corruption in every walk of life, of abuse of national wealth and of not taking appropriate measures for. stabilizing the economy and democratic institutions. Another principle, which is attracted is that since an extra-Constitutional action has been taken by General Pervez Musharraf wielding effective political power, it is open to the Court to steer a middle course so as to ensure that the framework of the pre-existing Order survives but the Constitutional deviation therefrom be justified on the principle of necessity, rendering lawful what would otherwise be unlawful. However, prolonged involvement of the Army in civil affairs runs a grave risk of politicizing it, which would not be in national interest, therefore, civilian rule in the country must be restored within the shortest possible time after achieving the declared objectives, which necessitated the military take-over and Proclamation of Emergency as spelt out from the speeches of the Chief Executive, dated 13th and 17th October, 1999. The acceptance of the above principles do not imply abdication from judicial review in the transient suspension of the previous legal order.

 

Sh. Liaquat Hussain v. Federation of Pakistan PLD 1990 SC 504 and Benazir Bhutto v. President of Pakistan PLD 1998 SC 388 ref.

 

(ll) Provisional Constitution Order (1 of 1999)--

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution.of Pakistan (1973), Arts.184(3) & 199 Extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Powers of superior Courts---Scope and extent---Situation in the country having arisen for which the Constitution had provided no solution and the intervention by the Armed Forces through an extra-constitutional measure having become inevitable, Supreme Court validated the measures taken by Armed Forces including all past and closed transactions, as well as such executive actions as were required for the orderly running of the State and all acts which tended to advance or promote the good of the people on the basis of State necessary and the principle of salus populi est suprema lex as embodied in Begum Nusrat Bhutto’s case reported as PLD 1977 SC 657---Chief Executive of Pakistan having validly assumed power by means of an extra-constitutional step, in the interest of the State and for the welfare of the people, was entitled to perform all such acts and promulgate all legislative measures as indicated by the Supreme Court---Superior Courts, however, 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---Powers of superior Courts under Art.199 of the Constitution of Pakistan (1973), thus, remained 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 am order issued by the Chief Executive or by any person or Authority acting on his behalf---Courts were not merely to determine whether there existed any nexus between the orders made, proceedings taken and acts done by the, Chief Executive or by any Authority or person acting on his behalf, and his declared objectives as spelt out from his speeches dated 13th and 17th October., 1999, on the touchstone of State necessity but orders made, proceedings taken and acts done including the legislative measures, shall also be subject to judicial review by the superior Courts---Rule laid down by Supreme Court for validation of action of Armed Forces on 12-10-1999 detailed.

 

Following is the text of rule laid down by the Supreme Court while validating the action of taking over the affairs of Pakistan by the Armed Forces of Pakistan on 12th October, 1999:

 

“1. On 12th October, 1999 a situation arose for- which the Constitution provided no solution and the intervention by the Armed Forces through an extra-Constitutional measure became inevitable, which is hereby validated on the basis of the doctrine of State necessity and the principle of salus populi est suprema lex as embodied in Begum Nusrat Bhutto’s case. The doctrine of State necessity is recognised not only in Islam and other religions of the world but also accepted by the eminent international jurists including Hugo Grotius, Chitty and de Smith and some superior Courts from foreign jurisdiction to fill a political vacuum and bridge the gap.

 

2. Sufficient corroborative and confirmatory material has been produced by the Federal Government in support of the intervention by the Armed Forces through extra-Constitutional measure. The material consisting of newspaper clippings, writings, etc. in support of the impugned intervention is relevant and has been taken into consideration as admissible material on the basis of which a person of ordinary prudence would conclude that the matters and events narrated therein did occur. The findings recorded herein are confined to the controversies involved in these cases alone.  

 

3. All past and closed transactions, as well as such executive actions as were required for the orderly running of the State and all acts, which tended to advance or promote the good of the people are also validated.

 

4. That the 1973 Constitution still remains the supreme law of the land subject to the condition that certain parts thereof have been held in abeyance on account of State necessity.

 

5. That the superior Courts continue to function under the Constitution. The mere fact that the Judges of the superior Courts have taken a new bath under the Oath of Office (Judges) Order No. l of 2000, does not in any manner derogate from this position, as the Courts had been originally established under the 1-973 Constitution, and have continued in their functions in spite of the Proclamation of Emergency and PCO No. l of 1999 and other legislative instruments issued by the Chief Executive from time to time.

 

6.(i) That the Chairman, Joint Chiefs of Staff Committee and the Chief of the Army Staff through Proclamation of Emergency dated the 14th October, 1999, followed by PCO 1 of 1999, whereby he had been described as Chief Executive; having validly assumed power by means of an extra Constitutional step, in the interest of the State and for the welfare of the people, was entitled to perform all such acts and promulgate all legislative measures as enumerated hereinafter, namely:--

 

(a) All acts or legislative measures which. were in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;

 

(b) All acts which tended to advance or promote the good of the people;

 

(c) All acts required to be done for the ordinary orderly running of the State; and

 

(d) All such measures as would establish or lead to the establishment of the declared objectives of the Chief Executive.

 

(ii) That Constitutional amendments by the Chief Executive could be resorted to only if the Constitution failed to provide a solution for attainment of his declared objectives and further that the power to amend the Constitution by virtue of clause (6), sub-clause (i) (a) (ibid) was controlled by sub-clauses (b), (c) and (d) in the same clause.

 

(iii) That no amendment shall be made in the salient features of the Constitution i.e. independence of judiciary, federalism, parliamentary form of Government blended with Islamic provisions.

 

(iv) That Fundamental Rights provided in Part II, Chapter 1 of the Constitution shall continue to hold the field but the State will be authorized to make any law or take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 as contemplated by Article 233(1) of the Constitution, keeping in view the language of Articles 10, 23 and 25 thereof.

 

(v) That these acts; or any of them, may be performed or carried out by means of orders issued by the Chief Executive or through Ordinances on his advice;

 

(vi) 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.

 

(vii) That the Courts are not merely to determine whether there exists any nexus between the orders made, proceedings taken and acts done by the Chief Executive or by any authority or person acting on his behalf, and his declared objectives as spelt out from his speeches, dated 13th and 17th October, 1999, on the touchstone of State necessity but such orders made, proceedings taken and acts done including the legislative measures, shall also be subject to judicial review by the superior Courts.

 

6. That the previous Proclamation of Emergency of 28th May, 1998 was issued under Article 232(1) of the Constitution whereas the present Emergency of 14th October, 1999 was proclaimed by way of an extra- Constitutional step as a follow up of the Army take-over which also stands validated notwithstanding the continuance of the previous Emergency which still holds the field.

 

7.         That the validity of the National Accountability Bureau Ordinance, 1999 will be examined separately in appropriate proceedings at appropriate stage.

 

8. That the cases of learned former Chief Justice and Judges of the Supreme Court, who had not taken oath under the Oath of Office (Judges) Order, 2000 (Order 1 of 2000), and those Judges of the Lahore High Court, High Court of Sindh and Peshawar High Court, who were not given oath, cannot be re-opened being hit by the doctrine of past and closed transaction.

 

9. That the Government shall accelerate the process of accountability in a coherent and transparent manner justly, fairly, equitably and in accordance with law.

 

10. That the Judges of the superior Courts are also subject to accountability in accordance with the methodology laid down in Article 209 of the Constitution.

 

11. General Pervez Musharraf, the Chief of the Army Staff and. the Chairman, Joint Chiefs of Staff Committee is a holder of Constitutional post. His purported arbitrary removal in violation of the principle of audi alteram partem was ab initio void and of no legal effect.

 

12. That this order will not affect the trials conducted and convictions recorded including proceedings for accountability pursuant to various orders made and Orders/laws promulgated by the Chief Executive or any person exercising powers or jurisdiction under his authority and the pending trials/proceedings may continue subject to this order.

 

13. This is not a case where old legal order has been completely suppressed or destroyed, but merely a case of Constitutional deviation for a transitional period so as to enable the Chief Executive to achieve his declared objectives.

 

14. That the current electoral rolls are outdated. Fresh elections cannot be held without updating the electoral rolls. The learned Attorney-General states that as per report of the Chief Election Commissioner this process will take two years. Obviously, after preparation of the electoral rolls some time is required for delimitation of constituencies and disposal of objections, etc.

 

15. That we take judicial notice of the fact that ex-Senator Mr. Sartaj Aziz moved a Constitution Petition No. 15 of 1996, seeking a mandamus to the concerned authorities for preparation of fresh electoral rolls as, according to Mr. Khalid Anwar, through whom, the above petition was filed, the position to the contrary was tantamount to perpetuating disenfranchisement of millions of people of Pakistan in violation of Articles 17 and 19 of the Constitution. Even MQM also resorted to a similar Constitution Petition bearing No.53 of 1996 seeking the same relief. However, for reasons best known to the petitioners in both the petitions, the same were not pursued any further.

 

16. That having regard to all the relevant factors involved in the case including the one detailed in paragraphs 14 and 15 above, three years’ period is allowed to the Chief Executive with effect from the date of the’ Army take-over i.e. 12th October, 1999 for achieving his declared objectives.

 

17. That the Chief Executive shall appoint a date, not later than 90 days before the expiry of the, aforesaid period of three years, for holding of general elections to the National Assembly and the Provincial Assemblies and the Senate of Pakistan.

 

18. That this Court has jurisdiction to review/re-examine the continuation of the Proclamation of Emergency dated 12th October, 1999 at any stage if the circumstances so warrant as held by this Court in the case of Sardar Farooq Ahmed Khan Leghari v. Federation of Pakistan PLD 1999 SC 57.”

 

(mm) State necessity, doctrine of---

 

----Doctrine of State necessity is recognised not only in Islam and other religions of the world but also accepted by the eminent international jurists to fill a political vacuum and bridge the gap.

 

(nn) Maxim:

 

----”Salus populi est suprema lex”----Applicability.

 

(oo) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--Effect of Provisional Constitution Order, 1999; Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999 and Oath of Office (Judges) Order, 2000 was that Constitution of Pakistan (1973) still remained the supreme law of the land subject to the condition that certain parts thereof had been held in abeyance on account of State necessity.

 

(pp) Constitution of Pakistan (1973)---

 

----Arts. 175 & 184(3)---Provisional Constitution Order (1 of 1999), Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble---Constitution of Pakistan (1973), Preamble and Art.184(3)---Oath of Judges of superior Courts under Oath of Office (Judges) Order, 2000---Effect--Powers of superior Courts---Superior Courts continued to function under the Constitution of Pakistan (1973)---Mere fact that the Judges of the superior Courts had taken a new oath under the Oath of Office (Judges) Order, 2000 did not in any manner derogate from the said position, as the Courts had been originally established under the Constitution of Pakistan (1973,) and had continued their functions in spite of the Proclamation of Emergency by the Chief Executive of Pakistan and Provisional Constitution Order, 1999 and other legislative instruments issued by the Chief Executive from time to time.

 

(qq) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--Constitution of Pakistan (1973), Preamble and Art. 184(3)---Powers of Chief Executive of Pakistan---Scope and extent---Judicial review of powers of the Chief Executive of Pakistan by superior Courts---Scope---Chief Executive of Pakistan having validly assumed power by. means of an extra-constitutional step, in the interest of the -State and for the welfare of the people, was entitled to perform all such acts and promulgate all legislative measures as indicated by Supreme Court---Superior Courts, however, 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---Powers of superior Courts under Art. 199 of the Constitution of Pakistan (1973), thus, remained 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---Courts were not merely to determine whether there existed any nexus between the orders made; proceedings taken and acts done by the Chief Executive or by any Authority or person acting on his behalf, and his declared objectives as spelt out from his speeches dated 13th and 17th October, 1999, on the touchstone of State necessity but orders made, proceedings taken and acts done including the legislative measures, shall also be subject to judicial review by the superior Courts.

 

The Chairman, Joint Chiefs of Staff Committee and the Chief of Army Staff through Proclamation of Emergency dated the 14th October, 1999, followed by PCO 1 of 1999, whereby he had been described as Chief Executive, having validly assumed power by means of an extra Constitutional step, in the interest of the State and for the welfare of the people, was entitled to perform all such acts and promulgate all legislative measures as enumerated hereinafter, namely:--

 

(a) All acts or legislative measures which were in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;

 

(b) All acts which tended to advance or promote the good of the people;

 

(c) All acts required to be done for the ordinary orderly running of the State; and

 

(d) All such measures as would establish or lead to the establishment of the declared objectives of the Chief Executive.

 

(ii) That Constitutional amendments by the Chief Executive could be resorted to only if the Constitution failed to provide a solution for attainment of his declared objectives and -further that the power to amend the Constitution by virtue of clause (6), sub-clause (i) (a) (ibid) was controlled by sub-clauses (b), (c) and (d) in the same clause.

 

(iii) That no amendment shall be made in the salient features of the Constitution i.e. independence of judiciary, federalism, parliamentary form ,of Government blended with Islamic provisions.

 

(iv) That Fundamental Rights provided in Part II, Chapter I of the Constitution shall continue to hold the field but the State will be authorized to make any law or take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 as contemplated by Article 233(1) of the Constitution, keeping in view the language of Articles 10, 23 and 25 thereof.

 

(v) That these acts, or any of them, may be performed or carried out by means of orders issued by the Chief Executive or through Ordinances on his advice;

 

(vi) 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.

 

(vii). That the Courts are not merely to determine whether there exists any nexus between the orders made, proceedings taken and acts done by the Chief Executive of by any authority or person acting on his behalf, and his declared objectives as spelt out from his speeches, dated 13th and 17th October, 1999, on the touchstone of State necessity but such orders made, proceedings taken and acts done including the legislative measures, shall also be subject to judicial review by the superior Courts.

 

(rr) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--Validation of Proclamation of Emergency dated 14-10-1999 in continuation of Emergency proclaimed on 28-5-1998---Proclamation of Emergency dated 28th May, 1998 issued under Art.232(1) of Constitution of Pakistan (1973) and Proclamation of Emergency dated 14-10-1999 issued by Chief Executive by way of an extra-constitutional step as a follow up of the Army take-over stood validated notwithstanding the continuance of the Emergency proclaimed on 28th May, 1998 still held the field.

 

(ss) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of. Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), .Preamble--Constitution of Pakistan (1973), Preamble, Arts.209 & 184(3)---Past and closed transaction, doctrine of---Applicability---Cases of former Chief Justice and Judges of Supreme Court who had not taken oath under the Oath of Office (Judges) Order, 2000 and those Judges of the Lahore High Court, High Court of Sindh and Peshawar High Court, who were not given oath, could not be reopened being hit by the doctrine of past and closed transaction.

 

The cases of former Chief Justice and Judges of the Supreme Court, who had not taken oath under the Oath of. Office (Judges) Order, 2000 (Order 1 of 2000), and those Judges of the Lahore High Court, High Court of Sindh and Peshawar High Court; who were not given oath, cannot be reopened, being hit by the doctrine of past and closed transaction.

 

The practical effect of the above observation is that the action of the Chief Executive in this behalf has been validated. It is a well-settled principle that in such situations the Court may refuse relief in respect of a particular decision, but go on to determine the general question of law or interpretation that the case raises. Clearly, the Judges of the Superior Judiciary enjoy constitutional guarantee against arbitrary removal. They can 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. The validity of the action of the Chief Executive was open to question on the touchstone of Article 209 of the Constitution. But none of the Judges took any remedial steps and accepted pension as also the right to practise law and thereby acquiesced in the action. Furthermore, the appropriate course of action for Supreme Court in these proceedings would be to declare the law to avoid the recurrence in future, but not to upset earlier actions or decisions taken in this behalf by the Chief Executive, these being past and closed transactions. The Courts can refuse relief in individual cases even though the action is flawed, depending upon the facts and circumstances of each case. The action of Chief Executive in the context given above has not encroached on the judicial power or impaired it in the process. However, the observations made herein as to the declaration of law under Article 209 of the Constitution would not entitle the relevant authorities or Supreme Court to reopen the cases of the above Judges which have become final.

 

The Judges of the Supreme Court and High Courts cannot be removed without resorting to the procedure prescribed in Article 209 of the Constitution, but the cases of Judges who ceased to be Ridges of the Supreme Court and High Courts by virtue of Oath of Office (Judges) Order, 2000 (Order 1 of 2000) is hit by the doctrine of past and closed transaction and cannot be reopened.

 

(tt) Constitution of Pakistan (1973)---

 

----Arts. 209 & 184(3)---Provisional Constitution Order (1 of 1999), Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--Constitution of Pakistan (1973), Preamble and Arts.184(3) & 209--Accountability, process of---Government shall accelerate the process of accountability in a coherent and transparent manner justly, fairly, equitably and in accordance with law---Judges of superior Courts were subject to accountability only in accordance with the methodology laid down in Art.209 of the Constitution of Pakistan (1973).

 

(uu) Constitution of Pakistan (1973)---

 

----Arts. 243 & 184(3)---Command of Armed Forces---Removal of Chief of the Army Staff and Chairman, Joint Chiefs of Army Staff Committee--Procedure---Chief of the Army Staff and Chairman, Joint Chiefs of Army. Staff Committee being a holder of constitutional post, his arbitrary removal in violation of the principle of audi alteram partem was ab initio void and of no legal effect.

 

(vv) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--Constitution of Pakistan (1973), Preamble and Art.184(3)---Validity of extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces accorded by Supreme Court---Effect---Order of Supreme Court validating the extra-constitutional step of taking over the affairs of the country by the Armed Forces and rules laid down in the said order will not affect the trials conducted and convictions recorded including proceedings for accountability pursuant to various orders made and orders/laws promulgated by the Chief Executive of Pakistan or any person exercising powers or jurisdiction under his authority and the pending trials/proceedings may continue subject to the present order of validation by the Supreme Court.

 

(ww) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--Constitution of Pakistan (1973), Preamble and Art.184(3)---Extraconstitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Effect---Effect of action of Armed Forces was not that legal order in the country had been completely suppressed or destroyed, but it was merely a Constitutional deviation for a transitional period so as to enable the Chief Executive of Pakistan to achieve his declared objectives.

 

(xx) Constitution of Pakistan (19’73)---

 

----Arts. 224 & 184(3)---Provisional Constitution Order (1 of 1999), Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Elections---Time frame---Current electoral rolls being outdated, fresh elections. could not be held without updating ,the electoral rolls and after preparation of the electoral rolls as some time was required for delimitation of constituencies and disposal of objections etc.---Supreme Court, after having regard to all the relevant factors involved allowed three years’ period to the Chief Executive of Pakistan with effect from the date of the Army take-over i.e. 12-10-1999 for achieving his declared objectives---Chief Executive of Pakistan shall appoint a date, not later than 90 days before the expiry of three years, for holding a general election to the National Assembly and the Provincial Assemblies and the Senate of Pakistan.

 

(yy) Provisional Constitution Order (1 of 1999)---

 

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--Constitution of Pakistan (1973), Preamble and Art. 184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Jurisdiction to review/re-examine by Supreme Court the continuation of Proclamation of Emergency. dated 12-10-1999---Scope--Supreme Court having validated the extra-Constitutional step of taking-over the affairs of the country by the Armed Forces subject to rules laid down in the validating order, had jurisdiction to review/re-examine the continuation of Proclamation of Emergency dated 12-10-1999 at any stage, if the circumstances so warrant.

 

Sardar Farooq Ahmed Khan Leghari v. Federation of Pakistan PLD 1999 SC 57 ref.

 

            Ahmad Saeed Karmani’s case PLD 1956 (W.P) Lah.807; Darvesh M. Arbey’s case PLD 1977 Lah.846; Iqbal Ahmad Khan’s case PLD 1977 Lah.337; Muhammad Bachal Memon’s case PLD 1987 Kar.296; Muhammad Naeem Akhtar’s case 1992 CLC 2043; Shams-ud-Din’s case 1994 MLD 2500; Manzoor Ahmed Wattoo’s case PLD 1997 Lah.38; Muhammad Anwar Durrani’s case PLD 1989 Quetta 25; A.K. Fazalul Quader Chaudhry’s case PLD 1966 SC 105; Pit Sabir Shah’s case PLD 1994 SC 738; Tfie Speaker, Balochistan Provincial Asembly, Quetta’s case PLD 1996 SCMR-1969; Mrs. Shahida Zahir Abbassi’s case PLD 1996 SC 632; Mahmood Khan Achakzai’s case PLD 1997 SC 426; Wukala Mahaz Barai Tahafaz-e-Dastoor’s case PLD 1998 SC 1263; Sardar Farooq Ahmed Khan Leghari’s case PLD 1999 SC 57; Syed Jalal Mehmood Shah’s case PLD 1999 SC 395; Sh. Liaqat Hussain’s case PLD 1999 SC 504; Miss Benazir Bhutto’ case PLD 1988 SC 416; Mian Muhammad Nawaz Sharif’s case PLD 1993 SC 473; Dosso’s case PLD 1958 SC (Pak.) 533; Miss Asma Jilani’s case PLD 1972 9C 139; Begum Nusrat Bhutto v.- Chief of Army Staff ‘and others PLD 1977 SC 657; Special Reference No: 1 of 1955 PLD 1955 SC 435; Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104; William Marburty v. James Medison 2 Law Edn.60; PLD.1955 FC 435; R v. Stratton (1779) (21 St. Tr. 1222); Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Al-Jehad Trust v. Federation of Pakistan 1999 SCMR 1379; Usif Patel and 2 others v. The Crown PLD 1955 FC 387; Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Controller of Patents and Designs, Karachi v. Muhammad Quadir Hussain 1995 SCMR 529; Zahid Akhtar v. Government of Punjab PLD 1995 SC 530; Federation of Pakistan v. N.-W.F.P. Government PLD 1990 SC 1172; Mian Aziz A. Sheikh v. The Commissioner of Income-tax, Investigation, Lahore PLD 1989 SC 613; Mst. Kaneez Fatima v. Wali Muhammad PLD 1993 SC 901; Fazle Ghafoor v. Chairman, Tribunal of Disputes, Dir, Swat at Chitral at Mardan 1993 SCMR 1073; Ghulam Hamdani. v. Muhammad Iqbal 1993 SCMR 1083; M. Ismail Qureshi v. M. Awais Qasim 1993 SCMR 1781; Zaheeruddin v. The State 1993 SCMR 1718; Brig. Retd. Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division 1994 SCMR 2142; Speech of the Chief Executive dated 17-10 1999; Mokotso v. H.M. King Moshoehoe II 1989 LRC (Const.) 24; Mitchell v. Director of Public Prosecutions 1986 LRC (Const.) 35; Hamza Shehbaz Sharif v. Federation of Pakistan 1999 PCr.LJ 1584; Huddaibia Engineering v. Pakistan PLD 1998 Lah. 90; Mushtaq Ahmed Gormani v. State PLD 1958 SC 333; Amanullah Khan v. Federal Government of Pakistan PLD 1990 SC 1092; M. Inayat Khan v. M. Anwar and 2 others PLD 1976 SC 354; Ex-Major-General Akbar Khan v. The Crown PLD 1954 FC 87; F.B. Ali v. The State PLD 1975 SC. 506; Shahida Zahir Abbasi v. President of Pakistan PLD 1996 SC 632; Muhammad Umar Khan v. The Crown PLD 1953 Lah. 528; Reference by the President of Pakistan under Art. 162 of the Constitution of Islamic Republic of Pakistan PLD 1957 SC (Pak.) 219; Federation of Pakistan v. Moulvi Tamizuddin Khan PLD 1955 FC 240; Attorney-General of the Republic v. Mustafa Ibrahim and others 1964 Cyprus Law Reports 195; Ziaur Rehman’s case PLD 1973 SC 49; PLD 1989 SC 166; 1997 SCMR 1043 at 1057 and 1059; Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161; William Marbury v. James Medison 2 Law Ed. 60; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; Federation of Pakistan v. M. Nawaz Khokhar PLD 2000 SC 26; Anatulay VIII (1988) 2 SCC 602; Kh. Ahmed Tariq Rahim’s case PLD 1992 SC 646; Federation of Pakistan v. Shaukat Ali Mian PLD 1999 SC 1026; Makenete v. Lekhanya and others (1993) 3 LRC; Mitchell and others v. Director of Public Prosecutions and another 1986 LRC (Grenada); Edwin Ward Scadding v. Louis Lorant 10 ER 164; Toronto R. Co. and City of Toronto 46 DLR 547; Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Fazalul Qadir Chaudhry’s case PLD 1963 SC 486; Madzimbuto v. Lardner Burke (1968) 3 AER 561; Texas v. White 74 US (7 Wall) 700 (at p.733), 1868; Madzimbuto v. Lardner Burke 1966 Rhodesian L.Rep. 228 (General Division) and Muhammad Yusuf v. The Chief Settlement and Rehabilitation Commissioner Pakistan, Lahore and another PLD 1968 SC 101; Al-Qur’an: Sura Aale-e-Imran, Verses 4-135; Surah Maida, Verses 5/9; Sura AI-Nisa, Verses 135-136; Spirit of Law- by Montesquieu; The Constitutional History of England by F.W. Maitland; Law of Necessity by Glanville William, p.216; Principles of Revolutionary Legality by J.M. Eekelaar, pp.29,30,39 to 43; Cases in Constitutional Law by D.L. Keir and F.H. Lawson. 5th Edn., pp.73 to 116; English Constitutional Conflicts of the Seventeenth Century, 1603-1689 by J.R. Tanners, pp.20, 41-45, 62, 65, 70, 78, 79; The Constitution of England from Queen Victoria to George VI by Arthur Berriedale .Keith; Judging the State by One Paula R. Newberg; Constitutional Legitimacy---A Study of the Doctrine of Necessity by Leslie Wolf-Phillips; Commentaries on the Constitution of the United States by Joseph Story; Constitution in Crisis, Political Violence and the Rule of Law by John E. Finn; ‘The Federalist Papers by Alexander Hamilton-James Madison-John Jay, pp. 464 to 470, 479, 481; Dissolution of Constituent Assembly of Pakistan and the Legal Battles of Moulvi Tamizuddin Khan by Syed Sharifuddin Pirzada; Destruction of Pakistan’s Democracy by Allen Mcgrath; Transfer of Power, Vol. VII; The Statute of Westminster and Dominion Status by K.C. Wheare; Voyage through History by Masarrat Husain Zuberi; Corpus Juris Secundurn, Vol. 65, pp.115, 116, 118, 387, 389; Sorensen, pp. 271, 272; Judicial Review on Administration Action by De Smith, p. 544; States of Emergency---A Study prepared by the International Commission of Jurists, pp.14, 17, 18, 21, 23; Constitutional and Administrative Law by Hilaire Barnett; Constitutional and Administrative. Law by Stanley De Smith and Rodney Brazier; Public Opinion .and Political Developments in Pakistan by Inamur Rehman; Pakistan in the 80s Law and Constitution, Edited by Wolfgang Peter Zingel Stephanie Zingel Ave Lalemant; In Defence of the Continuity of Law--Pakistan’s Courts in Crises of State by Dieter Conrad; Black’s Law Dictionary; A History of Militarism,. Civilian and Military by Alfred Vagts: Recognition of Governments in International Law with particular Reference to Governments in Exile by Stefan Talmon; The Man on Horseback---The Role of the Military in Politics by S.E. Finer; Machiavelli On Modern Leadership by Michael A. Ledeen; Through the Crisis; Standard Journal of International Law; The Indian Army and the Pakistan Army by Stephen P. Kohento; Beijing Statement of Principles of the Independence of Judiciary in the LAWASIA Region; The Federalist Papers by Alexander Hamilton-James Madison-John Jay; Corruption and Government, Cause,. Consequences and Reform by Susan Rose-Ackerman; Commonwealth Finance Minister Meeting held on 21-23rd September, 1999 at Grand Cayman, Cayman Islands; Money Laundering---A Practical Guide to New Legislation h) Rowan Bosworth-Davies and Graham Saltmarsh, 1994 Edn.; New Dictionary of American Politics by Smith and Zucher, First Edn., p.114; The Pollitics of American Democracy by M. Irish, Third Edn., pp.52 to 81; The Hidden Wiring- --Unearthing the British Constitution by Peter Hennessy, pp.35, 37; Arthur Berriedale Keith---The Chief Ornament of Scottish Learning by Ridgway F. Shinn Jr.; The 1~rtgiish Constitution by Walter Bagehot; The Classics of International Law by Hugo Grotius; A Treatise on the Law of the Prerogative of the Crown and the Relative Duties and Rights of the Subject by Joseph Chitty; The; (iabcikovo-Nagymaros Project, decided by International Court of Justice; From Military to Civilian Rule, Edited by Constantine P. Danopoulos; Democracy, the Rule of Law and Islam, Edited by Eugene Cotran and Adel Omar Sherif; Constitutional Limitations by Colley, Eighth Edn., Vo1.2, 8:1357; Indian Constittitionai Law by H.M Seeravi, 4th Edn., p.20; American Constitutional Law, 1995 Edn., p.204 Revolution and Political Change by C. Welch and Bunker Taintor and Revolutions published in Irish Jurist, 1977 ref.

 

Ch. Muhammad Farooq, Senior Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record for Petitioner (in C.P. No. 62 of 1999). .

 

Khalid Anwar, Senior Advocate Supreme Court, M Rafique Rajwana, Advocate Supreme Court, Umar Bandial, Advocate Supreme Court, Ms. Saadia Abbasi, Advocate and S. Abul Aasim Jafri. .Advocate-on-Record for Petitioners (in C.P. No. 63 of 1999).

 

Habibul Wahabul Khairi, Advocate Supreme Court for Petitioner (in C.P. No. 53 of 1999).

 

Petitioner in person (in C.P. No.57 of 1999).

 

Fazal Illahi Siddiqui, Advocate Supreme Court for Petitioner (in C.P. No.. 3 of 2000).

 

Petitioner in person (in C.P. No. 66 of 1999).

 

Petitioner in person (in C.P. No. 64 of 1999).

 

Aziz A. Munshi, Attorney-General for Pakistan, Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Tanvir Bashir Ansari, Deputy Attorney-General, Mansur Ahmad, Deputy Attorney-General, S.A. Mannan, Advocate Supreme Court, Sh. Maqbool Ahmad, Advocate Supreme Court, Ch. Bashir Ahmad, Advocate Supreme Court, Ch. Fazle Hussain, Advocate-on-Record, Mehr Khan Malik, Advocate-on-Record and Waqar Rana, Advocate for Respondent (Federation).

 

M. Ashraf Khan Tanoli, Advocate-General, Balochistan, M.Younis Khan Tanoli, Advocate-General, N.-W.F.P., Maqbool Illahi Malik, Advocate-General, Punjab, Nasim Sabir, Additional Advocate-General, Punjab, Tariq Mahmood Khokhar, Additional Advocate-General, Punjab, Rao M. Yousuf Khan, Advocate-on-Record, Raja Qureshi, AdvocateGeneral, Sindh, Abdul Haleem Pirzada, President, Supreme Court Bar Association, Kadir Bakhsh Bhutto, Vice-Chairman, Pakistan Bar Council and Dr. Farooq Hassan for President, Lahore High Court Bar Association (on Court’s Notice).

 

S.M. Zafar, Senior Advocate Supreme Court assisted by Syed Ali Zafar, Advocate Supreme Court, Haider Zaman Qureshi and Raja Zafar Khalid, Advocates: Amicus curiae.

 

Dates of hearing: 1st November, 6th December, 1999; 31st January, 1st to 3rd March; 6th to 10th, 13th, 14th, 22nd, 24th March; 1st to 5th and 8th to 12th May, 2000.

 

JUDGMENT

 

IRSHAD HASAN KHAN, CJ.---Through this common judgment we propose to dispose of Constitution Petitions Nos. 62 to 64, 66, 53, 57, of 1999 and Constitution Petition No. 3 of 2000, challenging the validity and legal effect of the army take-over, the issuance of Proclamation of Emergency (hereinafter referred to as the Proclamation) and promulgation of Provisional Constitution Order No. 1 of 1999 (hereinafter referred to as the PCO) and the Oath of Office (Judges) Order, 2000 (hereinafter called the Order I -of 2000). Some of the Constitution Petitions, fully or partly, support the army take-over, the Proclamation, the PCO and the Order I of 2000.

 

2. The above petitions raise questions of great public importance and of far reaching consequences..

 

3. Ch. Muhammad Farooq, learned Senior ASC, for the petitioner in C.P. No. 62 of 1999, Mr. Khalid Anwar, learned Senior ASC, for the petitioners in C.P. No. 63 of 1999, Mr. Habib-ul-Wahabul Khairi, learned ASC, petitioner in C.P. No. 53 of 1999, Syed Iqbal Haider, petitioner in C.P.No. 57 of 1999, Mr. Shahid Orakzai, petitioner in C.P. No. 64 of 1999, Syed Imtiaz Hussain Bukhari, petitioner in C.P. No. 66 of 1999 and Mr. Fazal Illahi Siddiqui, learned ASC, petitioner in C.P. No. 3 of 2000 as well as Mr. Aziz A. Munshi, learned Attorney-General for Pakistan; Syed Sharifuddin Pirzada, learned Senior ASC for the Federation; Mr Abdul Haleem Pirzada, President, Supreme Court Bar Association; Dr. Farooq Hasan for President, Lahore High Court Bar Association; Mr. Kadir Bakhsh, Vice-Chairman, Pakistan Bar Council; Advocates-General of the Provinces and Mr. S.M. Zafar, learned Senior ASC as amicus curaie have addressed elaborate arguments as to the validity or otherwise and legal effect of the army take-over by General Pervez Musharraf. The parties have also filed voluminous documents on the factual aspects of the case and set out their respective versions of the events culminating in the army take-over, issuance of the Proclamation on 12th October, 1999 and other legal instruments referred to above. ,

 

4. Facts of the case, briefly stated, are that the Chairman Joint Chiefs of Staff Committee and Chief of Army Staff General Pervez Musharraf on 12-10-1999 seized power in Pakistan by dismissing the Government of the then Prime Minister Mian Muhammad Nawaz Sharif, putting him under house arrest, on charges of interfering in the affairs of the Armed Forces, politicising the Army, destabilising it and trying to create dissension within its ranks. He briefly addressed the nation on radio and television at 3-00 a.m. on 13-10-1999. The text of the Chief of Army Staff’s speech reads thus:

 

TEXT OF THE COAS SPEECH

 

“My dear countrymen, Assalam-o- Alaikum.

 

You are all aware of the kind of turmoil and uncertainty that our country has gone through in recent times. Not only have all the institutions been played around with, and systematically destroyed, the economy too is in a state of collapse. We are also aware of the self-serving policies being followed, which have rocked the very foundation of the Federation of Pakistan.

 

The armed forces have been facing incessant public clamour to remedy the fast declining situation from all sides of the political divide. These concerns were always conveyed to the Prime Minister in all sincerity, keeping the interest of the country foremost. It is apparent that they were never taken in the correct, spirit. My singular concern has been the well-being of our country alone. This has been the sole reason that the army willingly offered its services for nation building tasks, the results of which have already been judged by you.

 

All my efforts and counsel to the Government it seems were to no avail. Instead they now turned their attention on the army itself. Despite all my advices they tried to interfere with the armed forces, the last remaining viable institution in which all of you take so much pride and look up to, at all times, for the stability, unity and integrity of our beloved country. Our concerns again were conveyed in no uncertain terms but the Government of Mr. Nawaz Sharif chose to ignore all these and tried to politicize the army, destabilize it and tried to create dissension within its ranks.

 

I was in Sri Lanka on an official visit. On my way back the PTA commercial flight was not allowed to land at Karachi but was ordered to be diverted to anywhere outside Pakistan, despite acute shortage of fuel, imperiling the life of all the passengers. Thanks to Allah, this evil design was thwarted through speedy army action.

 

My dear countrymen having briefly explained the background, I wish to inform you that the armed forces have moved in as a last resort, to prevent any further destabilization. I have done so with all sincerity, loyalty and selfless devotion to the country with the armed forces firmly behind me. I do not wish to make a lengthy policy statement at this moment. I shall do that very soon. For the moment I only wish to assure you that the situation in the country is perfectly calm, stable and under control. Let no outside forces think they can take advantage of the prevailing situation.

 

Dear brothers and sisters, your armed forces have never and shall never let you down, Inshallah, we shall preserve the integrity and sovereignty of our country to the last drop of our blood. I request you all, to remain calm and support your armed forces in the reestablishment of order to pave the way for a prosperous future for Pakistan. “

 

May Allah guide us on the path of truth and honour. Allah Hafiz.”

 

5.         On 14-10-1999 the Chief of the Army Staff General Pervez Musharraf issued the Proclamation, effective from 12-10-1999, whereby the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) was held in abeyance and the whole of Pakistan brought under the control of Armed Forces. The text of the Proclamation dated 14-10-1999 reads thus:

 

“PROCLAMATION OF EMERGENCY”

 

“In pursuance of deliberations and decisions of Chiefs of Staff of the Armed Forces and Corps Commanders of Pakistan Army, I, General Pervez Musharraf, Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff proclaim Emergency throughout Pakistan, and assume the office of the Chief Executive of the Islamic Republic of Pakistan.

 

“I hereby order and proclaim as follows:

 

(a)        The Constitution of the Islamic Republic of Pakistan shall remain in abeyance;

 

(b)        The President of Pakistan shall continue in office;

 

(c)        The National Assembly, the Provincial Assemblies and Senate shall stand suspended;

 

(d)        The Chairman and Deputy Chairman of the Senate the Speaker and Deputy Speaker of the National Assembly and the Provincial Assemblies shall stand suspended;

 

(e)        The Prime Minister, the Federal Ministers, Ministers of State, Advisors to the Prime Minister, Parliamentary Secretaries, the Provincial Governors, the Provincial Chief Ministers, the Provincial Ministers and the Advisors to the Chief Ministers shall cease to hold office;

 

(t)         The whole of Pakistan will come under the control of the Armed Forces of Pakistan.

 

This Proclamation shall come into force at once and be deemed to have taken effect on and 12th day of October, 1999.”

 

This was followed simultaneously by the Provisional Constitution Order No. l of 1999, as amended, dated 14-10-1999, which reads thus:

 

TEXT OF PROVISIONAL CONSTITUTION ORDER NO. 1 OF 1999

 

“In pursuance of Proclamation of the 14th day of October, 1999, and in exercise of all powers enabling him in that behalf, the Chairman Joint Chiefs of Staff Committee and Chief of Army Staff and Chief Executive of the Islamic Republic of Pakistan under the Proclamation of Emergency of 14th October, 1999 (hereinafter referred to as the Chief Executive) is pleased to make and promulgate the following Order-

 

1.         (1) This Order may be called Provisional Constitution Order No. 1 of 1999.

 

(2) It extends to the whole of Pakistan.

 

(3) It shall come into force at once.

 

2.         (1) Notwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, Pakistan shall, subject to this Order and any other Orders made by the Chief Executive, be governed, as nearly as may be, in accordance with the Constitution.

 

(2) Subject as aforesaid, all courts in existence immediately before the Commencement of this Order shall continue to function and to exercise their respective powers and jurisdiction:

 

Provided that the Supreme Court or High Courts and any other Court shall not have the powers to make any order against the Chief Executive or any person exercising powers or jurisdiction under his authority.

 

(3) The Fundamental Rights conferred by Chapter 1 of Part II of the Constitution, not in conflict with the Proclamation of Emergency or any Order made thereunder from time to time shall continue to be in force.

 

3.         (1) The President shall act on, and in accordance, with the advice of the Chief Executive.

 

(2) The Governor of a Province shall act on, and in accordance with the instructions of the Chief Executive.

 

4.         (1) No Court, tribunal or other authority shall call or permit to be called in question the Proclamation of Emergency of 14th day of October, 1999 or any Order made in pursuance thereof.

 

            (2) No judgment, decree, writ, order or process whatsoever shall be made or issued by any Court or tribunal against the Chief Executive or any authority designated by the Chief Executive.

 

5.         Notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the Chief Executive 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; shall be inserted and shall be deemed’ to have always been so inserted, shall continue in force until altered; amended or repealed by the Chief Executive or any authority designated by him.

 

5-A(1) An Ordinance promulgated by the President or by the Governor of a Province shall not be subject to the limitation as to its duration prescribed in the Constitution.

 

(2) The provisions of clause (1) shall also apply to an Ordinance issued by the President’ or by the Governor which was in force immediately before the commencement of the proclamation Order of Chief Executive of the Fourteenth day of October, 1999.

 

Subject to the Proclamation Order of the Chief Executive of the Fourteenth day of October, 1999 and the provisions of the Provisional Constitution Order No. 1 of 1999 as amended, the President of the Islamic Republic of Pakistan on the advice of the Chief Executive, and the Governor of the Province on instructions of the Chief Executive, may issue and promulgate Ordinances which shall not be subject to the limitation as to their duration prescribed in the Constitution.

 

6.         The Proclamation of Emergency issued on 28th day of May, 1998, shall continue but subject to the provisions of Proclamation of Emergency, dated 14th day of October, 1999 and this Provisional Constitution Order and any other Order made thereunder.

 

7.         All persons who, immediately before the commencement of this Order, were in the service of Pakistan as defined in Article 260 of the Constitution and those persons who immediately before such commencement were in office as Judge of the Supreme Court, the Federal Shariat Court or a High Court or Auditor-General or Ombudsman and Chief Ehtesab Commissioner, shall continue in the said service on the same terms and conditions and shall enjoy the same privileges, if any.”

 

6.         On 13th December, 1999, the Chief of Army Staff, General Pervez Musharraf, after assuming the office of the Chief Executive of Pakistan, promulgated the Oath of Office (Judges) Order, 1999 (Order X of 1999), which reads thus: ‘

 

OATH OF OFFICE (JUDGES) ORDER, 1999 ORDER NO. 10 OF 1999

 

“Whereas in pursuance of the Proclamation of Emergency of the fourteenth day of October, 1999, and the Provisional Constitution Order No. 1 of 1999, the Constitution of the Islamic Republic of Pakistan has been held in abeyance;

 

Whereas Pakistan is to be governed, as nearly as may be, in accordance with the Constitution;

 

Whereas all Courts in existence immediately before the commencement of this Order have been continued to function and exercise their respective powers and jurisdiction;

 

And whereas to enable the Judges of the Superior Courts to discharge their functions, it is necessary that they take Oath of their office;

 

Now, therefore, in pursuance of the aforesaid Proclamation and Provisional Constitutional Order, the Chief Executive is pleased to make and promulgate the following Order:---

 

1.         Short title and commencement.---(1) This Order may be called the Oath of Office (Judges) Order, 1999.

 

(2) It shall come into force at once.

 

2.         Interpretation.--In this Order, “Superior Court” means the Supreme Court of Pakistan or a High Court or the Federal Shariat Court and “Judge” includes Chief Justice.

 

3.         Oath of Judges.---A Judge of Superior Court appointed after the commencement of this Order shall, before entering upon office, make Oath before the authority specified in the Constitution and in the appropriate from set out in the Third Schedule to the Constitution. “

 

                                       (Sd.)

 

                        General

 

The Chief Executive of the Islamic Republic of Pakistan

 

Chairman Joint Chief of Staff Committee

 

            and Chief of Army Staff

 

       (Pervez Musharraf)

 

 

 

Rawalpindi

 

31st December, 1999.

 

On 25th January, 2000, the Chief Executive promulgated the following amended Oath of Office (Judges) Order, 2000 (Order I of 2000):

 

“OATH OF OFFICE (JUDGES) ORDER, 2000 ORDER NO. 1 OF 2000

 

“Whereas in pursuance of the Proclamation of Emergency of the Fourteenth day of October, 1999, and the Provisional Constitution Order No. 1 of 1999, as amended, the Constitution of the Islamic Republic of Pakistan has been held in abeyance;

 

Whereas Pakistan is to be governed, as nearly as may be, in accordance with the Constitution and the Chief Executive has and shall be deemed always to have had, the powers to amend the Constitution;

 

Whereas all Courts in existence immediately before the commencement of this Order have been continued to function and to exercise their respective powers and jurisdiction; subject to the Proclamation of Emergency and Provisional Constitution Order No. l of 1999 as amended.

 

And whereas to enable the Judges of the Superior Courts to discharge their functions, it is necessary that they take Oath of their office;

 

Now, therefore, in pursuance of the aforesaid Proclamation and Provisional Constitution Order as amended and in exercise of all other powers enabling him in that behalf, the Chief Executive is pleased to make and promulgate the following Order:-

 

1. Short title and commencement.---(1) This Order may be called the Oath of Office (Judges) Order, 2000.

 

(2)        It shall come into force at once

 

2.         Interpretation. ---In this Order, “Superior Court” means the Supreme Court of Pakistan or a High Court or the Federal Shariat Court and “Judge” includes Chief Justice.

 

3.         Oath of Judges.---(1) A person holding office immediately before the commencement of this Order as a Judge of Superior Court shall not continue to hold that office if he is not given or does not make, Oath in the form set out in the Schedule, before the expiration of such time from such commencement as the Chief Executive may determine or within such time from such commencement as the Chief Executive may determine or within such further time as may be allowed by the Chief Executive.

 

(2)        A Judge of Superior Court appointed after the commencement of this order shall, before entering upon office, make Oath in the form set out in the Schedule.

 

(3)        A Person referred to in clauses (1) and (2) who has made Oath as required by these clauses shall be bound by the provisions of this Order, the proclamation of Emergency of the Fourteenth day of October, 1999 and the Provisional Constitution Order No. 1 of 1999 as, emended and, notwithstanding any judgment of any Court., shall not call in question or permit to be called in question the validity of any of the provisions thereof. ‘

 

(4)        A Judge of Supreme Court or Federal Shariat Court shall make Oath before the President/Chief Executive or a person nominated by him and a Judge of High Court shall make the Oath before the Governor or a person nominated by him.

 

4. The Chief Executive may, for- the purpose of removing any difficulties,, or for bringing the provisions of this Order into effective operation, make such provisions as he may deem to be necessary or expedient.

 

The Oath of Office (Judges) Order No. 10 of 1999 is hereby repealed. “

 

            (Sd.)

                                                                                                                                                       General

The Chief Executive of the Islamic Republic of Pakistan

Chairman Joint Chief of Staff Committee and Chief of Army Staff

                                                                                                                                         (Pervez Musharraf)

 

Islamabad

 

25th January, 2000. “

 

7: We have heard the learned counsel appearing on behalf of the petitioners with great patience and Mr. Aziz A. Munshi, the learned Attorney General for Pakistan, Syed Sharifuddin Pirzada, Senior ASC, learned counsel appearing on behalf of the Federation of Pakistan, Mr. Abdul Haleem Pirzada, President, Supreme Court Bar Association and Dr. Farooq Hasan for President, Lahore High Court Bar Association as also Mr. S.M. Zafar, learned amicus curaie:

 

CONSTITUI’ION PETITION NO. 62 OF 1999

 

Syed Zafar Ali Shah v. General Pervez Musharraf etc.

 

8. The petitioner in this petition is an Advocate of the Lahore High Court as well as the Supreme Court of Pakistan. He is also a former member of the suspended National Assembly of Pakistan having been elected from Constituency No. NA-35, Islamabad. Besides, he is President of Pakistan Muslim League, Islamabad capital territory and former Parliamentary Secretary, Law and Parliamentary Affairs.

 

9. It is pleaded that sometime prior to the eventful day viz 12th October, 1999, the petitioner had left for the United States to attend 54th Session of the United Nations General Assembly, being a member of the delegation headed by Mr. Muhammad Siddique Kanju, Minister of State for Foreign Affairs. On 12th October, 1999, while he was in New York he learnt that the Prime Minister of Pakistan had removed General Pervez Musharraf, who was out of country, from his office and appointed Lt. General Ziauddin as the Chief of Army Staff. He had also learnt that Lt. General Mahmood Ahmed, Corps Commander 10 Corps had. captured the Pakistan Television Station, Islamabad, and after entering the Prime Minister’s House forcibly had arrested the Prime Minister and his Colleagues present there. General Pervez Musharraf had appeared on the PTV on 13th October, 1999 at 3-00 a.m. and announced the dismissal of the Prime Minister. and his Government. Thereafter, on 14th October, 1999, he proclaimed state of emergency throughout Pakistan, assumed the office of the Chief Executive of the Islamic Republic of Pakistan and issued Provisional Constitutional Order No. 1 of 1999 whereby the Constitution was held in abeyance, the National and Provincial assemblies as well as the Senate were suspended and the country-was placed under the control of the Armed Forces and formation of the National Security Council, and the Cabinet was announced.

 

10. Ch. Muhammad Farooq, learned counsel for the petitioner, highlighted the grounds of challenge contained in the petition and also the grievance of the petitioner emanating from dismissal of the Pakistan Muslim League Government, holding in abeyance of the Constitution and suspension of the Senate, National and the Provincial Assemblies. He also referred extensively to the written statement filed by the respondents and the rejoinder filed by the petitioner in order to augment his petition and meet the points raised in the written statement. Referring to the grounds of challenge he emphasised that the Army take-over having been directed against an elected Prime. Minister and lawful Government was immoral, illegal and unconstitutional, the role of the Chief Executive assumed by General Pervez Musharraf was ultra vires the Constitution, and he and his colleagues had not only violated the oath taken by them under Article 244 of the Constitution but also committed the offence of high-treason by subverting the Constitution. The Chief Executive was performing his functions without taking oath of office and his actions being tainted with mala fide could not be justified on any ground whatsoever. He further submitted that the axed Government having been formed by duly elected representatives and in accordance with the Constitution and the law, was vested with a legal right to complete its tenure unless replaced by another Constitutional Government and its sudden and un-constitutional dismissal had tarnished the image of Pakistan and put at stake the interest of the country, in the global context, as well as of the Armed Forces, which were held in high esteem by one and all. According to him the expenditure being incurred on the present set up from national Exchequer was unauthorized. He thoroughly dissected the Proclamation of Emergency and the PCO and dubbed them as void ab initio and ultra vires the Constitution. He expressed his surprise on issuance of the Proclamation of Emergency from Karachi instead -of the Capital of the country. He was of the view that both the instruments offended against the Objectives Resolution enshrined in Article 2A, an integral and substantive part of the Constitution, which had not only laid down in most unequivocal terms that the State shall exercise its powers and authority through the chosen representatives of the people but had also guaranteed that the method of governance shall be based on Federalism, Parliamentary form of Government, Independence of Judiciary and the Injunctions of Islam as set out in the Holy Qur’an and Sunnah. Referring to the written statement he submitted that it .had been filed in the connected petition without any prayer to 6e treated as written statement in this petition, therefore, the assertions made in this petition had gone virtually unchallenged. He also took exception to the preliminary objections taken in the written statement. that this Court was bereft of jurisdiction to entertain the petition; the petition was not maintainable owing to suspension of the Fundamental Rights and. the General Elections held on 3rd February, 1997, were a farce. He stated vociferously that the turn out of voters was about 36% ; the election was transparent by all standards having been held under the Military umbrella and organized and conducted honestly, justly and fairly by a Chief Election Commissioner who was ex-Chief Justice, Peshawar High Court and an appointee of Mohtarma Benazir Bhutto and. the factum of transparency had been confirmed by the local and the foreign observers. He lamented that the democratic process was interrupted at regular intervals with the result that the country, which was created by force of vote had remained under Military rule for 30 long years.

 

11. Adverting to the objection in regard to bar of jurisdiction contained in the Proclamation of Emergency and the PCO, he submitted that these unconstitutional provisions cannot oust the jurisdiction of this Court which in the past .had not abdicated its jurisdiction even in the face of bar of jurisdiction contained in Articles. 63A(6) 66, 69, 199(3), 236(2), 239(5), 245(2), 270-A and 48(4) and had struck down the orders, decisions or actions which were found to be coram non judice, mala fide, in excess of jurisdiction or without jurisdiction. He cited the following authorities in support of his contention:- .

 

(1)PLD 1956 (W.P) Lahore 807 (F.B) (Ahmad Saeed Karmani’s case).

 

(2) PLD 1977 Lahore 846 (Darvesh M. Arbey’s case).

 

(3) PLD 1977 Lahore 1337 (Iqbal Ahmad Khan’s case).

 

(4) PLD 1987 Karachi 296 (F.B) (Muhammad Bachal Memon’s case).,

 

(5) 1992 CLC 2043 (D.B), (Muhammad Naeem Akhtar’s case).

 

(6) 1994 MLD 2500 (D.B) (Shams-ud-Din’s case).

 

(7) PLD -1997 Lahore 38 (F.B), (Manzoor Ahmed Wattoo’s case). .

 

(8) PLD 1989 Quetta 25 (F.B)(Muhammad Anwar Durrani’s’case).

 

(9) PLD 1966 SC~ 105 (A.K. Fazalul Quader Chaudhry’s case).

 

(10)      PLD 1994 SC 738 (Pir Sabir Shah’s case).

 

(11)      PLD 1996 SCMR 1969 (The Speaker, Balochistan Provincial Assembly, Quetta’s case).

 

(12) PLD 1996 SC 632 (F.B) (Mrs. Shahida Zahir Abbassi’s case).

 

(13)      PLD 1997 SC 426 (Mahmood Khan Achakzai’s case).

 

(14)      PLD 1998 SC 1263 (Wukala Mahaz Barai Tahafaz-e-Dastoor’s case). .

 

(15)      PLD 1999 SC 57 (Sardar Farooq Ahmed Khan Leghari’s case).

 

(16)      PLD 1999 SC 395 (Syed Jalal Mehmood Shah’s case).

 

(17)      PLD 1999 SC 504 (Sh. Liaqat Hussain’s case).

 

Criticizing the third preliminary objection raised in the written statement about non-maintainability of the petition on account of suspension of the Fundamental Rights he submitted that the Fundamental Rights enshrined in the Constitution could not be suspended being based on the last Sermon of the Holy Prophet (p.b.u.h.) and the Islamic principles. Besides, the power conferred on the Courts by Article 4 of the Constitution cannot be curtailed even if the Fundamental Rights are suspended. In any event, notwithstanding the curb of suspension imposed by the Proclamation of Emergency and the P.C.O., the Fundamental Rights were alive and enforceable and the petition was maintainable, in view of the law laid down by this Court in the cases of Miss Benazir Bhutto PLD 1988 SC 416, Mian Muhammad Nawaz Sharif PLD 1993 SC 473, Wukala Mahaz Barai Tahafaz-e-Dastoor PLD 1998 SC 1263, Sardar Farooq Ahmed Khan Leghari PLD 1999 SC 57 and Sheikh Liaqat Hussain PLD 1999 SC 504.

 

12. He also took exception to the assertion made in the written statement that the Military take over was welcomed by the people of Pakistan as was evident from ‘the public statements made by, leaders of various political parties. He was of the view that the people, by and large, were unhappy and disappointed and the coup d’etat was supported either by a few self-styled political leaders who wanted to secure slots in the new setup or those politicians whose political parties had no representation in the Parliament.

 

13. He also raised a technical point that in view of the imminent threat of external aggression, the President of Pakistan had already issued a Proclamation of Emergency under Article 232(1) of the Constitution, therefore, the Proclamation of Emergency issued by General Pervez Musharraf was void ab initio being an unwarranted duplication.

 

14. Referring to the Constitutional status and role of the Armed Forces he submitted that according to Article 243 of the Constitution the Armed Forces were under the command and control of the Federal Government and in view of the explicit provisions of Article 245 of the Constitution, were obliged, under the directions of the Federal Government, to. 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 and there was no provision in the Constitution empowering them to take over the Federal Government or perform functions of any organ of the State. In order to lend support to the contention he read out the following excerpts from the case of Sheikh Liaqat Hussain PLD 1999 SC 504 by one of us (Irshad Hasan Khan, J.) (now the Chief Justice):-

 

“The soldiers and the citizens stand alike under the law. Both must obey the command of the Constitution and obedient to its mandates. The Armed Forces have to act within the scope of their jurisdiction as defined in the Constitution.”

 

“A Government elected by the Constitution can only perform its functions and ensure observance of the provisions of the Constitution by making the civil power superior to and not subordinate to the Armed Forces during peace as well as war.”

 

15. He further submitted that the Prime Minister had not done anything unconstitutional by removing the Chief of the Army Staff as under Article 243 of the Constitution he was fully empowered to do so. It was not the first time that he had exercised this power because in the past also he had removed the Chiefs of the Army, Navy and Air Force. The reaction of the Chief of the Army Staff and his colleagues was unjustified because under Article 91(4) of the Constitution the Cabinet was responsible to the National Assembly and not to them. While elaborating the role of the Armed Forces he made an outburst that the concept of Military Government was alien to the civilized world but unfortunately in our country the power is taken over by the Army after every decade on one pretext or the other.

 

16. He repeatedly and emphatically submitted that the Military take over and its concomitant two invalid instruments cannot be validated by invoking either the Kelsen’s theory highlighted in Dosso’s case PLD 1958 SC 533 as it was rejected in cases of Miss Asma Jilani PLD 1972 SC 139 and Begum Nusrat Bhutto PLD 1977 SC 657 or the `doctrine of necessity’ propounded in the latter cases which according to the judgment of this Court’ in the case of Sheikh Liaqat Hussain PLD 1999 SC 504 has been buried for ever and cannot be dug out from its grave. Besides, a parallel cannot be drawn between the situations prevailing at the time of imposition of Martial Law by General Ziaul Haq and the present take-over by General Pervez Musharraf. General Ziaul Haq had imposed Martial Law as the people had not accepted the result of the rigged election and there were violent demonstrations whereas in the present case there was no breakdown of law and order, the Federal and the Provincial Governments were running smoothly and the acts of terrorism committed by some anti-state elements in Karachi were successfully combated and curbed by imposing Governor’s Rule. The Proclamation of Emergency and the P.C.O. were too invalid to be validated by any doctrine or the Agenda announced by the Chief Executive in his speech delivered on 17th October, 1999.

 

17. Another argument advanced by him with all the vehemence at his disposal was that the Army take-over had posed a grave danger to the Federalism as it had impaired the judicially recognized trichotomy of powers by eliminating the Executive, suspending the Legislature and making an attempt to curtail the independence of Judiciary. .

 

18. Reverting to the criticism leveled in the written statement against the person and policies of the former Prime Minister, he submitted that the allegation of making a fortune through kickbacks and other corrupt methods was vague, bald and false and could not serve as a springboard for justifying the take-over. The allegation that these amendments were bulldozed was a figment of the imagination of the respondents. The criminal cases registered against the former Prime Minister and his colleagues were also false and fabricated. The allegation that the former Prime Minister had taken steps to impair the Independence of Judiciary were also without any substance. The controversy in regard to freezing of the Foreign Exchange Accounts can be settled in the light of the detailed report of the State Bank of Pakistan. The Governor Rule imposed in the Province of Sindh was validated by this Court in the case of Syed Jalal Muhammad Shah PLD 1999 SC 395.

 

19. Ch. Muhammad Farooq, elaborating his arguments made a reference to The State v. Dosso PLD 1958 SC (Pak.) 5’33, wherein this ,Court, relying on Kelsen’s theory of “revolutionary legality”, validated the imposition of Martial Law by General Muhammad Ayub Khan and then proceeded to refer the case of Miss Asma Jilani v. Government of the Punjab PLD 1972 SC 139, wherein this Court overruled the dictum laid down in the case of Dosso (supra). Extensive references were made from Miss Asma Jilani’s case, wherein at page 178 Placitum-I, it was observed:--

 

“Nevertheless, with utmost respect to the learned Chief Justice, I do feel that in laying down a novel juristic principle of such far reaching importance he did proceed on the basis of certain assumptions, namely:-

 

(1)        “that the basic doctrines of legal positivism”, which he was accepting, were such firmly and universally accepted doctrines that “the whole science of modern jurisprudence” rested upon them;

 

(2)        that any “abrupt political change not within the contemplation of the Constitution” constitutes a revolution, no matter how temporary or transitory the change, if no one has taken any step to oppose it; and

 

(3)        that the rule of international law with regard to the recognition of States can determine the validity also of the States’ internal sovereignty. “

 

“These assumptions were, in my humble opinion, not justified. As I have earlier indicated Kelsen’s theory was, by no means, a. universally accepted theory nor was it a theory which could claim to have become a basic doctrine of the science of modern jurisprudence, nor did Kelsen ever attempt to formulate any theory which “favours totalitarianism”.

 

At page 179 Placitum-I, of the above report, it was observed:-

 

“Kelsen has done so but unfortunately he still continues to be grievously misunderstood. He was only trying to lay down a pure theory of law as a rule of normative science consisting of `an aggregate or system of norms’. He was propounding a theory of law as a `mere jurists’ proposition about law’. He was not  attempting to lay down any legal norm or legal norms which are `the daily concerns of Judges, legal practitioners or administrators’. In his early works this distinction was not made clear but in 1960 he attempted in his book `Rechtslehre’ to clarify the confusion by pointing out, as Julius Stone observes, `that the propositions of the pure theory of law are mere jurists’ propositions about law and that they do not bind the Judge, in the way in which legal norms bind him.

 

At pages 181.-182, Placita-L, M, N of the report, it was observed:

 

“Kelsen in his attempt to evolve a pure science of law as distinguished from a natural science attached the greatest importance to keeping law and might apart. He did not lay down the proposition that the command of the person in authority is a source of law ....”

 

“I am also unable to agree with the learned Chief Justice that upon the principles of International Law if the territory and the people remain substantially the same there is “no change in the corpus or international entity of the State and the revolutionary Government and the new State are, according to International Law, the legitimate Government and the valid Constitution of the State”. With great respect I must point out that this proposition does not find support from any principle of International Law. According to Oppenheim’s view as propounded in his bbok on International Law if the revolutionary Government is ineffective and or has no “reasonable expectancy of permanence” and/or does not “enjoy the acquiescence of the population”, then the international community may well-refuse to recognise it, even though its territorial integrity remains unchanged and its people remain substantially the same.”

 

“In any event, if a grand-norm is necessary for us I do not have to look to the Western legal theorists to discover one. Our own grundnorm is enshrined in our own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the people without the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March, 1949. This Resolution has been described by Mr. Brohi as the `corner stone of Pakistan’s legal edifice’ and recognized even by the learned Attorney-General himself `as the bond which binds the nation’ and as a document from which the Constitution of Pakistan `must draw its inspiration’. This has not been abrogated by any one so far, nor has this been departed or deviated from by any regime, military or. Civil. Indeed, it cannot be, for, it is one of the fundamental principles enshrined in the Holy Qur’an:

 

Says, `O Allah, Lord of sovereignty. Thou givest sovereignty to whomsoever Thou pleasest; and Thou takest away sovereignty from whomsoever Thou pleasest. Thou exaltest whomsoever Thou pleasest and Thou abasest whomsoever Thou pleasest. (Pt.3, Ch.3, A1 `Imran, Ay,26.)

 

The basic concept underlying this unalterable principle of sovereignty is that the entire body politic becomes a trustee for the discharge of sovereign functions. Since in a complex society every citizen cannot personally participate in the performance of the trust, the body politic appoints State functionaries to discharge these functions on its behalf and for its benefit, and has the right to remove the functionary so appointed by it if he goes against the law of the legal sovereign, or commits any other breach of trust or fails to discharge his obligations under a trust. The functional Head of the State is chosen by the community and has to be assisted by a Council which must hold its meetings in public view and remain accountable to public. It is under this system that the Government becomes a Government of laws and not of men, for; no one is above the law. It is this that led Von Hammer, a renowned orientalist, to remark that under the Islamic system `the law rules through the utterance of justice, and the power of the Governor carries out the utterance of it.’

 

Reference was also made to head-note from page 143 of the report, which reads thus:-

 

“It is clear that under the Constitution of 1962, Field-Marshal Muhammad Ayub Khan had no power to hand over power to anybody. Under Article 12 of the Constitution he could resign his office by writing under his hand addressed to the Speaker of the National Assembly and then under. Article 16 as soon as the office of President fell vacant the Speaker of the National Assembly had to take over as the acting President of the Country and an election had to be held within a period of 90 days to fill the vacancy. Under Article 30 the President could also proclaim an emergency if the security or economic life of Pakistan was threatened by internal disturbances beyond the power of a Provincial Government to control and may be for the present purposes that he could also proclaim Martial Law if the situation was not controllable by the civil administration. It is difficult, however, to appreciate under what authority a , Military Commander could proclaim Martial Law. “

 

He then proceeded to refer passages from pages 206, 267 and 270, which are reproduced hereunder respectively as follows-

 

 “I too am of the opinion that recourse has to be taken to the doctrine of necessity where the ignoring of it would result in disastrous consequences to the body politic and upset the social order itself but I respectfully beg to disagree with the view that this is a doctrine of validating the illegal acts of usurpers. In my humble opinion, his doctrine can be invoked in aid only after the Court has come to the conclusion that the acts of the usurpers were illegal and illegitimate. It is only then that the question arises as to how many of his acts, legislative or otherwise, should be condoned or maintained, notwithstanding their illegality in the wider public interest. I would call this a principle of condonation and not legitimization.”

 

“The learned Attorney-General has very frankly conceded that it is this Court that can put the final seal on the validity or otherwise of a law. He has also frankly conceded that it is difficult for him to support the provision of section 3(1)(a) of the President’s Order No. 3 of 1969 which prohibits the Court from receiving or entertaining any complaint etc. The Court’s power to discover law applicable to a situation has been accepted in the GovernorGeneral’s Reference No. 1 of 1955 (PLD 1955 FC 435). In the case under report the Governor-General having found himself in a difficult situation and having been unable to find any legal basis to meet the situation had to approach the then Federal Court for a solution of the problem and the Court answered the reference and indicated the manner in which the problem could be legally solved. “

 

“It is, thus, evident that the very foundations upon which the decision rested did not exist. I, therefore, think that this Court should make it clear that the validity or otherwise of an existing order can only be determined with reference to the laws of Pakistan and not to any theory of international jurisprudence. It is also necessary to state firmly that the question of existence of a revolution or its success are questions of fact which can only be decided upon evidence, and not assumed. This will remove once for all the temptations that have been placed in. the way of an adventurer seizing power illegally and destroying an existing legal order.”

 

20. In order to reinforce his standpoint as to theory. of `revolutionary legality’ Ch Muhammad Farooq made extensive references from the case of Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657, wherein at pages 671-674 of the report, it was observed as under:--

 

“Mr. A.K. Brohi, learned counsel appearing for the Federation of Pakistan, which was also made a party at his request, has taken two preliminary objections as to the maintainability of this petition:-

 

(a)        That it is directed against the Chief of the, Army Staff, whereas the orders of detention had been passed by the Chief Martial Law Administrator; and

 

(b)        That the petitioner is not an aggrieved person in terms of Article 184(3) of the Constitution read with Article 199 thereof, as she does not allege any violation of her own Fundamental Rights, but only those of the detenus.

 

“He also maintains that this Court has no jurisdiction to grant any relief in this matter owing to the prohibition contained in Articles 4 and 5 of the Laws (Continuance in Force) Order, 1977, which clearly contemplate that no Court, including the High Court and the Supreme Court, can question the validity of any Martial Law Order or Regulation, or any order made thereunder by a Martial Law Authority. He submits that under clause (3) of Article 2 of the aforesaid Laws (Continuance in Force) Order the right to enforce Fundamental Rights stands suspended, and for this reason as well the petition is not maintainable.

 

“As to the legal character of the new regime, and the validity of the Laws (Continuance in Force) Order, 1977, and the various Martial Law Regulations and Orders issued by the Chief Martial Law, Administrator and the President under its authority, Mr. Brohi submits that up to the 5th of July, 1977, Pakistan was being governed under the 1973 Constitution, but on that day a new Legal Order came into force by virtue of the Proclamation issued by the Chief Martial Law Administrator, and this Legal Order has displaced-albeit temporarily-the old Legal Order. The validity or legality of any action which takes place after the 5th of July, 1977 can only be tested against the guidelines provided by the new Legal Order. According to him, the grundnorm of the old Legal order, as provided by the 1973 Constitution, has given way to a new grundnorm. provided by the Proclamation and the Laws (Continuance in Force) Order, and to that extent the jurisdiction of the superior Courts has been altered. He submits that as the transition from the old Legal Order to the new Legal Order has not been brought about by arty means recognised or contemplated by the 1973 Constitution, therefore, it constitutes a meta-legal or extra Constitutional fact, attracting the doctrine of “revolutionary legality”. In this context, according to Mr. Brohi, whenever a Constitution and the national Legal order under it are disrupted by an abrupt political change not within the contemplation of the Constitution, such a change is called a revolution, which term also includes coup d’etat. In such a situation the Court has to determine certain facts which may be termed “constitutional facts”, which relate to the existence of the Legal Order within the framework of which the Court itself exists and functions. If it finds that all the institutions of State power have, as a matter of fact, accepted the existence of the new Legal Order, which ‘has, thus, become effective, then all questions of legality or illegality are to be determined within the framework of the new Legal Order: Mr. Brohi submits that, on this view of the matter, a viable alternative can be found between the two extreme positions adopted by this Court in Dosso’s Case (PLD 1958 SC (Pak.) 533) and Asma Jillani’s case-one holding that every revolution, once successful is legal, and the other holding that a revolution as such is illegal. According to him, the Supreme Court in Dosso’s case could have decided the controversy by simply holding that, as a matter of constitutional fact, a new Legal Order had come into being in the country, and the question in issue in that case could only be decided by reference to this new Legal Order which had attained effectualness. He contends that the view taken by the Supreme Court in Asma Jillani’s case leaves several questions unanswered, by rejecting Kelsen’s pure theory of law, because it does not provide any guidelines as to what law the Courts ought to apply in case a revolution has become effective by suppressing or destroying the old Legal Order. As a result, Mr. Brohi submits that this Court should, therefore, lean in favour of holding that a new Legal Order has effectively emerged in Pakistan by means of a meta-legal or extra-Constitutional change, and for the time being this is the legal framework according to which all questions coming before the Court must be decided. In his view it is not necessary for the Court, nor is it a concomitant of judicial power to either side with the revolution or to act as a counter-revolutionary, by giving its seal of approval to a military intervention or to condemn it by describing it as illegal. Judicial restraint requires that the Court should only take judicial notice of events which have transpired in the country, and decide as a constitutional fact, whether the new Legal Order has become- effective or not. “

 

“As to the necessity for the imposition of Martial Law on the 5th of July, 1977, Mr. Brohi has stated that the events leading thereto fall into two phases:-

 

(i) The first phase relates to the unconstitutional and illegal governance of this country by the detenus and their associates and terminates on the eve of the imposition of Martial Law; and

 

 (ii) The second phase relates to the preparations which were being made by detenus and their associates for the fomenting of civil war within the country and their intention to frustrate and prevent the holding of free and fair elections and thereby consolidate their illegal tenure of office.” .

 

“He submits that the Court may take judicial notice of the picture emerging from the mosaic of these events, which are cited merely to illustrate the overall pattern of-events, and not to embark upon a detailed factual inquiry which would be outside the scope of these proceedings. According to the learned counsel, the specific illegalities committed by or at the instance of the former Government will form the subject-matter of independent legal proceedings in which the persons concerned will be afforded a reasonable opportunity for their defence in accordance with law.”

 

“Mr. Brohi goes on to state that massive rigging took place during the elections held on the 7th of March, 1977 in accordance with the directions issued at the -highest Government level, and that the then Chief Election Commissioner, in an interview given to the daily Millat, Karachi, pointedly commented on the widespread irregularities committed in relation to these elections, and recorded this opinion that results in more than 50%a of the seats were affected thereby. He had, further .expressed the view that the appropriate course would be to hold fresh elections.”

 

“Mr. Sharifuddin Pirzada next submits that although he would generally support Mr. Brohi’s submissions as to the legal character of an effective revolution, yet he does not wish to adopt a position contrary to the one he took up while appearing as amicus curiae in Asma Jillani’s case, regarding the validity and applicability of Kelsen’s pure theory of law relating to the meta-legal character of the change and the birth of a new grundnorm. He submits that there are several renowned jurists who do not fully subscribe to Kelsen’s view and consider that effectualness alone, to the exclusion of all considerations of morality and justice, cannot be made a condition of the validity of the new Legal Order. The learned counsel, however, submits that the circumstances culminating in the imposition of Martial Law on the 5th of July, 1977 fully attract the doctrine of State necessity and of salus populi est suprema lex, with the result that the action taken by the Chief Martial Law Administrator must be regarded as valid, and the Laws (Continuance in Force) Order, 1977, must be treated as being a supra-Constitutional instrument, now regulating the governance of the country. The learned Attorney-General contends that the doctrine of necessity is not only a part of the legal systems of several European countries, including Britain, but is also recognised by the Holy Qur’an. Hecontends that consequently all actions taken by the Chief Martial Law Administrator to meet the exigencies of the situation and to prepare the country for future election with a view to the restoration of democratic institutions must be accepted by the Courts as valid, and there can be no question of condonation, which concept can apply only in the case of the acts of a usurper. On this view of the matter, Mr. Sharifuddin Pirzada submits that . the Court cannot grant any relief to the detenus, under Article 184(3) of the Constitution, as the Fundamental Rights stand suspended by virtue of clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977. “ .

 

“Mr. Brohi as well as Mr. Sharifuddin Pirzada were also asked to address the Court on the possible effect and implications of the new oath of office administered to the Judges of the Supreme Court and the High Courts after the imposition of Martial Law. They both stated that, in their view, the new oath has not in any manner restricted the independence of the superior judiciary, nor affected their obligation to perform their judicial functions according to law; it only indicates that the superior judiciary, like the rest of the country, has accepted the fact, which is even otherwise also evident, that, on the 5th of July, 1977, a radical transformation took place in the pre-existing Legal Order. Both the learned counsel are agreed, and Mr. Yahya Bakhtiar, learned counsel for the petitioner, joins them, that the taking of the fresh bath by the Judges of this Court does not in any way preclude them from examining the ‘question of the validity of the new Legal Order and decide the same in accordance with their conscience and the law.”

 

At page 681 of the report, it was observed:

 

“I have no cavil with the propositions and observations referred to by Mr. Brohi, but I do not see how they affect the correctness of the view taken in Asma Jillani’s case. Even if the Court erred in observing that the assumption regarding the success of the revolution was not justified for the reason that a few days after the pronouncement of the Court President Iskander Mirza was himself deposed by Field Martial Muhammad Ayub Khan, and the Court should have assumed the facts as stated by Muhammad Munir, C.J., the view taken by the Court as to the applicability of Kelsen’s theory is not affected by this error. The Court. has given sound reason for rejecting it, particularly the fact that it was at best a theory about law, which had not been universally accepted by other renowned jurists. Unless, therefore, compelling reasons are shown for departing from the view. taken by this Court in Asma Jillani’s case, I would like to adhere to the same for the reasons so ably stated in the judgments of Hamoodur Rehman, C.J. and Muhammad -Yaqub Ali, J. (as he then was).”

 

At page 693, it was observed:

 

“The stage has now been reached for a somewhat detailed examination of the circumstances culminating in the imposition of Martial Law on the 5th of July, 1977. A brief mention thereof has already been made in the earlier part of this judgment, while summarising the contentions raised by Messrs. A.K. Brohi and Sharifuddin Pirzada. It may be stated that many of the averments made in this behalf in the written statement filed by Mr. A.K. Brohi have been strenuously controverted by the detenus who have filed written rejoinders and also appeared in person before the Court. Mr. A. K. Brohi has filed a rejoinder in reply to these statements of the detenns, and Mr. Zulfikar Ali Bhutto has filed a further written statement in response thereto. An affidavit of General (Retd.) Tikka Khan, a former Chief of Staff of the Pakistan Army and Minister of State in Mr. Bhutto’s Government has also been placed on me record in refutation of certain actions attributed to him in the respondent’s written statement. While taking note of all these statements and counter-statements, I think that in the present proceedings the Court is not called upon .to record a judicial finding as to the factual correctness or otherwise of the several allegations and counter-allegations made by the parties against each other. The Court is primarily concerned with ascertaining the broad trends and circumstances which culminated in the overthrow of, the Government of Mr. Z.A. Bhutto. For this purpose, we must take judicial notice of various events which happened in the country during the period commencing from the 7th of March, 1977 on which date the General Elections to the National Assembly of Pakistan were held, resulting in an overwhelming majority for the Pakistan People’s Party led by Mr. Z.A. Bhutto. Ample material appears to be available on the record of this Court to enable us to arrive at the necessary conclusions.”

 

At pages 701-702 it was observed:

 

“On the basis of the material thus brought to the notice of the Court by Messrs A.K. Brohi and Sharifuddin Pirzada, consisting.mostly of official reports and decisions as well as contemporary reports in the official newspapers, 1 think the Court is entitled to take judicial notice of the following facts:-

 

(1)        That from the evening of the 7th of March, 1977 there were widespread allegations of massive official interference with the sanctity of the ballot in favour of candidates of the Pakistan People’s Party;

 

(2)        That these allegations, amounting almost to widespread belief among the people, generated a national wave of resentment and gave birth to a protest agitation which soon spread from Karachi to Khyber and assumed very serious proportions;

 

(3)        That the disturbances resulting, from this movement became beyond the control of the civil armed forces;

 

(4)        That the disturbances resulted in heavy loss of life and property throughout the country;

 

(5)        That even the calling out of the troops under Article 245 of the Constitution by the Federal Government and the consequent imposition of local Martial Law in several important cities of Pakistan, and they calling out of troops by the local authorities under the provisions of the Code of Criminal Procedure in smaller cities and towns did not have the desired effect; and the agitation continued unabated;”

 

(6)        That the allegations of rigging and official interference with elections in favour of candidates of the ruling party were found to be established by judicial decisions in at least four cases, which displayed a general pattern of official interference;

 

(7)        That public statements made by the then Chief Election Commissioner confirmed the widespread allegations made by, the Opposition regarding official interference with the elections, and endorsed the demand for fresh elections;

 

(8)        That in the circumstances, Mr. Z.A. Bhutto felt compelled to offer himself to a Referendum under the Seventh Amendment to the Constitution, but the offer did not have any impact at all on the course of the agitation, and the demand for his resignation and for fresh elections continued unabated with the result that the Referendum Plan had to be dropped;

 

(9)        That in spite of Mr. Bhutto’s dialogue with the leaders of the Pakistan National Alliance and the temporary suspension of the Movement against the Government, officials charged with maintaining law and order continued to be apprehensive that in the event of the failure of the talks there would be a terrible explosion beyond the control of the civilian authorities;

 

(10) That although the talks between Mr. Bhutto and the Pakistan National Alliance leadership had commenced on the 3rd of June, 1977, on the basis of his offer for holding fresh elections to the National and Provincial Assemblies, yet they had dragged on for various reasons, and as late as the 4th of July, 1977, the Pakistan National Alliance leadership was insisting that nine or ten points remained to be resolved and Mr. Bhutto was also saying that his side would similarly put forward another ten points if the General Council of P.N.A. would not ratify the accord as already reached on the morning of the 3rd of July, 1977;

 

(11)      That during the crucial days of the dead-lock between Mr. Z.A. Bhutto and the Pakistan National Alliance leadership the Punjab Government sanctioned the distribution of fire-arms licenses on a vast scale, to its party members, and provocative statements were deliberately made by the Prime Minister’s Special Assistant, Mr. G.M. Khar, who had patched up his differences with the Prime Minister and secured this appointment as late as the 16th of June, 1977; and

 

(12)      That as a result of the agitation all normal economic, social and educational activities in the country stood seriously disrupted, with incalculable damage to the nation and the country.”

 

21. Ch Muhammad Farooq, maintained that in the light of the abovementioned circumstances/conditions prevailing in the country at the relevant time the Court reached the conclusion that the imposition of Martial Law, which was for a limited period so as to attain limited objectives, was valid. He submitted that the Court can take note of the fact that no such circumstances existed in the present case as the State institutions were working normally and even meeting of the National Assembly had been convened for 15th October, 1999.

 

22. He submitted that this Court took notice of the salient points of the speech made by General Muhammad Ziaul Haq on the evening of the 5th of July, 1977 wherein the reasons for the action he had taken of overthrowing the Government of Mr. Z. A. Bhutto and dissolving the Federal and Provincial Legislatures, were summarized in the following terms:-

 

“From the objective narration of events as they were happening from the 7th of March, 1977 onwards, one is left in no doubt that the Constitutional and moral authority of the National Assembly which had come into being as a result of the elections held on the 7th of March, 1977, as well as of the Federal and Provincial Governments formed thereafter as a result of mandates given to them by the National and the Provincial Assemblies had, been continuously and forcefully repudiated throughout the country over a prolonged period of nearly four months, thus, resulting in serious disruption in all spheres of national life. It can only be a matter of conjecture at this stage, whether an accord between the Government and the Pakistan National Alliance would have finally emerged if the Army had not intervened. From the material placed on the record, in the shape of deliberations of official committees, it has become abundantly clear that the situation was surcharged with possibilities of further violence, confusion and chaos.

 

“Having found that the extra-Constitutional step taken by the Armed Forces of Pakistan was justified by requirements of State necessity and welfare of the people it is now necessary to examine its legal consequences.”

 

23. He then referred to pages 714-715, to quote some other extracts from the speech of General Ziaul Haq, the then Chief Martial Law Administrator, wherein he had declared the objectives of imposition of Martial law in the country. These extracts run as under:-

 

“But the Constitution has not been abrogated. Only the operation of certain parts of the Constitution has been held in abeyance. Mr. Fazal Elahi Chaudhry has very kindly consented to continue to discharge his duties as President of Pakistan as heretofore under the same Constitution. I am grateful to him for this. To assist him in the discharge of his national duties, a four-member Military Council has been formed. The council consists of the Chairman, Joint Chiefs of Staff, and Chiefs of Staff of the Army, Navy and the Air Force.

 

“I will discharge the duties of the Chief of Army Staff and Chief Martial Law Administrator. Martial Law Orders and instructions as and when required will be issued under my orders.”

 

“He further stated on this occasion that:

 

“I want to make it absolutely clear that neither I have any political ambitions nor does the Army want to be detracted from its profession of soldiering. I was obliged to step in to fill in the vacuum created by the political leaders. I have accepted this challenge as a true soldier of Islam. My sole aim is to organise free and fair elections which would beheld in October this year. Soon after the polls power will be transferred to the elected representatives of the people. I give a solemn assurance that I will not deviate from this schedule. During the next three months my total attention will be concentrated on the holding of elections and I would not like to dissipate my powers and energies as Chief Martial Law Administrator on anything else.”

 

“As to the place of Judiciary, he stated that:-

 

“It will not be out of place to mention here that I hold the Judiciary of the country in high esteem. I will do my best to refrain from doing anything which is likely to restrict the power of the Judiciary. However, under unavoidable circumstances, if and when Martial Law Orders and Martial Law Regulations are issued, they would not be challenged in any Court of law.”

 

“It will be seen that the declared objectives of the imposition of Martial Law are to create conditions suitable for the holding of free and fair elections in terms of the 1973 Constitution, which was not being abrogated, and only certain parts of which were being held in abeyance, namely the parts dealing with the Federal and the Provincial Executives and Legislatures. The President of Pakistan was to continue to discharge his duties as heretofore under the same Constitution. Soon after the polls the power is to be transferred to the elected representatives of the people. It is true that owing to the necessity of completing the process of accountability of holders of public offices, the holding of elections had to be postponed for the time being but the declared intention of the Chief Martial Law Administrator still remains the same, namely, that he has stepped in for a temporary period and for the limited purpose of arranging free and fair elections so as to enable the country to return to a democratic way of life.”

 

He also referred a passage from page 721 of the report, which reads thus:-

 

“It has already been seen that the conditions culminating in the Proclamation of Martial Law on the 5th of July, 1977, were-so grave that the very existence of the country was threatened, that chaos and bloodshed, was apprehended and there eras complete erosion of the constitutional authority of the Federal Government, leave alone that of the various Provincial Governments. The situation had indeed deteriorated to such an extent that it justified an extra-Constitutional step, resulting in the suspension of certain parts of the Constitution itself by the Armed Forces. Such being the case, the situation was obviously at least of the kind contemplated by clause (12) .of Article 232 of the Constitution. In the circumstances, the Chief Martial Law Administrator was justified in providing in clause (3) of Article 2 of the Laws (Continuance in Force) Order that the right to. enforce Fundamental Rights shall be suspended. It was clearly an order which could have been made under the 1973 Constitution. No exception can, therefore, be taken to the validity of this provision.”

 

He then referred to the conclusions reached by the Court after somewhat lengthy discussion of the various questions raised therein, which were summed up as follows:-

 

“(i)        That the legal character and validity of any abrupt political change, brought about in a manner not contemplated by the pre-existing Constitution or Legal Order, cannot be judged by the sole criterion of its success or effectiveness, as contemplated by Kelsen’s pure theory of law. Not only has this theory not been universally accepted, or applied, it is also open to serious criticism on the ground that, by making effectiveness of the political change as the sole condition or criterion of its legality, it excludes from consideration sociological factors or morality and justice which contribute to the acceptance or effectiveness of the new Legal Order. The legal consequences of such a change must, therefore, be determined ,by a consideration of the total milieu in which the change is brought about, including the motivation of those responsible for the change, and the extent to which the old Legal Order is sought to be preserved or suppressed;

 

(ii)        That in any case the theory of revolutionary legality can have no application or relevance to a situation where the breach of legal continuity is of a purely temporary nature and for a specified limited purpose. Such a phenomenon can more appropriately be described as one of constitutional deviation rather than of revolution;

 

(iii)       That examined in this light, the Proclamation of Martial Law on the 5th of July, 1977, appears to be an. extra-Constitutional step necessitated by. the complete breaks down and erosion of the constitutional and moral authority of the Government of Mr. Z.A. Bhutto, as a result of the unprecedented protest movement launched by the Pakistan National Alliance against the alleged massive rigging of elections to the National Assembly, held on the 7th of March, 1977. It was a situation for which the Constitution provided no solution, and the Armed Forces had, therefore, to intervene to save the country from further chaos and bloodshed, to safeguard its integrity and sovereignty, and to separate the warring factions which had brought the country to the brink of disaster;

 

(iv)       That the imposition of Martial Law, therefore, stands validated on the doctrine of necessity, and the Chief Martial Law Administrator is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognised by judicial authorities as falling within the scope of the law of necessity;

 

(v)        That it has also become clear from a review of the events resulting in the culmination of Martial Law, and the declaration of intent made by the Chief Martial Law Administrator, that the 1973 Constitution still remains the supreme law, subject to the condition that certain parts thereof have been held in abeyance on account of State necessity; and the President of Pakistan as well as the superior Courts continue to function under this Constitution. In other words, this is not a case where the old Legal Order has been completely suppressed or destroyed, but merely a case of constitutional deviation for a temporary period and for a specified and limited objective, namely, the restoration of law and order and normalcy in the country, and the earliest possible holding of free and fair elections for the purpose of the restoration of democratic institutions under the 1973 Constitution;

 

(vi)       That, accordingly, the superior Courts continue to have’ the power of judicial review to judge the validity of any act or action of the Martial Law Authorities if challenged in the light of the principles underlying the law of necessity as set out in this judgment. 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 Martial Law Regulation or Order, Presidential Order or Ordinance; and

 

(vii) That the provisions contained in clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977, suspending the right to enforce Fundamental Rights are valid for the reason that ,the situation prevailing in the country was obviously of such a nature as to amount to an Emergency contemplated by clause (1) of Article 232 of the Constitution, and the right . to enforce Fundamental Rights could, therefore, be legitimately suspended by an order of the kind which could have been made under clause (2) of Article 233 of the constitution.”

 

24.       He then made reference to the, case of Sardar Farooq Ahmed Khan Leghari v. Federation of Pakistan PLD 1999 SC 57, to contend that though Proclamation of Emergency was validated, but the action of suspension of fundamental rights was overruled. To substantiate his view, he took the Court through paragraphs 78 to 82, wherein Irshad Hasan Khan, J. (as he then was), now the Chief Justice observed

 

“78. I appreciate the frank and bold statement made by Syed Sharifuddin Pirzada, though appearing on behalf of the Government that a judicial order to the Executive could be’ passed to revoke the Proclamation of Emergency if the material presented against the same satisfied the Court, on solid grounds, that the circumstances did not warrant to proclaim emergency. I am also inclined to agree with him. “

 

“79. Clearly, the petitions are maintainable. I fully subscribe to the reasoning assigned by the Hon’ble Chief Justice in repelling the contention of the learned 4ttorney-General on the question of maintainability.”

 

“80. I am not impressed by the plea raised by the learned Attorney-General that this Court has no authority ~ to examine the Proclamation of Emergency issued by the President. The Parliament, the President, the Executive and Judiciary are the creatures of the Constitution. Each organ of the State has to function within the sphere allotted to it under the Constitution. Neither of them can be permitted to invade into the functions and powers of the other organs of the State. As to what power was granted to the Courts and what limitations were imposed on it are questions which have always been, and always will be, the subject of a close examination by the superior Courts, under the Constitutional scheme envisaged by the Constitution of Islamic Republic of Pakistan, 1973. The independence of the judiciary can never be taken away.”

 

“81. Loyalty to the State is the basic duty of every citizen. Obedience to the Constitution and law is equally applicable to every citizen wherever he may be and every other person for the time being within Pakistan including the Government in power and the Courts. Clearly, the Court can, exercise the power vested in it under the Constitution to examine the validity of the proclamation with a view to ascertain as td whether the pre-conditions laid down under Article 232(1) of the Constitution exist or not or it is without jurisdiction, coram non judice or mala fide. But the Courts while exercising judicial power must also abide by the Constitution. It is true that the powers available under the above provisions are drastic and might be abused. The danger of abuse is theoretically present. But in this case, it is wholly absent. The Proclamation is intra vires of the Constitution. There has been no abuse of exercise of power by .the President. In fact, Mr. Shahzad Jehangir emphatically stated that no motive could be attributed to the President and that he acted in good faith.”

 

“82. Fundamental Rights provide Constitutional safeguards to civil liberties. These rights guaranteed by the Constitution are essential human rights which inherently belong to every citizen of a country governed in a civilized mode. Not one of these safeguards can, the President of Pakistan, the Parliament, the Executive or the Judiciary, disturb under the scheme of the Constitution, except those having reasonable nexus with the object of the Proclamation of Emergency during its continuance. This is essential to ensure so that the Government may not derogate from Fundamental Rights. If arbitrary and unlimited powers for suspending Fundamental Rights is conceded to. the Government, during the period of Emergency, and without having any reasonable nexus with the object of Proclamation, the dangers to human liberties are frightful to contemplate. Such a concession to the Government is likely to lead to despotism and anarchy, which cannot be countenanced by the Courts. I respectfully do not subscribe to the view taken by the Indian Supreme Court in the case of Muhammad Yaqub (supra) that it is open to the President to suspend the enforcement of any of the Fundamental Rights conferred under the Constitution during the continuance of emergency and wherever such suspension is made it is in the interest of the country and no further proof of it is necessary. In my humble view only such Fundamental Rights can be suspended which have nexus with the reasons which led to the Proclamation of Emergency. A satisfactory solution can, therefore, be had only if the power available to the President under the Constitution to proclaim emergency is exercised with the least encroachment upon the rights and liberties of the citizens. “

 

He also referred to paragraph 21 of the report at page 394, wherein Muhammad Bashir Jehangiri, J. observed as under:-

 

“21. It would, thus, be noticed that we have developed an unfortunate trend over a period of half a century of our independent national existence to rush to suspend the Fundamental Rights on one pretext or another. As soon as the country had tested its nuclear capability, the ‘respondents, for no reason readily understandable, clamped a state of emergency under the cover of which firstly, the citizens of Pakistan were stripped off all the fundamental rights but later on only the Fundamental Rights provided for in Articles 10, 15, 16, 17, 18, 19, 23, 24 and 25 were ordered to remain suspended. Even if, Proclamation- of a state of emergency was justified as we have held the suspension of Fundamental Rights were unwarranted a move which created fresh doubts about the intention of the Government. Not only the Government revealing the extent of its faith in the patriotism of ordinary Pakistanis, it was also insulting their intelligence unnecessarily. The learned Attorney-General had, of course, argued that in the first rush of excitement after the nuclear explosions, it did not have enough time to weigh these matters with the care they deserved. Worse, even when it had an opportunity to make amends, it thought fit not to do so. The President (which means the Government and the Federation) has modified the emergency order and restored some rights like the freedom to practise religion but the order carrying this direction does not touch the freedoms which have a practical bearing on every day life like the freedom from arbitrary arrest or the freedom of speech and association.”

 

Ch Muhammad Farooq, also referred some passages from the case of Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504, which read as under:-

 

“25. It may be stated that it seems to be correct that after the taking over of the executive power by the Governor in Sindh, commission of the crimes has been reduced including the acts of terrorism. This is also visible if one is to visit Karachi and see the situation obtaining now and talk to the common people, of which this Court can take judicial notice. According to the learned Attorney-General’s submission, the establishment of the Military Courts in Karachi and other parts of Sindh also contributed in bringing the normalcy in Sindh. In this behalf, it may be stated that the law and order situation started improving immediately on the taking over of the executive power by the Governor on 3-10-1998. Whereas the impugned Ordinance was promulgated on 20-11-1998. According to Mr. M. Akram Sheikh, learned counsel, the above improvement in the law and order situation was because of sharpening up of the administrative response. There are more people to catch and lesser people to influence or interfere with the process of apprehending and prosecuting accused persons and not on account of establishment of the Military Courts. Be that as it may, even if we were to accept the above contention of the learned Attorney General, the question which needs consideration is that if the establishment of the Military Courts is not warranted by the Constitution, simpliciter the fact that their establishment had contributed to some extent in controlling the law and order situation or the factum of delay in disposal of the criminal cases by the Courts existing under the general laws or under the special laws, as was urged by the learned Advocate-General, Sindh, would justify this Court to uphold their validity. In my humble view, if the establishment of the Military Courts under the impugned Ordinance is violative’ of the Constitution, we cannot sustain the same on the above grounds or on the ground of expediency. Acceptance of the Doctrine of Necessity by this Court inter alia in the case of the State v. Dosso and another (PLD 1958 SC (Pak.) 533), turned out to be detrimental to the evolution and establishment of a democratic system in this Country. It may be observed that some critics feel that the same had encouraged and caused the imposition of the Martial Law in this country more than once, which adversely affected the attainment of maturity by the Pakistani nation in the democratic norms. As a fall out, our country had been experiencing instability in the polity. The doctrine of necessity cannot be invoked if .its effect is to violate any provision of the Constitution, particularly keeping in view Article 6 thereof which provides that “Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.”

 

“It may be pointed out that the concept of imposition of Martial Law in Pakistan in connection with the maintenance or restoration of order in any area was visualized till the framing of the present Constitution of 1973, as highlighted in the above two judgments of the full Benches of Sindh and Lahore High Courts.”

 

“26. It may be observed that the present Constitution of the Islamic Republic of Pakistan, 1973, does not admit the imposition of Martial Law in any form. This is indicated from the language employed in Article 237 of the Constitution which empowers the Parliament to make any law indemnifying any person in the service of the Federal Government or a Provincial Government, or any maintenance or restoration of order in any area in Pakistan. But it does not admit the imposition of Martial Law in any form. This is indicated from the language employed in Article 237 of the Constitution which empowers the Parliament to make any law indemnifying any person in the service of the Federal Government or a Provincial Government, or any maintenance or restoration of order in any area in Pakistan. But it does not cover indemnification, for acts done during the period of Martial Law. In contrast to the above provision of the present Constitution, our three late Constitutions of 1956, 1962 and Interim Constitution of 1972, provided for enacting of law for indemnifying any person in the service of the Federal Government or a Provincial Government or any other person, in respect of any act done in connection with the maintenance or restoration of order in any area in Pakistan where Martial Law was in force.”

 

“45. The soldier and the citizen stand alike under the law. Both must obey the command of the Constitution and obedient to its mandates. The Armed Forces have to act within the scope of their jurisdiction as defined under the Constitution as long as the acts of the Armed Forces fall within the scope of their jurisdiction the same are protected while such are in excess of their jurisdiction, are exceptionable. It is only where the civil power is completely broken, Courts in the country have ceased to function, the danger of imposition of Martial Law cannot be ruled out notwithstanding the provisions of Article 6 of the Constitution, which provides that any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason. But in all other cases, the expression to call the Armed Forces `in aid of civil power’ excludes the substitution of Civil Courts by the Military Courts. The Armed Forces should be kept in strict subordination to be governed by the civil power and the State as is apparent from a bare reading of Article 243 of the Constitution, which provides that the Federal Government shall have the control and command of the Armed Forces. The necessity of the Armed Forces for the preservation of the society, peace, defence, integrity and solidarity of Pakistan cannot be under estimated. Needless to say that during the present emergency and until the danger of terrorism and internal disturbances is removed, the Armed Forces may be called by the Federal Government to “act in aid of civil power” `subject to law’ and confer on it such other powers as the situation may require. However, the Armed Forces cannot be permitted to substitute the ordinary Civil Courts while acting `in aid of civil power’. A Government elected by the Constitution can only perform its functions and ensure observance of the provisions of the Constitution by making the civil power superior to and not subordinate to the Armed Forces during peace as well as war. This is the foundation stone of Constitution of Pakistan as reflected in Article 2A that sovereignty over the entire universe belongs to Almighty Allah alone and the authority to be exercise by the people of Pakistan within the limits prescribed by Him is a sacred trust and that the State shall exercise its powers and authority through the chosen representatives of the people, wherein the fundamental rights shall be guaranteed, 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 and that the independence of the Judiciary shall be fully secured. Clearly, the integrity of the territories of the Federation, its independence and all its rights, including the sovereign rights on land, sea and air, shall be safeguarded by the Armed Forces, under the control and directions of the Federal Government. The term `in aid of civil power’ implies that some assistance may be necessary to the civil power for the performance of its functions and not the taking over of the civil powers, especially the judicial powers of the Judiciary.”

 

“47. Examination of the above case-law also fortifies the view that the phrase `to act in aid of civil power’ used in Article 245(1) of the Constitution, clearly does not include the power to substitute the existing judicial system and/or to establish a parallel system. It is true that the State has a right to protect itself against terrorist activities including all those who would destroy it, and it could be said that that right has been linked with the right of the individual to his self-defence but in the exercise of such right and with a view to preserving the society and the State, it must take all measures in conformity with the Constitution and not in derogation thereof. Clearly, in order to protect the innocent citizens against terrorist activities the Army can act `in aid of civil power’ by rendering such assistance as may be needed under the direction of the Federal Government excluding the power to share the judicial power exclusively vesting in the Judiciary and/or to supplant the existing system by establishment of parallel Courts as has been done pursuant to the impugned Ordinance. When the Army is `acting in the aid of civil power’ to restore peace and normalcy, the power to apprehend accused, their investigation, arrest and assistance in expeditious submission of the challan to the Courts, production and attendance of witnesses and their security including that of the Presiding Officers and the Advocate, is incidental to the directions of the Federal Government `to act in aid of civil power’. It is difficult to enumerate the acts/steps that may be taken by the Armed Forces while `acting in aid of civil power’ but in the exercise of the said power they cannot either directly or indirectly share the judicial powers of the Courts or replacement thereof. The impugned legislation, to that extent, is therefore, wholly unwarranted and cannot sustain even on ground of alleged necessity, as canvassed by the learned Attorney-General, the learned Advocate-General, Sindh and Syed Iqbal Haider. The term `to act in aid of civil power’ no matter how liberally it may be construed, would not in any manner whatsoever embrace the judicial powers conferred on the Courts under the scheme of the Constitution.”

 

“48. I am fully inclined to agree with the learned Attorney-General that the impugned Ordinance was promulgated bona fide with a view to restore peace and normalcy in the country and, particularly, in Sindh, but, however,-bona fide an action may be in itself, it cannot be a touchstone for judging the constitutionality of the impugned Ordinance. Its validity is to be judged only on the touchstone of the Constitutional provisions. Reading Articles 175, 203 and 245 together and in the light of the judgment rendered by this Court in the case of Mehram Ali (supra), it indubitably leads to the conclusion that the Military Courts envisaged under the Constitution tantamount to establishment of parallel Courts for which there was no warrant. The bare reading of Article 245 would show that it does not contemplate declaration of Martial Law or Mini-Martial Law in any form whatsoever. It is not the case of the learned Attorney-General that the Courts are not functioning. He, however, argued that the Courts were not deciding the cases expeditiously on account of fear of the terrorists. If that is so, the proper course was to take appropriate measures by improving methods of investigation, expeditious submission of challan to the trial Courts security of witnesses/litigants as well as the Presiding Officers of the Courts and to take long/short term measures including appropriate increase in the strength of Judges in the light of the various reports of the Law Commission.

 

“49. Thus, visualized, the Courts established pursuant to the impugned Ordinance do .not fall within the purview of any of the Constitutional provisions. The Constitution envisages trichotomy of powers of the three organs of the State, namely, Legislature, Executive and the Judiciary. The Legislature is assigned the task of law-making, the Executive to execute such laws and the Judiciary to construe and interpret the laws. None of the organs of the State can encroach upon the fields allotted to others. The Constitution does not countenance the take-over of the judicial functions by the Armed Forces at the direction of the Federal Government in the purported exercise of power conferred on it under Article 245 of the Constitution. Article 245 does not by itself create the law but enables the making of a law, which should have nexus with the phrase to act in aid of civil power’. The replacement of Courts either partially or wholly is not recognized under any provisions of the Constitution. A bare reading of Article 243 would show that the Armed Forces are subject to the control and authority of the Federal Government i.e. a civilian Government. No circumstances existed in the country, which indicated the breaking down of the judicial organ, necessitating establishment of Military Courts. It is imperative for the preservation of the State that the existing judicial system should be strengthened and the principle of trichotomy of power is adhered to by following, in letter and spirit, the Constitutional provisions and not by making deviation thereof on any ground whatsoever.”

 

“58. The plea raised on behalf of the learned Attorney-General that the Doctrine of Necessity is not outdated and can be invoked in the present case for a `limited purpose’ cannot be countenanced, for, if it is approved of, it may very frequently be resorted to at the incidence of a situation presently prevailing in the country, by the Executive. In, fact, such approval whereby the Executive is allowed to cross the barriers of Constitutional provisions at its whim, would turn a democratic rule into a despotic one. Clearly, any deviation from the Constitution may lead to anarchy. It is true that the takeover by the Chief of the Army Staff as Martial Law Administrator was validated by this Court in Begum Nusrat Bhutto’s case PLD 1977 SC 657 wherein it, was inter alia observed :-

 

`On no principles of necessity could power of judicial review vested in the superior Courts under the 1973 Constitution, be taken away’ (p.716 last para. extending to page 717).

 

“However, in the case of Asma Jilani (supra), this Court took the view that the acts of usurper may be condoned and/or validated by the application of the law of necessity. Viewed from this angle, the impugned Ordinance being ultra vires the Constitution cannot be validated even on the touchstone of State necessity. Additionally, in view of the plea raised by the learned Attorney-General that the establishment of Military Courts is spelt out from the power vesting in the Federal Government under Article 245 is contradictory with the theory of State necessity, inasmuch as, the concept of law of necessity, would arise only if an act which would otherwise be illegal becomes legal if it is done bona fide, in view of State necessity, with a view to preserving-- the State or the society from destruction by the terrorists. In the instant case, we have no doubt that the impugned Ordinance was issued bona fide with a view to suppress the menace of terrorism. Nevertheless, the constitutionality of the Ordinance is not to be judged on the question of bona fides of the Federal Government simpliciter but on the touchstone of the Constitutional provisions. Here, impugned legislation is ultra vires the Constitution in so far as it takes away the functions of the Courts in determining the guilt or innocence of an accused. Be that as it may, the prerequisites for the application of Doctrine of Necessity are not satisfied in the instant case for upholding the impugned legislation,. even for a limited period. The prerequisites, as laid down in the case of Attorney-General of Republic v. Mustafa Ibrahim 1964 CLR 195, which was also referred in the Begum Nusrat Bhutto’s case (supra), are :-

 

“(a)       An imperative and inevitable necessity or exceptional circumstances;

 

(b)        no other remedy to apply;

 

(c)        the measure taken must be proportionate to the necessity; and

 

(d)        it must be of a temporary character limited to the duration of the exceptional circumstances.’

 

“In the instant case, the Courts are functioning and the question of backlog and expeditious disposal of terrorists’ case can be remedied by taking effective measures, in the light of the guidelines provided by this Court in the short order as well as the recommendations in the concluding paragraphs of this note. The Courts are functioning properly and administering justice according to the Constitution and the law. These Courts, therefore, cannot be replaced by Military Courts as attempted to be done either partially or wholly by virtue of the impugned Ordinance. The role of Armed Forces as contemplated under Article 245 is to defend the country from external aggression or threat of war or to come to the `aid of civil power’ subject to law. The second function of coming in the `aid of civil power’ to be performed by the Armed Forces is subject to a condition precedent of enacting a law. The law so made must have nexus with the term `to act in aid of civil power’. The role of Armed Forces while acting `in aid of civil power’ does not in any way confer the power either directly or indirectly to interfere with the Courts established under Article 175(1) of the Constitution and/or to supplant them.”

 

“59. Let me now discuss the contention raised on behalf of the petitioners as to the independence of Judiciary, which, according to them, has been set at naught with the promulgation of the Ordinance in question. The Constitution of the Islamic Republic of Pakistan, 1973 in its preamble (now made a substantive part thereof vide Article 2A) declares that “the independence of the Judiciary shall be fully secured” therein. According to a consensus of the jurists, the independence of the Judiciary means that every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences, inducements or pressures, direct or indirect, from any quarter or for any reason; and that the Judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or by way of review, overall issues of a judicial nature. This Court vide its judgment in the case of Sharaf Afridi (supra), has separated the Judiciary from the Executive.”

 

Reliance was also placed on the case of Miss Asma Jilani (supra), wherein at page 181 sideline `L’ of the report, it was observed:

 

“Kelsen’s attempt to justify the principle of effectiveness from the standpoint of International Law cannot also be justified, for it assumes `the primacy of International Law over National Law.’ In doing so he has, to my mind, overlooked that for the purposes of International Law the legal person is the State and not the community and that in International Law there is no `legal order’ as such. The recognition of a State under International Law has nothing to do with the internal sovereignty of the State, and this kind of recognition of a State must not be confused with the recognition of the Head of a State or Government of a State. An individual’ does not become the Head of a State through the recognition of other States but through the -municipal law of his own State. The question of recognition of a Government from the point of view of International Law becomes important only when a change in the form of Government also involves a break in the legal continuity of the State or where the question arises as to whether the new Government has a reasonable expectancy of permanence so as to be able to claim to represent the State” (vide Oppenheim’s International Law, Vol. I, page 127)

 

At page 183 sideline,`O’ of the report, it was observed:

 

“The principle enunciated in Dosso’s case, therefore, is wholly unsustainable, and it cannot be treated as good law either on the principle of stare decisis or even otherwise.”

 

“We have also in this connection been referred to a case from Cyprus sub-nomine. The Attorney-General of the Republic v. Mustafa Ibrahim and others 1964 CLR 195 where the Supreme Constitutional Court of Cyprus also applied the doctrine of necessity to validate a certain legislation which was otherwise inconsistent with certain Articles of the Cyprus Constitution on the ground that they would be justified `if it can be shown that it was enacted only in order to avoid consequences which could not otherwise be avoided, and which if they had followed, would have inflicted upon the people of Cyprus, whom the Executive and Legislative organs of the Republic are bound to protect, inevitable irreparable evil, and furthermore if it can be shown that no more was done than was reasonably necessary for that purpose, and that, the evil inflicted by the enactment in. question, was not disproportionate to the evil avoided’. This the Court thought was its duty to do in view of its `all important and responsible function of transmitting legal theory into living law, applied to the facts of daily life for the preservation of social order’.”

 

            ACTS CONDONED UNDER THE

 

            PRINCIPLE OF CONDONATION:

 

“Applying this test I would condone:

 

(1)        all transactions which are past and closed, for no useful purpose can be served by reopening them;

 

(2)        all acts and legislative measures which are in accordance with, or could have been made under, the abrogated Constitution or the previous legal order;

 

(3)        all acts which tend to advance or promote the good of the people;

 

(4)        all acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment of, or in our case, the objectives mentioned in the Objectives Resolution of 1954:

 

(5)        I would not, however, condone any act intended to entrench the usurper more firmly in his power or to directly help him to run the country contrary to its legitimate objectives.

 

(6)        I would not also condone anything which seriously impairs the rights of the citizens except in so far as they may be designed to advance the social welfare and national solidarity.”

 

(1)        From the foregoing it is evident that, in the first place, President’s Order No.3 of 1969 and Martial Law Regulation No.78 do not exist so far as this Court is concerned, and therefore, they are not valid laws.

 

(2)        In the second place even if it be assumed that they do exist, they can not deprive the Court of its inherent jurisdiction to consider the validity or otherwise of those laws or any action taken thereunder.”

 

ILLUSTRATION OF INTERFERENCE AGAINST ORDERS PASSED BY MARTIAL LAW AUTHORITIES

 

“(3) Supposing by an order passed under Martial Law Regulation No. 78, `X’ has been ordered to be detained. While executing this order, however, instead of `X’, `Y’ is arrested and detained. It is absurd to say that the Court is deprived of its jurisdiction to consider the validity of the order vis-a-vis the person detained merely because the order is by a Martial Law Authority.”

 

At pages 268-269 of the report, it was observed:

 

“It has been contended by the learned Attorney-General that President’s Order No. 2 has provided for a remedy in a matter like this. I am unable to agree with him. Having regard to the provisions made in section 3 of the President’s Order No. 3 of 1969, any question regarding the correctness, legality or propriety of exercise of any powers or jurisdiction of a Martial Law Authority could not be referred to the Chief Martial Law Administrator for decision by a Martial Law Authority itself, for the Court’s jurisdiction even to receive or entertain any complaint in that respect has been sought to be ousted. The position, therefore, is that any order passed by a Martial Law Authority, if it is labelled as such, it must be accepted as a good order whether it is in fact made or could be made under any Martial Law Order or Regulation, or not. Such an unlimited and undefined power, which is at the same time arbitrary and not governed by any rule of law, can never be accepted as good by any Court of law. Such an unlimited power is not only foreign to Islamic Law but is also not recognised in any modern society.”

 

“I, therefore, fully agree that Dosso’s case must be reviewed on the grounds mentioned by my Lord the Chief Justice.”

 

25. Ch Muhammad Farooq reiterated the principles laid down in the case of Sh. Liaquat Hussain (supra) reproduced above, summary whereof is given below :

 

“ 1. Armed Forces cannot abrogate, abridge or displace civil power.

 

2. Doctrine of necessity-imposition of Martial Law in Pakistan has been done away with.

 

3. No Martial Law can be imposed-Parliament cannot enact a law to indemnify the acts done during Martial Law.

 

4. Command of the Armed Forces vests with Federal Government.

 

5. Martial Law cannot come in scheme of the Constitution.

 

6. Impugned legislation cannot be sustained on ground of alleged necessity.

 

7. Control of the Armed Forces vests with Federal Government i.e. a civilian Government.

 

8. Loyalty to the State, duty of every citizen-Doctrine of Necessity discussed.

 

9. Judiciary custodian of Fundamental Rights.”

 

26. Ch. Muhammad Farooq also made extensive references from the case of Darvesh M. Arbey, Advocate v. Federation of Pakistan and 2 others PLD 1977 Lah. 846, as follows:

 

“6.        It is important to note that even a nexus or connection has not been provided by the amendment between the offences made exclusively triable by the Military Courts by virtue of this amendment and the subject for which the Armed Forces had been called in Lahore i.e. to restore law and order. The result is that even to that extent this amendment in the Army Act, has in fact, resulted in the displacement of the ordinary- criminal Courts in the District of Lahore by the Military Courts.”

 

“The provision in the proviso to section 3 of Act X of 1977 that the authorised Army Officer can transfer any such case, in his discretion to the ordinary criminal Courts, does not in our view improve the status of the ordinary Courts.”

 

“7.        It is, therefore, obvious that to the extent that the Courts established by the Armed Forces are trying civilians of Lahore for offences which have no nexus with the object for which they are said to have come, they (i.e. the Armed Forces) are not acting “in aid” of the civil power but in derogation or replacement thereof. This is certainly not envisaged by Article 245(1) that the “laws” subject to which the Armed Forces are required to act under that Article are intended to be of a nature as would not place the Armed Forces in a position superior or dominant to that of the civil power or to bestow such powers on them that; instead of acting in aid of the civil power, the Armed Forces, in fact, start acting in supersession or displacement of the civil power. We are, therefore, of the view that as far as Act X of 1977; (which amends the Army Act, 1962), is concerned, the most essential precondition prescribed by clause (3) of Article 245 which is mentioned by the learned Attorney-General as the 2nd jurisdictional fact; is absent. Consequently, we hold that clause (3) of Article 245 does not have the effect of ousting the jurisdiction of this Court under Article 199.”

 

27. Ch Muhammad Farooq submitted that out of 87 Members of the Senate, 217 Members of the National Assembly and (nearly 500) Members of the Provincial Assemblies, charges so far have been levelled against very few including the ex-Prime Minister (in a sub judice Helicopter Case) and Sardar Mehtab Abbasi, ex-Chief Minister of N.-W.F.P. detained under NAB Ordinance. He further submitted that F.I.R. in hijacking case was filed after one month’s contemplation/deliberations. He repelled the impression that 13th and 14th Constitutional Amendments were passed in haste with Parliament as a Rubber Stamp and contended that both amendments were passed unanimously with the support of all parliamentary parties and that in the case of Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263. at page 1444, the Supreme Court by majority. upheld the 14th Amendment declaring it to be intra vireo of the Constitution. subject to clarification in respect of paragraph (a) to Explanation to clause (1) of Article 63-A of the Constitution, which reads thus:

 

“(i)        That paragraph (1) to be read in conjunction with paragraphs (b) and (c) to Explanation to clause (1), of Article 63A of the Constitution. It must, therefore, follow as a corollary that a member of a House can be disqualified for a breach of party discipline in terms of said paragraph (a) when the alleged breach relates to the matters covered by paragraphs (b) and (c) to the Explanation to clause (1) of Article 63-A of the Constitution and that the breach complained of occurred within the House.”

 

“(ii) That paragraph (a) to Explanation to clause (1) of Article 63A of ‘the Constitution is to be construed in such a way that it should preserve the right of freedom of speech of a member in the House subject to reasonable restrictions as are envisaged in Article 66 read with Article 19 of the Constitution.”

 

28. Ch.Muhammad Farooq vehemently argued that the impugned proclamation and PCO are ultra vires the Constitution and that the jurisdiction of this Court is not barred to examine the controversy. He referred to the case of Ahmed Saeed Kirmani (supra), wherein it was observed: .

 

“Article 89 of the Constitution of Pakistan does not confer a total or absolute immunity on the proceedings of the Provincial Assembly. “…………………………..”The High Court has jurisdiction in appropriate cases to exercise its extraordinary writ jurisdiction in connection with such proceedings e.g., when the so-called proceedings are really outside the Constitution.” (pp. 816, 818) E, F.”

 

The observations relied upon in the case of Darvesh M. Arbey (supra) are as under:

 

“No nexus or connection provided by amendments introduced by Act X of 1977, between offences made exclusively triable by Military Courts and restoration of law and order, object for which armed forces called in” .........   .........   .....                   :           “Amendment, to such extent, resulting in displacement of ordinary criminal Courts by Military Courts”             .........   ......      ......            “Provision authorising army officers to transfer any case to ordinary criminal Courts in their discretion not improving status of ordinary Courts at all”             .........   .....       . .         .........            .........   “Courts established by Armed Forces to such extent as they try civilians for offences having no nexus with restoration of law and order, held, not acting in `aid’ of civil power but in derogation or replacement thereof and such position not envisaged by cl,(1) of Art. 245.” -- “Laws subject to which Armed Forces required to act under Art. 245(1) of the Constitution”             .........   .........   “Intended to be of a nature not placing Armed Forces in a position superior or dominant to that of civil power or to enable them to act in supersession or displacement of civil power”             .........   .........               “Act X of 1977 accordingly, held, lacks essential precondition prescribed in cl. (3) of Art. 245 of acting in aid of civil power in pursuance of Federal Government’s direction and jurisdiction of High Court under Art. 199 not ousted in view of cl. (3) of Art. 245.”

 

The observations relied upon in the case of Iqbal Ahmad Khan (supra) are as., under:

 

“Act X of 1977 having been held to be ultra vires and beyond scope of Art. 245 by Full Bench in case reported as PLD 1977 Lah.846, Army Officers/Military Tribunals devoid of jurisdiction to deal with cases transferred to them from ordinary criminal Courts under provisions of Act X of 1977”…………………”Order passed by Army Officers/Military Tribunals committing petitioners to custody of police/jail authorities of extending - remand order, in circumstances, held, without any legal substance and ineffective.”

 

 The observations relied upon in the case of Muhammad Bachal Memon (supra) are as under:

 

“Where actions taken between 5-7-1977 and 29-12-1985 under any Martial Law. Regulation, Martial Law Order, enactment, rule etc. were mala fide, without jurisdiction. or coram non judice, immunity provided under Art. 270-A(2) would not save them completely from scrutiny of Superior Courts and, therefore, Art. 270-A(2) did not provide a complete bar in respect of such actions.”...............”Clause (1) of Article 270-A, Constitution of Pakistan, 1973 given validity to the laws including Martial Law Orders and Regulations made during 5-7-1977 to 30-12-1985 and provides that the same shall not be called into question in any Court on any ` ground whatsoever notwithstanding any judgment of any Court or anything contained in the Constitution.”………………Proviso of clause (1) of Article 270-A although covers a small period of 30-9-1985 to 30-12-1985, yet it does provide a scope for examining the laws made by the C.M.L.A. daring this period.”……………………”More important in respect of the actions of Martial Law Authorities is clause (2) of Article 270-A which has provided that actions taken by the Martial Law Authorities during the specified period shall not be called into question on any ground whatsoever notwithstanding any judgment of any Court.”…………………”In spite of the bar provided, the jurisdiction of the Superior Courts .to scrutinise actions of Military Authorities is not completely barred in respect of those actions which were mala fide, without jurisdiction or coram non judice.”……………….”If the actions were mala fide, coram non judice or without jurisdiction, then in spite of the validity conferred on such actions and the immunity, the Superior Courts were not completely debarred from scrutinising the actions. However; the scope of scrutiny was limited to actions which were mala fide, coram non judice and without jurisdiction. In other respects the immunity was considered complete.”…………………The legislature was aware of the interpretation placed by the Supreme Court of .Pakistan on a similar provision. Therefore, when it enacted clause (2) of Article 270-A of the Constitution, the Legislature knew that it is providing validity and immunity to the actions to the extent already explained and interpreted by the Supreme Court and that this validity did not extend to action which were mala fide, coram non judice of without jurisdiction. “………………”By reading only clause (2) of Article 270-A without taking into consideration the other provisions of the same Article, it would be clear that the legislature had intended that if the impugned actions were mala fide, without jurisdiction or coram non judice, then the immunity provided under Article 270-A, clause (2) would not save them completely from the scrutiny .of the Superior Courts and, therefore, clause (2) of the Article 270-A does not provide a complete bar in respect of such actions. “

 

The observations relied upon in the case of Muhammad Naeem Akhtar (supra) are as under:

 

“Action of Speaker in accepting resignation in question, would neither come within the meaning of term “any proceedings in the Provincial Assembly” used in Art. 69(1) read with Art. 127 of the Constitution, nor such action could be described as an exercise of power by the Speaker for regulating the procedure or the conduct of business in the Assembly” …………………”Constitutional petition against action . of Speaker in accepting resignations of Members of Assembly was, thus, maintainable. “ .

 

The observations relied upon- in the case of Shams-ud-Din ,(supra) are as under:-

 

“Internal proceedings which were carried out by the Assembly, during its session, were not amenable to the jurisdiction of Court, however, all other administrative actions by the Speaker including recruitment of employees, would not enjoy immunity from judicial review particularly when such action of Speaker, prima facie, was in violation of existing rules or the discretion vested in him to take certain decisions in’ order to run smoothly the functions of Provincial Assembly . Secretariat, had not been exercised judiciously, High Court under Art. 199 of the -Constitution was competent to examine validity or otherwise of such action.”

 

The observations relied upon in the case of- Manzoor Ahmad Wattoo (supra) are as under:

 

“Bar of jurisdiction . provided in provision of cl. (2) of Art. 236, Constitution of Pakistan (1973) does not cover a Proclamation which is without jurisdiction, coram non judice or mala fide” ..... .....            “Superior Courts have the jurisdiction to examine a Proclamation under their power of judicial .review and declare same as invalid and unconstitutional.”

 

The observations relied upon in the case of Muhammad Anwar Durrani (supra) are as under:

 

            “Ousted only in respect of irregularity of procedure” …………..”Where interpretation of Constitutional instrument is involved, jurisdiction of High Court is unaffected.”

 

The observations relied upon in the case of A.K. Fazalul Quader (supra) are as under:

 

“Letter purporting to communicate a resignation from membership of National Assembly, addressed to President of Pakistan, instead of to Speaker, National Assembly”      .....       .....       .....                   “Member,later,  protesting [by two telegrams and a letter, addressed to Speaker, dispatched before his letter of “resignation” had reached the Speaker (Speaker being out of country)] that he had not intended to resign from membership of Assembly, but from membership of “Council Muslim League National Assembly Party”        ......      ......      ......”Speaker declaring that member had resigned his seat within meaning of Art. 107(a), by Gazette Extraordinary Notification”             ......      ......      ......                  “Consequent action taken by Chief Election Commissioner to fill vacancy and a new member elected accordingly”   .           .....       ....        . “Member challenging vires of Speaker’s Gazette Notification by petition under Constitution of Pakistan (1962), Art. 98”           .....       ..... - “Plea taken on behalf of Speaker that matter was not justiciable in view of bar of jurisdiction raised by Constitution of Pakistan (1962), Art. 111 “      .             ....        .           “Held, that member had not intended to resign from membership of National Assembly (in circumstances of case)” “Letter complying with conditions of Art. 107(a) takes effect automatically and does not require “acceptance” by any authority”          .....       .....Locus poenitentiae available to member”          .....       ....        . “Communication to Speaker essential ingredient of application of Art. 107”     .....       .....       ......                  “Speaker to construe documents together”     .....       .....       .....                   “Constitution of Pakistan (1962), Art. lll(2)”            ...         ....        .....       “Question of `resignation’ of member not a question of `procedure’, `conduct of business’, or of `maintenance or order’ within meaning of Art. 111(2):”         .....            ..........              “Supreme Court and High Court have power to “intervene” (under Art. 98) in cases of “excess” of lawful authority.”

 

The observations relied upon in the case of Pir Sabir Shah (supra) are as under:

 

“Provision of Art. 236(2) of the constitution will not cover Proclamation by the President under Art. 234 of the Constitution which is without jurisdiction, coram non judice or mala fide” .....”Superior courts will have jurisdiction to examine such a Proclamation.”     .....       .....       .....                   “Clause (2) of Article 236 of the Constitution of Pakistan will not cover a Proclamation which is without jurisdiction, coram non judice or mala fide and the superior Courts will have jurisdiction to examine a Proclamation from the above three jurisdictional legal aspects.”

 

The observations relied upon in the case of Mrs Shahida Zahir Abbasi (supra) are as under:

 

“Bar contained in Art. 199(3) of the Constitution on the powers of High Court is not absolute in nature”……….”Such bar is not applicable to the cases namely where the impugned action is mala fide or without jurisdiction or coram non judice.”

 

The observations relied upon in the case of Mahmood Khan Achakzai (supra) are as under:-

 

“Contention that the Judges of the Superior Courts having taken oath under the impugned Amended Constitution (by Constitution (Eighth Amendment) Act, 1985) and had been receiving salary which had been increased from time to time could not strike out the impugned Constitutional Amendment (Constitution (Eighth Amendment) Act, 1985, was repelled”      .....       ...         .           “Power and jurisdiction of judicial review could not be controlled and fettered on such basis”            ....        .....            .....                   “Judges of the Superior Courts had taken oath to defend, preserve and protect the Constitution” ...... .......         ......      ......                  “If any illegal amendment was made or had been made in the constitution, the Courts were competent to examine the same and make interpretation to reconcile its provision in which inferior rights must yield to higher rights” ........”Salary paid to the Judges was not a bounty or favour it was a Constitutional duty to provide salary and benefits to the judges by which independence of judiciary was guaranteed”    ......      ...... “Courts while striking down any illegal and unconstitutional provision or interpreting the Constitution defend, protect and preserve the Constitution.”  ......      ......      ......                  “Fact that any question is a political question will not deter the Court from determining it provided the same involves the interpretation of Constitution or the validity of such question is to be determined on the touchstone of the Constitution” .....       .....       .....                   “Court should not adopt “political question doctrine” for refusing to determine difficult and knotty, questions having political. overtones which would amount to abdication of judicial power which neither the Constitution permits nor the law allows” ...”Any action taken, act done or policy framed which violates the provisions of the Constitution or .is not permissible under the Constitution or law, -the Court, irrespective of the fact that it is a political question, must exercise powers of judicial review”      ..... ....  “Abuse, excess or non-observance of the provisions of the Constitution has to be checked by the Court unless its jurisdiction is barred by the Constitution or law.”            .....       ...         .....                   “Provision of Art. 270-A, Constitution of Pakistan 1973, as provided legal cover for deviation by President from the mandate given by Supreme Court in Begum Nusrat Bhutto v. Chief of Army Staff PLD 1977 SC 657” ......      ......      .......                 “Validity of Art. 270-A, Constitution of Pakistan 1973, having been determined consistently, competence of Parliament and the laws enacted up to 30-12-1985 which had been validated and protected, could not be questioned”             ......      ......            ......                  “Actions under such laws, however, could be challenged on grounds of coram non judice, mala fides and lack of jurisdiction.”

 

The observations relied upon in the case of Wukala Mahaz Barai Tahafaze Dastoor (supra) are as under:

 

“Bar contained in Art. 63-A(6) does not completely take away the jurisdiction of Supreme Court or High Courts” ...........     “Jurisdiction of Supreme Court and High Courts tinder Art. 199 of the Constitution, in respect of actions t en under Art. 63-A of the Constitution, will be available in c as of such order being coram non judice, mala fide or without jurisdiction” ............Any amendment in the Constitution which purports to alter the existing federal structure or the Islamic character of the Constitution or the existing parliament by system or which undermines independence of judiciary or abrogates or abridges any Fundamental Right may be regarded as repugnant to the basic structure of the Constitution.”      .....       ...         ......                  “Supreme Court as a guardian of the Constitution, has a right and the power to declare an amendment in the Constitution as un forceable or void if the same is construed to be violative of a basic structure of the Constitution or is found to have been assed in derogation of a Fundamental Rights. However, the question as to what are the basic essential features of the Constitution f Pakistan is yet to be answered with clarity. Nevertheless, regarding certain basic essential’ features of the Constitution, there can hardly be expressed any. doubt. Any amendment in the Constitution which purports to alter the existing federal structure or Islamic character of the Constitution or the existing Parliamentary system or which undermine independence of judiciary or abrogates or abridges any fundament 1 right may be regarded as repugnant to the basic structure o f the Constitution.”

 

The observations relied upon in the case of Sardar Farooq Ahmed Khan Leghari (supra) are as under:

 

“Provisions of Art. 236(2), Constitution of Pakistan (1973), which bar the jurisdiction of the Courts from examining the validity of any Proclamation will not cover a Proclamation which is without jurisdiction, coram non judice or mala fide.

 

The observations relied upon in the case of Jalal Mehmood Shah (supra) are as under:

 

“Provision of Art. 236(2) of the Constitution will not cover a Proclamation- which is without jurisdiction. coram non judice or mala fide “       ...         .....       .....       “Superior Courts have jurisdiction to examine a Proclamation from the said three jurisdictional legal aspects “

 

The observations relied upon in the case of Federation of Pakistan and another v. Ghulam Mustafa Khar PLD 1989 SC 26 are as under:

 

“Article 270-A does not -take away the jurisdiction of the High Courts from reviewing acts, actions or proceedings which suffered from defect of ,jurisdiction or were coram non judice or were male fide”…………”Drawing a distinction between malice in fact and malice in law was not necessary for such purpose.”

 

Support was also sought from the following authorities:

 

1.         Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504.

 

2.         Speaker Balochistan Provincial Assembly v. M. Azam 1996 SCMR 1969.       

 

3.         Yousaf Ali v. uhammad Aslam Zia PLD 1958 SC 104.

 

to contend that notwithstanding the PCO promulgated on 14-10-1999, this Court has jurisdiction to hear and decide the controversy raised in the petition on merits. learned counsel laid great emphasis on certain observations made in the cases of:

 

1.         Pir Sabir Shah (supra)

 

2.         Sardar Farooq hmed Khan Leghari (supra)

 

3.         Sh. Liaquat Hus sain (supra)

 

The observations relied upon in the case of Farooq Ahmad Khan Leghari (supra) are as follows:

 

Per Irshad Hasan Khan. J.

 

(as he then was) (now Chief Justice)

 

“However, whether in a particular situation the extent of powers used is proper and justifiable? is a question which would remain debatable and beyond judicially discoverable and manageable standards unless the exercise of the excessive power is so palpably irrational or mala fide as to invite judicial intervention. In fact, once the issuance of the Proclamation is held valid, the security of the kind and degree of power used under the Proclamation, falls in a narrow compass. There is every risk and fear of the Court undertaking upon itself the task of evaluating with fine scales and through its own lenses the comparative merits of one rather than the other measure. The Court will, thus, travel unwittingly into the political arena and subject itself more readily to the charges of encroaching upon policy making. The `political thicker’ objection sticks more easily in such circumstances. Although, therefore, on the language of Article 356(1), it is legal to hold that the President may exercise only some of the powers given to him, in practice it may not always be easy to demonstrate the excessive use of the power. “

 

“The learned Attorney-General, while giving a brief legislative history of Emergency Provisions in the sub-continent, in particular, argued that emergency provisions of enforcement of Fundamental Rights, had been provided since the promulgation of the Government of India (Consolidated) Act, 1924, which were retained in the Government of India Act, 1935. “

 

“In this connection it was also said that external aggression means armed aggression and as for some time past there was no armed aggression against the territory of India, the continuance of the Proclamation was unjustified. This contention must also fail on the ground which we have just mentioned.”

 

“The Parliament, the President, the Executive and Judiciary are the creatures of the Constitution. Each organ of the State has to function within the sphere to it under the Constitution. Neither of them can be permitted to invade into the functions and powers of the other organs of the State. As to what power was granted to the Courts and what limitations were imposed on it are questions which have always been, and always will be, the subject of a close examination by the superior Courts, under the Constitutional scheme envisaged by the Constitution of Islamic Republic of Pakistan, 1973. The independence of the judiciary can never be taken away.”

 

“Loyalty to the State is the basic duty of every citizen. Obedience to the Constitution and law is equally applicable to every citizen wherever he may be and every other person for the time being within Pakistan including the Government in power and the Courts. Clearly, the Court can, exercise the power vested in it under the Constitution to examine the validity of the proclamation with a view to ascertain as to whether the pre-conditions laid down under Article 232(1) of the Constitution exist or not or it is without jurisdiction, coram non judice or mala fide. But the Courts while exercising judicial power must also abide by the Constitution. “

 

The observations relied upon in the case of Liaquat Hussain (supra) are as follows :

 

Per Ajmal Mian. CJ.

 

(as he then was)

 

“The civil power is to be preserved and invigorated through the employment of the Armed Forces. The Armed Forces can be called in aid under the above clause by the Federal Government inter alia to perform police functions for limited purpose of suppressing riots or preventing threatened disorder or for the purpose of maintaining law and order and security or to assist/help in natural calamities alongwith the civil authorities. But the Armed Forces cannot abrogate, abridge or displace civil power of which Judiciary is an important and integral part. In other words, the Armed Forces cannot displace the Civil/Criminal Courts while acting in aid of civil power. They can certainly arrest those who threaten to disturb peace and tranquillity. They may also assist in investigation of a case and the prosecution of the same but the case is to be tried by a Court established in terms of the judgment of this Court in the case of Mehram Ali (supra). The employment of the expression `subject to law’ clearly demonstrates that the Armed Forces will have to act .within the parameters of the Constitution and the law obtaining. The scope of the above power which is exercisable by the Armed Forces in aid of the civil power can only be enlarged by amending Article 245 of the Constitution. In this behalf Mr.Aitzaz Ahsan has invited our attention to the case of Goplan v. State of Madras AIR (37) f 950 SC 27 in which the Indian Supreme Court took the view that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution and the Courts cannot declare limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument.”

 

“I may point out that Article 190 of the Constitution has also employed the expression “shall act in aid of the Supreme Court” by providing that all Executive and Judicial Authorities throughout Pakistan shall act in aid of the Supreme Court. Can the. Executive Authority when called in aid by the Supreme Court under the above Article substitute or displace it. The object of the above Article 190 seems to be to assist or to help the Supreme Court in getting its directions, orders and judgments implemented and executed.”

 

“There cannot be two opinions that the representative Government  in Sindh had failed to eradicate terrorism from the Province of Sindh particularly from Karachi: In my opinion in the case of Syed Jalal Mehmood Shah, I had held that invocation of Article 245 of the Constitution by the Federal Government was warranted by the situation which was obtaining in Sindh. The relevant portion reads as follows

 

14. That it may be observed that under paragraph (c) of clause (2) of Article 232 of the Constitution the Federal Government can assume to itself or direct the Governor of a Province to assume on behalf of 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, anybody or authority in the Province other than the Provincial Assembly. Indeed this power, like any other power vested in a state functionary, is to be exercised in good faith. It is a matter of common knowledge, of which this Court can take judicial notice that the Provincial Government of Sindh had failed to restore        law and order in the Province during its tenure of nearly two years, particularly in Karachi where hundreds of people became victim of terrorism and lost their lives. The acts of terrorism had been going on for quite some period in Sindh particularly in Karachi. Inter alia the previous Federal Government was dismissed under repealed Article 58(2)(b) of the Constitution by the then President on the ground that it had resorted to extra judicial killing in Sindh, which ground was upheld by a Bench of this Court headed by the then Hon’ble Chief Justice Mr. Justice Sajjad Ali Shah. [The case of Mohtarma Benazir Bhutto and another v. President of Pakistan and others (PLD 1998 S.C. 388)]. Thus prima facie the Federal Government’s above action under paragraph (c) of clause (2) of Article 232 of the Constitution was warranted by the situation obtaining.’ “

 

“The above principle of law enunciated in the case of Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 (supra) covers an executive action. No mala fide can be attributed to the Parliament as it is sovereign to legislate on any subject for which it has been empowered by, the Constitution to legislate with the parameters thereof. The Court cannot strike down a statute on the ground of mala fide, but the same can be struck down on the ground that it is violative of the constitutional provision. In this respect reference may be made to the case of Mehr Zulfiqar Ali Babu and others v. Government of the Punjab and others PLD 1997 SC 11. In the present case I have already held hereinabove that neither Article 245 of the Constitution nor Entry No.l of tile Federal Legislative List read with Entry No.59 empowers the Legislature to legislate a statute which may establish or convene Military Courts in substitution of the ordinary criminal and civil courts. In this view of the matter, the above contention of the learned Attorney-General is not germane to the controversy at issue.”

 

Per Irshad Hasan Khan. J.

 

(as he then was) (now Chief Justice)

 

“These Courts, therefore, cannot be replaced by Military Courts as attempted to be done either partially or wholly by virtue of the impugned Ordinance. The role of Armed Forces as contemplated under Article 245 is to defend the country from external aggression or threat of war or to come to the `aid of civil power’ subject to law. The second function of coming in the `aid of civil power’ to be performed by the Armed Forces is subject to a condition precedent of enacting a law. The law so made must have nexus with the term `to act in aid of civil power’. The role of Armed Forces while acting `in aid of civil power’ does not in any way confer the power either directly or indirectly to interfere with the Courts established under Article 175(1) of the Constitution and/or to supplant them.”

 

29. The learned counsel further submitted that the Motorway was initiated to strengthen the links with the Central Asian Republics to earn revenue, just as Suez Canal does for Egypt. Repelling the contention in paragraph 25 of the written statement learned counsel referred Syed Jalal Mehmood Shah’s case PLD 1999 SC 395, wherein this Court validated the Governor Rule but scrutinized the notification only in respect of powers of Speakers and Deputy Speakers.

 

He also read out last paragraph from page 400 of the report, which reads thus:-

 

“In a Parliamentary form of Government the Legislature not only legislates but it is also instrumental for the election/appointment of the Prime Minister or the Chief Minister and the Members of the Cabinet, as the case may be, inasmuch as only the Member commanding the majority of the Members of the Parliament/Provincial Assembly can be elected/appointed as the there was dictatorship of the Prime Minister under the cover of democracy, the steps were taken by the Government of the chosen Representatives to put economy on sound footings, the democratic Government showed highest respect to the Superior Judiciary.

 

12.       That the Federal Government, comprising the Prime Minister and its Cabinet were only responsible to the National Assembly under Art. 91(4) of the Constitution, and, the Chief of the Armed Forces, who had been removed by the Prime Minister on 12-10-1999, in the exercise of his Constitutional and lawful authority, cannot be allowed to be a Judge on the acts and deeds of the Prime Minister, Members of the Cabinet, the Chief Ministers, the Provincial Cabinets and the Members of the two Houses and the Provincial Assemblies.

 

13.       The petitioner has established beyond any doubt that the impugned Proclamation of Emergency And PCO 1 of 1999 and the entire super-structure of actions/declarations of respondent No. l ‘based thereon, lack constitutional and legal authority. and merit grant of relief claimed in Paras. (a) to (h) and (1) in C.P. No. 62 of 1999 by accepting the petition with costs. “‘

 

                                    CONSTITUTION PETITION N0.63 OF 1999

 

32. Mr. Khalid Anwar, learned Senior ASC, appearing on behalf of the petitioners in Constitution Petition No. 63 of 1999, submitted that he represented the petitioners from very wide spectrum including Speaker, National Assembly, Chairman Senate, the Leader of the House in the Senate with members of Provincial Assemblies and various political parties across the political divide.

 

33. At the outset, Mr. Khalid Anwar has placed on record formulations of his main points as follows:

 

Formulation of Main Points

 

“I.         The central point can be stated quite simply. Pakistan was being governed under the Constitution of Pakistan. The validity of the Constitution has not been; and cannot be, challenged by any one. With effect from October 12, 1999 an authority unknown to law has purported to suspend the Constitution. It is not for the Petitioners but for the Government to justify this;

 

So far no justification has been forthcoming. The Written Statement contains a vague reference to the so-called “Doctrine of Necessity”. This doctrine, has, firstly, not been defined, secondly; its scope and ambit has not been set out, and, thirdly, it has not been explained as to how it could have been invoked in the circumstances prevailing on that day or how long it will last;

 

This doctrine has been referred to in the case of Begum Nusrat Bhutto. On the assumption that that case was correctly decided (which assumption is not admitted) there can be no conceivable doubt that the ratio of that case is wholly inapplicable for the following inter alia reasons:

 

(i)         In that case the factual position was that since the elections had been massively rigged there was no Constitutional Government in existence. There being a vacuum it had to be filled in.

 

(ii)        There had been a total collapse of law and order and the civil Government was incapable of controlling the nationwide agitation.

 

(iii)       No legal means existed for filling in the vacuum.

 

(iv)       The C.M.L.A. announced that his sole intention was to hold elections. .

 

(v)        The C.M.L.A. did not have a seven point agenda existing for upto twenty years.

 

(iv)       The Attorney-General made a solemn commitment to the Supreme Court that elections would be held within six months.

 

(vii) The Chief Justice certified the sincerity of the C.M:L.A. in the above circumstances and observed that it would be very unfair to doubt his commitment.

 

(viii)The avowed intention of the C.M.L.A. was to preserve the Constitution.

 

(ix)       The C.M.L.A. did not announce in advance that he would not permit the electorate to elect specified political leaders.

 

“None of the above criteria are fulfilled in the present case. Therefore, even if the reasoning in Begum Nusrat Bhutto’s case was correct that would not justify the Government’s stand in the present matter.”

 

“II.       We now come to the second question which relates to the correctness of the decision in Begum Nusrat Bhutto. Reliance was placed on the earlier judgment by Munir, C.J. in the case of the Governor-General’s Reference, 1955 (hereinafter referred to as the “Reference”). Unfortunately there was no application of mind to the question as to whether the facts of that earlier case were at all applicable in the changed circumstances of 1977. This is despite the fact that the fundamental difference was glaringly obvious. In the earlier case the entire discussion proceeded on the hypothesis that the Head of State had a supreme obligation to take all necessary steps for the preservation of society. Obviously this, is completely different from the present situation.

 

There was also no application of mind as to the criteria laid down by Munir, C.J. He had stated that:

 

(i) There must be a condition (i.e. situation) of “absoluteness, extremeness and imminence”. In other words, there must be an immediate situation requiring action now for which no Legal remedy is available at all.

 

(ii) The act must have been done under stress of necessity, and this necessity must be referable to a need to preserve and prevent from dissolution, the Constitution, the State or the Society.

 

(iii) The act must be done bona fide.

 

(iv) Additionally the act must only be of a temporary nature and the remedy .must be proportionate, i.e. no more than is necessary to remedy the situation..

 

“In the facts of the present case. one thing is clear beyond any doubt: whatever the crisis, whatever the emergency, whatever the necessity, there had been a complete resolution in favour of the Army Command within a matter of two hours at most. By that time the Army was in full control, the former Prime Minister had been islodged and arrested, the country was completely peaceful and quiet. What then prevents the holding of fresh elections?

 

“The above is on the assumption that Munir, C.J.’s views regarding the doctrine of necessity are correct. In fact there is a complete consensus in the legal community that his opinion derailed the country from the constitutional track and caused a decisive setback to the nation.

 

“III. In the Petition an objection has been taken as to the nature of the so-called Proclamation of Emergency. In what way is this different from Martial Law. This objection remains unanswered despite a lengthy Written Statement having been filed by the Government. It follows, therefore, that the Government has no answer to ‘this objection either.”

 

34. Elaborating his above formulations, he submitted that the written statement has not addressed the questions raised. in. the petition, inasmuch as, the petition has been filed by various elected persons whereas the written statement solely targets Mian Muhammad Nawaz Sharif, the former Prime Minister, who is not petitioner in the instant petition, and levels various allegations of mismanagement, corruption and even of hijacking (though sub judice) against him and, thus, seeks to justify the action of 12th October, 1999. He argued that assuming that Mian Muhammad Nawaz Sharif was guilty of various charges levelled against him in the written statement, but this fact does not justify that the Constitution, which is the real petitioner, should be condemned and the constitutional dispensation should come to an end. He further submitted that it is the blessing of the Constitution that various office holders including the Judges of this Court and the Attorney-General for Pakistan are holding their respective offices.

 

35. Mr Khalid Anwar then dilated upon the significance of judicial power which, according to him, means that the Court can strike down a law as the Supreme Court did in Mehram Ali’s and Sh. Liaquat Hussain’s cases. He emphasised that the nature of judicial power and its relationship with jurisdiction are all allied concepts and contended that one facet of judicial power cannot be taken away though jurisdiction can be curtailed but this has to be decided by the Court itself. He submitted that the concept of judicial review was laid down in the United States by Chief Justice John Marshal in the case of William Marbury v. James Medison (2 Law Ed. 60), wherein the US Supreme Court had observed that it Vas inherent in the nature of judicial power that the Constitution was regarded as the supreme law and any law or act contrary to it or infringing its provisions was to be struck down by the Court and that this was the duty and function of the Court to enforce the Constitution. He argued that the concept of judicial review did not exist in England because the supreme law in England was that the Queen in Parliament can do anything and that once an Act of Parliament had been passed, the Courts were to follow it. The Founding Fathers of the United States Constitution, however, deviated from it and in doing so indeed followed the view expounded by Montesquieu in his treatise “Spirit of Law”, which enumerates the concept of separation of powers: the judicial, the legislative and the executive powers, who based his opinions on the practice, but not the law of England, in that, in practice, there was separation of powers in England but constitutionally that was not. He submitted that unlike Constitution of Pakistan, the Constitution of United States does not confer power on the Supreme Court to strike down laws but the Supreme Court of United States stated so in the case of William Marbury v. James Medison (supra).

 

36. Mr Khalid Anwar then analyzing the Proclamation of Emergency, posed two questions: (i) what was the source of power to issue the Proclamation and (ii) what was the nature of power that had been exercised, and contended that so far as the deliberations/discussions of the Chiefs of the Armed Forces and Corps Commanders were concerned, these were only a historical fact and not a source of power. He argued that a Proclamation of emergency can never be a source of power and that an `emergency’ issued under Article 232 of the Constitution does not include the power to suspend the Constitution, therefore, the power so exercised under the present Proclamation of Emergency was a new concept, unknown to the jurisprudence of Pakistan. The learned counsel further argued that as per the Proclamation, respondent has assumed the office of Chief Executive whereas no such office exists, though the office of Chief Executive did exist in the Original Constitution under Article 90, prior to adoption of 8th Amendment, which reads thus:

 

“90       (1) Subject to the Constitution, the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the Federal Ministers which shall act through the Prime Minister who shall be the Chief Executive of the Federation.”

 

Mr Khalid Anwar then went on to quote the definition of “Proclamation” given in Black’s Law Dictionary, which is as follows:

 

“Proclamation. ---The act of publicly proclaiming or publishing; a formal declaration; an avowal; a public announcement giving notice of a governmental act that has been done or is to be done. The act of causing some governmental matters to be published or made generally known. A written or printed document in which are contained such matters, issued by proper authority, usually by a high governmental executive (President, Governor, Mayor).

 

“The declaration made by the bailiff, by authority of the Court, that something is about to be done.

 

“In equity practice, proclamation made by sheriff upon a writ of attachment, summoning a defendant who has failed to appear personally to appear and answer the plaintiff’s bill.”

 

37. The learned counsel then read out the first speech of the respondent delivered in the early hours of 13th October, 1999, scrutinized its contents and contended that in Chief Executive’s. own words, the situation in the country was calm, stable and under control, therefore, there was no need for issuance of the Proclamation. He made comparison of the present situation vis-a-vis the conditions which prevailed in July, 1977 and argued that due to chaos and political unrest, the constitutional machinery had completely broken down in 1977. Mr. Khalid Anwar reiterated that the Court should examine the source of power behind the issuance of Proclamation by resolving the question whether a Proclamation, in the absence of law, ipso facto, could be a source of power for any authority. He referred to extracts from the book titled, “The Constitutional History of England” by F.W. Maitland, which reads thus:-

 

“A still better illustration, however, at once of the actual tractability of parliaments and of the theoretic supremacy of king in parliament is afforded by an act of 1539, which has been called the Lex Regia of England, and the most extraordinary act in the Statute Book -power was given to the king to make proclamations with the advice of his council, or a majority of his council, to make proclamation which should have the force -of statutes; the punishment for disobedience might be fine or unlimited imprisonment; it was not to extend to life, limb, or forfeiture. This act was repealed in the first year of Edward VI - you will at once see the importance of its enactment and its repeal; they seem distinctly to confirm the doctrine that the king is not supreme, king and parliament are supreme; statute is distinctly above ordinance or proclamation; statute may give to the king a subordinate legislative power, and what one statute has given another statute may take away.”

 

“This act, however, was at once repealed on the accession of Edward VI, by a statute of 1547………”  

 

“We must now look at the powers wielded by the king with the assistance of his council. We will bring the subject under four heads - (1) legislation, (2) taxation, (3) judicature, (4) administration…….”

 

“In 1610 the commons protested - `it is the indubitable right of the people of this kingdom not to be made subject to any punishment that shall extend to their lives, lands, bodies or goods, other than such as are ordained by the common laws of this land, or the statutes made by their common consent in parliament…………………By reason whereof there is a general fear conceived and spread among your majesty’s people, that proclamations will, by degrees, grow up and increase to the strength and nature of laws.’ To all this, and there is more of it, the only answer is that the proclamations shall go no further than is warranted by law.”

 

“Before this answer was given the great oracle of the law had been consulted. Coke, then Chief Justice of the Common Pleas, was summoned to the council, and the question was put to him, whether the king by proclamation might prohibit the erection of new buildings in London and the making of starch from wheat. He was pressed to answer in the affirmative. He refused to answer without consulting his brethren. He consulted with three Judges, and they answered that the King cannot by his prerogative create any offence which was not one before, but. the King may by proclamation admonish all his subjects that they keep the laws and do not offend them upon punishment to be , inflicted by the law-neglect of a proclamation aggravates the offence; lastly, if an offence be not punishable in the Star Chamber, the prohibition of it by proclamation cannot make it so. This probably was sound law-that is to say, there was a distinct precedent for it coming from the middle of the Tudor period. In Mary’s reign the Judges had delivered this opinion: “The King, it is said, may make a proclamation quoad terrorem populi, to put them in fear of his displeasure, but not to impose any fine, forfeiture, or imprisonment: for no proclamation can make anew law, but only confirm and ratify an ancient one.’ But though James I had the opinion of his Judges against him, still he went on issuing proclamations. It is difficult for us to realize the state of things -that of the Government constantly doing what the Judges consider unlawful. The key is the Court of Star Chamber--the very council which has issued these proclamations enforces them as a legal tribunal, and as yet no one dares resist its judicial power.”

 

“(2) It seems probable that at the beginning of Elizabeth’s reign the opinion of the Judges was taken by the council as to the legality of these impositions, and that their opinion was not favourable. The queen, however, did not abandon the impost, that she herself set an impost on sweet wines. James imposed a duty on currants over and above the tax which was set on them by the statute of tonnage and poundage. Bate refused to pay……………I think, we must say that the King succeeded in obtaining from the barons of the Exchequer a declaration that there is a large sphere within which there is no law except the King’s will. `The matter in question is material matter of state, and ought to be ruled by the rules of policy; and if so, the king has done well to execute his extraordinary power .... .... .... .... .... .... .... .... .... .... ....They said that the king cannot set impositions upon imported goods at his pleasure, but that he may do so for the good of the people, thus, if foreign princes set taxes on English goods the king may retaliate. Their doctrine seems to have been that the king may not set impositions merely for the sake of revenue, but that he may do so for other ends, as for the protection of English merchants: obviously this is an unstable doctrine ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...They carried a bill enacting that no imposition should be set without the consent of parliament, but the lords rejected it. The immediate consequence had been that in 1608 the king, having the judgment in Bates case at his back, issued a book or rates imposing heavy duties upon almost every article of merchandise. The subject was resumed in the short parliament of 1614; the commons passed a unanimous vote denying the king’s right of imposition. They refused to grant any subsidy until this grievance should be redressed. James dissolved the parliament.”

 

It is by means of the judicial power of the Court of Star Chamber that the king enforces his proclamations. We have already said something of this Court. Let us remember that a statute of 1487 (3 Hen, VII, c.I) gave authority to certain persons to punish certain crimes. These persons are the chancellor and treasurer of England and the keeper of the privy seal, or two of them, calling to them a bishop and a temporal lord of the king’s council and the two chief justices, or in their absence two other justices. The offences that they are to punish are riots, unlawful assemblies, bribery of jurors, misdoing of sheriff, and some others which we may describe as interference with the due course of justice. It is evidently contemplated by the statute that the accused persons will not be tried by jury. The statute does not mention the Star Chamber, but that is a room which the council has long used ... ... ... ... ... ... ...

 

(b)        It did not confine itself to dealing with the crimes specified in the statute of 1487. Its jurisdiction over crime was practically unlimited, or limited only by this-that it did not pass sentence of death. We know it best as dealing with what may be called political crimes-sedition and the like; but it dealt also with commoner offences-robbery, theft, and so forth. It dealt with some misdoings for which the common law had as yet no punishment, in particular with libels.”

 

“Now was this the Court created by the statute of Henry ~ VII? Under Charles I (for we must anticipate this much) the opinion had gained ground that it was, that consequently whatever it did beyond the. sphere marked out by that statute was an unlawful usurpation of jurisdiction.”

 

“... ... But that it was a tyrannical Court, that it became more and more tyrannical, and under Charles I was guilty of great infamies is still more indubitable. It was a Court of politicians enforcing a policy, not a Court of Judges administering the law. It was cruel in ifs punishments and often had recourse to torture. It punished jurors for what it considered perverse verdicts; thus, it controlled all the justice of the kingdom. The old process of attaint, of which we have before spoken, had long gone out of use, but in the Star Chamber the jurors had- to fear a terrible tribunal which would resent a -verdict against the king.”

 

“On 22nd January, 1655, Cromwell dissolved this body. His third parliament met on 17th September, 1656; it offered him the kingly title which he refused; it instituted an upper house consisting of his nominees, and then fell quarrelling as to whether this was a House of Lords. On 4th February, 1658, he dissolved it; on 3rd September he died.”

 

“The parliament was the Convention Parliament, and of some of its doings we have already spoken. With the King’s assent, for Charles was restored in May, it passed an act declaring the dissolution of the Long Parliament; it was dissolved on 29th December, 1666. Charles’s second parliament met on 8th May, 1661, and was not dissolved until 31st December, 1678, having, thus, sat between seventeen and eighteen years.

 

“The second parliament met on 20th May, 1690; it held six sessions and was dissolved in the autumn of 1695. Meanwhile it had passed another Triennial Act-carefully to be distinguished from the acts of 1641 and 1664. It was passed in 1694 (6 and 7 William and Mary,c.2). This act was directed not so much against intermissions of parliament, though it repeated what was already law, namely, that a parliament shall be holden once in three years at least, but against long parliaments: no parliament is -to endure for more than three years-it is then to die a. natural death:”

 

38. Mr Khalid Anwar, quoting relevant extracts, traced the history of evolution of the `doctrine of necessity’ and its ultimate rejection by the British Courts. By referring the case law he contended that the `doctrine of necessity’ and Divine Rule by King/Queen, was buried long ago by the British Courts but in Special Reference No. 1 of 1955 PLD 1955 FC 435, wherein opinion was authored by Muhammad Munir, the then Chief Justice, this doctrine was resurrected and that doctrine of necessity. was applied in Begum Nusrat Bhutto’s case (supra) and the same is now being sought to be employed by the respondents in the present case, though it stands rejected in a recent judgment passed by this Court, in Sh. Liaquat Hussain’s case (supra) PLD 1999 SC 504.

 

39. Mr Khalid Anwar, however, elaborated that the `doctrine of necessity’ is accepted as a defence in criminal prosecution and tortuous acts, which concept is different from that of State necessity and this Court in the case of Begum Nusrat Bhutto PLD 1977 SC 657, mixed the two and thereby found justification for legalizing Martial Law. He submitted that except 1973 Constitution, all the previous Constitutions had clauses providing 4or acts of indemnity. To substantiate his point of view, the learned counsel referred to a book by Glanville William on “Law of Necessity” at page 216 whereof, under the heading, “The Defence of Necessity” it has been observed:

 

“The defence of necessity is not so much a current as a perennial legal problem. The Chinese sage Mencius, a contemporary of Plato and Aristotle, was asked by K `wan: `Is it the rule that males and females shall not allow their hands to touch in giving or receiving anything?’ Mencius replied: `It is the rule’. K `wan asked: `If a man’s sister-in-law be drowning, shall he rescue her with his hand?’ Mencius said: `He who would not so rescue the drowning woman is a wolf. For males and females not to allow their hands to touch in giving and receiving is the general rule; when a sister-in-law is drowning, to rescue her with the hand is a peculiar exigency.’ .

 

“Notwithstanding the doubts expressed by some modern writers, one can say with some assurance that the defence is recognised by English law. This does not even need judicial authority; it can be proved by a hypothetical example. P is rendered unconscious in an accident, and an immediate operation is necessary to save his life. D, a Surgeon, performs this operation; afterwards P ungratefully prosecutes him for assault. What defence had D? Not the surgeon’s usual defence of consent, for here P was unconscious throughout. D’s only defence is that of necessity, and it can hardly be doubted that this is open to him.”       

 

“The law for necessity dispenses with things which otherwise are not lawful to be done’. Sir William Scott said in The Gratitudine (1801): `Necessity creates the law;-it supersedes rules; and whatever is reasonable and just in such cases, is likewise legal’.

 

“ILLUSTRATIONS OF NECESSITY”

 

Examples of necessity given in the old books are: pulling down a house to prevent a fire from spreading; jurors departing from the Court without leave of the Judge because an affray breaks out and they are in peril of death; prisoners leaving a burning jail; and jettisoning cargo to lighten a boat in a storm. In modern times the most striking application of the defence was in R. v. Bourne, where necessity was, held to justify abortion.”

 

Reference was also made to the following passages from the above book at page 223, under the sub-heading, “The Theoretical Basis” wherein it has been observed:

 

“It is time to turn to the theoretical question: What is the basis of the defence of necessity? Bacon thought that an act done under necessity was not voluntary; but we no longer hold that opinion. An act dictated by necessity is still an exercise of the will, as Hobbes pointed out: `There is nothing there involuntary, but the hardness of the choice’. Strictly speaking there is perhaps no such thing as necessity, in the context in which lawyers speak of it. A particular act is never necessary, in the sense that there is literally no option, even though the only alternative is one’s own death. One is reminded of the Comte d’Argenson’s reply to the Abbe who had excused himself for writing scurrilous attacks, on the ground that `he must live’-’I do not see the necessity’.

 

“What it comes to is this, that the defence of necessity involves a choice of the lesser evil. It requires a judgment of value, an adjudication between competing `goods’ and a sacrifice of one to the other. The language of necessity disguises the selection of values that is really involved.”

 

“If this is so, is there any legal basis for the defence? The law itself enshrines values, and the Judge is sworn to uphold the law. By what right can the judge declare some value, not expressed in the law, to be superior to the law? How, in particular, can he do this in the face of the words of a statute? Does not the defence of necessity wear the appearance of an appeal to the Judge against the law?

 

“The doubts cast upon the doctrine of necessity come from those who fear its abuse; and abused it certainly has been, as in the terrible case of Gregson v. Gilbert (1783), where 150 slaves were pushed overboard, because water was running short. It was under the plea of State necessity that the Star Chamber used the rack to extract information not only from the accused but even from witnesses. Yet it is ancient wisdom that the abuse of a rule does not take away its uses-abusus non tollit usus. `Sir’, said Johnson, you must not neglect doing a thing immediately good, from fear of remote evil from fear of its being abused. A man who has candles may -sit up late, which he would not do if he had not candles; but nobody will deny that the art of making candles, by which light is continued to us beyond the time that the sun gives us light, is a valuable art, and ought to be preserved’

 

“Some fear the effect that an argument of State necessity may have upon private rights and individual liberty. `Necessity’, declared Pitt. ‘is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves’ ....................... First, Coke: ` The law of God saith, Non facias malum, ut rode fiat bonum’-thou shalt not do evil, that good may come thereof. On the other hand Wilmot, L.C.J., asserted roundly that `the end directs and sanctifies the means’; and Bentham in effect agreed. Bentham’s qualifications do not essentially affect his acceptance of the maxim. `The end justifies the means. Yes: but on three conditions, any of which failing, no such justification has place.”

 

(1)  One is, that the end be good.

 

(2) That the means chosen be either purely good, or if evil, having less evil in them than on a balance there is of real good in the end.

 

(3)        That they have more of good in them, or less of evil, as the case may be, than any others, by the employment of which the end might have been attained’.

 

“Many will think that, even with these conditions, some means are ethically barred irrespective of ends. The opposite doctrine that ends can justify means that lying, trickery and torture are all right so long as you do them from a good motive-is now commonly regarded as being characteristic of Communism and Totalitarianism. There are ethical differences between Communist and free societies, but I do not think they can be stated so simply as this. In England we hang and incarcerate criminals, and such punishments can be justified only by reference to their purpose………”

 

“In reality the difference between the two views seems to be one of emphasis. Most of us think that the moral values we cherish are, in the long run, more important for society and for human welfare than any gain that may seem immediately to accrue from disregarding them. This attitude does not altogether exclude a saving for necessity.”

 

“Bacon attempted to restrict the doctrine of necessity by saying that it was an-excuse only for invading private rights, not where the act was against the commonwealth. Necessity privileges quoad iura privata, but necessitas publica maior est quam privata. The examples given by Bacon clarify his meaning. You may throw cargo overboard in a storm to lighten the vessel, but not if the cargo consists of ordnance and munitions which you have been commanded to take to relieve a besieged town. You may pull down a -house to stop a fire spreading, but you may not, if attacked in a house, set fire to it as the only way of saving your life. In the latter case, if the fire that you start spreads to a neighbour’s house, you are liable to him in damages. Bacon concocted this somewhat fanciful illustration to help his point; there is no judicial authority on it. Bacon went on to say that a man may commit a mere trespass to save his own life; a trespass is not a thing against the commonwealth, as setting fire to houses is. It is clear from this example that what is involved is an assessment of values; the infliction of an evil is justifiable if it is the lesser of two alternative evils

 

“A second limitation postulated by Bacon was that necessity is no defence where the exigency was caused by the fault of the actor.”

 

“NECESSITY AND PREROGATIVE”

 

“A further element of confusion arose in public law. At first sight the doctrine of necessity is somewhat difficult to separate from the prerogative. The difference is that the defence of necessity is open to everybody, . while the prerogative relates only to the King…………” “On the other hand there were some politically necessary things that only the King could do; these belonged to his prerogative. Thus, he could (and can) erect sea walls and embankments against sea or tide, and enter the land of a subject to do to. It was said that before Magna Carta, c.21, he could take wood for the repair of his castles. He requisitioned ships, subject to the payment of compensation, and by the prerogative of purveyance similarly requisitioned provisions for his household and armed forces, including even the impressment of labour. Such powers rested upon the prerogative justified by necessity. In the Case of the King’s Prerogative in Saltpetre (1606), the Judges declared that the King had a prerogative to dig for saltpetre, for the necessary defence of the realm, notwithstanding that gunpowder had been invented within time of memory. The opinion, which was an advisory one, was hedged about with various qualifications, and reads more like a piece of legislation than a statement of existing law. The King was required to restore the place afterwards; and in practice compensation was paid.

 

“This doctrine of State necessity was brought into bad odour by the excesses of Charles I. Trying to govern without Parliament, Charles justified the exaction of ship-money on the ground of public necessity. Now if it were assumed as a premise that Parliament was not there to grant money, the exaction was necessary, and might reasonably have been regarded as lawful. The weakness in the King’s case was that he was deliberately refraining from summoning the constitutional organ for taxation. The necessity was, therefore, a self-induced necessity, which in law is not one at all. Although Hampden lost, when he challenged the tax, it is the subsequent reversal of the decision by a special statute of 1640 that is taken to settle the legal principle.”

 

“Since the Revolution the law may be stated as follows. The King cannot acquire new prerogatives by reference to State necessity. The Case of Saltpetre, though not overruled, is based upon an obsolete political philosophy. However, necessary the behaviour, the Government must today invoke the aid of Parliament if the behaviour involves breaking the letter of the law. It can act under the doctrine of necessity only to the same extent as a private person. Parliament’s alleged failure to give adequate powers cannot be an excuse for conduct, because the necessity of the powers claimed is for Parliament to decide, not for the Judges over the head of Parliament. The question is not whether it is necessary to do the act but whether it is necessary to do it without the sanction of Parliament.”

 

“Paradoxically, this seems to give necessity less scope in public than in private law. The doctrine is a dispensing power exercised by the Judges when Parliament cannot reasonably be expected to act. Since Parliament generally can act in great national emergencies, the doctrine is less applicable to these than it is to the minor troubles of individuals.”

 

“This does not altogether exclude necessity in public affairs. At one time the Parliamentarians might have wished to confine it in this way, for they were impressed more by the danger of the notion than by its utility. Milton called necessity “the tyrant’s plea”; and Selden said: ‘there is not anything in the world more abused than this sentence, salus populi suprema lex esto’. Cromwell declared: `Necessity hath no law. Feigned necessities, imaginary necessities are the greatest cozenage that men can put upon the Providence of God, and make pretences to break known rules by’.’ It is this attitude of mind that explains such sweeping judicial utterances as that of Prat, C.J., in Entick v. Carrington (1765): `With respect to the argument of State necessity, or a distinction that has been aimed at between State offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions’. Notwithstanding the esteem in which this pronouncement is commonly held, it does not seem to represent the law. Our books do take notice of State necessity in the particular matter of throwing up bulwarks against the enemy, to mention only one. The view of all lawyers who have considered the subject is that the Crown may by necessity use force to quell insurrection or repel invasion; and this is about all that a so-called declaration of martial law within the realm amounts to. It is also clear from Humphrey v. O’Connor (1864) that a constable may commit what would otherwise be an assault upon an innocent person if that is the only way of preserving the peace.”

 

“A more difficult case of State necessity was presented in R. v. Stratton (1779). The Governor of Madras acted illegally and unconstitutionally in refusing to count the votes of some of the members of his Council. Councillors accordingly imprisoned him for eight months and carried on the Government themselves. Upon being indicted in England they set up the defence of necessity. Lord Mansfield directed the jury that the defence was one of `civil or State necessity’. He remarked:-.

 

`In India you may suppose a possible case, but in that case, it must be imminent, extreme necessity; there must be no other remedy to apply to for redress; and in the whole they do, they must appear clearly to do it with a view of preserving the society and themselves……………What immense mischief would have arisen to have waited for the interposition of the council at Bengal?’

 

“The jury returned a verdict of guilty. Notwithstanding Lord Mansfield’s direction, it may be doubted whether the doctrine of necessity is appropriate to such politically harmful effects as the defendants in that case tried to avoid. In all other cases where the doctrine of necessity has been invoked, the harm sought to be avoided was of an immediate and physical kind. It is submitted that indirect social evils are for the consideration of the legislature, and do not fall within the purview of the doctrine.”

 

40. Repelling the plea on behalf of the Federation that the Judges of the Superior Courts, after having taken oaths of their offices under the PCO, are bound to defend the same, in that, the old Constitution has been replaced by a new revolutionary order, Mr Khalid Anwar vehemently contended that it is incorrect. To meet the argument, he referred to the book titled “Principles of Revolutionary Legality” authored by J.M. Eekelaar, wherein at pages 29-30 and 39 to 43, it has been observed as under:

 

“Indeed, in most societies the Courts are the means, recognized by rulers and ruled alike, through which questions of validity and legitimacy are resolved. In practical terms, then, whether the `ruled’ can be taken to have accepted the validity of the rule-making authorities and, indeed, whether there exists a ‘juristic postulate’ about this validity depends upon whether this validity has been accepted by the Courts. Jurisprudence can in this way recognize that a society whose judicial agencies accept its rulers as legitimate is radically different from one in which this acceptance is lacking.

 

Rules and Principles

 

“If the Courts choose to. follow their duty and apply the `law’ so defined, an absurd result could be reached. If an absolute monarch died without making provision of a successor, the `law’ would compel them to insist on regarding him as the lawful ruler. To avoid such futility, it would be reasonable to limit the legitimacy of a ruler to the period in which he remains in effective power.”

 

Constitutional Principles

 

“The present purpose is not to attempt to make an exhaustive list of the kinds of principles that may be relevant to a decision whether revolutionary activity should be given legal justification, but the more limited one of salvaging this area of investigation from total extinction by the operation of positivist dogmatism. But it may be helpful to set out some of the principles which may be pertinent to revolutionary situations:

 

1.         The principle of effectiveness.

 

2.         The principle of legitimate disobedience to authority exercised for improper purposes.

 

3.         The principle of necessity.

 

4.         The principles that violation of a right demands a remedy and that no one should profit from his own wrongful act. As a .revolution will invariably have involved the violation of some of the `rights’ protected by the previous Constitution, a combination of hose principles suggests that, even if the new order is considered legitimate, some recompense should be offered to those whose rights were infringed.

 

5          The principle that a Court will not permit itself to be used as an instrument of injustice.

 

6          The principle that it is in the public interest that those in de facto impregnable control should be accorded legal recognition. This was the main principle upon which the four Commonwealth tribunals rested their decisions. Put more crudely, the principle states that might, once established, ipso iure becomes right. It gives effect to the acceptable policy value that it is in the interest of the community that order be preserved. But one might be reluctant to hold that it is the only relevant principle and that there cannot be others which would militate against automatically accepting revolutionaries as legitimate regardless of any other circumstance..

 

7          The principle, common to both public and private international law and which Grotius considered a central tenet of natural law, that promises are to be kept: pacta sunt servanda. A Government elected under a Constitution expressly or impliedly pledges with the electorate that it will hold to the Constitution. If it abrogates that Constitution, it breaks faith with the electorate and, therefore, contravenes this principle unless and until it submits itself once more to the same electorate to express its acceptance or rejection of the action.

 

8          The principle that government should be by the consent of the governed, whether voters or not. There is nothing new in this principle. Authority can be found in political writings at least from the Middle Ages to the present day.

 

9          International law now probably supports the principle of the right to self-determination and of the unacceptability of relied discrimination. As the Rhodesian Court, in particular, relied heavily on an appeal to international law for support for the principle it in fact applied (that revolutionary success demands legal recognition) it would have been proper to have weighed against that principle other norms of international law relevant to the situation.”

 

Authority of the Court

 

“In concluding the defence of the proposition that principles of the kind enumerated above may properly be taken into account by a Court in order to determine whether or not to uphold the legitimacy of a revolutionary regime, it is necessary to consider two oblique arguments which would attempt to undermine it. One is to take theoretical objection to the jurisdiction of a Court which indulges in the exercise. The claim is that, as the Court acquired its authority to determine disputes by ‘virtue of jurisdiction conferred on it by the old Constitution, the disappearance of that Constitution implies the collapse of the court’s own authority. The other argument is the severely practical one that, whatever the legal theorist or the Judges may say, any Court making a finding adverse to a revolutionary regime is certain to be disbanded so that in reality a judiciary will be allowed to function only if it is subservient to the new regime.

 

“The second questionable premises is that by suffering the Court to continue to function, the new executive thereby assimilates the Court into its own revolutionary order and that this compels the de jure recognition of the Government. But against this it might be urged that the very .submission by the revolutionaries to litigation before the Court concerning their own legitimacy suggests that the Court may have an inherent authority arising from the submission of both parties, rulers and ruled, to its jurisdiction.

 

“The dismissal of Judges is an extreme step which might have dangerous domestic and international consequences for a revolutionary executive. Nor should it be too readily assumed that a regime which takes this step will easily find a replacement judiciary without leaving itself open to ridicule………………….Had the Rhodesian Court, for example, held that the revolutionary regime could be considered lawful only if confirmed in office by the electorate which had elected them under the old Constitution and if some satisfactory evidence was produced that the new Constitution was broadly acceptable to the majority of the population (in accordance with principles 7 and 8 listed above) is it inconceivable that the regime might have preferred to attempt to comply with that  finding rather than to dismiss the Judges? The opportunities open to the judiciary to influence the course of events should not be dismissed out of hand. It may be that this is unaccustomed territory for the judiciary to enter. But this is rue for many areas of law in modern times, especially with respect to the interaction between the executive and the citizen. It is hard to believe that our legal and cultural tradition is too weak to develop sound and acceptable principles in this new context. But in order that they may take root, it is necessary to rid ourselves of the conceptual block which would forever bar the entry of juristic thought into this domain. “

 

41.       According to the learned counsel the history of civilization is indeed he history of evolution of the doctrine of separation of powers. Thus, no matter if one is the wisest such as Socrates, the most knowledgeable such as Aristotle and the most virtuous such as Imam Abu Hanifa, all need be subject to the limits of checks and balances to prevent tyranny. He then quoted references from the book titled CASES IN CONSTITUTIONAL LAW authored by D. L. KEIR and F. H. LAWSON, 5th Edition, at pages 73 to 116, which are as follows:

 

“By the word prerogative we usually understand that special preeminence, which the king hath, over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity. It signifies, in it’s etymology (from prae and rogo), something that is required or demanded before, or in preference to, all others. And hence it follows, that it must be in it’s nature singular and eccentrical; that it can only be applied to those rights and capacities which the king enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects: for if once any one prerogative of the crown could be held in common with the subject, it would cease to be prerogative any longer. And, therefore, Finch lays it down as a maxim, that the prerogative is that law in case of the king, which is law in no case of the subject.”

 

“1.        The King’s `special pre-eminence’ carried with it certain property rights which he enjoyed as feudal lord and conferred on him certain advantages in litigation. Such had throughout the Middle Ages been the meaning generally, and almost solely, attached to the term Prerogative. The apocryphal statute Praerogativa Regis, in the thirteenth century, was wholly concerned with the King’s exceptional rights as feudal lord. The chief among his advantages in litigation was that he could not be made defendant to an action at law; this was hardly a prerogative in the earlier Middle Ages since it was shared by other lords, being. merely an application of the feudal rule that a lord cannot be sued in his own Court. It later came quite correctly to be regarded as a prerogative; for which the King’s Courts had become national Courts and absorbed the greater part of the legal business of the country, the King’s immunity ceased to have any real connexion with feudalism. It was further recognized that the King’s goods and chattels were under no tribute, toll, or custom, nor otherwise distrainable. Such prerogative as these were capable of full enumeration and description. They were that part of the common law which concerned the King, and could be discussed and applied by the Courts in West-minister Hall.”

 

“2.        But the Stuarts had also inherited from their medieval predecessors powers of Government which were not so defined. True, the medieval lawyers had held the view that the law was a bridle on the King, and in their famous maxim, `The King can do no wrong’, they had insisted that his power extended to do only what was right. They held, further, that the King could do certain things only in certain ways………………..”

 

“Yet even in the exercise of his residuary powers he was considered to be subject to law. The power of supplementing and overriding positive law was given to him, not that he might arbitrarily exert his own personal will, but that he might provide for cases where the positive law either was insufficient or worked injustice. Moreover, he was in practice dependent for the execution of his decisions on the cooperation of persons whom he could not effectively control. The characteristic vice of Government in the later Middle Ages was not the arbitrary power but the executive weakness of the King.”

 

“It was expressed in the maxim that the King can do no wrong. This maxim lost its medieval significance and came to mean first that no intention of abusing his power can be attributed to him, and finally that whatever he does is right.

 

“The gist of the decision was that the King might impose what duties he pleased if it was only for the purpose of regulation of trade and not of raising revenue, and the Court could not go behind the King’s statement that the duty was in fact imposed for the regulation of trade.”

 

“We are of opinion, that when the good and safety of the kingdom in general is concerned, and the whole kingdom in danger, your majesty may, by Writ, under the Great Seal of England, command all the subjects of this your kingdom, at their charge, to provide and furnish such number of Ships, with men, munition, and victuals, and for such time as your majesty shall think fit, for the defence and safeguard of the kingdom from such danger and peril; and that by law your majesty may compel the doing thereof, in case of refusal or refractoriness. And we are also of opinion, that in such case, your majesty is the sole Judge, both of the danger, and when and how the same is to be prevented and avoided.”

 

“Recourse must be had to ordinary means before extraordinary, but if the latter are . necessary (and Salus populi suprema lex) a parliament should be summoned.”

 

“2. The Parliament moves too slowly to be consulted in an emergency. Answer: even in the Statute of Proclamations, 31 Hen. 8, which was made to provide for emergencies, power to tax by proclamation without parliamentary consent is expressly excluded. 3. Some time the existence of danger will justify taking the subject’s goods without his consent. Answer: admitted, but this is only in case of immediate danger, when the necessity of self preservation overrides all law. It is not a prerogative, but belongs equally to every subject, and cannot be used to justify an invasion of property except where the necessity is immediate. A similar right is admitted to exist while war is actually raging, but that is on the principle, inter arma silent leges.

 

“But in times of war, and when salus populi was at stake, private property must give way to the common good. Quod necessitas cogit, defendit. And this not only when war is actually raging, but also upon rumours of wars. Matters of war and peace are for the King; sometimes dangers are not fit to be communicated to the people, and yet it is very fit that preparation be made beforehand.”

 

“HOLBORNE (for the defendant) refused to admit that the King’s allegation of imminent danger was conclusive, and contended that the allegation was not clearly set out on the face of the writ.

 

“[To state this argument in the language of the twentieth century, parliament is established to limit the power of the king; how can it do so, if he may tax whenever he chooses to allege the existence ‘of an emergency?]

 

“[The modern counterpart of this argument would be that the law will not give him a power which he might be tempted to use to interfere wrongfully with the property of the subject.] He is said, it is admitted, to judge of the necessity, but `in judgment so to do it, is all one as to leave it to him arbitrarily, if he will, which is that only which was intended to be prevented.’

 

“It is admitted that the subject must serve in case of necessity, but only in person; if his goods are to be taken the necessity must be immediate, and mere rumours of wars or apprehension of danger are not enough.”

 

“I never read nor heard, that Lex was Rex; but it is common and most true, that Rex is Lex, for he is `lex loquens’, a living, a speaking, an acting law: and because the king is `lex loquens’, therefore, it is said, that `rex censetur habere omnia jura in scrinio pectoris sui.’

 

“iii         The Judges who decided them have been denounced as time-servers or traitors, but it is by no means certain that they decided contrary to law.”

 

“But in fact the. parliamentary lawyers found it difficult, having gone so far, to deny that the King had the best means of knowing about foreign affairs, and was the fittest person to judge of an emergency.”

 

“that the people’s liberties strengthen the king’s prerogative, and that the king’s prerogative is to defend the people’s liberties.”

 

“The absolute power of the king is not that which is converted or executed to private use, to the benefit of any particular person, but is only that which is applied to the general benefit of the people, and is salus populi; as the people is the body, and the king the head; and this power is [not] guided by the rules, which direct only at the common law, and is most properly named Policy and Government; and as the .constitution of this body varieth with the time, so varieth this absolute law; according to the wisdom of the king, for the common good; and these being general rules and true as they are, all things done within these rules are lawful.”

 

Prerogative (iv)

 

“Much of the contents of the Prerogative perforce disappeared when the Star Chamber was abolished. They could not be exercised without the intervention of a Court. The prerogative of executing martial law, at any time of peace, had already been taken away by the Petition of Right; so had the power to commit per special mandatum regis. The decision in R. v. Hampden hadbeen reversed by a special Act. The Crown still had full legal control of foreign policy, and prerogatives such as the power of dissolving parliament, of appointing to offices and of pardon. But these prerogatives could not affect the property of the subject. Arid from the time of the Long Parliament it had been clear that wherever any prerogative came into conflict with the exclusive right of Parliament to tax, it must give way to it.”

 

“There was one doctrine of the Prerogative and one prerogative right which were dangerous to Parliament, and were not yet dead. Nothing had been done directly to kill the notion that certain prerogatives were inseparably annexed to the Crown, so that no statute could avail to take them away, and no attempt had been made to destroy the dispensing power. The Restoration period, and especially the reign of James II, showed that unless Parliament could contrive to advance still further, all was not irreparably lost to the Crown. By means of dispensations, the King could legalize anything which was no malum in se, provided his dispensation deprived no third party of his rights; that is to say, his dispensing power could have no effect where property or private law was at stake, but could be used to evade a statue which expressed the wishes of Parliament on a point of public law. Moreover, because the prerogative to dispense with statutes, was looked upon as inseparably annexed to the Crown, there was no means of curbing the power of a king who did not owe his authority and even his title to Parliament.”

 

“But this writ and the Star Chamber both disappeared in the time of the Long Parliament. Hence that portion of the Prerogative which could be exercised only through the intervention of a Court disappeared for good in 1641. Nor can it be revived, for the Privy Council case of In re Lord Bishop of Natal (p.113 below) clothed with judicial authority the doctrine. found in the old books, that the King by his Prerogative cannot establish a Court to administer any but the common law, and as such a Court would nowadays be almost useless, it is very unlikely that his prerogative will be exercised………………”

 

“The rest of the prerogative might survive, but only subject to the approval of the ordinary Courts. In every case the King must make good at common law his claim to the prerogative; the mere plea of prerogative no longer ousts the jurisdiction of the Court. The plea of matter of State has no more .force than the plea of prerogative; further, inasmuch as the common law knows no matter of State except such as is comprised in the more force than the plea of prerogative; further, inasmuch as the common law knows no matter of State except such as is comprised in the. more convenient and technical term Prerogative, there was no point in keeping two phrases where one would do………..”

 

But the idea that Government is, apart from Prerogative, entitled to special treatment died very hard. In Carr’s Case (1860), 7 St. Tr. 929, Scroggs, C.J. went so far as to say, `If you Write on the subject of Government, whether in terms of praise or censure, it is not material; for no man has a right to say anything of Government’. The modern view was first clearly stated by Lord Camden in his famous judgment in Entick v. Carrington.

 

“With respect to the argument of State necessity, or a distinction that has been aimed at between State offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions.”

 

“Those powers which the executive exercises without Parliamentary authority are comprised under the comprehensive term of the prerogative. Where, however, Parliament has intervened and has provided by statute for powers, previously within the prerogative, being exercised in a particular manner and subject to the limitations and provision contained in the statute, they can only be so exercised. Otherwise, what use would there be in imposing limitations, if the Crown could at its pleasure disregard them and fall back on prerogative?”

 

“7. Since the Case of Proclamations (p.110 below) it has been clear law that the Crown could not create a new offence except by Act of Parliament, and it had always been understood that unparliamentary legislation of every kind was against the law ......

 

“A controversy of land between parties was heard by the King, and sentence given, which was repealed for this, that it did belong to the common law: then the King said, that the thought the law was founded upon reason, and that he and others had reason, as well as the Judges: to which it was answered by me, that true it was, that God had endowed His Majesty with excellent science, and great endowments of nature; but His Majesty was not learned in the laws of his realm of England, and causes which concern the like, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it: that the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege. “

 

“It is a settled Constitutional principle or rule of law, that although the Crown may by its Prerogative establish Courts to proceed according to the Common Law, yet that it cannot create any new Court to administer any other law; and it is laid down by Lord Coke in the 4th Institute, that the erection of a new Court with a new jurisdiction cannot be without an Act of Parliament.”

 

42. Mr Khalid Anwar argued that as per the above case law of Great Britain, Chief Justice Coke, whose writings are regarded as an important source of common law, expounded the view that the Bench should be independent of the Crown and arbiter of the Constitution to decide all disputed questions whereas Bacon took the view that the Court is under the King but then following Plato’s theory he (Bacon) wanted the King to be a philosopher. Dilating further on the point, the learned counsel contended that the evolution of judicial power is coterminous with the evolution of civilization and this is so because judicial power has to check the arbitrary exercise of power by any organ or authority. He next argued that in UK the doctrine of parliamentary sovereignty was evolved and the Parliament includes the Queen, the House of Lords and the House of Commons acting together. To support his contention Mr Khalid Anwar, referred some passages from the book titled “English Constitutional Conflicts of the Seventeenth Century 1603-1689” by J. R. Tanners, at pages 20, 41-45, 62, 65, 70, 78, 79, respectively, which are reproduced as follows:

 

“That which concerns the mystery of the King’s power is not lawful to be disputed; for that is to wade into the weakness of Princes, and to take away the mystical reverence that belongs unto them that sit in the throne of God .... As for the absolute prerogative of the Crown, that is no subject for the tongue of a lawyer, nor is lawful to be disputed. It is atheism and blasphemy to dispute what God can do; good Christians content themselves with His Will revealed in His Word: so it is-presumption and high contempt in a subject to dispute what a King can do, or say that a King cannot do this or that, but rest with that which is the King’s revealed will in his law. “

 

“Bacon was by far the greater man, for in him the philosopher included both the lawyer and the statesman; and thinking after the manner of a philosopher he advocated a large reform of English law. Coke on the other hand, with, a mind fanatically narrow, was possessed with a profound veneration for the law as it stood-for its technicalities as well as its substance-and he was convinced that it was not by change and reform but by the following of precedents that the liberties of England were to be defended. Thus, upon one of the great test questions in the politics of the time-the nature and limits of the royal prerogative-Bacon half suggested, half accepted the mystical views of James; while Coke resolutely opposed the inferences which the King drew from the principles which he laid down, and entrenched himself in precedents, and verbal interpretations of statute law. Coke’s idea was that the Bench should be independent of the Crown and should act as arbiter of the Constitution to decide all disputed questions. Bacon, on the other hand, referred all disputed questions to the King, saying, with his mind running upon the ivory throne on which King Solomon sat to give judgment, that the Judges. `should be lions, but yet lions under the throne’. This Coke represented a rigid conservatism-the conservatism of Constitutional liberties as they were; Bacon represented reform-but reform carried out by a philosopher-king wielding a sovereignty unlimited and half-divine. We shall come upon the same antagonism again, a generation later, in the persons of Pym and Strafford.”

 

“But that State is rare in which the kings are philosophers or the philosophers kings. Bacon was not a king, and James was not really a philosopher. The philosopher had. fallen on evil days, for the kings were Stuarts; and what was really needed was the conservation of existing liberties against encroachment, and not the efficient paternal Government which Bacon and Strafford dreamed of but which-James and Charles could never hope to attain.”

 

“In the eyes of his contemporaries Coke’s legal fame overtopped his other claims to greatness. In 1631, when his death was expected, Charles I gave orders that his papers should be secured, lest anything against the prerogative should be found among them and published, `for he is held too great an oracle among the people, and they may be misled by anything that carries such an authority as all things do which he either speaks or writes.’ `His parts’, says Fuller, `were admirable; he had a deep judgment, faithful memory, active fancy; and the jewel of his mind was put into a fair case ...His learned and laborious works on the laws will last to be admired by the judicious posterity whilst Fame has a trumpet left her and any breath to blow therein.”

 

“The Petition of Right dealt first with the two main grievances of arbitrary taxation and arbitrary imprisonment, providing (1) `That no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such-like charge, without common consent by Act of Parliament’, and (2) That no free man be detained in prison without cause shown. But to these were added two other grievances which had been felt bitterly by the humbler classes: the billeting upon them of Buckingham’s disorderly levies, and the attempt which had been made, not so much to enforce discipline among the soldiers as to punish ordinary crimes committed by soldiers by the application of martial law instead of the ordinary law of the land. It was, therefore, further provided, (3) that soldiers and mariners should not be billeted upon inhabitants against their wills, thus, recognising the ancient custom, `no man is forced to take soldiers but inns, and they to be paid by them’; and (4) that commissions for proceedings by martial law `against soldiers and mariners or other dissolute persons joining with them’ be revoked, and no fresh commissions be granted in time to come.

 

“The King fought hard to save his emergency power of imprisoning without showing cause. The petition, he said, involved `the very intermitting of that constant rule of Government practised for so many ages within this Kingdom’, and it would soon `dissolve the foundation and frame of our monarchy’. The middle party in the Lords tried to save the situation for him by proposing the addition of a saving clause:”

 

“On March 10, 1629 an abrupt dissolution followed, `the most gloomy, sad, miserable day for England that happened in five hundred years last past’. But for the present the victory was with the King, for it was only in Parliament that he could be fought. Sir Benjamin Rudyerd, the reasonable Parliamentarian, who had said in the House on April 28, 1628, that `moderation is the virtue of virtues and the wisdom of wisdoms’, recognises this.”

 

“The King took quite a different view of Parliaments. `They are of the nature of cats’, he wrote to Wentworth later, `they ever grow cursed with age’. He now inflicted on the nation the ‘loss of Parliaments’ for a period of eleven years. This opened the way for him to take vengeance on his enemies, and his prosecution of Eliot and other leaders of the Common was to illustrate the truth of Wentworth’s own observation, that it was ill contending with the King outside of Parliament.”

 

he decision in Hampden’s case also caused a ‘general loss of confidence in the Courts of law. As Clarendon points out, shipmoney had been declared lawful ‘upon such grounds and reasons as every stander-by was able to swear was not law’. The reasoning of the Judges ‘left no man anything which he might call his own’, and all men ‘found their own interest, by the unnecessary logic of that argument, no less concluded than Mr. Hampden’s’. It is not necessary to go so far as Hallam, and to say, ‘Those who had trusted in the faith of the Judges ...looked with indignation on so prostituted a crew’; but the parliamentary leaders now perceived that the majority of the Judges was likely to be always against them, even if the minority was not dismissed. This knowledge made Parliament a necessity for them. They had nothing to hope for from the Judges, who were leaving them to work out their own salvation independently of the Courts of law; and the only other place where salvation was to be found was in Parliament. “

 

43. Mr Khalid Anwar argued that jurisprudence recognises four categories of facts: (1) adjudicative facts, pertaining to decision on merits; (2) jurisdictional facts, containing exercise of jurisdictional powers; (3) constitutional facts, relating to nature of the powers exercised under different Articles of the Constitution; and (4) the law constitutive facts, pertaining to nature of legal system as a whole from which all law constitutive facts may be inferred and that last category is important. He elaborated that this Court is the sole institution to confer or deny legitimacy on the Government and no other body can do so and that no one can take away this power from the Court. He argued that law to be enforced must be one which is enacted by Parliament and no other law including the Proclamation of Emergency by giving it the colour or status of law and that this Court can only allow the enforcement of laws enacted by Parliament or expounded by the Court and cannot countenance or allow its use for the purpose of enforcing what is essentially, if not Martial Law, a step child of Martial Law. He further submitted that laws tend to protect not only the people but also the Sovereign. He further submitted that this Court, which is the embodiment of the laws of Pakistan, should interpret the Proclamation and the PCO, which are subservient to the Constitution and not above it. To support his assertions, the learned counsel referred to the following passages at pages 312 and 313, from the book titled “THE CONSTITUTION OF ENGLAND FROM QUEEN VICTORIA TO GEORGE VI” by Arthur Berriedale Keith, which read thus:-

 

 “2. Judicial Control of the Executive and other Authorities.

 

“It is an essential duty of the executive Government to obey the law of the land, whether or not there is any means of compelling it to do so, and the judiciary has an absolute duty to restrain actions of the executive which are illegal. It cannot refrain from doing so because of any considerations of State convenience; the ancient doctrine of Entick v. Carrington (1765), 19 St. Tr. 1029 is perhaps hardly likely to be ignored in Britain itself, but it has been found desirable to remind colonial Courts that they must give it full effect, even if it should be found that to do so may interfere with the convenience of the administration. In fact, as shown in discussing the rights of the subject, the Courts have been busy in recent years in reasserting the principle that Parliament alone can impose taxation, and the executive must not do so without precise authorisation; that interference with liberty must be strictly justified by law, and is not to be excused merely because the person affected might be treated by the crown as an enemy, though it has not done so; or because, under earlier regulations made inoperative by the creation of the Irish Free State, arrest and deportation of an alleged revolutionary would have been legal.”

 

“It rests with the Courts to define and by doing so limit the prerogative power of the Crown, a term the extent of which has been a subject of some discussion in recent years.”

 

44. He made a distinction between the necessity and prerogative by stating that doctrine of necessity may be availed by all citizens but the prerogative is for the King and as of “Glorious Revolution” 1688, no new prerogative may be created by reference to doctrine of necessity. He emphasised that the liberty to choose is an important right and that common wisdom ought to be given more weightage than that of the wisdom of one man. He reiterated that doctrine of necessity was rejected in Britain since 1765. Elaborating that Martial Law is justified only to quell insurrection or riots or rebellion from within and invasion from outside, he argued that the insurrection, riots and rebellion are ex facie, an assault on the Rule of Law, therefore, to curb an unconstitutional action, this measure can be adopted. He, however, vehemently contended that Martial Law is not meant to be an instrument of social reform or economic progress as envisaged in the 7-point Agenda of the Chief Executive, therefore, though this Agenda is admirable and noble but the suspension of the Constitution could not be justified for the sake of realizing the same. - He next submitted that social reform and economic progress are in the best interest of the nation which takes place under the law and not in violation thereof.

 

45. He submitted that R v. Stratton (1779) (21 St.Tr.1222), which was relied upon by Muhammad Munir, C J, provided that the ‘doctrine of necessity’ may be relied upon only in imminent danger and extreme necessity so as to preserve the society, when no other remedy for redress is available, in that, this doctrine is detrimental to political system. He next submitted that the task of removing the social evils be left for the consideration of the Parliament and should not be undertaken under the doctrine of necessity.

 

Mr Khalid Anwar then read the speech of the Chief Executive dated 17-10-1999 and formulated the following propositions:-

 

“(1) That though the speech claims occurrence of deterioration of the system in a period of 52 years and lays emphasis on the Provincial autonomy but the same is restricted by the PCO.

 

(2)        That the Chief Executive accepts in unqualified terms the importance of the Constitution by saying that in earlier Martial Laws the Constitutions were abrogated and politicians condemned, therefore, there was no justification for issuance of proclamation of emergency on the 12th October, 1999 to suspend the Constitution.

 

(3)        That the Chief Executive states that he was not imposing the Martial Law and the present period is a pause to democracy.

 

46. He submitted that in Moulvi Tamizuddin’s case the Federal Court on a technical point struck down the judgment of Chief Court of Sindh despite the fact that in, at least, three cases the superior Courts had upheld the view that the assent of the Governor-General to section 223-A of the Government of India Act, 1935, was not required, and this practice was accepted by Quaid-e-Azam, the Constituent Assembly and the Executive organ of the State. - He referred the following passage in support of his contention:

 

Pakistan’s Constituent Assembly met in Karachi for the first time on August 11 and unanimously elected Jinnah to preside over its meetings, amid thunderous applause, as its first business. Jinnah took the chair, thanking the assembled delegates for the greatest honour that is possible for this Sovereign Assembly to confer-by electing me as your first President ....I sincerely hope that ....we shall make this Constituent Assembly an example to the world. The Constituent Assembly has got two main functions to perform. The first is the very onerous and responsible task of framing our future Constitution of Pakistan and the second of functioning as a full and complete Sovereign body as the Federal Legislature of Pakistan. We have to do the best we can ....”

 

47. Mr Khalid Anwar submitted that in Begum Nusrat Bhutto’s case (supra) there was Martial Law and the CMLA claimed vast powers including power to amend the Constitution and this Court granted him that power. He further submitted that the circumstances in which the powers to amend the Constitution were granted to CMLA have been referred to in Mehmood Khan Achakzai’s case (supra), which ‘show that the need for granting the power to amend the Constitution arose, in that the then Chief Justice, who had assumed the office by virtue of nullification of 6th and 7th Constitutional Amendments by the CMLA, would have, ipso facto, lost that office if power to amend the Constitution had not been granted. He further submitted that this Court should not confer such power on the Chief Executive. He next submitted that the Court should examine the scope/ambit of emergency promulgated by the Chief Executive, which is not envisaged by the Constitution, to determine as to what this emergency entails and under its cover what the Government can do and cannot do. He emphasised that the curse of the country is not less laws instead more laws, but no enforcement thereof. He also made a reference to the example of Chancellor Halmet Kohl of Germany and Finance Minister of France, who were involved in financial bungling and rightly condemned but without impinging upon the system of Constitutional governance. He argued that every law has two facets: (1) what is the content of the law and (2) who has the power to make it. He drew a distinction between Martial Law and Emergency to contend that the Martial Law is a nullification of the Constitution whereas the present emergency is claimed to have been imposed to save the system, therefore, minimum period should be taken for restoration of democracy.

 

48. Mr Khalid Anwar submitted that it would be improper to impute responsibility for writing judgment in Begum Nusrat Bhutto’s case to Anwarul Haq, the then Chief Justice alone, who was only a primus inter pares (first among equals), in that, indeed, it was a decision, which was given by the Court, comprising all the Judges on the Bench then.

 

49. He submitted that it is not the judicial function of this Court to pronounce upon the competence, ability and integrity, especially of four rulers/politicians, namely, General Muhammad Ziaul Haq, General Agha Muhammad Yahya Khan,, Mohtarma Benazir Bhutto and Mian Muhammad Nawaz Sharif. He referred to the case of Begum Nusrat Bhutto wherein this Court relying on the statement of Mr Sharifuddin Pirzada, the then Attorney-General, appdaring on behalf of the respondents therein, observed that the election would1 be held in six month’s time or as soon as the accountability process is completed and that the petitioner’s counsel when asked for a framework for election to be determined, the Court responded that it would be unfair t o cast doubt on the sincerity of CMLA, to contend that it is no part of the judicial power of the highest Court of the land to pass a verdict on the sincerity or insincerity of the rulers whether civilian or military and prayed that Rio such edict should be issued by this Court on the present ruler. The learned counsel next submitted that the conditions prevalent at the time of promulgation of Martial Law in 1977 were like rebellion/resurrection, in that, as per determination of the Chief Election Commissioner, the elections conducted earlier in March that year were a farce, therefore, there was no Constitutional justification for the Government to remain in power and the Supreme Court, which is the ultimate guardian/custodian of the constitutional values had to find a bridge for bringing the country back to legal/constitutional dispensation. He argued that the doctrine of unwritten limitations on the judicial power has a long heritage in American Constitutional law and that the Courts refrain from entering into the political environment to determine a political question, in that, it is a dangerous/perilous terrain for the Court to tread. He argued that the foundation of power of the Court is ethical, resting upon the prestige and dignity of this august institution, therefore, every Government is in need of seeking from the Court the seal of legitimacy for its powers. He submitted that the judicial powers are the weakest and the most powerful. Mr. Khalid Anwar submitted that this Court should not authorize the Chief Executive to take political decisions and it should restrict him within legal/constitutional limits. In support of his contentions, the learned counsel relied upon certain passages from the research paper titled `Judging the State’ by one Paula R. Newberg.

 

50. The learned counsel argued that Article 58(2)(b), which authorized the President to dissolve the National Assembly, now repealed by virtue of the 13th Amendment, is, sometimes, referred to as a safety valve and that with the removal of that safety valve the continuance of the Constitutional governance has been placed in jeopardy, was not, in fact, a safety valve but a valve to control the flow of democratic power. He submitted that Article 58(2)(b) was borrowed from a similar provision i.e. section 45 of the Government of India Act, 1935, which was repealed on 14th August, 1947 by PCO-22 of 1947. He submitted that the scope of Article 58(2)(b) was even wider than section 45 of the Act of 1935. He then referred to Article 58(2)(b) of the Constitution which reads thus:

 

“[(2) Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his discretion where, in his opinion,-

 

(b)        a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate ifs necessary.]”

 

51. Mr Khalid Anwar next submitted that perusal of the two speeches of the Chief Executive delivered on 13th and 17th October, 1999, shows that he claimed no power to amend the Constitution. but m the subsequent proclamations he does. The learned counsel argued, that the Proclamation of Emergency does not explain the source of its authority and that since the PCO is based on the Proclamation, therefore, if the Proclamation is found to be ultra vires the Constitution then the super-structure thereon i.e. the PCO would also stand demolished. He further contended that the Proclamation does not confer any power on the Chief Executive in that it merely states that the country has been brought under the control of the Armed Forces. He next argued that the PCO is, at best, a quasi Constitutional order and that it cannot be accepted as a constitutional dispensation of either temporary or permanent nature. He submitted that the PCO is a Constitutional conundrum/riddle , as, on the one hand, it purports to suspend the Constitution and, on the other, says that the country will be governed in accordance with the provisions of the Constitution as nearly as possible. He contended that the maker of the document does not reject the Constitution nor does he claim any such right but merely claims the right to fine tune the document and that what emerges from this is that he leaves the Fundamental Rights intact except those suspended by the earlier Proclamation of Emergency dated 28-5-1999 i.e. Articles 15 to 19 and 24 of the Constitution. He contended that, thus, what remains intact is the Objectives Resolution, which is now substantive part of the Constitution under Article 2A thereof.

 

52. He argued that the Objectives Resolution recognises the `Islamic doctrine of sovereignty’ as expounded in the Holy Book, that sovereignty belongs neither to ruler nor the ruled but Almighty Allah alone and the consequential doctrine is that authority is to be exercised by the people of Pakistan through their chosen representatives, and that such authority shall be exercised within the limits prescribed by Almighty Allah, which is a sacred trust. He contended that this is a complete doctrine of Islamic sovereignty and that this is the law of God and the law of nature. He further submitted that these being the contours of Islamic doctrine of sovereignty, there is need of a physician/surgeon to prescribe the medicine/surgery after diagnosing the disease/ailment in the body politic of the nation. He submitted that the remedy is certainly not to kill the chosen representatives but to bring them on the path of rectitude. He next argued that the Chief Executive by accepting the Objectives Resolution accepts the Islamic doctrine of sovereignty which is a right of the people to govern themselves through the chosen representatives, to have a democratic State, an independent Judiciary as well as preservation of democracy and protection of political unity. The learned counsel also referred to Articles 4 and 5 of the Constitution which are left intact by the PCO. He argued that it is a fundamental principle of jurisprudence that Courts must always endeavour to extend their jurisdiction and not restrict it. Mr Khalid Anwar argued that proviso to Article 2 clause (2) of the PCO does not confer absolute immunity on Chief Executive of the nature of Articles 248(1), 269 and 270-A of the Constitution. He, submitted that the immunity conferred by these Articles has been restricted in cases of Ghulam Mustafa Khar (supra) and Sardar Farooq Ahmed Khan Leghari (supra).

 

53. Mr Khalid Anwar next contended that as the legislator is deemed to know the previous law before he amends it, the drafters of the PCO are deemed to have known that notwithstanding the clauses inserted. therein the Court has jurisdiction to examine the vires of any action and that by missing out this important point the drafters have accepted it tacitly/impliedly that the orders of the Chief Executive are subject to the jurisdiction of the Constitutional Courts of the land. He further submitted that by including paragraphs 2(b) and 7 in the PCO, its author has recognized that Courts and Judges are not merely entitled to but are in fact continuing in office, which fact also implies that both the documents i.e. the Proclamation of Emergency and the PCO have accepted the necessity of Judges to continue, they being the guardian of the Constitution.

 

54. He next argued that the Order 1 of 2000, dated 25th January, 2000 allows all the Courts to continue to function and exercise powers, which is a reiteration of what was earlier stated by the Oath of Office (Judges) Order, 1999 (Order 10 of 1999), paragraph 3 whereof states that Order I of 2000 shall apply to: (1) newly appointed Judges; (2) that Oath shall be made before the Constitutional authority; and (3) that it would be in accordance with the appropriate form set out in the Third Schedule to the Constitution. He submitted that the doctrine of necessity required the newly appointed Judges to take oath before the constitutionally designated authority and as per the procedure prescribed by the Constitution and not by the Order 1 of 2000. He pin-pointed the defects/deficiencies in the Order 1 of 2000 viz. assuming the power to amend the Constitution stipulated in the preamble of the said Order and without prescribing any amendment of the Proclamation or the PCO in pursuance of which it is promulgated. He submitted that amendment in the Constitution is not justified for three reasons: (1) that it is being done by means of subordinate instrument as the preamble of the Order 1 of 2000 recognises the supremacy of the Proclamation and the PCO; (2) that the contents of the preamble are simply a statement of intent and (3) that it claims to do so retrospectively, which a preamble cannot do. He further argued that paragraph 3 of the above Order is ultra vires Article 209 of the Constitution. Mr. Khalid Anwar, however, added that a Judge acting according to his conscience and in all good faith may decide to resign or he may decide that in the higher public interest he should retain his office. In this connection, the learned counsel referred to the book titled “Constitutional Legitimacy” `A Study of the Doctrine of Necessity’ authored by Leslie Wolf-Phillips, wherein the following passage occurs: -

 

“A former member of “the Argentine Supreme Court has justified the role of the Court as `the beneficial expression of a laudable political realism’. He saw choices before the Court in a revolutionary situation as irresponsible resignation, acceptance of the situation, an attempt to save what `institutional values’ remained to be saved:

 

It has exercised a function of institutional salvation by guarding human rights and the independence of the judiciary. It has been as if they said to the military men……we recognise the practical power that you exercise, because otherwise there would be chaos instead of order and authority in the country...”

 

55.       He next submitted that Order 1 of 2000, is contrary to the PCO, which is a sub-constitutional Order and re-affirms the right of the Judges to continue in office. He argued that the Proclamation states that the whole of Pakistan will come under the control of Armed Forces, which does not and cannot amount to a charter or open legal licence to suspend the Constitution but is only intended to ask the Armed Forces of Pakistan to discharge their constitutional obligation to restore ordinary governance in accordance with the mandate of the Constitution. He contended that this submission. is in line with Asma Jilani’s case having the same legal and conceptual reiteration, which Hamoodur Rehman, C J (as he then was), had made. He submitted that emergency is to re-affirm the restoration/establishment of Constitutional rule and not to abrogate or reject it and this follows from the Proclamation itself if interpreted in the light of Asma Jilani’s case.

 

56. He argued that there being a conflict between the PCO and Order 1 of 2000, it is the Order which must yield to the superior mandate of the PCO. Mr. Khalid Anwar also referred to some observations from the case of Miss Asma Jilani (supra) from pages 183, 193, 194, 195, 196, 197 and 198 which were also referred to by Ch.Muhammad Farooq, learned ASC.

 

57. Mr Khalid Anwar further argued that if necessity was to remove the Prime Minister then that necessity was fulfilled on 12th October, 1999. He submitted that this Court is the ultimate guardian of the Constitution and various rights of the people of Pakistan. He submitted that this Court is the only institution, which is respected by the people because it is an embodiment of the ideals of justice and guardian of Rule of Law. He contended that the Proclamation and the PCO are to be authoritatively and definitively interpreted in the present case and that there are three possible interpretations:

 

“(1) that under the PCO the Chief Executive may amend the Constitution, make new laws. postpone elections indefinitely and take whatever action he deems fit and appropriate --- which is a Duke of Willington theory of Martial Law that it is the will of the Army Commander- If Court would accept this interpretation, his petition will be dismissed.

 

(2)        The petitioner’s interpretation is contained in the prayer at pages 67-69 of the petition, which if accepted in terms thereof, the previous Government is restored,

 

(3)        The Court examines the situation with a view to giving finding of what may be termed as a law constituting fact, which relates to the nature of the legal system while giving this finding the Court will not proceed on the basis of political speeches and statements of intent and render a verdict about sincerity of either of the present rulers or the former rulers, instead the Court will proceed on the objective realities.”

 

58. He submitted that the following Latin American countries had experienced Army take-overs. Some of these countries’ Constitutions explicitly restricted the role of military, others did so impliedly. Some explicitly described it as treason, as for example, Article 3 of the Constitution of Costa Rica states, “No person or group of persons may assume representation of the people, usurp their rights, or make petitions in their name. Violation of this article is sedition.” Others laid dawn that it was the duty of the Armed Forces to guarantee stability to the Government as is the case in Bolivia where it was so prescribed in their Constitution. In the case of Ecuador Article 114 states that, “Military authorities shall not obey higher orders that have as their purpose an attack upon the organs of the public power or that are manifestly contrary to the Constitution or laws.” Article 112 of the El Salvador Constitution states that “The Armed Forces are established to protect the integrity of the territory and the sovereignty of the Republic, enforce the law, maintain public order and guarantee Constitutional rights ....Article 114 says “The Armed Forces are nonpolitical and essentially obedient”. In the case of Panama, President Dr. Arnulfo Arias was deposed by a coup which was led by Colonel Omar Torrijos Herrera and Colonel Jose Maria Pinilla was installed as President by the, military leaders. Colonel Torrijos later obtained legality from the newly elected Assembly in order to legalise the almost unlimited powers already possessed by him. In Paraguay, a military General seized power in a coup and later provided for in the Constitution against armed rising in these words: “Any armed force or gathering of armed persons that arrogates to itself the rights of the people and makes demands on their behalf commits the crime of sedition”. In the case of Venezuela, its Constitution of 1961 contains two articles of particular interest to the problem of Constitutional breakdown: Article 132 which asserts that `The National Armed Forces form a non-political, obedient and non-deliberative institution, organised by the State to ensure the national defence the stability of democratic institutions and respect for the Constitution and the laws…….;and Article 1 250 follows Article 136 of the Mexican Constitution in its declaration that `This Constitution shall not lose its effect even if its observance is interrupted by force or if it is repealed by means other than those provided therein. In such eventuality, every citizen, whether or not vested with authority, has the duty to collaborate in the reestablishment of its effective validity.’ In the case of Brazil, section 6, Article 91 of the 1967 Brazil Constitution declares that “It is the mission of the armed forces, which are essential to the execution of the national security policy, to defend the country and to guarantee the constituted powers, and law and order.” In Chile, Dr: Salvador Allende Gossens was elected to the Presidency in 1970 and his Government was overthrown in a coup planned and executed by the Armed Forces. The Commander-in-Chief appointed by Allende was proclaimed President on 11th September, 1973. Constitutional Act No.2 of September 1976 states the role of the Armed Forces as follows: -

 

“In observance of their essential duty to safeguard the sovereignty of the Nation and the permanent superior values of the Chilean people... the armed forces undertook the leadership of the Republic .... .

 

The 1886 Cronstitution of Colombia also gives no lead to the military in political intervention. Article 168 provides that the military may not ‘deliberate’ and may not `assemble except by order of the legitimate authority He argued that whatever limits are on exercise of power, the contents of the PCO be spelt out lucidly leaving nothing to chance: His precise submission was that the status of present Government is that of a de facto government and not of a de jute government.

 

59. Mr, Khalid Anwar then referred to paragraph No. 842 at page 599 of the book titled COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES by Joseph Story to contend that Courts exist to uphold the rule of law and not to grant legitimacy to unconstitutional form of Government.:-

 

“The considerations above stated lead us to the conclusion, that in republics there are, in reality, stronger reasons for an independent tenure of office by the Judges, a tenure during good behaviour, than in a monarchy. Indeed, a republic with a limited Constitution, and yet without a judiciary sufficiently independent to check usurpation, to protect public liberty, and to enforce private rights, would be as visionary and absurd, as a society organized without any restraints of law. -It would become a democracy with unlimited powers, exercising through its rulers a universal despotic sovereignty. The very theory of a balanced republic of restricted powers presupposes some organized means to control, and resist, any excesses of authority. The people may, if they please, submit all power to their rulers for the time being; but, then, the Government should receive its true appellation and character. It would be a Government of tyrants, elective, it is true but still tyrant; and it would become the more fierce, vindictive, and sanguinary, because it would perpetually generate factions in its own bosom, which could succeed only by the ruin of their enemies. It would be alternately characterized, as a reign of terror, and a reign of imbecility. It would be as corrupt, as it would be dangerous. It would form. another model of that profligate and bloody democracy, which, at one time, in the French revolution, darkened by its deeds the fortunes of France, and left to mankind the appalling lesson, that virtue and religion, genius and learning, the authority of wisdom and the appeals of innocence, are unheard and unfelt in the frenzy of popular excitement; and, that the worst crimes may be sanctioned, and the most desolating principles inculcated, under the banners, and in the name of liberty. In human governments, there are but two controlling powers; the powers of arms and the power of law. If the latter are not enforced by a judiciary above all fear, and above all reproach, the former must prevail; and thus, lead to the triumph of military over civil institutions. The framers of the Constitution, with profound wisdom, laid the corner stone of our national republic in the permanent independence of the judicial establishment. “

 

Mr. Khalid Anwar referred to the following passages at pages 1621, 146-151, 168-169, from the book titled CONSTITIJTIONS IN CRISIS, Political Violence and the Rule of Law by John E. Finn :-

 

“Carl J. Friedrich and Carl Schmitt similarly began their well-known studies of Constitutional emergency powers with a review of the Roman dictatorship, and others have found in that institution `a theoretical standard ...a sort of moral yardstick against which to measure modern institutions of Constitutional dictatorship.’

 

There were four conditions to the Roman dictatorship, all of which, Friedrich argued, are of contemporary utility:

 

1.         The appointment of the `dictator’ must take place according to precise constitutional forms.

 

2.         The dictator must not have the power to declare or to terminate the state of emergency.

 

3.         Dictatorial, discretionary powers must obtain for only a (relatively) precise time, and the limit must not be subject to indefinite extension.

 

4.         The ultimate objective of Constitutional emergency powers must be the defense and restoration of the Constitutional order.”

 

Constitutional Dictatorship and the Prerogative

 

“More recently, Arthur Schlesinger, Jr., devoted much of The Imperial Presidency to the problems of emergency government. Schlesinger conceded, as have all who preceded and followed him, that there will be times when the President must act in extraordinary fashion to ensure national survival. `Crises threatening the life of the nation,’ he wrote, `have happily been rare. But, if such a crisis comes, a President must act.’ The question is whether the Constitution authorizes these extraordinary actions.

 

“Schlesinge, concluded that emergency government should be recognized for what it is: an extra-constitutional resort to raw political power, necessary but not lawful.’ The alternative view, that the Constitution contemplates (if it does not authorize) extraordinary power, renders the document so meaning-less that it fails to possess real authority even in normal conditions, a conclusion Corwin had reached earlier in his pointed analysis of the -effects of World War II find the New Deal upon American Constitutional law.

 

“The similarities between Schlesinger’s argument and the Lockean defense of executive prerogative are, of course; substantial. In the Second Treatise of Government, Locke argued, as did Jefferson later, that `a strict and rigid observation of the laws [in some cases] may do harm.’ The executive must have a Power-the prerogative-to act ‘according to discretion, for the public good, without the prescription of law, and sometimes even against it.’

 

“The prerogative of the Crown, or some institution like it, suggested for Schlesinger that the American presidency `must be conceded reserve powers to meet authentic emergencies.’ Without clearly specifying the source of their authority, Schlesinger argued that the invocation and use of emergency powers must be subject to a number of restraints, most of which are directed toward establishing the authenticity of the emergency:

 

“ 1.       there must be a clear, present and incontestable danger to the life of the nation;

 

2.         the President must define and explain to Congress and the people the nature of this threat;

 

3.         the perception of the emergency, the judgment that the life of the nation is truly at stake, must be broadly shared by Congress and by the people;

 

4.         time must be of the essence; waiting for normal legislative action must constitute an unacceptable risk;

 

5.         existing statutory authorizations must be inadequate, and Congress must be unwilling or unable to prescribe a national course;

 

6.         the problem must be one that can be met in no other way than by presidential action beyond the laws and the Constitution;

 

7.         the President must report what he has done to Congress, which will serve as the Judge of his action;

 

8.         none of the presidential acts can be directed against the political process itself.

 

“In so far as Schlesinger conceded that at times ,the Constitution must be suspended, these restraints cannot strictly trace their authority to the constitutional document. Schlesinger failed to provide any source at all for their origination; presumably they find authority in political necessity and their fidelity to the Roman principle that all exercises of emergency power must be directed to defense and restoration of the constitutional order. But we might well-wonder why these extratextual principles should bind in the absence of an obligation to respect limitations set forth in the constitutional document itself. As Madison counseled, `The restrictions, however, strongly marked on paper will never be regarded when opposed to decided sense of the public, and after repeated violations in extraordinary cases they will lose even their ordinary efficacy.’ It is difficult to see why a crisis severe enough to overwhelm the constitutional document would not also overwhelm extratextual restraints.

 

“There is yet another difficulty with Schlesinger’s argument. The second principle-which requires that the President must define and explain to Congress and the people the nature of the crisis-implies the continued constitutional status of both Congress and the President. But once we suspend the Constitution, the status of the offices and institutions it creates are themselves problematic. An official who claims the Lockean prerogative, the power to suspend the Constitution; `risks the absurdity of saying: `An officer who shall be recognized by criteria set forth in this Constitution shall have the power to act contrary to this Constitution.” Officers in the strict sense cannot have such a power because `we need rules they cannot lawfully change if we are t o recognize those persons who lawfully claim the authority to act as officials.’ Arguably, then, an individual who claims the Lockean prerogative is not the `President’ but rather is an individual `strategically situated’ to exercise emergency power. Consequently, the constitutional status of an officer who claims the Lockean prerogative is troublesome, as is the status of the `Congress’ to which he must report his actions. Moreover, as some critics have observed, the crucial issue must be the severity of the danger, not how `Congress’ Judges its severity. Surely a President should not fail to act simply because Congress does not share his or her sense of alarm.

 

“This formulation of the problem denies the possibility that the Constitution’s military powers are sufficient to cope with all emergencies. Instead, Bessette and Tulis defend a liberal method of interpretation that compensates for the shortcomings of these powers. Their argument indicates that one possible way to make sense of the claim to perpetuity is to treat it as a claim about how to interpret constitutional language: When faced with a crisis, constitutional maintenance demands that we interpret the document in such a way as authorize whatever powers and measures are necessary to cope with f emergency. The argument complements . Hamilton’, who argued in Federalist 23 that a properly framed constitution accounts for the inevitability of crisis, so that there can be `no limitation of that authority which is to provide for the defense and protection of the community in a mater essential ,to its efficacy.’ Hamilton merely restated the position, Machiavelli adopted in his discussion of the Roman Republic in the Discourses:

 

“Now in a well-ordered republic it should never be necessary to resort to extra constitutional measures; for although they may for the time be beneficial, yet the precedent is pernicious, for if the practice is once established of disregarding the laws for good objects, they will in a little while be disregarded under that pretext for evil purposes. Thus, no republic will ever be perfect if she has not by law provided for everything having a remedy for every emergency, and fixed rules for applying it.”

 

“No doctrine, involving more pernicious consequences, was ever invented by the wit of man that any of [the Constitution’s] provisions can be suspended during any of the great exigencies of Government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the Government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence.”

 

“There are subtle and important differences between this position and the one advanced by Bessette and Tulis (Hamilton’s requires framers with extraordinary prescience, whereas Bessette and Tulis defend a method of interpretation that makes up for their lack of it;. but both have the signal benefit of not impairing the constitutional status of the other branches of the Federal Government. Other institutions, thus, have some constitutional basis for questioning a President’s exercise of emergency power, a legitimacy they cannot claim one the Constitution is set aside. “The decisive fact is that under the United States Constitution the functioning of the coordinate institutions of American Government is not suspended nor is their authority dissolved……..when the President undertakes extraordinary actions.”

 

“It gives to the President a strong weapon which we cannot renounce under any circumstances.” Press later wrote: “If ever in history, dictatorial powers were indispensable to a public authority, they were so for the national government of the young German Republic.”

 

“As it appeared in final form, Article 48 in full provided:

 

“If a State does not fulfil the duties incumbent upon it according to the national Constitution or laws, the President of the Reich may compel it to do so with the aid of the armed forces.”

 

“If the public safety and order in the German Reich are seriously disturbed or endangered, the President ...may take the measures necessary to the restoration of public safety and order, and may if necessary, intervene with the assistance of the armed forces. To this end, he may temporarily suspend in whole or in part, the Fundamental Rights established in Articles 114, 115, ,117, 118, 123, 124 and 153.”

 

“The President ...must immediately inform the Reichstag of all measures taken in conformity with sections one or two of this Article. The measures are to be revoked upon the demand of the Reichstag. In cases where delay would be dangerous, the State Government may take for its territory temporary measures of the nature described in section two.”

 

“The measures are to be revoked upon the demand of the President or the Reichstag.”.

 

“A national law shall prescribe the details. The national law promised in the last sentence was never enacted. But even without supplemental legislation, it was clear that emergency powers were ultimately subject to civilian, and in particular legislative, control. Article 48 nevertheless also reinforced the President’s constitutional position because his authority derived directly and independently from the text and not from the delegated authority of the legislature, as was later the case with executive ordinances issued under Weimar’s many enabling acts. In this respect Article 48, like so much of the Weimar Constitution, reflected an uneasy compromise between parliamentary and Presidential Government.”

 

“Hitler also used Article 48 to intimidate his opposition in the March elections, in which the National Socialists, coupled with the Nationalists, finally secured an absolute majority in the Reichstag. Again in accordance with constitutional precedent, Hitler then sought an enabling act in which the Reichstag would effectively yield its legislative competence to the executive. The Reichstag, over the objection of the Social Democrats, granted the authority (in the Law for the Relief of the People and the Reich) for a period of four years, but conditioned it with limitations designed to protect itself and the institutional structure of the republic. Paragraph two sentence one provided; “The statutes decreed by the government may deviate from the Constitution with the reservation that they should not affect the institutions of the Reichstag and of the Federal Council” These qualifications did not, however, prevent Hitler from abolishing life tenure for civil servants or from compromising the independence of the judiciary. Nor did the act contain protections for individual liberties. “

 

60. He argued that judicial power is such which can never transform that which is unconstitutional into that which is constitutional. Mr. Khalid Anwar referred to the following passages from the book titled “The Federalist Papers” by Alexander Hamilton-James Madison-John Jay, wherein, at pages 464 to 470, 479 and 481 it was observed as under:-

 

 “No. 78: Hamilton

 

“We proceed now to an examination of the judiciary department of the proposed government. “

 

“In unfolding the defects of the existing Confederation the utility and necessity of a federal judicature have been clearly pointed out. It is the less necessary to recapitulate the considerations there urged as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its extent. To these points, therefore, our observations shall be confined. “

 

“The manner of constituting it seems to embrace these several objects; 1st. The mode of appointing the Judges, 2nd. the tenure by which they are to hold their places, 3rd. The partition of the judicial authority between different Courts and their relations to each other.”

 

“Second. As to the tenure by which the Judges are to hold their places: this chiefly concerns their duration in office, the provisions ‘ for their support, the precautions for their responsibility.

 

“According to the plan of the convention, all Judges who ‘nay be appointed by the United States are to hold their offices during good behavior; which is conformable to the most approved of the State Constitutions, and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan is no light-symptom of the rage for objection which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of Government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any Government to secure a steady, upright, and impartial administration of the laws.”

 

“Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules .by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments..

 

“This simple view of the matter suggests several important consequences. It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves that though individual oppression may now and then proceed from the Courts of justice, the general liberty of the people can never by endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the executive. For I agree that “there is no liberty if the power of judging be not separated from the legislative and executive powers.” And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone but would have everything, to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being over powered, awed, or influenced by its co-ordinate branches; and that as nothing-can contribute so much to its firmness and independence as permanency in office, this quality may, therefore, be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

 

“The complete independence of the Courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to ‘the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of Courts of justice, whose duty must be to declare all acts contrary to the manifesto tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” ,

 

“This independence of the Judges is equally requisite to guard the Constitution and the rights of individuals from ‘the effects of those ill-humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies. in questioning that fundamental principle of republican government which admits the right of the people to alter or abolish the established Constitution whenever they find it ,inconsistent with their happiness; yet it is not to be inferred from this principle that the representatives’ of the people; whenever a momentary inclination happens to lay hold of a majority of their constituents incompatible with the provisions in the existing Constitution would, on that account, be justifiable in a violation of those provisions; or that the Courts would be under a greater obligation to connive at infractions in this shape than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it prior to such an act. But it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community. “     

 

“First. To all cases in law and equity, arising under the Constitution and the laws of the United States. This corresponds to the two first classes of causes which have been enumerated, as proper for the jurisdiction of the United States.

 

No. 81 : Hamilton

 

“The judicial power of the United States is” (by the plan of the convention) “to be vested in one Supreme Court, and in such inferior Courts as the Congress may, from time to time, ordain and establish.”

 

61. Mr Khalid Anwar describing the distinction between the judicial, legislative and executive power explained that whereas the executive and legislative power is pro-active the judicial power is essentially passive but it does not mean that it is weak but it means that it has to be invoked and that the Judges are to remain neutral, detached and impartial during judicial proceedings. Explained that the Bill of Attainder was criticized and condemned because in practice it amounted to pronouncement of legislative judgment which is an encroachment on the powers of the Judiciary. He appreciated the fact that in this case the Court vastly expanded the frontiers and scope of judicial powers and transformed its nature. Mr Khalid Anwar also placed reliance on the following observations made in the case of Al ­Jehad Trust v. Federation. of Pakistan PLD 1996 SC 324:-

 

“7. Our conclusions and directions in nutshell are as under:-

 

(i) The words “after consultation” employed inter alia in Articles 177 and 193 of the Constitution connote that the consultation should be effective, meaningful, purposive, consensus oriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and the Chief Justice of a High Court as to the fitness and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President/Executive.

 

(ii)        That if the President/Executive appoints a candidate fund to be unfit and unsuitable for judgeship by the Chief Justice of Pakistan and the Chief Justice of the High Court concerned, it will not be a proper exercise of power under the relevant Article of the Constitution.

 

(viii) That an appointment of a sitting Chief Justice of a High Court or a Judge thereof in the Federal Shariat Court under Article 203-C of the Constitution without his consent is violative .of Article 209, which guarantees the tenure of office. Since the former Article was incorporated by the Chief Martial Law Administrator and the latter Article was enacted by the Framers of the Constitution, the same shall prevail and, hence, such an appointment will be void.”

 

“(xiii) That since consultation for the appointment/confirmation of a Judge of a Superior Court by the President/Executive with consultees mentioned in the relevant Articles of the Constitution is mandatory, any appointment/confirmation made without consulting any of the consultees as interpreted above would be violative of the Constitution and, therefore, would be invalid.”

 

“82       We are interpreting the word `consultation’ to widen and enlarge its normal scope for the reasons, firstly, that the Constitution-makers have not debated this word ‘consultation’ and fixed its parameters. Secondly, we would like to assign meaning to `consultation’, which is consistent and commensurate with the exalted position of Judiciary as is envisaged in Islam. Thirdly, we would like to give positive interpretation to ‘consultation’ which promotes independence of Judiciary.”

 

“88. Under Article 197 of the Constitution there is a provision for appointment of Additional Judges and’ it appears that there is no requirement that they can be appointed only after the sanctioned strength of the Judges of the High Court is filled in with the permanent appointees. From this it appears that even against the vacancies within the sanctioned strength a person can be appointed as Additional Judge of the High Court for a period to be specified and then can be made permanent as communicated under Article 193. We are of the view that such Judges have legitimate expectancy to be entitled and considered for appointment upon expiry of their period of appointment as Additional Judges if and when they are so recommended for the purpose by the Chief Justice of the High Court and the Chief Justice of Pakistan. If such appointments are refused to be made then there should be strong reasons recorded in writing. Extension to be made or not is not the sole discretion of the Federal Government unless such request is made by the Chief Justice of the High Court and the CJP.”

 

“93. Article 209 of the Constitution relates to the composition of the Supreme Judicial council and its functions. It enables the Council to take action or remove a Judge from the office on the ground of his incapability to perform the duties of his office for the reason of physical or mental incapability or misconduct. Sub-Article (7) of this Article provides that a Judge of the Supreme Court or of a High Court shall not be removed from the office except as provided by this Article. Sub-Article (8) of this Article provides that the Council shall issue the Code of Conduct to be observed by the Judges of the Supreme Court and High Courts. It is clear from the above provisions that the security of tenure is provided under Article 209 and also the forum for removal from the office as Judge of the High Court or of the Supreme Court. This provision is incorporated in the Constitution by the Constitution-makers. Subsequently, Chapter III-A setting up the Federal Shariat Court was inserted in the Constitution vide P.O. No.l of 1980 providing in Article 203-C(4) that a Judge or Chief Justice of the High Court can be appointed to the Federal Shariat Court without his consent for a period not exceeding two years. After such appointment it is open to the President to modify the terms of the appointment of such Judge in the Federal Shariat Court or assign him any other office or require him to perform such other functions as the President may deem fit. If a Judge or Chief Justice of a High Court refuses to accept the appointment to the Federal Shariat Court, then he stands retired. No doubt, Chapter III-A inserted in the Constitution for the purpose of setting up of the Federal Shariat Court envisages that the provisions of this chapter shall; have effect notwithstanding anything contained in the Constitution, still the appointment of a Judge or a Chief Justice of a High Court to the Federal Shariat Court in such manner without his consent accompanying by such harsh conditions in the final analysis is tantamount to removal or forcible retirement which can and should be done only under Article 209 of the Constitution under which the Supreme Judicial Council is constituted and is authorised to take action of such punitive nature. If the Government finds a particular Judge or the Chief Justice of a High Court to be uncooperative and if there is sufficient material to support the charge of misconduct, then in all fairness action should be taken against him and proceedings should be initiated before the Supreme Judicial Council in the manner prescribed under Article 209. We are not striking down provisions (4), (4-B) and (5) of Article 203-C as void being inconsistent with Article 209 but we do say that, keeping in view the rules of interpretation, if there is choice between two forums or provisions, then the provision beneficial to the affected Judge should have been adopted or restored to, and in such circumstances, the resultant action is to be considered as void in absence of cogent reasons without going into the constitutionality of Article 203-C of the Constitution. The Constitution is to be read as a whole and if there is any inconsistency, the same can be removed or rectified by the Parliament. In support of the proposition, reliance can be placed on the cases of Fazlul Quader Chowdhry v. Muhammad Abdul Haque PLD 1963 SC 486 and Hakim Khan v. Government of Pakistan PLD 1992 SC 595.

 

At page 424, paragraph 21 of the above report it was observed:-

 

“21. (a) As regards the Islamic concept of justice, it may be pertinent to point out that in the early days of civilisation, the legislative, the executive and the judicial powers were vested in one person in a State, namely, in a Chieftain or a monarch or a ruler. The concept that there are three organs of the State which share the power of a State, namely, the Executive, the Legislature and the Judiciary, is somewhat a modern concept. Upon the advent of Islam, the Judicial functions were separated from the executive functions at its very initial stage by the Holy Prophet (p.b.u.h.) by appointing a Qadi for each Province. The separation of judiciary from executive was implemented more effectively during the Caliphate of Second Caliph Hazrat Umar as he appointed Qadis free of control of the Governors. The reason being that the foundation of Islam is on justice. The concept of justice in Islam is different from the concept of the remedial justice of the Greeks, the natural justice of the Romans or the formal justice of the Anglo-Saxons. Justice in Islam seeks to attain a higher standard of what may be called “absolute justice” or “absolute fairness”. We find repeated references to the importance of justice and of its being administered impartially in Holy Qur’an and some of them are as follows:--

 

In one of the Verses of the Holy Qur’an Allah commands that---

 

Sura Aale-e-Imran

 

“O ye .who believe: Stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be against rich or poor, for Allah can best protect both. Follow not the lusts of your hearts; lest ye swerve, and if ye distort justice or decline to do justice, verily Allah is well-acquainted with all that ye do. “(4-135)

 

And in other Surah Allah commands as under---

 

Surah Maida, 5/9

 

“O ye who believe stand out firmly for Allah, as witnesses to fair dealing, and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just, that is next to Piety: and fear Allah, for Allah is well-acquainted with all that ye do.”

 

“Since there is a conflict between the above two. Articles, efforts are to be made to resolve the same by reconciling it. The Constitution is to be read as a whole as an organic document. A close scrutiny of the various provisions of the Constitution highlights that it envisages that the independence of judiciary should be secured as provided by the founder fathers of the country by passing Objectives Resolution and by providing security of tenure. The Constitution also envisages separation of judiciary from the executive. Keeping in view the various provisions of the Constitution, it is not possible to reconcile the above provisions of Article 203-C and Article 209. In such a situation, the question arises, which of the Article should prevail. One view can be that since Article 203-C was incorporated subsequent to Article 209 was incorporated by consensus by the framers of the Constitution and whereas Article 203-0 was incorporated by the then Chief Martial Law Administrator and as the same is detrimental to the basic concept of independence of judiciary and the separation of judiciary, the former should prevail. I am inclined to prefer the latter interpretation as it will be more in consonance with the various provisions of the Constitution and in accord with justice and fairplay. A person cannot be appointed on adverse terms in a new Court without his consent.” ‘

 

Reliance was also placed on the following observations made in the case of Mahmood Khan Achakzai (supra)

 

“For reasons to be recorded later, we pass following short order:

 

“What is the basic structure of the Constitution is a question of academic nature which cannot be answered authoritatively with a touch of finality but it can be said that the prominent characteristics of the Constitution are amply reflected in the Objectives Resolution which is now substantive part of the Constitution as Article 2A inserted by the Eighth Amendment.

 

“The Objectives Resolution was Preamble of the Constitutions made and promulgated in our country in 1956, 1962 and 1973. Perusal of the Objectives Resolution shows that for scheme of governance the main features envisaged are Federalism and Parliamentary Form of Government blended with Islamic provisions. The Eighth Amendment was inserted in the Constitution in 1985, after which three elections were held on party-basis and the resultant Parliaments did not touch this Amendment, which demonstrates amply that this Amendment is ratified by implication and has come to stay in the Constitution unless amended in the manner prescribed in the Constitution as contemplated under Article 239 and Article 58(2)(b) brought in the Constitution by the Eighth Amendment, which maintains Parliamentary Form of Government has provided checks and balances between the powers of the President and the Prime Minister to let the system work without let or hindrance to forestall a situation in which martial law could be imposed. “

 

“24. In the Pakistan Resolution passed on 23-3-1940 at Lahore it was resolved that. regions with Muslim majority, should be grouped together to constitute “Independent States” in which constituted units shall be autonomous and sovereign and rights of minorities to be protected. After partition Constituent Assembly of Pakistan passed Objectives Resolution, which was inserted in 1956 Constitution as Preamble. Objectives Resolution retained as Preamble in the Constitution of 1973 also can be read in order to gather the intention of the Constitution makers as to what type of governance and working set up was intended. It is noteworthy that to the Objectives Resolution it is mentioned that sovereignty over the entire universe belongs to Almighty Allah and the State shall exercise its power through the chosen representatives of the people. 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. This Court examined Preamble of Interim Constitution of 1972 in the case of Miss Asma Jillani v. Government of Punjab and another PLD 1972 SC 139 with relevant portion at page 141 with leading judgment by learned C.J. Hamoodur Rehman, who held as under:--

 

“In any event, if a grund norm is necessary, Pakistan need not have to look to the Western legal theorists to discover it. Pakistan’s own grund norm is enshrined in its own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March, 1949. This has not been abrogated by any one so far, nor has this been departed or deviated from by any regime, military or civil. Indeed, it cannot be, for, it is one of the fundamental principles enshrined in the Holy Qur’an.”

 

“25. This question with regard to grund norm was examined again in the case of. State v. Ziaur Rehman PLD 1973 SC 49 and the same learned C.J. has clarified the position and the relevant portion of page 54 of the report is reproduced as under:--

 

“In Asma Jillani’s case PLD 1972 SC 139 it has not been laid down that the Objectives Resolution is the grund norm of Pakistan but that the grund norm is the doctrine of legal sovereignty accepted by the people of Pakistan and consequences that flow from it. It does not describe the Objectives Resolution as “the cornerstone of Pakistan’s legal edifice’ but has merely pointed out that one of the counsel appearing in the case had described it as such. It is not correct, therefore, to say that the Objectives Resolution has been declared ‘to be a transcendental part of the Constitution’ or ‘to be a transcendental part of the Constitution’ or to be a `supra Constitutional instrument which is unalterable and immutable”.

 

The “grund norm’ referred to by the Supreme Court was something even above the Objectives Resolution which “embodies the spirit and the fundamental norms of the Constitutional concept of Pakistan’. It was expected by the Objectives Resolution itself to be translated into the Constitution. Even those that adopted the ‘ Objectives Resolution did not envisage that it would be a document above the Constitution. It is incorrect, therefore, to say that it was held by the Supreme Court that the Objectives Resolution of the 7th March, 1949, stands on a higher pedestal than the Constitution itself. “

 

……………………………………………………………………………………………………………………………………………………………………………………………………

 

“27. We are going into the question of validity of the Constitution (Eighth Amendment) Act, 1985, later but for the time being it would suffice to say that freedom bestowed upon the Parliament in clause (6) of Article 239 after amendment does not include power to amend those provision so the Constitution by which would be altered salient features of the Constitution, namely federalism, Parliamentary Form of . Government blended with Islamic provisions. As long as these salient features reflected in the Objectives Resolution are retained and not altered in substance, amendments can be made as per procedure prescribed in Article 239 of the Constitution.”

 

62. Mr Khalid Anwar submitted that in the light of above observations it is not permissible to alter by amendment the salient features of the Constitution including Federal structure of the country and the parliamentary system of governance blended with Islamic provisions. Mr. Khalid Anwar also referred to the following observations of this Court in the case of Mahmood Khan Achakzai (supra).

 

Per Sajjad Ali Shah, C.J.

 

“28. Having disposed of the question with regard to the basic structure of the Constitution as stated above, now I advert to the second important issue with regard to the Eighth Amendment inserted in 1985 in the Constitution of 1973. Before I go into the arguments and contentions of the learned counsel appearing on behalf of appellants and petitioners, it would be pertinent to recapitulate the history very briefly. It was done so very succinctly by Mr. Abdul Hafeez Pirzada, who supported the stance of Mr. Abdul Mujeeb Pirzada, who is appellant. in C. A. No. 397-K- of 1990. Pakistan came into existence in 1947 after .which for the first time Constitution of 1936 was promulgated contemplating parliamentary form of Government. This Constitution was abrogated in 1958 and Martial Law was imposed. President Muhammad Ayub Khan gave to the country Constitution of 1962 contemplating Presidential form of Government which was again abrogated in 1969 when Martial Law was imposed. In the aftermath of Martial Law of 1969 C.M.L.A. General Yahya Khan did away with One Unit in West Pakistan and in the result four Provinces; Punjab, Sindh, N.W.F.P., and Balochistan re-emerged. This was done in response to persistent demand from-East Pakistan to stop acting on the principle of parity between two Provinces of East and West Pakistan as it was felt in East Pakistan that population-wise they had edge over people in West Pakistan. Demand of the people of East Pakistan was also conceded and elections were held by General Yahya Khan on the basis of adult franchise and one-man-one-vote. There was also discontentment in the East Pakistan and elections were fought on the basis of Six Points of Awami League of Sheikh Mujeebur Rahman of East Pakistan demanding maximum autonomy allowing only three subjects for Centre and in other words it was a demand for a loose confederation. In the result of election Awami League of Sh. Mujeebur Rahman won with sweeping majority in East Pakistan and Pakistan People’s Party was declared as having won as majority party in the West Pakistan. General Yahya Khan started negotiations between the parties for amicable settlement but was not successful and in the meantime military action was taken in East Pakistan as there was law and order situation resulting in riots and loss of life and damage to property. Finally, war broke out between Governments of India and Pakistan with India supporting morally and materially militant groups in East Pakistan. Finally, we lost East Pakistan as there was unilateral declaration of independence and a new country, Bangladesh came into existence.”

 

Per Saleem Akhtar,J.

 

“42. The Constitution of India also provides for amendment of the Constitution. Before amendment of Article 368 it was identical to the original Article 239 of our Constitution. However when the Supreme Court of India struck down the amendments holding that it was in conflict with basic structure, Article 368 was amended and is identical to our amended Article 239. From a general assessment of the Constitutions ‘of various countries it seems clear that in all the Written Constitutions, provision for amendment has been made. The object being to keep the Constitution alive and in line with the pace of progress, aspiration, will, needs and demands of the people. Constitution cannot be made static and stoic. It must progress, blossom and flower. A rigid Constitution having no provision for amendment is likely to suffer crack by violence or Constitutional deviation. Perhaps it is the historical experience that political philosophers and jurists favour provision for amendment in a written Constitution. Such provisions may restrict the power of amendment specifically as provided in France and Germany. But where an unrestricted power is given to the Legislature then Court will see whether an amendment to the existing Constitution has been duly proposed, adopted and assented in the manner required by the Constitution so as to become a part thereof. However, there are factors which restrict the power of the Legislature to amend the Constitution. It is the moral or political sentiment, which binds the barriers of Legislature and forms the Constitutional understandings. The pressure of public opinion is another factor which restricts and resists the unlimited power to amend the Constitution. In Pakistan although Article 239 confers unlimited power to the Legislature, yet it cannot by sheer force of morality and public opinion make laws amending the Constitution in complete violation of the provisions of Islam. Nor can it convert democratic form. in completely undemocratic one. Likewise by amendment Courts cannot be abolished which can perish only with the Constitution. It seems to be an emerging legal theory that even if the Constitution is suspended or abrogated, the judiciary continues to hold its position to impart justice and protect the rights of the people which are violated and impinged by the actions of the powers and authorities which saddle themselves by unconstitutional means. As held in Asma Jillani’s case, such actors are usurps and the Courts had only condoned their action without approving it. The provisions of the Constitution cannot be suspended except as provided by the Constitution itself. The concept of abrogation of the Constitution is alien to the Constitution. The fact that whenever there occurred Constitutional deviation, it was legalised by condonation or validation granted by the Supreme Court, clearly demonstrates that such deviations and actions were void ab initio and unconstitutional. The validation or condonation was granted merely to avoid any disruption of civil and personal rights, to maintain continuity of administration and governance and to bring the polity and system of government on democratic and constitutional rails. But such situation, with reference to Article 6 of the Constitution has to be viewed with greater seriousness.”

 

“50. The learned Advocate for the respondents and the learned amicus curiae have contended that the competency of the members of the National Assembly is protected by the doctrine of de facto. Reference has been made to Farzand Ali v. Province of West Pakistan PLD 1970 SC 98 and Sabir Shah v. Federation of Pakistan PLD 1994 SC 738. This is a well-recognized doctrine embedded in our jurisprudence. Under this doctrine bona fide acts in public interest performed by persons assuming authority which turns out to be illegal are assumed to have been performed by a de jure authority/person and binding. This doctrine is intended to avoid dislocation, instability and confusion while declaring a de-facto authority illegal. In order to create stability, regularity and to ‘prevent confusion in the conduct of public business and insecurity of private rights the acts of the officers de facto are not sufficient to be questioned because of want of legal authority except by some direct proceeding instituted for the purpose by the State or someone claiming office de jure ... ... ...’ (Constitutional Limitations by Cooley - 8th Edition, Vo1.2, page 1357). Besides this, Mr. Khalid Anwar has referred to Norton v. Shelby County 118 US 425 where it was observed that the doctrine of de facto is based on considerations of policy and public interest. For good order and peace of society the title of persons in apparent authority is to be respected and obeyed until their title is investigated in some regular mode prescribed by law. In Gokaraju v. State of Andhra Prashad AIR 1981 SC 1473 it has been observed that `the acts of the officers de facto performed by them within the scope of their assumed official authority in the interest of the public or third persons and not for their own benefit are generally as valid and binding as if they were the acts of officers de jure’. This doctrine can be applied if the Parliament is declared to be illegally constituted and Eighth Amendment is declared unconstitutional. It is only in such situation that to preserve continuity, prevent disorder and protect private rights, this doctrine can be pressed in service.”

 

“51. Mr. Syed Sharifuddin Prizada has contended that the Eighth Amendment has introduced checks and balances between the power of the President and the Prime Minister. As discussed above, the Constitution of 1973 had vested supreme power to the Prime Minister and though democratic in form it was Prime Minister in character. Amendments made in Articles 48, 58, 91 and 92 have curtailed the power of the Prime Minister and have strengthened the hand of the President. In a democratic system check and balance is provided to avoid autocratic rule and to provide balance of power for a proper functioning of the Government according to the Constitution. No doubt the amendments particularly Article 58(2)(b) have tilted the balance in favour of the President, yet this Court has structured and circumscribed the discretionary power of dissolution. One reason given in favour of Article 58(2)(b) is that it prevents Constitutional deviation. This seems to be plausible because when Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary, the President may exercise his power before any person, agency or authority taking advantage of such situation strikes not at the Assembly but at the Constitution. One may comment that to save the Constitution, Assembly is dissolved. The exercise of power under Article 58(2)(b) or Constitutional deviation can be avoided not by the letters of the Constitution but by political ethics, morality and maturity. Unless a responsible Government exists which has respect for law, opportunity shall continue to be provided for Constitutional strike.

 

“53. It has also been pointed out that the controversy involves political question which the Courts should avoid to decide. The contention is more relevant with reference to the balance of power between the President and the Prime Minister. Such question is a political question to be decided by the Constituent Power. It, therefore, requires determination of what is a political question. A political question is one which because of its political sensitivity is not fit for adjudication by the Court or the Constitution requires it to be determined finally by any other organ of the State. This political question doctrine’ is based on the respect for the Constitutional provisions relating to separation of power among the organs of the State. But where in a case the Court has jurisdiction to exercise power of judicial review, the fact that it involves political question, cannot compel the Court to refuse its determination.

 

63. Mr. Khalid Anwar then referring to the case of Wukala Mahaz Barai Tahafaza-e-Dastoor (supra), submitted that the rationale behind the said judgment .was that under the. 14th Amendment of the Constitution, certain restrictions were placed on speeches made .by the Members of National Assembly contrary to party policy and that any violation “thereof would lead to disqualification, but this Court by a majority decision held, as an aspect of judicial activism, that notwithstanding the language of the amendment, speeches made outside Parliament were not covered. The learned counsel termed it as an expansion of judicial power, in that, the amendment itself did not differentiate between speeches inside the parliament or outside it.

 

64. Mr. Khalid Anwar also referred to the short order in the case of Mehram Ali and others v. Federation of Pakistan etc. PLD 1999 SC 1445, to contend that this Court demonstrated expansion of judicial power in a wider shade. He made reference to the following observations of this Court in the case of Sardar Farooq Ahmad Khan Leghari and others v. Federation of Pakistan and others PLD 1999 SC 57:

 

“It has been pleaded that the petitions are also not maintainable because, the act of the President in proclaiming Emergency was in his sole power based on his own satisfaction which is not justiciable in a Court of law. It has also been averred that the Proclamation of Emergency as well as the order passed under Article 233(2) of the Constitution having been approved by the resolution of the joint sittings of the Parliament, now, expressed the will and satisfaction of the people of Pakistan. It has been further averred that the will of the people of Pakistan having been expressed in the resolution of the joint sittings of the Parliament, an individual or a citizen of Pakistan has no locus standi to call in question the Proclamation of Emergency and the orders suspending the Fundamental Rights.

 

“12. The arguments were concluded on 28-7-1998 and the aforementioned Constitution Petitions were disposed of on the same day by the following Short Order:-

 

“For the reasons to be recorded later on, we unanimously hold as under: -

 

(1) That the petitions are maintainable.

 

(2) That the materials placed before this Court and shown to us in the chambers, prima facie indicate that the President was justified in issuing the Proclamation under clause (1) of Article 232 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution).

 

(3) That keeping in view the effect of the Proclamation provided for in clause (1) of Article 233 of the Constitution, which authorises the State to make any law or to take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 of the Constitution and also keeping in view the language of Articles 10, 23 and 25 (which are hedged with- qualifications), we are of the view that an order under clause (2) of Article 233 of the Constitution for suspending the enforcement of the Fundamental Rights was not justified and, therefore, the original order dated 28-5-1998 and the order dated 13-7-1998 varying the above earlier order are declared as without lawful authority and of no legal effect.

 

(4)        That this Court has jurisdiction to review/re-examine the continuation of Emergency at any subsequent stage, if the circumstances so warrant.” .

 

“Then it was urged by Ch. Muhammad Farooq, learned Attorney General, that there is a significant distinction between the above two Articles inasmuch as once a Proclamation of Emergency is issued under clause (1) of Article 232 of the Constitution and an order under clause (2) of Article 233 thereof is passed for suspending the enforcement of Fundamental Rights mentioned therein, this Court cannot enforce, any Fundamental Right and, hence, it cannot entertain a petition under Article 184(3) of the Constitution, whereas there is no such suspension of the enforcement of Fundamental Rights in a case of issuance of a Proclamation under Article 234 of the Constitution. Indeed the above distinction exists. However, it may be pointed out that the suspension of the jurisdiction of this Court to enforce any one or more Fundamental Rights mentioned in an order passed by the President under clause (2) of Article 233 depends on the questions, as to whether the preconditions provided for in clause (1) of Article 232 were present at the time of the issuance of the Proclamation, and, whether the suspension of enforcement of anyone or more Fundamental Rights was warranted in terms of the constitutional framework. In other words, the exercise of power by the President under clause (1) of Article 232 is conditional and can be invoked if the conditions/prerequisites contained therein are present. If the said conditions do not exist, the exercise of power by the President under the above clause will be without jurisdiction and coram non judice. For example, if we were to hold that the expression “the security of Pakistan, or any part thereof is threatened by war or external aggression” used in clause (1) of Article 232 means actual war or actual external aggression, the exercise of power under the above clause would be without jurisdiction if factually no actual war or actual external aggression existed at the time of issuance of the Proclamation under the above provision; or if we were to hold that the reasons which prompted the issuance of Proclamation under aforesaid clause (1) of Article 232 have no nexus with the objects contained therein, such exercise of power by the President will also be without jurisdiction and coram non judice. “

 

“ 17. It seems that by now it is a well-entrenched proposition of law that 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 pre-requisites 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.

 

“It may also be pointed out that the above views run counter to the Fundamental Rights guaranteed by the Constitution and the aforesaid International Covenants of Civil and Political Rights, European Convention on Human Rights and American Convention on Human Rights. In my view, a distinction is to be made between an emergency which is imposed when a country is engaged in an actual war or is subjected to actual external aggression and when the same is imposed on account of imminent danger thereof for the purpose of suspension of fundamental rights and continuation of the emergency. In the former case, the above Latin maxim inter arma silent leges (i.e. when there is an armed conflict, the law remains silent) or that the national success in the war is to be ensured in order to escape from national plunder or enslavement even if the personal liberty and other rights of the citizens are sacrificed as observed by Lord Atkinson in the case of King v. Halliday (supra) would be applicable. But in the latter case the` rule of proportionality is to be followed as propounded by some of the eminent authors and adopted under above Article 4 of the International Covenants of Civil and Political Rights, Article 15 of the European Convention of Human Rights 1967 i.e. a public emergency permits a State to take derogatory measures in derogation of the covenants subject to the condition that the rule of proportionality is observed meaning thereby, that the derogatory steps/actions should be to the extent required by the exigencies of the situation provided such measures are not inconsistent with their other obligations under the international law. The above view is reinforced by the report of International. Law Association, 1986 referred to hereinabove in para. 36 (xix), that while imposing emergency following factors should be considered :-

 

(i)         severity of cause defined generally as threatening’ the life of the nation.

 

(ii)        good faith on the part of the imposing Government;

 

(iii)       proportionality (relating to geographic scope, duration, and choice of measures strictly required by the exigencies of the situation);

 

(iv)       proclamation or notification;

 

non-derogability of certain rights;

 

(vi)       respect for other international obligations;

 

(vii) non-discrimination.

 

“The rule of proportionality is also in consonance with the view obtaining in U.S-A. and Australia etc. namely, that a distinction has been drawn between the power of judicial review during actual war and after the cessation of hostilities already referred to hereinabove. Reference may again be made to the observation of Latham, C.J. in the case of Australia Communist Party (supra) that “tit Court in its decisions applied a rule that there must be a real- and substantial connection between the legislation and the defence situation so created in order that the legislation could be valid”.

 

“47. In the present case the President passed first order under clause (2) of Article 233 of the Constitution on 28-5-1998 providing the right to move any Court including a High Court and the Supreme Court for the enforcement of all Fundamental Rights conferred by Chapter 1 of Part II of the Constitution and all proceedings pending in a Court which were for the enforcement or involving determination of any question as to the enforcement of any of the said rights, shall remain suspended for the period during which the said Proclamation was to remain in force.”

 

He submitted that this Court, however, held that it has jurisdiction despite the suspension of Fundamental Rights.

 

65. Mr Khalid Anwar further argued that the alleged emergency took place on the evening of 12th October, 1999, which arose out of challenge to the removal from office of the Army Chief. He submitted that the Army Act is a complete code in relation to such matters and, therefore, if any illegality had been committed that should have been challenged under the Army Act and that with the removal of the Prime Minister from office, whether rightly or wrongly, the principle of proportionality, which is defined in this judgment as being limited to the geographic scope, duration and choice of measures strictly required by the exigencies of the situation, does not justify destruction of Constitutional governance for an indefinite period of time on a completely unrelated exigency, namely, the introduction of social or economic or financial policies. Mr. Khalid Anwar referred to the case of Al-Jehad Trust v. Federation of Pakistan 1999 SCMR 1379 to contend that the people of Northern Areas have been held to be entitled to self government, the right to vote, the right for enforcement of fundamental rights and, therefore, the people of Pakistan cannot be deprived of the similar rights.

 

66. Mr. Khalid Anwar next, quoting Article 14 of the Constitution which is to the effect that “the dignity of man and subject to law, the privacy of home, shall be inviolable”, referred to a US case Roe v. Wade decided in 1972 whereunder the right of abortion was decided as a penumbra of right to privacy and, thus, expanded its judicial power.

 

67. Mr Khalid Anwar made a distinction between the ratio decidendi and obiter dicta, -saying that ratio decidendi contemplates the essential facts and principles upon which the case is decided and the rest is obiter dicta. He further submitted that on the basis of principle of stare decicis all these observations of the Court are obiter dicta and did not bind the Court. He submitted that assuming but not conceding that the doctrine of necessity is valid, still the finding in Begum Nusrat Bhutto’s case is not applicable to the facts of the present case. .

 

68. Mr. Khalid Anwar referred to various observations from the case of Usif Patel and 2 others v. The Crown PLD 1955 FC 387 and Reference No. 1 of 1955 by His Excellency the Governor-General PLD 1955 FC 435. He also referred to the following passages from the book titled “Dissolution of Constituent Assembly of Pakistan and The Legal Battles of Moulvi Tamizuddin Khan” by Syed Sharifuddin Pirzada:

 

“It is submitted that the reasoning of Justice Munir is fallacious and his conclusions are erroneous. They have been aptly dealt with by Justice Cornelius in his dissenting opinion. On the question of dissolution Justice Muhammad Bukhsh in his Judgment has given cogent reasons. Reference may, therefore, be made to extracts from the aforesaid two judgments.”

 

“The Governor-General’s power of dissolution of Federal Legislature is withdrawn because the dissolution of Federal Legislature will mean the dissolution of the Constituent Assembly, which is not permissible under the provisions of Independence Act.”………….The language employed in the Proclamation, however, is somewhat extraordinary. Relevant extract from it reads as follows.

 

“The Governor-General having considered the political crisis with which the country is faced, has with regret come to the conclusion that the constitutional machinery has broken down. He, therefore, has decided to declare a state of emergency throughout Pakistan. The Constituent Assembly as at present constituted has lost the confidence of the people and cannot longer function.”

 

Mr. Khalid Anwar also relied on a passage from the book titled “Destruction of Pakistan’s Democracy”, by Allen McGrath, which reads thus :

 

“Instead, the Court upheld Umar Khan’s sentence, not by relying on the precedents found in Anglo-American cases dealing with civil disturbances, but instead, by citing cases arising from British suppression of the Irish and African peoples in the nineteenth century. In the cases relied on, the British judiciary had allowed the colonial military authorities powers beyond those they would have been allowed to exercise at home or in other colonies during times of peace. Convictions of civilians by military boards were upheld by the Privy Council in several cases where civilian Courts were functioning at the time of the trial and sentencing. Munir relied oh cases which have been called `forgotten episodes’ which had `provided a few fragmented rules’. An American Constitutional historian has commented on these cases, calling them `harsh’. And adding, `the many vigorous protests from eminent legal authorities suggest that such measures are looked upon as usurpations and wholly out of harmony with the genius and spirit of English institutions.

 

“Munir was utilising cases which represented Britain the conqueror rather than Britain the law-giver. What resulted was a law of military rule in Pakistan not based on the restrained regulations for the use of the military which the British had found sufficient to control India. Instead, he relied on law which had arisen from the actions of the British Authorities taken amidst the bitter armed conflicts with conquered peoples in revolt in Ireland and South Africa, and applied that law to his own countrymen in peacetime.”

 

He next relied on the extracts from the book titled “Transfer of Power Vol. VII”, which read as follows:

 

“Q.       Nobody objects to interim dominion status. Suppose there are two constituent Assemblies. Is it open to one of them to declare itself absolutely independent and the other to declare itself a dominion: That was the point that Mr. Devadas Gandhi made.

 

“A.       If you grant independence and at the same time try to impose restrictions, the independence becomes a mockery.

 

“My dear Prime Minister,

 

“I am much conceived to hear from my colleagues whom you consulted yesterday that you propose to call the India Bill, “The Indian Independence Bill”. This, I am, assured, is entirely contrary to the text, which corresponds to what we shave previously been told were your intentions. The essence of the Mountbatten proposals and the only reason why I gave support to them in because they establish the phase of Dominion status. Dominion status is not the same as Independence, although it may be freely used to establish independence. It is not true that a community is independent when its Ministers have in fact taken the Oath of Allegiance to The King. This is a measure of grave constitutional importance and a correct and formal procedure and nomenclature should be observed. The correct title would be, it seems to me, “The Indian Dominions Bill”. I should, however, be quite willing to support if it were called, “The India Bill, 1947” or “The India Self-Government Bill.

 

I am glad to hear you are considering such alterations.

 

Believe me,

 

Yours sincerely,

 

WINSTON S. CHURCHILL”

 

“My dear Churchill,

 

I have delayed replying to your letter while awaiting any further communication from the Viceroy on the point raised by your colleagues as to the title of the Bill. Owing to the time factor, it was impossible to make a change evens if it was desirable.

 

“I do not agree with the point which you make. Dominion Prime Ministers constantly stress the point that they are independent States within the British Commonwealth. They bear allegiance to The King who is The King of all the Dominions. The insistence on independence does not touch the point of allegiance, but emphasizes the complete freedom of every member of the Commonwealth from control by any other member.

 

“I think this is a most valuable counter to the demand for independence outside tile Commonwealth as it shows that this demand can be satisfied within it. This is, in fact, the meaning of Dominion Status.

 

Yours sincerely,

 

 

 

C. R. ATTLEE”

 

Mr Khalid Anwar next referred to the following passage from “The Statute of Westminster and Dominion Status” by K. C. Wheare, which reads thus:

 

“There appear to be three distinguishing characteristics of the Dominions. First, they were marked off from the rest of the political world by the characteristic that they were territorial communities, other than Great Britain, which shared with Great Britain a common allegiance to the Crown; they all had the same king”.

 

“By this criterion the Dominions were distinguished in status from foreign nations in international law and relations. They were shown to be `within the British Empire’. But, thus far, they .are not distinguished from other portions of the British Empire. India equally with Great Britain and the Dominions owed allegiance to the Crown; all the territorial communities within the British Empire owed allegiance in some form or another. How were the Dominions to be distinguished from these other communities? There was a second criterion. The Dominions were all equal in status to Great Britain; and, consequently they were all equal in status to one another. They were `in no way subordinate one to another in any aspect of their domestic or external affairs’. Equality is a difficult term. It is not certain what are its full implications here…………….”

 

69. Mr. Khalid Anwar vehemently argued that as a result of this Court’s judgment in Moulvi Tamizuddin Khan’s case (supra) whereby it was held that assent of the Governor-General was necessary to all laws passed by the Constituent Assembly, some 44 Constitutional Amendments were rendered invalid and as to section 223 A of the Government of India Act it was held that since it had not received such assent, it was not yet law. The Court did so notwithstanding the fact that the three organs of the State namely, the Legislature, the Executive and the Judiciary were unanimous on the point that the Constituent Assembly was a sovereign body and that when it functioned as a Constitution making body, the laws so framed by it did not require the assent of the Governor-General, though when it functioned as an ordinary Legislature, it required assent. He then referred to section 223-A of the Government of India Act, 1935, which reads as under

 

“223-A. Every High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases any government within those territories writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them.”

 

70. Mr Khalid Anwar next submitted that under the Indian Independence Act, 1947, Britain transferred unconditionally and in unqualified manner all its powers to the people of Pakistan. This was irrevocable cession of power. He referred to the old version of section 19 of the Indian Independence Act, 1935, whereunder the Governor-General had the power to dissolve the legislature, to contend that such power was withdrawn in 1947. He then submitted that the conditions prevailing during that time do not fit in or apply to the present conditions.

 

71. Mr Khalid Anwar argued that in Reference No. 1 of 1955, sent by the Governor-General, the then Chief Justice Muhammad Munir, while expressing his opinion justifying the emergency, limited its scope by the following four conditions:

 

(i)         immediate action for maintenance of law and order;

 

(ii)        he exercises de facto powers, not de jure power;

 

(iii)       only those de facto powers which the legislature would certainly have given to the Governor-General if the emergency could have been foreseen trusting that whatever he had honestly done was for the safety of the State, will be ratified by an Act of Indemnity and;

 

(iv)       the legislature would have, without any doubt, approved and indemnified the same.”

 

He contended that on the basis of Chief Justice Munir’s formulation, the present Emergency deserves to be declared as unconstitutional.

 

72. Rebutting the plea on behalf of the government that the present Proclamation of Emergency is not Martial Law, in that, the Martial Law Courts are not operating, Mr. Khalid Anwar vehemently contended that apart from the fact that Martial Law Courts are not functioning, there is no difference between Martial Law as it existed in the past and the present Proclamation of Emergency. He submitted that there was a divergence between the stated objectives of the Chief Executive and the contents of the PCO whereunder he purportedly assumed the power to amend the Constitution. He explained that this happened merely because the present PCO is a copy of the previous PCOs. As to the plea of the Government that, there is a difference between Martial Law and an Emergency, in that, in an emergency powers of the Government are more restricted, Mr. Khalid Anwar contended that this Court should determine the limits of such powers. He next contended that the Constitution cannot be amended as the Proclamation does not confer any such power on the Chief Executive. He reiterated that this Court has jurisdiction and the power to declare the nature of Constitutional dispensation in Pakistan.

 

73.       Arguments of Mr Khalid Anwar, can be summarized as follows:

 

1.         That he will not request this Court to do the impossible.

 

2.         That he referred to the nature of judicial power and its relationship with jurisdiction and maintained that no authority can take away power of this Court to confer legitimacy on a Government.

 

3.         That the deliberations of Chiefs of Staff of -the Armed Forces and Corps Commanders of Pakistan Army alluded to therein was a historical fact and not a source of power.

 

4.         That the Chief Executive had assumed an office which was non existent.

 

5.         That there was no need to proclaim or continue Emergency as the situation in the country was calm and there were no agitations or demonstrations before the Army take-over.

 

6.         That a Proclamation ipso facto cannot be a source of power in the absence of law.

 

7.         That the doctrine of necessity was defective and in any event it cannot be invoked to justify the Military take-over and the instruments issued and actions taken subsequently.

 

8.         That the National Accountability Ordinance, 1999 offends against the settled law and human rights having created an offence retroactively, was unconstitutional and also did not meet the criteria of establishment of Special Courts.

 

9.         That the seven-point Agenda is in the best interest of the country which takes place under the law and not in violation of the law.

 

10. That seven-point Agenda was a political Agenda as the points unfolded by it were contained in the manifestos of the Pakistan Muslim League and the Pakistan People’s Party.

 

11.       That the suspension of the Constitution cannot be justified on the ground of good intentions of the Chief Executive.

 

12.       That the PCO No. 1 of 1999 is devoid of legal authority being based on the Proclamation of Emergency dated 14-10-1999 which had neither disclosed the source of power under which it was issued nor had conferred any power on the Chief Executive, who was its sole author.

 

74. When asked by the Court to suggest a workable solution for resolving the controversy raised in these petitions, Mr. Khalid Anwar respectfully replied in the following terms:---

 

First, the Court can condone past and closed transactions in order to avoid chaos and anarchy though they were not valid;

 

Secondly, the Court. can condone those actions which are conducive to return to constitutional rule. He, however, emphasised that the Court may either allow the petitions as a whole or in the alternative may confine it to a declaration in this case and lay down a roadmap and a time frame for return to democratic rule and holding of elections.

 

CONSTITUTION PETITION NO. 53 OF 1999

 

75. At the outset, Mr. Habib-ul-Wahab-ul-Khairi, learned ASC, petitioner in Constitution Petition No. 53 of 1999, quoted verses 8 to 10 from Chapter V Sura Al-Ma’idah and verse 135 from Chapter IV Sura AnNisa of the Holy Qur’an to contend that the Islamic concept of `Adl’, which is a universal concept and also provides for equity and `Ihsan’, should be followed by this Court in’ deciding the present and the connected petitions. He further submitted that it is the Judiciary alone which can make or mar the destiny of our nation, because the absence of justice invariably leads to the disintegration and ultimate destruction. He argued that Judges are the watchmen and their watchman is their conscience as they are answerable to their conscience and God.

 

76. He. stressed that so far as Judiciary is concerned, there was no need of the PCO because the Courts. were functioning normally on October 12, 1999. He supported the law laid down in the case of Begun Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657, with special reference to the observations made at pages 692 (citation-F), 715-717 (citation-UV), 721-22 and 733 (citation- HH). He also quoted an extract from the above judgment wherein views of Mr. Brohi and Syed Sharifuddin Pirzada were recorded , to the effect that notwithstanding fresh oath administered to the then Judges of the Superior Courts, their independence and impartiality to decide the cases had not been affected. He contended with vehemence that this Court has the power and jurisdiction to hear these petitions.

 

77. It was next contended that a Judge of the Superior Court cannot be removed otherwise than by following the procedure laid down in Article 209 of the Constitution. He further contended that the Judges are deputies of God for administering justice, therefore, the Judiciary should guard against attacks on its independence. He submitted that even after the promulgation of PCO, the Judges of the superior Courts have to abide by the provisions of the Code of Conduct and perform their primary duty of administering justice according to their conscience. He then quoted some extracts from the case of Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416, which read as under:

 

“Our Constitution envisages democracy as ethos and a way of life in which equality of status, of opportunity, equality before law and equal protection of law obtains. It has its foundation in representation; it is not a system of self-government, but a system of control and the limitations of government. A democratic polity is usually identified by the manner of selection of its leaders and by the fact that the power of the government functionaries is checked and restrained. In a democracy the role of the people is to produce a government and, therefore, the democratic method is an institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive, struggle for the people’s vote. Fundamentally democracy rests upon the idea of freedom.”

 

“Parliamentary Government is a government of the party and a party government is a vital principle of a representative government. The political party is a connecting link between the Executive and the Legislature, between the Cabinet and the Parliament. It is also a connecting link between the Cabinet and the people and between the Parliament and the people. For this reason the political parties are necessary and important features in a Parliamentary democracy. They are important because the group victorious at a general election becomes the government. In a nutshell a Parliamentary democracy depends for its success on the organization of political parties and its disciplined support of Parliamentary majority is sine qua non of Cabinet Government composed of the Prime Minister and the Ministers from the majority party. They, thus, provide leadership to public offices through the elections.. They are now necessary part of a democratic government. Rival parties make elections meaningful by giving voters a choice among candidates who represent different interests and points of view. The party or parties that are out of power serve as a “loyal opposition” as understood in Parliamentary democracy. That is, they criticise policies and actions of the party in power. In this way the party in power is called on to justify its actions and is made responsible to the people.” .

 

“Therefore, there cannot be any doubt that the Ideology of Pakistan is based on Muslim nationhood and includes Islamic Ideology which in clear terms in the Constitution means Injunctions of Holy Qur’an and Sunnah and was the principal factor in the concept of Muslim nationhood. It is this Pakistan Ideology which resulted in the partition of the sub-continent and is knows as a two-nation theory.”

 

“Quaid-e-Azam in his speech on the Pakistan Resolution of the All India Muslim League on 24th March, 1940, said:

 

“Mussalmans are a nation according to any definition of opinion and they must have their home and their territory and their State. We wish our people to develop to the fullest spiritual, cultural, economic, social and political like in a way that we think best and in consonance with our own ideas according to the genius of our people. “

 

“The concept of Islamic Ideology is interwoven with the ideology of Pakistan and is inseparable as it is the foundation of two-nation theory. Therefore, “integrity of Pakistan” not only includes Ideology of Pakistan but also Islamic Ideology. Any invasion of “integrity of Pakistan” will inevitably lead’ to an invasion of its sovereignty and vice versa. I may here state that maintenance of public order is an aspect of exercise of sovereignty. (Encyclopaedia Britannica, Vol. 17, Ed. .15, P.309. As will appear from the conclusions of Hamoodur Rahman, C.J., “public order” must be regarded to be included in the expression “sovereignty or integrity of Pakistan”. This is not all. Any attempt to create doubts in the people’s belief either vocally or by force against the comprehensive concept of Ideology of Pakistan which is the basis of the creation of the country will also be an invasion of the sovereignty or integrity of Pakistan as it would undermine the security and solidarity of the State by destroying the legal order.”

 

“It was contended by the learned counsel for the petitioner that the Partition Agreement which guaranteed the safeguards of the minorities in Pakistan should also be regarded as a part and parcel of the expression “Ideology of Pakistan”. I do not see how it can be included within it as this was a special creed which led to the Partition of India and has its own meaning and significance and even today preserves the sovereignty and integrity of Pakistan. The safeguards have been duly implemented in the Constitution in the shape of Fundamental Rights where there is no discrimination and so also in the Principles of Policy and elsewhere. The agreement stands apart and cannot be read as a constituent of the Ideology of Pakistan. “

 

“While raising this submission the learned Attorney-General filed to notice that this Order was an existing law under sub-Article (3) of Article 270-A and was not protected either under sub-Article (6) of this Article nor was it specified in the First Schedule under Article 8(3) (b) of the Constitution. Article 2 of this Order places it higher than the Constitution by the use of the words “shall have effect” which mean shall have legal effect, while Article 3 is worded so as to make it a substitute of Article 17(2) of the Constitution. It provides additional constraints apart from sovereignty or integrity of Pakistan. Upon the revival of the Constitution the Fundamental Rights were also revived including Article 17 without any amendment. Article 17(2) was, therefore, a higher norm than this Order which could not prevail as against it in spite of the enacting words “notwithstanding anything contained in the Constitution.” It can only co-exist as a subordinate legislation if it is consistent with the Fundamental Right. Abdul Wali Khan’s case has confined the restrictive clause to sovereignty or integrity of Pakistan. This being so other specified constraints are outside the purview of Article 17(2) and cannot operate to override the fundamental norm; and as President’s Order No. 20 of 1978 is existing law under sub-Article (3) of Article 270-A, no question of any repeal by implication arises. What I find is that this Order is the basis for extensive amendments in section 3 and the other provisions of the Act by Ordinance 41 of 1978. Before the amendment of this section the only words which found place in it were “sovereignty or integrity of Pakistan” which were inserted in the light of the constraints in Article 17(2) of the 1973 Constitution. Sections 3-A and 3-B of the Political Parties Act, 1962, were inserted by Ordinance 42 of 1979 on 30-8-1979 and 3-C by Ordinance 53 of 1979, ‘dated 8-10-1979. Section 3-B was further amended by Ordinance 52 of 1979 promulgated on 27-9-1979. President’s Order 20 of 1978 by its status as being an ordinary law cannot give any protection to the impugned as being an ordinary law cannot give any protection to the impugned provisions of the Political Parties Act as against Fundamental Right 17(2). Therefore, even if it co-exists with the Political Parties Act, 1962, it is of no effect although it remains on the statute book.”

 

“8.        The foregoing observations are for the implementation of a very important part of the mandate of Article 17(2). It might help avoid any large scale national effort to overthrow a fully entrenched political party which otherwise falls within the mischief of Article 17(2) - by unorganized force or by organized one which might be projected as right. In either case the Courts including the superior ones are the worst-hit, besides other consequences. For example, superior Courts, in such situations are made to lose their effectiveness; which in ordinary course, in the case of normal Government, can and do exercise checks through the balancing process, in eventualities of undue acquisition or use of State Power. Our code of conduct, when left free to operate ordains as follows:---

 

“The Constitution, by declaring that all authority exercisable by the people is a sacred trust from Almighty Allah, makes it plain that the justice of this nation is of Divine origin. It connotes full implementation of the high principles which are woven into the Constitution, as well as the universal requirements of natural justice. The oath of a Judge implies complete submission to the Constitution, and under the Constitution to the law .... On equipondernace stand the heavens and the earth. By equiponderance, oppression meaning unjust and unequal burdens is removed. The Judge’s task is to secure that such equality should prevail in all things.”

 

78. He emphasised that Pakistan owes its existence to Islamic ideology and justice or ‘Adl’ is the pivot of Islam, therefore, the Judiciary in Pakistan is not a creation of the Constitution, as is assumed, but it came into existence with the creation of the country and can never be abolished. He argued that the Judiciary derives its powers and duties from the Islamic principles and since Islam gives fundamental importance to the system of justice, the Courts will continue to exist and the Judges will perform their functions in accordance with the Islamic principles and their conscience. He further submitted that with the suspension of the Constitution, Islam is not suspended. In the beginning, all the powers, viz., executive, legislative and judicial, vested in one man, the Holy Prophet (p.b.u.h.), but with the advent of the institution of Khilafat, they were gradually separated.

 

79. He contended that whenever the Armed Forces take over the government of the country, they promulgate PCO and the Judges of the Superior Courts are required to take fresh oath under it. Elucidating his point the learned counsel submitted that the oath taken by the then Judges of the Superior Courts under the PCO of 1981 and the oath taken by the Judges of this Court under the Order 1 of 2000 was only recognition of the ground realities and it did not disqualify, in any way, the Judges of the Superior Courts from doing justice according to the law and their conscience. He submitted that in other words, with the taking of fresh oath by the Judges of the Superior Courts under the new dispensation, the judicial system of the country has neither been abolished nor replaced by a new one. In this behalf, he referred to the following observations of this Court in Begum Nusrat Bhutto’s case PLD 1977 SC 656:-

 

“Mr. Brohi as well as Mr. Sharifuddin Pirzada were also asked to address the Court on the possible effect and implications of the new oath of office administered to the Judges of the -Supreme Court and the High Courts after the imposition of Martial Law. They both stated that, in their view, the new oath has not in any manner restricted the independence of the superior judiciary, nor affected their obligation to perform their judicial functions according to law; it only indicates that the superior judiciary, like the rest of the country, has accepted the fact, which is even otherwise also evident, that on the 5th of July, 1977, a radical transformation took place in the pre-existing Legal Order. Both the learned counsel are agreed, and Mr. Yahya Bakhtiar, learned counsel for the petitioner, joins them, that the taking of the fresh oath by tile Judges of this Court does not in any way preclude them from examining the question of the validity of the new Legal Order and decide the same in accordance with their conscience and the law.”

 

At page 704-K it was observed:-

 

“It will be seen that the explanation given by General Muhammad Ziaul Haq for the Army.’s intervention is a true reflection of the situation which had been developing over the past four months as a result of the Pakistan National Alliance agitation and repudiation of Mr. Bhutto’s constitutional and moral authority as Prime Minister of Pakistan. The statement correctly brings out the necessity for the imposition of Martial Law. It is also clear that this sincere and unambiguous declaration of his objectives by the Chief Martial Law Administrator was a major factor in persuading the people of Pakistan to willingly accept the new dispensation as an interim arrangement to bridge the gap between the break-down of the previous administration and the induction of the new elected Government under the terms of the 1973 Constitution. The new arrangement, therefore, acquired its effectiveness owing to its moral content and promise of restoration of democratic institutions. I may add here that the willingness of the Judges of the superior Courts to take the new oath after the proclamation of Martial Law was also founded upon the same considerations. “

 

80. Justifying the Military take-over, Mr. Khairi submitted that removal of the Chief of the Army Staff, who was holding a constitutional post and was responsible for the defence of the country, in a derogatory manner, amounted to high treason, especially in view of the fact that he was first appointed as Chief of the Army Staff by the then government and was later appointed as Chairman, Joint Chiefs of Staff Committee and confirmed as such just a week before his removal. There was, thus, no option with the Army but to take over the affairs of the country as a last resort.

 

81. He alleged that a conspiracy was hatched by Mr. Nawaz Sharif against the Armed Forces, whereby he removed Gen. Pervez Musharraf while the latter was out of Pakistan and instead appointed Lt. Gen. Ziauddin Butt.

 

82. Mr. Khairi next contended that Mr. Nawaz Sharif was responsible for creating dissension among the ranks of the Armed Forces. In this connection, Lt. Gen. Tariq Pervaiz had had a meeting with the former Prime Minister without permission of the higher Army authorities, which was a grave breach of discipline. Thus, he was retired for violating the discipline of the Army.

 

83. Mr Khairi submitted that since with the appointment of Lt. Gen. Ziauddin Butt as Chief of the Army Staff, the defence of the country was jeopardized and the order of removal of General Pervez Musharraf from his office, passed by the former Prime Minister had no sanctity in law, therefore, by refusing to obey an illegal order, the military authorities had not committed any wrong. In this context, reliance was placed on Begum Nusrat Bhutto’s case, wherein at page 727 (EE), it is observed as under: -

 

“It is thus abdundantly clear that submission to the authority of the ruler and obedience to his commands does not extend to illegal and un-Islamic directives or orders………..”

 

He further relied on Controller of Patents and Designs, Karachi v. Muhammad Quadir Hussain 1995 SCMR 529 at page 533 placitum-B and 534 placitum-C, which read as under: -

 

“There can be no cavil with the proposition that the Government of Pakistan or for that matter any of the holder of its offices, or any Government functionary do not enjoy any conventional prerogative as was or is available to Crown in England except those discretionary powers which are either specifically conferred by the Constitution or under any law passed by the Parliament. We are also of the view that any discretionary power available to Government or its functionaries in the nature of prerogative either under the Constitution or under any of the Act of the Parliament is subject to the-process of Judicial review by the Superior Courts, in accordance with their jurisdiction under the Constitution. However, any exercise of discretionary power in the nature of a prerogative claimed by the Government or holder of any of its offices, or its functionaries has to be justified either under some statute law or under the provisions of the Constitution, before it is pressed into service before a Court.

 

“7.        Considering the above definitions of the word `prerogative’, we are of the view that the expression `prerogative of the Federal Government, used in section 79 of the Act is to be understood in the sense of a discretionary power of the Government conferred on it under the provision of the Act. Prerogative as commonly understood a divinely right or an unbridled or uncontrolled discretion of a Ruler or a Sovereign is neither available in Pakistan nor it is contemplated in that sense, under section 79 of the Act. Since the prerogative of the Federal Government mentioned in section 79 of the Act is exercisable only as a discretionary power wider the Act in public interest, it is naturally subject to review by the Superior Courts in exercise of their power of judicial review under the Constitution. A careful study of various provisions of the Act will show that the right to claim a patent under the Act is not an absolute right. For instance, the Controller, under section 69 of the Act has the discretion to refuse to grant a patent for an invention or register a design of which the use would, in his opinion, be contrary to law or morality. The controller, under section 68 of the Act, in case of any doubt or difficulty arising in giving effect to the provisions of the Act, is empowered to make a reference to the Central Government for seeking directions in the matter. By reading sections 68 and 69 of the Act together it can be gathered that the Central Government in exercise of its prerogative or discretionary power, under section 79 of the Act, can withhold the grant of a patent or restriction of a design, if it reaches the conclusion that such withholding will be in the public interest or for the public good or would be against any provisions of the Act or morality.”

 

He also sought support from the judgments reported as Zahid Akhtar v. Government of Punjab PLD 1995 S.C. 530; in this behalf.

 

84. He also referred to Article 243 of the Constitution, which deals with the Armed Forces. Clause (1) of the said Article provides that the Federal Government shall have control and command of the Armed Forces. He submitted that although the word `government’ is not defined in the Constitution, but certainly Prime Minister alone is not the `government’. It is the cabinet headed by the Prime Minister. He submitted that the order passed by the Prime Minister removing the Chief of the Army Staff was not approved by the Cabinet, but was the result of whims of one man. He next submitted that though under the Constitution, procedure for the appointment of Chief of the Army Staff is given but no procedure for his removal has been laid down therein. In this behalf, he also referred to sections 16, 17 and 20 of the Pakistan Army Act and contended that procedure for dismissal or removal of personnel of the Armed Forces is laid down therein, but it does not contain any provision regarding removal of the Chief of the Army Staff. The above sections read thus:-

 

16.       Dismissal or removal by Federal Government.-The Federal Government may dismiss or remove from the service any person subject to this Act. .

 

17.       Dismissal or removal by Chief of the Army Staff or other authorised officer.- (1) The Chief of the Army Staff may dismiss or remove from the service any junior commissioned officer or warrant officer or any person enrolled under this Act.

 

(2)        An officer having power to convene a district Court martial or an officer not below the rank of lieutenant-colonel empowered by the Chief of the Army Staff in this behalf may dismiss or remove from the service any person enrolled under this Act who may be serving under his command.

 

20.       Discharge or dismissal when out .of Pakistan.- (1) Any person subject to this Act, who is entitled under the conditions of his service to be discharged, or whose discharge is ordered by competent Authority, and who, when he is so entitled or ordered to be discharged, is serving out of Pakistan, and requests to be sent to Pakistan, shall, before being discharged, be sent to Pakistan with all convenient speed.

 

(2)        Any person subject to this Act who is dismissed from the service and who, when he is so dismissed is serving out of Pakistan, shall be sent to Pakistan with all convenient speed.

 

(3)        When any such person as is mentioned in subsection (2) is sentenced to dismissal combined with any other punishment, such other punishment, or in the case of a sentence of imprisonment for life or for a shorter term, a portion of such sentence, may be inflicted before he is sent- to Pakistan.

 

Explanation- For the purposes of this section, the word “discharge” shall include retirement or release, and the word “dismissal” shall include removal.”

 

He was of the view that it is the constitutional duty of the Supreme Court to safeguard the defence of the country and even the Armed Forces are obliged to obey the orders passed by this Court in this regard. In support of his plea, he relied upon the judgment reported as Al-Jehad Trust v. Federation of Pakistan 1999 SCMR 1379, wherein at page 1396 (citation F) it was observed as under:-

 

“20. Keeping in view the above judgments of this Court in the cases of Mian Muhammad Nawaz Sharif (supra), Azizullah Memon (supra), AI-Jehad Trust (supra), Mahmood Khan Achakzai (supra) and Mehram Ali (supra), and the above Articles 2A and 17 of the Constitution, the people of Northern Areas are entitled to participate in the governance of their area and to have an independent judiciary to enforce inter alia the Fundamental Rights.” .

 

At page 1400 of the above report, it was observed thus:

 

“25.It is apparent that direction/directions to take administrative actions/measures required by the Constitution can be issued against the Federation, but no direction can be issued to the Legislature to legislate a particular law. However, a direction can be issued to the Federation to initiate administrative and legislative measures for complying with the mandate of the Constitution ....”

 

85. He vehemently contended that democratic governments come into existence as a result of free and fair elections, but all the elections except the election for the Constituent Assembly held in Pakistan, were a total fraud, therefore, the governments coming into existence on the basis of such fraudulent elections had no constitutional and moral sanctity. First elections under the 1973 Constitution were held on 7th March, 1977, which were not free and fair and their real facet is to be found in the judgment in Nusrat Bhutto’s case (supra), wherein this Court dilated upon the details of large scale rigging that took place in those elections and concluded that the government of Mr. Bhutto had no legal and moral authority to continue in office. He further contended that in order to guard against the corrupt practices in elections, Article 218 of the Constitution has laid down a mechanism, but unfortunately the commandments of the Constitution are not obeyed and that PML (Nawaz Group), in its first term, after its coming into power, omitted sections 48, 49, 50 and 51 of the Representation of People Act, 1976 whereby the restrictions regarding election expenses were removed and resultantly only moneyed persons in Pakistan could contest elections and it has been rendered impossible for an ordinary citizen to participate in the election. He next contended that political cell of ISI played a major role in election of the members of the Parliament by distributing huge sums of money among the candidates of IJI and, thus, paved the way for corrupt elements to come into power, who were not true representatives of the people of Pakistan. He submitted that no action was taken against corrupt members of parliament under Article 63 of the Constitution. Dilating further on those elections, Mr. Khairi referred to affidavits filed by General Asad Durrani, the then Chief of ISI and Gen. Naseerullah Babar wherein details of the amounts disbursed by the ISI among various politicians have been given. He emphasized that in presence of the political cell of the ISI, fair elections cannot be held and that it is the legal duty of the present regime to abolish this cell. He further contended that in 1997 Elections the so-called “heavy mandate” claimed by the former government was also the result of manipulation of the ISI and it was for this reason that Mr. Nawaz Sharif had refused to abolish this cell and that the mandate so obtained by Nawaz Sharif was a farce and had no lawful and moral authority. He submitted that democracy means 50% votes at least and that in fact the people of Pakistan had never voted to that extent and the governments had only technically won the elections. That is why when such governments were removed, there was none to express remorse for them.

 

86. Mr. Khairi next contended that every regime considers the Judiciary as a hurdle in its way and tries to eliminate or undermine it.

 

87. Mr. Khairi submitted that the Court should explore as to what laws should hold the field during the period the Constitution is held in abeyance In this behalf, he referred to the judgment reported as Federation of Pakistan v. N.-W.F.P. Government PLD 1990 SC 1172 wherein at page 1175 of the report it was observed:

 

“In such state of vacuum, vis-a-vis, the statute law on the subject, the common Islamic law/the injunctions of Islam as contained in the Qur’ an and Sunnah relating to the offence of Qatl and Jurh (hurt) shall be deemed to be the law on the subject.”

 

He also, referred to the case of Mian Aziz A. Sheikh v. The Commissioner of Income Tax, Investigation, Lahore PLD 1989 SC 613, wherein at page 626, it was observed:

 

“But, this prohibition in clause (2) of Article 227 does not apply to decisions by functionaries of State of judgment, as distinguished from exercise of law-making or statutory rule-making authority, they take decisions. In other words whatever a decision is contained in any such judgment of any such. functionary which lays down a rule of law or declares so as a rule of law the superior Courts, shall be within their competence in a properly instituted proceedings to strike it down both under the general mandate contained in clause (1) of Article 227 as well as under Article 2A read with the Objectives Resolution.”

 

88. He submitted that it has been laid down by this Court that in case of vacuum, the Islamic common law shall be applied by the Courts. In Hakim Ali’s case, the Judiciary has been included in the `Oo lil amr’. He reiterated that no authority can violate the Islamic ideology. The supremacy of the injunctions of the Holy Qur’an and the Sunnah of the Holy Prophet (p.b.u.h.) is an established phenomenon as held in the case of Mst Kaneez Fatima v. Wali Muhammad PLD 1993 SC 901 wherein it was observed:

 

“8.        In this context it may be observed that while interpreting Constitution, enactments, rules and regulations having the force of law and examining orders, acts and actions of Government functionaries/authorities the Court is competent to apply well-recognised principles of Islamic Common Law and such interpretation which is in conformity with the Injunctions of Islam. In the fields not occupied by statutory dispensation, principles of Islamic Common Lava or principles in conformity with Injunctions of Islam can be pressed into service.

 

“9.        Article 2A is one of the provisions of the Constitution which strives at bringing the existing law in conformity with the Injunctions of Islam and also gee to it that no law in conflict with such Injunctions is legislated. The method for testing such legislation and enactments has been provided under the Constitution. One is provided in Article 227 in Part IX of the Constitution and the other and more effective method is provided by Chapter 3-A of Part VII of the Constitution; that is the Federal Shariat Court. Article 203-D vests powers and jurisdiction in the Federal Shariat Court to examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam. On coming to an affirmative answer it shall give its decision with reasoning for holding such an opinion and shall specify the day on which the decision shall take erect. However, if any party files an appeal before the Supreme Court, effect shall not be given till such time the appeal is disposed of. Consequences of declaring any law or provision of law to be repugnant to the Injunctions of Islam are contained in Article 203-D(3). The President and the Governor in cases of law within their. respective jurisdiction shall take steps to amend the law so as to bring such law or provision of law in conformity with the Injunction-s of Islam and such law or provision of law shall cease to have effect on the day on which the decision of the Court takes effect. Therefore. a proper scrutiny of the provisions of law by the . Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court with an interregnum period has been provided to enable the President and the Governor, as the case may be; to move the Legislature to bring the law in conformity with the Injunctions of Islam. The intervening period has been provided to enable the Legislature to legislate proper laws and there may not be a vacuum of lawlessness which may create complications and confusion. The process. of Islamisation of the laws is an important and difficult subject. The lead given by Pakistan in this regard is being watched with interest by all the Muslim countries who are anxious to bring their laws in conformity with the injunctions of Islam and by the non-Muslim countries as well. Any hasty action without the process of Ijma at Ummah level may lead to difficulties and confusion which may prove irreversible. Furthermore, due to sudden change, complex problems in economic, commercial and financial fields may arise creating difficulties. However, it does not mean that in the fear of such new controversies and problems the process of Islamisation may be retarded or stopped. It is an ongoing process. It has to take effect with utmost despatch, vision and regularity. .

 

He also referred to the case of Fazle Ghafoor v. Chairman, Tribunal of Disputes, DIR, SWAT at Chitral at Mardan 1993 SCMR 1073 wherein at page 1077 Placitum-D, it was observed:

 

“This mode of proof is adaptable in the Islamic dispensation also, even if not in any other. When there is such a vacuum on a question of law left by statutory silence, the prevailing mode having full Constitutional support, would be that of Islamic common law. See Muhammad Bashir v. The State PLD 1982 SC 139.

 

He also referred to Ghulam Hamdani v. Muhammad Iqbal 1993 SCMR 1083, wherein at page 1089 Placitum-C, it was observed:

 

“In the case of Federation of Pakistan v. N.-W.F.P. Government PLD 1990 SC 1172 the Shariat Appellate Bench of this Court, though in a criminal matter, expressed the view that in a state of vacuum like the one in question the injunction of Islam as contained in the Qur’an and Sunnah shall be deemed to be the law on the subject. The appellant has pleaded Talbs in the plaint and has based his right of pre-emption on contiguity and participation in immunities and appendages such as the right of way. This much was sufficient to complete the pleading.”

 

Case of M. Ismail Qureshi v. M. Awais Qasim 1993 SCMR 1781, was also pressed into service wherein it was observed:

 

“It is not the students organization which is primarily responsible for the observance of the ideological basis of Pakistan in the educational institutions; rather the institution and its functionaries are not only responsible primarily but always responsible in this behalf. A functionary in a Pakistan institution who is against the ideological basis of Pakistan, as is enshrined in our Constitutional set-up; or is against the training of his wards entrusted by the institution to him in line with it; is against or neglects and does not propagate ideology of Pakistan, amongst the students community, has no right to remain in the institution. And if the institution itself commits such acts or omissions, it is better to close, rather than to permit it, to contravene the Constitutional set-up of Pakistan. Therefore, it will be more advisable to re-entrust the education and training of the students on the lines of the ideology of Pakistan to the teachers and the institutions themselves under the pain of penalty. This of course is with a clarification that the groups under whatever name, through which the so-called Union activity will be revived in the educational institution, would not be debarred from the ideological path and educating and training themselves in that behalf; but only with the assistance, guidance and help from their parents, their teachers and institutions. No one student or group can be given an unbridled right to control and coerce another student or group. The parental atmosphere jurisdiction and philosophy has to be followed on this subject also. “

 

“The argument advanced by the Jamiat; which has been dealt with above is not only relevant; but is also important in another context of practical application in Pakistan. It is also in line with the whole gamut of our statecraft. Its features are spread over several parts of our Constitution and the entire Constitutional set-up can be very useful for future ideological orientation in our polity. . Thus, the possibility of creating a mid-way, political party structure as some youth wings are, cannot be excluded altogether. But instead of riding the wings of educational institutions or flying under the wings of the student community; the politically oriented/minded youth after completing the education and/or training in the institutional atmosphere, may join those youth wings of the like minded political parties. Those who are imbued with national service and we do feel that entry in political life is also a national service, might be able to develop such a youth political set-up, which would obviate the “indulgence in politics” in the educational institutions.”

 

“Such experiment can be faithfully and honestly undertaken by educated young people, fresh from the Universities who are full of like and vigour with national spirit, might join the profession of politics in the form of apprentices or make junior political parties. If such intermediary system develops, the linkage with senior parties and senior politicians would automatically start developing. And without any “indulgence in politics” in the educational institutions, final stage students community also, might start looking towards the intermediary political organizations in the country. This possibility cannot and should not be treated as a verdict by this Curt. It is only a possibility which amongst many others can be visualised as to how those young people who have clearly and cleanly passed their allotted time in the educational institutions and want to improve the society through their participation in the political like of the country, might start a beginning with an organizational set-up like the one at the youth wing stage. But this set-up if develops will also have to be kept out of the educational institutions. They would not be provided facilities in these easy to reap, fields.”

 

Reference was also made to the case of Zaheeruddin v. The State 1993 SCMR 1718 wherein at page 1773 (citation-QQ), it was observed:

 

“The contention, however, has not impressed us at all. The term `positive law’, according to Black’s Law Dictionary, is the law actually enacted or adopted by proper authority for the Government of an organised jural society. So; that term comprises not only enacted law but also adopted law. It is to be noted that all the above-noted cases were decided prior to the induction of Article 2A in the Constitution, which reads as under:-

 

“2A. Objectives Resolution to form part of substantive provisions.- 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.”

 

“This was the stage, when the chosen representatives of people, for the first time accepted the sovereignty of Allah, as the operative part of the Constitution, to be binding on them and vowed that they will exercise only the delegated powers, within the limits fixed by Allah. The power of judicial review of the superior Courts also got enhanced.”

 

89. Mr. Khairi further contended that Article 63(1)(g) of the Constitution does not permit anyone to ridicule the Judiciary and the Armed Forces. However, the said provision of the Constitution is not implemented by the Speaker of the National Assembly because he fears vote of no confidence by the majority party in case proceedings for violation of this Article are initiated by him against any member of the Assembly.

 

90. He also contended that the Constitution did not provide a solution for the grave crisis created by the former Prime Minister, who not only created dissension in the ranks of the Army and thereby attempted to weaken the defence of the country but also endangered the territorial integrity and independence of the country. He submitted that the Court is under a constitutional duty to ensure that the integrity of the territories of the Federation, its independence and all its rights including its sovereign rights on land, sea and air are safeguarded by the Armed Forces of Pakistan, therefore, the steps taken by the Chiefs of Staff of the Armed Forces and Corps Commanders of Pakistan Army, after due deliberations and decisions, were imperative and should be validated in the interest of Pakistan.

 

91. He submitted that since under Article 243 only appointments of the Chairman of Joint Chiefs of Staff Committee, Chief of Army Staff, Chief of Naval Staff and Chief of Air Staff have been provided and nothing has been provided as to their removal from office, therefore, how the ex-Prime Minister could remove General Pervez Musharraf, the way it was done, in that he was both the Chairman, Joint Chiefs of Staff Committee as well as the Chief of the Army Staff at the time of his removal.

 

92. He next submitted that neither the Constitution visualized an unfettered right to rule the country to the ex Prime Minister nor the so-called heavy mandate had granted him the right to become an absolute ruler nor it can be said that success by securing 13 or 14 % votes by PML (N) was a heavy mandate in any sense of the term.

ARGUMENTS OF MR. SHARIFFUDDIN PIRZADA

 

93. Syed Sharifuddin Pirzada, learned Senior ASC appearing on behalf of the Federation submitted that the main arguments on facts as well as on law will be advanced by the learned Attorney-General and that he will only be covering some of the legal points viz. judicial review and applicability of the doctrine of necessity to the facts and circumstances of the present case. He submitted that this Court is dealing with the situation, which arose on 12th October, 1999 in respect whereof two speeches/statements, dated 13th October, 1999 and 17th October, 1999, have to be read together to spell out the circumstances and reasons for the intervention of the Armed Forces: He further submitted that the above speeches/statements of the Chief Executive clearly make out that true democracy is to be restored as soon as possible and certain measures for the time being are to be taken to improve the conditions in the country. He next submitted that on 12th October, 1999 situation arose for which the Constitution provided no solution, therefore, the intervention by the Armed Forces became inevitable. He emphasised that the intervention by the Armed Forces has saved the country from disastrous consequences and accordingly it is valid and justified on the basis of the doctrine of necessity and the principle of salus popult supremo lex. Supporting the intervention by the Armed Forces, he further submitted that there was no political and economic stability in the country; corruption and bank loan defaults were rampant; there was no accountability or transparency; Mian Nawaz Sharif’s constitutional and moral authority stood completely eroded and that the situation was somewhat similar and analogous to the situation that prevailed in July, 1977; the adoption of 13th Amendment had removed the checks and balances in the Constitution and the Senate, the National Assembly and Provincial Assemblies were closely associated with the former Prime Minister and there was no democracy but one man rule, which was rightly displaced.

 

94. On the question of judicial review he referred to the Objectives Resolution, which inter alia, envisages that independence of Judiciary is to be fully secured. He submitted that the Preamble to the Constitution takes notice of Quaid-e-Azam’s declaration about democratic set-up and social justice which are the basis of Rule of Law. Syed Sharifuddin Pirzada, however, made the following statement at the Bar:

 

“So, in consonance with those principles I have formulated the points which I will be placing before your lordships, but let’ me make one thing clear. On this issue I am expressing my views as a counsel, which I am entitled to. I have done so in earlier cases. Therefore, I am approaching this question from that angle.”

 

95. Dilating further on the question of judicial review, Syed Sharifuddin Pirzada, relied on the inaugural address by one of us (Irshad Hasan Khan, CJ) in the Conference of Board of Directors, Asian Ombudsman Association held on 22nd February, 2000, wherein it was observed:

 

“The requires that the judiciary shall decide matters before it in accordance with its impartial assessment of the facts and its understanding of the law without improper influences, direct or indirect, from any source. The Judiciary in Pakistan is independent. It claims and has always claimed that it has the right to interpret the Constitution and any legislative instrument and to say, as to what a particular provision of the Constitution or a legislative instrument means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of the Supreme Court.”

 

96. He submitted that in his view a very comprehensive statement has been made about the judicial review in a concise manner and with permission of the Court, he adopted it in toto. He, however, said that power of judicial review should be exercised with caution. In this regard reference was made to the case of Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division 1994 SCMR 2142, wherein paragraph 12 placitum B, reads thus:

 

“Judicial review, must, therefore, remain strictly judicial and in its exercise, Judges must take care not to intrude upon the domain of the other branches of Government.”

 

97. Syed Sharifuddin Pirzada reiterated that the Court is dealing with a case, which is analogous and somewhat similar to Begum Nusrat Bhutto’s case and in fact strong reliance was placed by him on that case, wherein at page 716, it was observed:

 

“There is yet another, and a stronger reason for holding that the power of judicial review continues. The 1973 Constitution provides for a clear trichotomy of powers between the executive, legislative and judicial organs of the State. However, owing to reasons of necessity, the executive and the legislative power now stands combined in one authority, for the reason that these two organs of the State had lost their constitutional and moral authority in the circumstances arising since the 7th of March, 1977, but no such considerations arose in regard to the judicial organ of the State. Accordingly, on no principle of necessity could powers of judicial review vested in the superior Courts under the 1973 Constitution, be taken away.”

 

He also referred to Pir Sabir Shah’s case (PLD 1994 SC 738), wherein at page 765, paragraph 17 placitum C, it was observed:

 

“I am, therefore, of the view that clause (2) of Article 236 will not cover a proclamation which is without jurisdiction, coram non judice or mala fide and the Superior Courts will have jurisdiction to examine a proclamation from the above three jurisdictional legal aspects. “

 

98.       Syed Sharifuddin Pirzada formulated his points as under:

 

1.         The intervention by the Armed Forces of Pakistan on 12th October, 1999 is valid.

 

2.         The Defence Forces are viable and vital institution of the country. Attempts were made to destabilise them and to create dissension within their ranks, which would have adversely affected the defence, security and territorial integrity of Pakistan.

 

3.         The pernicious attempts were contrary to the Preamble of the Constitution and Objectives Resolution whereunder the integrity of the territory of the Federation, its independence and all its rights, including the sovereign rights on land, sea and air are to be safeguarded.

 

4.         As it is, due to collusion between Lord Mountbatten and Sir Cyril Radcliff, Pakistan got truncated territory, the tragic circumstances in which it was dismembered in 1971 are well-known. The intervention by the Armed Forces has saved the country from disastrous consequences.

 

5.         On 12th October, 1999 situation arose for which the Constitution provided no solution and the intervention became inevitable.

 

6.         Mian Nawaz Sharif’s conviction on serious offences is under appeal. However, prima facie, it confirms the stand and the steps taken by the Armed Forces.

 

7.         The claim of heavy mandate by Mian Nawaz Sharif in election is belied by the facts and figures available on the record.

 

8.         The adoption of the 13th Amendment removed the checks and balances in the Constitution.

 

9.         The Senate, the National arid Provincial Assemblies were closely associated with the former Prime Minister. There was no democracy, but despotism, which was rightly displaced.

 

10.       There were no political and economic stability in the country. Corruption, bank loan defaults were rampant. There was no accountability or transparency. Mian Nawaz Sharif’s Constitutional and moral authority stood completely eroded.

 

11.       The situation was somewhat similar and analogous to the situation that prevailed in July 1977.

 

12.       In the exceptional circumstances Doctrine of State Necessity and the principle of Salus populi suprema lex are fully applicable.

 

13.       The Doctrine of State Necessity is well-known and has been ecognised by Islam and other religions and accepted by Hugo Grotius, Chitty, De Smith and other jurists and the superior Courts of various countries to fill the vacuum and to bridge the gap. Even the mother Parliament’s existence is traceable to the Doctrine of Necessity.

 

14.       The judgment in Nusrat Bhutto’s case PLD 1977 SC 657 has been approved among others by the Court of Appeal of Grenada (1986 LRC (Constitution) 35 and reaffirmed in Achakzai’s Case PLD 1997 SC 426. The caution mentioned in the last case that checks and balances are necessary for prevention of such situations was completely ignored.

 

15.       The same caution is reflected in concrete terms in the drafts prepared by Justice A. R. Cornelius and Justice Hamud-urRahman, former Chief Justices of Pakistan.

 

16.       The cases of Mehram Ali PLD 1998 SC 1443 and Liaqat Hussain PLD 1999 SC 504 do not deal with the situation that arose on 12-10-1999 and/or affect the principles laid down in Nusrat Bhutto’s case.

 

17. It will be noticed that

 

a) Martial Law was not imposed.

 

b) The Constitution was not abrogated and remains in abeyance.

 

c) The Courts continue to function.

 

d)         The Fundamental Rights, not in conflict with the Proclamation and the Orders continue to be in force.

 

18.       The Proclamation of Emergency, PCO and other Orders are not sub-constitutional but of extra-constitutional nature.

 

19.       The intervention is not of a permanent nature, but for a limited period and is of a temporary character to enable the country to return to a true democratic way of life as soon as possible.

 

20.       The course embodied in Nusrat Bhutto’s case is fully attracted.

 

Particular reference was also made to a passage from Nusrat Bhutto’s case at pages 708-709, which reads thus:

 

“Mr. Sharifuddin Pirzada has next drawn our attention to certain Articles in the Majelle in support of his proposition. Article 17 enjoins that “Hardship causes the giving of facility; that is to say, difficulty becomes a cause of facility, and in times of embarrassment it becomes necessary that latitude should , be shown.” Article 21 says that “Necessities make forbidden things canonically harmless”. Article 22 lays down that necessities are estimated according to their quantity, and Article 26 embodies the maxim salus populi suprema lex by saying that “To repel a public damage a private damage is preferred.” He submits that although these maxims are directly relevant to cases of private necessity but the principle can certainly be extended to State necessity.”

 

99. Elucidating the concept and meaning of democracy, Syed Sharifuddin Pirzada took us through some extracts from the book titled “Voyage through History” by Masarrat Husain Zuberi, which read thus:

 

“Before I go further, one important episode is worth recalling. Lord Mountbatten returned to Delhi on 30th May; but two days earlier on 28th May Quaid-e-Azam expressed a wish to meet senior Muslim officers posted at Delhi and a meeting was arranged at the residence of Hasnie to maintain secrecy: Quaid also directed that no Press people should be present and not a word of what he was going to say there should appear in the Press. The meeting was held on 29th May and he came there accompanied by Liaquat Ali Khan, Nishtar and Chundrigar. On arrival he spotted one Muslim officer, who was in the Information and Broadcasting Department and so known to him personally. He asked him to leave as he came under the category of Press people. The meeting was arranged in the open on the spacious lawns of Hasnie’s house and the Quaid feared that he might be overheard across the road. So, he asked everybody to get nearer and sit on the carpet. He also sat down leaving his sofa seat. Liaquat, because of his bulk, continued sitting on the sofa.”

 

“In clear measured tones, he spoke for nearly half an hour and then invited questions. Even in this hour of triumph he showed no sign of emotion nor did he indulge in hyperbole or_self-glorification except one sentence, and that too in matter of fact tone that “future generations would say that Muslim League won them Pakistan. What does Muslim League consist of: myself and my Stenographer?”…………….The two questions that’ stand out in my memory were which for their perspicuity still surprise me. They were asked by one not so senior an officer a Deputy Director in the inspection wing of the Supply Department, Iqbal by name. After Quaid replied to a few questions on the status of the Muslims outside Pakistan, which also stunned a few, Iqbal said: “Sir, I have two questions to ask: The first is what is the guarantee that on establishment of Pakistan a coterie of people would not take over the country and run it in their own particular interest” and waited for a reply Quaid only said, “And your second question?” “Sir, the second is what will happen if at any time later Bengal wishes to secede from Pakistan”. The Quaid kept quiet for a few seconds-and then said: “The answer to both of your questions is not with me. It is with you. You, Muslims, will have to create conditions in which Bengal exists happily with you as they have helped you in the common struggle and create such forceful public opinion too that no coterie of people get control and run the country in its own interest. After all guardians of democracy are the people; not your Quaid or his successors.”

 

100. In support of the formulations made by Syed Sharifuddin Pirzada, he relied upon exhaustive case law from Pakistani and foreign jurisdictions including the views expressed by renowned international jurists as reflected in the various text books, law reports and research papers.

 

ARGUMENTS OF MR. AZIZ A. MUNSHI, LEARNED ATTORNEY GENERAL FOR PAKISTAN

 

101. Mr. Aziz A. Munshi, the learned Attorney-General for Pakistan began his arguments with the submission that it is with a sense of responsibility that in making submissions before this Court, it was not his intention to cast aspersion on any one and that when he would speak in respect of the parliamentarians particularly the former Prime Minister, it should be clearly understood that this is not with a view to maligning any one. It is only intended to meet the case and put the facts before this Court. He further stated that in doing so, he would be only doing his duty as Attorney-General.

 

102. He submitted that the country is faced with a situation where the former Prime Minister stands convicted on 6th April, 2000 on charges of hijacking and terrorism and at the same time his associates are also accused of various offences. He stated that the leader of the opposition stands disqualified and it seems, she has chosen to abdicate responsibility of taking over or responding to the political challenge, which is facing the country and that the parliamentarians from both the major parties, viz. Pakistan Muslim League and Pakistan People’s Party have leaders who are either disqualified or do not appear to be qualified, prima facie unde0judgments of various Courts in various proceedings and thus the present situation can be called one of political vacuum. He submitted that a democratic polity to which the people of Pakistan are committed requires responsible parliamentarians and not a vacuum in that behalf; it requires and presupposes that elected representatives are qualified, present and alive politically to steer the governance of the country and to take responsibility in terms of the sacred mandate given by the Constitution. He emphasized that the country needed a body of men, who were responsible, who were above board and who were accepted by the people as their elected representatives and who were not only responsible to the people themselves, but also to their own conscience and the conscience of those who had elected them. He contended that there was large scale accusation of corruption, allegations of disqualification in presence of convictions and judgments, a large scale plunder of national wealth, a breakdown of the economy and finally, worst of all, an attempt to create dissension and disunity in the only disciplined institution of the country besides the Judiciary, namely, Army, which almost subverted that institution and created a dangerous challenge to the very existence of Pakistan.

 

103. The learned Attorney-General submitted that keeping in mind the gravity of the events which occurred on the 12th of October, 1999, this Court would find that the Chief of Army Staff was sent abroad on official duty and was in the air at an altitude of 25000 ft, on the Indian ocean midway between Colombo and Karachi when the unfortunate events happened, which have landed the country today where it is. He submitted that had the incident succeeded, horrendous consequences resulting from this course would have rendered the country with an Army divided in its ranks and entangled in a civil war. He submitted that without mentioning the ugly facts and details of the incident, which happened at the Karachi Airport, the fact remains that a body of 300 policemen went to arrest the Chief of Army Staff and according to General Pervaiz. Musharrafs own speech delivered on 13th October, his life was put in danger and the plane carrying him was asked to land anywhere outside Pakistan and possibly in India. According to the learned Attorney-General, this kind of attitude and action by the head of the Government smacked of irresponsibility, an offensive attitude in breach of the constitutional authority of office and a grave danger to the solidarity, integrity and sovereignty of the State of Pakistan.

 

104. The learned Attorney-General submitted that the Army as an institution has refused to accept the illegal and unconstitutional orders, which were directed towards undermining the unity of the Army and the integrity of the country as such. Referring to the submission made by Mr. Khalid Anwar on behalf of the petitioners that no matter what happened on the 12th October, the elected representatives could not be displaced, the learned Attorney-General contended that the mandate given by the people is couched in sacred, but limited language, which does not extend to the annihilation of the Army command and the action of the former Prime Minister, it is public perception, appeared to be an act of enemy because in a war, the first lesson of strategy for the enemy is to strike at the effectiveness of the command and disturb it. He submitted that there are certain norms of dealing with a friend, dealing with their own Commander-in-Chief and dealing with the enemy. According to him, the former Government headed by the former Prime Minister adopted a course as if the Chief of Army Staff, representing an Army of 600,000 men, who had taken oath to defend this country as a united force, was an enemy of Pakistan.

 

The learned Attorney-General contended that such an assumption is not only preposterous, it needs to be disapproved in the strongest possible language by every Pakistani, particularly the apex Court.

 

105. At this stage he invited attention of this Court to the oath of office of the Prime Minister, given in Schedule IV to the Constitution, which reads thus:

 

(In the name of Allah, the most Beneficent, the most Merciful)

 

I,__________________, do solemnly swear that I am a Muslim and believe in the Unity and Oneness of Almighty Allah, the Books of Allah, the Holy Qur’an being the last of them, the Prophethood of Muhammad (peace be upon him) as the last of the Prophets and that there can be no Prophet after him, the Day of judgment, and all the requirements and teachings of the Holy Qur’an and Suntah.

 

That I will bear true faith and allegiance to Pakistan:

 

That, as the Prime Minister 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:

 

That I will strive to preserve the Islamic Ideology which is the basis for the creation of Pakistan:

 

That I will not allow my personal interest to influence my official conduct or my official decisions:

 

That I will preserve, protect and defend the constitution of the Islamic Republic of Pakistan:

 

That, in all circumstances, I will do right to all manner of people, according to law, without fear or favour, affection or ill-will:

 

And that I will not directly or indirectly communicate or reveal to any person any matter which shall be brought under my consideration or shall become known to me as Prime Minister, except as may be required for the due discharge of my duties as prime Minister.

 

[May Allah Almighty help and guide me (A’meen).]”

 

According to the learned Attorney-General, the words, “sovereignty, integrity, solidarity, prosperity and well being”, embody the essence of the Constitution and are the touchstone and the test before this Court for judging the actions of the former government, particularly the then Prime Minister. He contended that the actions of the former Government were not in conformity with the maintenance of sovereignty, integrity, well being and prosperity of Pakistan because when the Chief of Army Staff was attempted to be handed over to another country and he was exposed to physical elimination, it was not safeguarding the sovereignty of Pakistan. Further, when the former Prime Minister exposed the Armed Forces to dissension and disintegration, it was not maintenance of the sovereignty or safeguarding the sovereignty, rather the sovereignty and integrity of the country were seriously endangered because it is the only institution, which is capable of safeguarding the integrity of Pakistan. The learned Attorney-General stated that the well being of the people is a reflection of the combined effect of sovereignty, integrity and solidarity and there can be no well being of the people without sovereignty, integrity, solidarity and prosperity. Likewise, prosperity again embodies all these ingredients and also extends to the economic prosperity of the people. According to him, all these tests when applied to the former Government and the former Prime Minister, turn out in the negative and to a long way in disqualifying him under Article 63 from being either a member of the Parliament or incharge of the affairs of the State. Reference was also made to Article 63 of the Constitution, which reads thus:

 

63.       (1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if-

 

(a)        he is of unsound mind and has been so declared by a competent Court; or

 

(b)        he is an undischarged insolvent; or

 

(c)        he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or

 

(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

 

(e)        he is in the service of any statutory body or anybody which is owned or controlled by the Government or in which the Government has a controlling share or interest; or

 

(f)         being a citizen of Pakistan by virtue of section 14-B of the Pakistan Citizenship Act, 1951 (II of 1951’), he is for the time being disqualified under any law in force in Azad Jammu and Kashmir from being elected as a member of the Legislative Assembly of Azad Jammu and Kashmir; or

 

(g)        he is propagating any opinion, or acting in any manner, prejudicial to the Ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan; or

 

(h)        he has been, on conviction for any offence which in the opinion of the Chief Election Commissioner involves moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his dismissal; or

 

(i)         he has been dismissed from the service of Pakistan on the ground of misconduct, unless a period of five years has elapsed since his dismissal; or

 

(j)         he has been removed or compulsorily retired from the services of Pakistan on the ground of misconduct unless a period of three years has elapsed since his removal or compulsory retirement; or

 

(k)        he has been in the service of Pakistan or of any statutory body or anybody 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

 

(1)        he is found guilty of a corrupt or illegal practice under any law for the time being in force, unless a period of five years has elapsed from the date of such conviction; or

 

(m) he has been convicted under section 7 of the Political Parties Act, 1952 (III of 1962), unless a period of five years has elapsed from the date of such conviction; or

 

(n) he, whether by himself or by any person or body of persons in trust ‘for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or for the performance of any service undertaken by, Government:

 

Provided that the disqualification under this paragraph shall not apply to a person-

 

(i)         where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has no devolved on him;

 

(ii)        where the contract has been entered into by or on behalf of a public company as defined in the Companies Ordinance, 1984 (XLVII of 1984), of which he is a shareholder but is not a director holding an office of profit under the company; or

 

(iii)       Where he is a member of a Hindu undivided family and the contract has been entered into by any other member of that family in the course of carrying on a separate business in which he has .no share or interest; or

 

Explanation.-In this Article “goods” does not include agricultural produce or commodity grown or produced by him or such goods as he is, under any directive of Government or any law for the time being in force, under a duty or obligation to supply

 

(o)        he holds any office of profit in the service of Pakistan other than the following offices, namely:-

 

(i)         an office which is not whole time office remunerated either by salary or by fee;

 

(ii)        the office of Lumberdar, whether called by this or any other title;

 

(iii)       the Qaumi Razakars;

 

(iv)       any office the holder whereof, by virtue of such office, is liable to be called up for military training or military service under any law providing for the Constitution or raising of a Force; or

 

(p)        he is for the time being disqualified from being elected or chosen as a member of the Majlis-e-Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force.

 

(2)        If any question arises whether a member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant.”

 

106. The learned Attorney-General vehemently contended that according to the record almost 80% of the actions of the former Government were directed towards self-aggrandizement and furtherance of personal interest and were taken for the purpose of amassing wealth by unlawful means. Thus, the Constitution was violated in letter and spirit on a wide scale, almost rendering it illusory and inoperative; democracy was throttled out and instead dictatorship was sought to be established.

 

107. The, learned Attorney-General next argued that a reign of victimization of political opponents, whether they belonged to party A, B, or C, was let loose with a view to perpetuating power. He contended that the conduct of the petitioners in juxtaposition with the contents of the oath of office of the Speaker of the National Assembly, Federal Ministers and the members of the Senate, which are almost identical, does not entitle them to the reliefs claimed by them in these petitions, inasmuch as they had taken oath to act in the interest of sovereignty, integrity, solidarity, well being and prosperity of Pakistan, which they did not. Moreover, when they owe their existence and allegiance to a political party and when they even today say that Mian Nawaz Sharif whose conduct has been described above, is still their. leader and they have not publicly disowned him or disassociated from him, all of them have acted jointly and have, thus, disentitled themselves in law and under the Constitution to the reliefs they have prayed for in these petitions.

 

108. Commenting on the conduct of the former government, the learned Attorney-General further submitted that the 13th Amendment was got passed within 13 minutes. He submitted that the 8th Amendment including Article 58(2)(b) was passed by consensus by an elected body in 1985. A debate had taken place in the National Assembly and the Senate, which deliberated for 40 days. There were committees, sub-committees and experts and members elected from various parties and members forming independent groups of opposition led by Haji Saifullah Khan, who negotiated every word of it, who disputed every word of it and after having considered every word proposed by the Government party, they themselves agreed on the phraseology of Article 58(2)(b) having checks and balances, which was a product of divergent opinions ultimately resulting in a consensus and that was true spirit of democracy. Article 58(2)(b) stood the test of time for 10 years and there was no Martial Law. The only result of Article 58(2)(b) was repeated appeal to the political sovereign i.e. the electorates from holding general elections within 90 days.

 

109. The learned Attorney-General then formulated his submissions in writing which are as under:-

 

(1)        That in the facts and circumstances prevailing on 12th October, 1999 and prior thereto the taking over of the governance by the Armed Forces was valid, legitimate, bona fide and unavoidable to save the State and its institutions and is justified by the Doctrine of State Necessity.

 

(2) That the legitimacy of the Proclamation, dated 14th October, 1999, the various Provisional Constitutional Orders and all actions pursuant thereto derived their own legality from the Doctrine of State Necessity and State survival. Further, the fact that no remedy was available under the prevailing legal order including the Constitution, intervention was unavoidable and necessary for the preservation of the State.

 

(3)        Such course of action by the Armed Forces is approved in Begum Nusrat Bhutto’s case, by a full Bench of this Hon’ble Court. The facts of the present case are far more serious .to justify the application of Doctrine of Necessity inasmuch as, the main protective institution of the State against external aggression and internal disturbances i.e. the Armed Forces of Pakistan was exposed to internal disunity, division and dislocation of military command by the former Government. The only point involved in Begum Nusrat Bhutto’s case was rigging of elections and civil disobedience while in the present case, it is a matter of State survival.

 

(4)        That the deposed Prime Minister and his partymen, having grossly violated their Oath of office as is evident from the events of 12th October. 1999 and prior thereto, the Armed Forces of Pakistan under the provisions of the Constitution of Islamic Republic of Pakistan. 1973 and by virtue of their oath of office, were under a sacred duty and legal obligation to save the country from internal subversion which -is self-evident from the events of 12th October, 1999, as adjudged by the judgment, dated 6th April, 2000 pronounced by the Anti-Terrorist Court at Karachi and other facts on the record. In the face of these events intervention by the Armed Forces was necessary and natural.            

 

(5)        Where there exists reasonable basis for concluding that existence of the State and its sovereignty is at stake, the Courts will not substitute their own judgment for that of the Armed Forces/Executive which acted under the compelling necessity of saving the State and its sovereignty. Thus, the Proclamation dated 14th October, 1999 was issued pursuant to deliberations and discussions of the Corps Commanders of the Armed Forces and the three Service Chiefs of the Army, the Air force and the Navy. All legal ,instruments, laws and orders issued thereunder such as the Provisional Constitutional Orders are valid, proper and bona fide. All actions taken thereunder are also legal and valid. Thus, the Proclamation and all other legal instruments were not the individual acts of one person having been issued in the best interest of saving the country. The bona fides of all its authors, i.e. the entire Armed Forces cannot be questioned.

 

(6)        The source of power and validity of the Proclamation of Emergency is to be determined by consideration of the total milieu in which the change is brought about, namely, the objective situation obtaining at the time in relation to the break down of constitutional machinery for the change and the paramount Necessity for the preservation of the State and its organs. It is such destruction which justifies the taking over of the country by the Armed Forces in order to save total destruction and extinction of the State and the Executive, Legislative and Judicial institutions of the country including undermining the unity and discipline of Armed Forces all of which occurred on account of the action of the former Government.

 

(7)        That in the present case, after taking a comprehensive view of all the facts necessitating the Proclamation, it is submitted that the same is fully justified on the doctrine of Necessity and it is not amenable to judicial review.

 

(8)        That what is described and understood as State Necessity is nothing more than an extension of Doctrine of Necessity as recognised by jurisprudence. In the political sense, Doctrine of State Necessity has direct nexus with the situation necessitating such abrupt political change and has its validity/justification thereunder. It would, therefore, follow that the Doctrine of State Necessity justified the existence of the present legal order and the exercise of power thereunder which is for the preservation of the country. The reference to the so-called theory of Divine Right of Kings by the Petitioners who were privy to the former Government is wholly irrelevant and preposterous. In fact the petitioners. were active participants and supporters of the former Government in their illegal actions. They never objected to the same, including the events of 12th October.

 

(9)        The Doctrine of Necessity is embedded in ancient as well as contemporary Jurisprudence. According to this an act which would otherwise be illegal becomes legal under the stress of Necessity, and in the context of governance is referable to an intention to preserve the “State or Society, even by extra-Constitutional or meta-legal acts.”

 

(10)      That the Doctrine of Necessity is a recognised principle of Islamic Jurisprudence and applies equally to individual and collective perception of social behaviour.

 

(11) That the term “Necessity” does not have a fixed character. It is relative and elastic rather than absolute. It has various degrees and meanings and may connote different measures of Necessity and it should be construed with reference to existing conditions. Necessity has been held to be synonymous or equivalent to Emergency. (Corpus Juris Secundum Vol. 65, pp. 115, 116, 118)

 

(12) That once the assumption of extra-Constitutional Power is held to be valid, the legality of actions taken by such authority is to be judged in the light of principles pertaining to the Law of Necessity. (Begum Nusrat Bhutto’s case, p. 657).

 

(13)      That it is not correct to limit the doctrine of Necessity only as a defence to a criminal prosecution referable to self-defence or defence in Torts. (Corpus Juris Secundum, Vol. 65, p 387).

 

(14) That once it is found that the prevailing situation did warrant an abrupt change and there was no remedy available under the prevailing Legal Order, the persons responsible for the change are fully competent to bring about such change in law, including the Constitution, which intends to correct the flawed Old Legal Order for preservation of the State as well as welfare of the people. (Begum Nusrat Bhutto’s case, p.657).

 

(15) That the revolutionary political change is not in derogation of the Objectives Resolution under Article 2A of the Constitution, as ultimately the method of governance shall be through chosen representatives of the people. The process. and mode of Devolution of Power has already been declared which shall guarantee true representation as against the hithertofore sham democracy. (Speech of the Chief Executive dated 17-10-1999).

 

(16) That International Law recognises the right of the people to alter by any means, including force, the form of Government under which they live. Accordingly if the Government is in effective control and without any effective opposition particularly when the previous Government has ceased to exist, the efficacy or effectualness of the change has moral as well as legitimate justification. (Sorensen pp.271,272)

 

(17) That the principle of proportionality is not attracted in case an abrupt political change becomes absolutely necessary, as in this case, and displaces the Old Legal Order for valid reason and the previous Government ceases to exist. In fact the situation demands a complete change of the old, decadent and destructive structure.

 

(18) That the circumstances necessitating the political change in Begum Nusrat Bhutto’s case PLD 1977 SC 657 though similar for application of the Doctrine of Necessity the situation prevailing in the present case is far more serious and appropriate for application of the Doctrine of Necessity which rendered the political change inevitable inasmuch as:

 

(i)         Failure of Law and Order situation in 1977 was similar as described in PLD 1977 SC 657 at 693 to 703. Law and Order situation was worse in the present case as is in PLD 1997 SC 426 at 465 para.40 (pages 465 to 469, paras.40-42), and PLD 1999 SC 504 at 709-733, as well as the recent Judgment of the Anti-Terrorist Court, Karachi delivered on 6th April, 2000.

 

(ii)        That the General Elections of 1977 were found in Begum Nusrat Bhutto’s case to be the result of massive and wholesale rigging and thus, the then Prime Minister was held to ‘be a usurper. In the present case the former regime has committed such acts by virtue of which the powers of all the different organs of the State were usurped by the former regime with the intention of concentrating power in the single person of the ousted Prime Minster.

 

(iii)       The so-called heavy mandate was illusory and a farce and the Assemblies were rubber stamp of one man rule. The so-called heavy mandate consisted of votes not exceeding 12 to 13 % including bogus votes.

 

(iv)       By the 13th Amendment the former Prime Minister arbitrarily repealed Article 58(2)(b) which empowered the President to dissolve the Government for failure of Government machinery and by the same amendment repealed the power of the President to act in his discretion in the appointment of Chiefs of the Armed Forces. All this was done without discussion in the Parliament with the result that no check and balance was left on the action of the Prime Minister and his chosen few in the Parliament, while they plundered national wealth and amassed personal wealth by creating bank defaults of Rs. 1215 billion, indulged in acts of corruption and corrupt practices and destroyed national economy. Thus, he became a despot using State apparatus for personal gain.

 

(v)        By the 13th Amendment he managed to concentrate all power in his hands. The Anti-Defection Law passed without allowing a debate in the Parliament empowered him to expel any member of the Parliament who disagreed with him. Thus, the Government of the former Prime Minister throttled freedom of speech, freedom of action and freedom of vote of the legislators only for assuming dictatorial powers. All these measures resulted in negation of democracy as contemplated by the various provisions of the Constitution including Article 2A, the Preamble and Fundamental Rights and destruction of all democratic norms. All these actions are alien to the Parliamentary democracy which guaranteed freedom of expression and other Fundamental Rights of equality before law, protection of life, liberty and property etc.  

 

(vi)       The cumulative effect of all these actions of the former Government was betrayal of oath of office of the Prime Minister, the various Ministers and the Parliamentarians, Members of the Provincial Assemblies, all of whom lost thereby the moral and legal authority to govern.

 

(vii) That the judgment passed in Begum Nusrat Bhutto’s case has been considered minutely in Mehmood Achakzai’s case and it has been held (para.45-PLD 1997 SC 426) that no exception can be taken to `ratio decidendi’ laid down in the judgment of Begum Nusrat Bhutto’s case, whereunder the Full Court dismissed the petition as not maintainable.

 

(19)      The result of despotic rule was total destruction of economy, mass violation of fundamental rights, political victimization, tapping of several hundred telephones of political rivals, ridiculing of superior judiciary, storming of the Supreme Court, appointment of political favourites as Judges and massive corruption in the various agencies of the Government. (see paper books attached and particularly the list of references filed by NAB and the bank statements issued by the State Bank of Pakistan etc. as stated therein Reference is also made to Vol. A, B and C filed by Mr. Syed Sharifuddin Pirzada, Sr. ASC for the Federation).

 

(20) That the former Government arid their functionaries as well as Members of the Parliament scandalized, harassed and humiliated the Superior Judiciary in public which was reflected in (i) TV programmes against the verdict of Supreme Court in the case of Military Courts (ii) speeches of the former Prime Minister against the Judiciary. (P.B. Volume IX, at pages 135, 204-228, 227-243) (iii) speeches in the Senate and the National Assembly/Provincial Assembly. The storming of the Supreme Court by and at the instance of the former ruling party including elected representatives and judgment therein by the Hon’ble Supreme Court establishes gross Contempt of Court, which shows total ridiculing and undermining the apex Court.

 

(21)      Former Speaker of the National Assembly and the Chairman of the Senate of Pakistan were in League with the Government, as no reference was made to the Chief Election Commissioner for disqualification of any Member of the Government in terms of Article 63(2). (P.B. Volume-VII, pages 76-79 - Reference of Mr. Muhir Ahmad Khan (Volume-IX, pages 229, 230, 231.

 

(22)      Tapping of the telephones including those of the Judges and officials of the Supreme Court, despite judgment of the Benazir Bhutto’s case holding it to be unconstitutional and illegal (VolumeVIII, page 59).

 

(23)      The former Prime Minister made active attempts to create ,dissension to divide the Army. Further, dangers of such dissension are apparent from the facts disclosed and judgment given by the Anti-Terrorist Court at Karachi. Further, facts as disclosed show unconstitutional attempt at removal of the Chief of the Army Staff at a time when he was away from Pakistan on official duty and in the air at the height of 25000 feet. The Court at Karachi has found the former Prime Minister guilty of the offences of hijacking and terrorism. The offences of which the former Prime Minister has been convicted include section 402(b) of the Penal Code and section 7 of the Anti-Terrorists Act. It is most significant and serious among other facts disclosed by the Chief of the Army Staff,  his speech of October 17, 1999 (p.39 of Vo1.1 - Written Statement), when he stated that circumstances were created which would have forced his plane either to land in India or crash (p.79 of C.P. 63 of 1999).

 

(24)      The former Government actively tried to create a parallel command which the Army has refused to accept. Former Chief of the Army Staff, General Jehangir Karamat, a celebrated soldier was removed for making constructive suggestion for formulation of National Security Council and so was the removal of the Chief of the Air Staff, Air-Marshal Abbas Khattak for concentrating power in the hands of the former Prime Minister.

 

(25)      Hijacking was culmination of various incidents and in any case apart from any other factors, the Army takeover was justified on the following grounds:-

 

(a)        Humiliation of the Judiciary.

 

(b)        Dissension created in the Army and potentially rendering its command ineffective and forcing the COAS to be handed over to India and exposing him to certain death.

 

(c)        Destruction of the democratic set-up, Parliament and the Provincial Assemblies.

 

(d)        The Parliament and the Provincial Assemblies cannot be restored on the following grounds:-

 

(i)         Large scale corruption of the Parliamentarians, who have not even paid charges for boarding and *lodging besides being Bank defaulters.

 

(ii)        References filed against Parliamentarians for misconduct and Bank defaults before Accountability Court.

 

(iii)       The abatement and ridicule of the Judiciary and storming of the Supreme Court and discrediting the Army by the former Parliamentarians.

 

(e)        No fresh elections can be held without updating the electoral rolls. As per report of the Chief Election Commissioner, this process will take two years.

 

(f)         The process of accountability will be carried out to combat corruption. Already 79 references are pending and more than 200 are on the way.

 

(g)        Reforms are needed to be carried out.

 

(h)        The economy is to be revived and steps are to be taken for the purpose of welfare of the people.

 

(i)         Reforms are to be undertaken keeping in mind the state of resources, requirements of the people and defence of the country.

 

(j)         Government has already taken various steps for reform, including conservation of foreign exchange and recovery of Bank defaults. Already over Rs. 11 Billion have been recovered after 12th October from defaulters and the process of revival of economy continues.”

 

110. The learned Attorney-General submitted that Proclamation of Emergency, dated 12th October, 1999 is of a different character from the one issued by General Yahya Khan, inasmuch as, this time it has been approved unanimously after due deliberations by all the Corps Commanders who represent the whole Army, and there was imminent danger to the very survival of the State, which perception they clearly realised and decided to confront it.

 

111. The learned Attorney-General, then presented a list giving the cases of corruption, loan defaulters etc., which reads thus: -

 

CORRUPTION

 

Description

 

Statement of Governor, State Bank that the defaulters owe 356 billions rupees.

 

Two cases against former Prime Minister sent to NAB.

 

26 Top defaulters held.

 

List of 39 references pending against Mian Nawaz Sharif.         

 

List of 40 references pending against Mian Nawaz Sharif.

 

Transcript of BBC Television documentary on corruption in Pakistan.

 

Summary of Reference filed against Mian Nawaz Sharif and others.

 

Order dated 5-I1-1999 passed by High Court of Justice Queen’s Bench Division England in Al-Towfeek Company v. Hudaibiya Paper Mills.

 

Statement of Shezi Nackvi Director AI-Towfeek Company.

 

Documents annexed to statement of Shezi Nackvi.

 

Judgement dated 16-3-1999 of Queen’s Bench Division in AlTowfeek Company v. Hudaibiya Paper Mills.

 

11 Billion Dollars in Pakistan Banks were removed without consent of Accounts Holders FEBC accounts were frozen and foreign exchange misappropriated, huge sums removed by former Prime Minister even after the freeze.

 

Former Prime Minister and family established Sugar Mills in Kenya purchased four flats in London.

 

Building of vast Raiwind Estate - Misuse of Government money for construction of road to Raiwind and declaration of Raiwind House as official residence of P.M. - maintenance at the expense of Pak PWD.

 

Contracts for transportation of wheat, yellow cab Scheme, construction of Motorway kick backs and commissions.

 

Money Laundering through traveller cheques, dollar bearer certificates, overseas accounts and purchase of property in London.

 

Copy of F.I.R. No.12 of 1994 against Directors of Hudaibiya Engineering regarding opening of fictitious accounts.

 

Copy of F. I. R. No. 13 of 1994.

 

Press Clippings of Foreign press.

 

Internet reports of Daily Dawn.

 

Brief of Finance Division.’

 

Properties relating to District Lahore (Raiwind).

 

Reference application by Munir Ahmad Khan, Allama Iqbal Town to Chief Ehtesab Commissioner Islamabad against former Prime Minister, Chief Minister and others regarding misusing the official resources and causing loss to the National Exchequer to the tune of Rs.620 million.

 

List of properties in Lahore District.

 

Raiwind.

 

Sheikhupura District

 

Kasur

 

Rawalpindi District

 

Murree

 

Letter from D.C., Vehari to Deputy Secretary to Chief Secretary Punjab regarding ownership of 111 Kanals, 19 Marlas near Sahib Ali of Sharif’s family.

 

Land in the name of Industries owned by Mian Nawaz Sharif and family in District Lahore and Kasur.

 

Grand total of land properties in the name of Nawaz Sharif and his relatives

 

Land purchased by Mian Nawaz Sharif and family owner wise categorization in District Sheikhupura, Lahore, Kasur, Rawalpindi, Murree, Vehari.

 

White paper on Mian Nawaz Sharif Family’s corruption etc.

 

Extraction of. money from banks/DFIs by Mian Nawaz Sharif, Shehbaz Sharif and other members of Shehbaz Sharif family with Annexures A, B, C and D.

 

Details of history of business of Sharif family viz. Ittefaq Foundry etc.

 

Outstanding liabilities against Ittefaq Group - Annexure-”A”.

 

Properties owned by infamous Ittefaq Foundry as it stood on 20th March, 1990, Annexure “B”.

 

Ittefaq (Accounts Department) Annexure “E”.

 

Documents relating to bid price. Lahore and Islamabad Motorway, 27-11-1991.

 

Income Tax Statement regarding Mian Nawaz Sharif released by the Interior Minister.

 

Estimate of Lahore Islamabad Motorway given by National Highway Authority Project Management Cell, 18-11-1991

 

Office Note by Additional Director Industries, Directorate of Industries and Mineral Development Punjab, Lahore with regard to setting up of an Industrial Estate in 41 Villages Tehsil Chunian covering 60466 acres of Land, 6-3-2000.

 

Punjab Gazette Notification issued by Collector Kasur with regard to acquisition of land for Industrial Estate in Tehsil Chunian with detail of Khasra Nos. in various villages, 25-3-1987.

 

Notification from Ministry of Finance, Government of Pakistan regarding amendment in the Original Notification  (25-3-1987) with map showing Tax Free Zone, 26-5-1987.

 

Letter dated 7th January, 1998 from PM Secretariat declaring House at Raiwind Farm as official residence of the Prime Minister.

 

CORRUPT PRACTICES IN RESPECT OF DEPOSIT OF HUGE SUMS OF MONEY TO SPEND UPON ELECTIONS

 

Affidavit of (R) General Nasirullah Babar filed in this Court in HRC No. 19 of 1996 with index.

 

List of amounts deposited in Accounts of various Banks of Pakistan by a representative of Mr. Younus Habib

 

Detail of total amount of Rs.14 crore deposited by a Representative of Mr. Younus Habib (from 10-9-1990 to 22-10-1990).

 

List of names of 14 politicians and the amounts deposited in their names with lit of amount transferred to HQ. 313 Survey and Constructions Rwp.

 

Statement of Accounts No. 1726.

 

Affidavit of Lt. Gen. (Retd.) M. Asad Durrani in HRC 19 of 1996 regarding providing logistic support to the disbursement of donations campaign of UI in the four provinces, 24-7-1994.

 

Affidavit of Lt. Gen. (Retd.) M. Asad Durrani in HRC No. 19. of 1996 as to press release issued on behalf of Gen. (R) Mirza Aslam Baig that Mr. Younus Habib and his community had donated rupees one hundred forty million and deposited this amount in a Government Agency.

 

FAILURE OF LAW AND ORDER SITUATION

 

Details of extra-judicial killings in Punjab.

 

Details of extra-judicial killings, dacoities, high profile killings, loot and arson etc. in Sindh. Mehmood Achhakzai’s case.

 

FAILURE OF LEGISLATIVE ORGAN

 

Promulgation/re-promulgation or ordinances by the previous Government.

 

13th Amendment in the Constitution of Pakistan, 1973 - powers of the President under Article 58(2)(b) withdrawn - similar powers of the Governor under Article 112(2) also taken away discretionary power of the President to appoint Governors made subject to advice of Prime Minister the discretion of the President to appoint Chairman, Joint Chiefs of Staff Committee has been taken away.

 

14th Amendment-provides for defection if MNA or MPA votes contrary to any direction issued by the Parliamentary Party to which he belongs. This amendment takes away the right of freedom of speech.

 

The 15th Amendment bill published in Gazette of Pakistan Extraordinary on 1-9-1998 contemplates to give unbridled power to the executive as against the legislature.

 

16th Amendment bill published in the Gazette of Pakistan Extraordinary dated 17-11-1998 also proposed to confer unlimited power upon the Executive as against the legislature.

 

 

FAILURE OF JUDICIAL ORGAN OF THE STATE

 

Unwanted confrontation with the Judges of the Superior Courts, National Assembly Proceedings/debates ridiculing Judiciary.

 

Senate proceedings/debates ridiculing Judiciary.

 

The infamous storming of the Supreme Court to prevent the apex Court from proceeding in contempt petition against the former PM in Criminal Original No.29 of 1997.

 

The President and the Chief Justice of Pakistan resigned on 2-12-1997 which was justified in the Assembly.

 

Ridiculing of judiciary is a valid ground for dissolution of the Government as stated in PLD 1998 SC 388 (at page 431).

 

Failure of the Executive/Bureaucracy

 

PLOT TO DIVIDE ARMED FORCES

 

Interview of the Chief Executive with APP throwing light on the 12th October drama at Karachi Airport.

 

Article by Akhtar Isphahani published in Newsline of October, 1999, titled “What happened in Flight PK-805”.

 

Article by Kamran Khan of News Intelligence Unit, published in the daily News dated 14-10-1999, titled “Ambitious Ziauddin steered Nawaz to political disaster.”

 

Article by Kamran Khan of News Intelligence Unit, published in the Daily News dated 14-10-1999, titled “Ambitious Ziauddin steered Nawaz to political disaster.”

 

Statement of Allama Tahirul Qadri published in Asas Rawalpindi dated 13-10-1999 titled “On seeing dissension in Army, India was going to open attack on Pakistan”.

 

News item published in daily Khabrain dated 13-10-1999, with the title “Plan of Rana Maqbool, I.-G. Sindh failed - Gen. Pervaiz Musharraf could not be arrested”.

 

OBJECTIVES OF MILITARY TAKE OVER.

 

First speech of General Pervaiz Musharraf

 

Statement of General Pervaiz Musharraf that restoration of democracy is the top priority.

 

Statement of General Pervaiz Musharraf about setting up of National Security Council.

 

Announcement of the Chief Executive about accountability welcomed by B.N.P Mengal, J.U.I. Fazalur Rehman and Awami National Party.

 

Council of Islamic Ideology endorsed Chief Executive’s agenda

 

Chief Executive briefed Sheikh Zayed Bin Sultan Al-Nahyan of UAE.

 

Chief Executive pledged civilian rule after reforms

 

National Accountability Bureau set-up.

 

Chief Executive promised maximum autonomy at district level

 

Statement of the Chief Executive that improving economy and ruthless accountability are his two major objectives.

 

Statement of the Chief Executive that improving economy and ruthless accountability are his two major objectives.

 

Civil and Military combine to manage affairs

 

Chief Executive emphasised formulation of policies to give relief to common man.

 

Chief Executive emphasised formulation of policies !3 give relief to common man.

 

Cover story by Zahid Hussain published in Newsline of October, 1999 titled “Day of the General” explaining circumstances under which the Army was, once again, compelled to intervene in the country’s chequered democratic history.

 

Press clipping from the daily “News” dated 31-10-1999 with the title “Gentlemen and Officers”.

 

Radio Monitoring Report of BBC dated 15-10-1999, interview with Ghulam Sarwar Cheema, former Defence Minister saying that Army has no intention to impose Martial Law.

 

News item published in the daily Pakistan dated 20-10-1999, about the interview of Mr. Niaz A. Naik, former Foreign Secretary, with BBC.

 

PUBLIC PERCEPTION/ WELCOME/ ACCEPTANCE

 

Cartoon from A.K. Sajjad Painter “Donkeys pondering ways to plunder Pakistan

 

Mrs. Benazir Bhutto welcomed the bold Proclamation of the Chief Executive

 

Leaders hail Chief Executive’s address to the Nation. Statement of the President of Hyderabad Chamber of Commerce and Industry that the Military action saved country from destruction.

 

Leaders demand change in system.

 

Statement of Mr. Ghulam Mustafa Jatoi, NPP Chief that Army action was inevitable.

 

Chief Executive to visit and brief Saudi and UAE Rulers about Afghanistan.

 

Statement of Rasool Bux Palijo, Awami Tehrik Chief that all Provinces should be treated as equal.

 

King Fahad of Saudi Arabia hoped that the Armed Forces will preserve stability and strength of Pakistan.

 

Chief Executive satisfied with Saudi support Chief Executive assured of Saudi Arabia’s support.

 

Muttahida Qaumi Movement assured the Chief Executive of its cooperation.

 

Ijazul Haq declared that 7 point agenda of the Chief Executive is reflective of national aspirations.

 

Sindh Taraqqi Pasand Party declared that military take-over is logical outcome of dictatorship.

 

Chief Executive discussed relations with Amir of Qatar and addressed Pakistani community.

 

Article by Nasim Zehra of Gulf News based in Islamabad, published in the Gulf News dated 14-10-1999, with the title “No time for rejoicing now”. Also a picture showing people in Lahore city celebrating Nawaz Sharif’s dismissal with fireworks.

 

Article by Rehmat Shah Afridi, published in Frontier Post Peshawar on 17-10-1999, with the title “No coup d’etat, but coup de grace.

 

Article by Shafqat Mahmood, published in daily News Islamabad dated 16-10-1999, titled “A bitter harvest and new beginning.”

 

News item published in daily Nation Islamabad dated 14-10-1999, regarding Army take-over, Mian Azhar backing Army action, Imran Khan’s stinging attack on dictator Nawaz, and Benazir urging military to set-up care-taker Government.

 

News item published in daily News Islamabad and Frontier Post Peshawar, dated 14-10-1999, titled “Qazi Hussain Ahmed welcomes Nawaz’s ouster, demands elections’ and “salute to army”

 

Article by Miangul Naeem of Peshawar, published in daily Nation dated 14-10-1999, titled “Dismissal of Nawaz Government welcomed”.

 

Statement of Imran Khan issued from London, published in the daily Dawn Karachi dated 14-10-1999, with the title “Army stops Nawaz from becoming dictator”.

 

Statement of the Deputy Secretary General of Sipah-e-Sihaba published in the daily Nawa-e-Waqt to the effect that the Army Chief has saved the country from internal civil war by taking action at right time.

 

Statement of Ijazul Haq, Senior Vice-President of PML(N) published in daily Nation dated 15-10-1999, to the effect that Army was left with no other option.

 

Statement of the President of Pakistan Tehrik-e-Insaf Peshawar District, published in the daily Frontier Post terming military action as timely.

 

News item published in the daily News, Islamabad, dated 15-10-1999, with the title “75% people back army action: Gallup Poll”.

 

News item published in the daily News. Islamabad dated ‘ 15-10-1999, with the title “Peshawar, Lahore Bars back Nawaz removal”.

 

Radio Monitoring Report of BBC dated 15-10-1999 - Maleeha Lodhi on Army Coup,

 

News item published in the daily Nation Islamabad dated 15-10-1999, titled “Chishti [General (Retd.) Faiz Ali] endorses army action.”

 

News item published in daily Pak. Observer Islamabad dated 15-10-1999, containing statement of Gen. (Retd.) Hamid Gul, lauding Army action.

 

News item published in daily Jang Rawalpindi dated 15-10-1999, about supporting of Army action by the Peshawar and Lahore High Court, Bar Associations.

 

Statement of Ijazul Haq published in daily Jang Rawalpindi dated 15-10-1999, with the title “Removal of Nawaz Government was necessary - Nation is with the Army”.

 

News item published in daily News Islamabad dated 16-10-1999, with the title “Politicians continue to hail Nawaz’s ouster”.

 

Radio Monitoring Report of BBC dated 17-10-1999, titled “Ordinary people accept coup in Pakistan.”

 

News item published in daily Nation Islamabad dated 16-10-1999, with the title “Army action welcomed.”

 

News item published in daily Frontier Post Peshawar dated 16-10-1999, with the title “Full support to Army”.

 

Statement of Habib Wahabul Khairi published in daily Din Rawalpindi dated 16-10-1999, to the effect that Nawaz Sharit committed the offence of high treason and Proclamation of Emergency is a democratic action.

 

News item published in daily Pak. Observer Islamabad dated 19-10-1999, with the title “PPP to extend silent support to Musharraf.”

 

Statement of Ghulam Sarwar Cheema, former Defence Minister and MNA of PML(N) published in daily Nation Islamabad, dated 19-10-1999, with the title “Army action was inevitable”.

 

Statement of Ijazul Haq published in daily Khabrain Islamabad dated 18-10-1999, to the effect that if Nawaz Government had continued, the country would have faced grave crisis.

 

News item published in daily Nation, Islamabad dated 18-10-1999 with the title “seven political parties, groups support military action”.

 

Radio Monitoring Report of BBC dated 18-10-1999 titled “Proclamation of Emergency welcomed”.

 

Decision of Grand Democratic Alliance that “people are not with us but are with the Chief Executive - No party included in GDA will issue any statement against the present set-up”.

 

Statement of Ghulam Mustafa Jatoi; Chief of the National People’s Party that Army action was inevitable.

 

Statement’ of Prof. Abdul Ghafoor of Jamat-e-Islami published in the Dawn Karachi, dated 21-10-1999, that Military take-over saved institutions.

 

Article by Nazar Ali Suhail published in daily News Islamabad dated 21-10-199, with the title “Public welcomes Musharaf’s agenda.”

 

News item published in daily news Islamabad dated 21-10-1999, with the title “G.D.A. supports Musharraf’s agenda - Demands restoration of true democracy.”

 

Publication of the United Farmers Association Pakistan published in daily Nawa-e-Waqt, Islamabad dated 25-10-1999, with the title “Army and Peasants are one.”

 

Picture published in daily News dated 30-10-1999 showing the people dancing- in front of a huge hoarding of Gen. Pervaiz Musharraf.

 

Statement of Kabir Wasti of Muslim League (Qasim) published in Jang Rawalpindi dated 13-12-1999 to the effect that Army has taken-over to defend-Federation.

 

Statement of Hamid Nasir Chatha published in News Islamabad. dated 1-11-1999 that 90% people support Musharraf.

 

Statement of Aftab Ahmed Khan Sherpao of PPP published in News Islamabad dated 2911-1999 that Army enjoys popular support.

 

News item published in Pak. Observer Islamabad dated 5-12-1999 with the title “ANP declares full support to C.E.

 

News item published in Pak. Observer Islamabad dated 13-I0-1999 to the effect that Allama Tahirul Qadri backs Army take-over.

 

News item published in Pak. Observer dated 13-10-1999 with the title “People welcome take-over, demand accountability”.

 

News item published in News Islamabad dated 13-10-1999, with the title “People shout Army Zindabad outside T. V. Station”.

 

Statement of Allama Tahirul Qadri published in daily Nawa-e-Waqt dated 13-10-1998, titled “Army has taken over to defend the country”.

 

News item published in News Islamabad dated 13-10-1999 with the .title. “Political, religious leaders hail change”.

 

News item published in Nawa-e-Waqt dated 14-10-1999 titled “Teachers will offer prayer of thanks in Liaqat Bagh”.

 

News item published in daily Khabrain dated 14-10-1999, comprising statements of the constitutional experts that Army did well - high treason case can proceed against former rulers.

 

Radio Monitoring Report . dated 14-10-1999 of BBC that Peshawarites welcome Nawaz Government’s dismissal.

 

Radio Monitoring Report of BBC dated 14-10-1999 that JWP welcomes military action.

 

Radio Monitoring Report of BBC dated 14-10-1999 titled “Calm prevails in Pakistan after Military take-over”.

 

Radio Monitoring Report of BBC dated 14-10-1999 “Life normal in Islamabad despite Military coup”.

 

Radio Monitoring Report of BBC dated 14-10-1999 titled “Pak Army supports Gen. Musharraf’s action”.

 

Picture published in Pakistan Times ‘Rawalpindi showing the jubilant people dancing in front of a banner reading “Long Live Pakistan Army”.

 

News item published in News Islamabad dated 14-10-1999, with the title “Leaders continue to welcome Nawaz’s ouster”.

 

Statement of Mian Azhar Ex-Governor, Punjab, published in Khabrain dated 3-12-1999, titled “Army action is justified under the doctrine of necessity.”

 

MAL-GOVERNANCE/CORRUPTION/ACCOUNTABILITY

 

Legislators Pervaiz Ali Shah and others welcomed dismissal of Nawaz_Sharif and demanded across the board accountability.

 

Statement of Lt. Gen. ` Moinuddin Haider Ex-Governor that “Nawaz was urged not to appoint Advisers”.

 

Statement of Governor State Bank that the defaulters owe 356 billion rupees.

 

Article of Prof. Dr. Shahida Wizarat titled “Crisis management of the economy”.

 

Prof. Dr. Tahirul Qadri demanded accountability.

 

Two more cases against former Prime Minister sent to NAB.

 

Banks and financial institutions recovered Rs.5.6 billion out of their struck up loans.

 

26 top defaulters held

 

List of 31 references pending against the former Prime Minister Nawaz Sharif.

 

Transcript of BBC Television’s documentary on corruption in Pakistan.

 

Summary of References filed against Nawaz Sharif and others for corruption and abuse of office.

 

A report to the people of Pakistan presented by the Pakistan People’s Party about systemic corruption, money laundering and abuse of office by Nawaz Sharif.

 

Order dated 5-11-1999 passed by the High Court of Justice Queen’s Bench Division, England, in Al-Towfeek Co. v. Hudaibiya Paper Mills Ltd. etc. about execution of decree against Sharif family.

 

Statement of Shezi Nackvi, Director of Al-Towfeek Co.

 

Exhibits “S N I” to the statement Shezi Nackvi, Director of Plaintiff Co.

 

Judgment dated 16-3-1999 of the Queens Bench Division in case titled Al-Towfeek Co. v. Hudaibiya Paper Mills etc.

 

Pedigree-table of Nawaz Sharif

 

List of Directors of Hudaibiya Paper Mills Ltd.

 

Sharif family’s money laundering through travelling cheques, dollar bearer certificates and overseas accounts and purchase of property in London.

 

Letter/complaint of Mian Khalid Siraj (brother of Mian Sharif) addressed to Benazir Bhutto the then Prime Minister for inquiry into plundering and looting by Nawaz Sharif.

 

Statement of Saifur Rehman, Manager, Habib Bank A.G. Zurich, Lahore, about opening of accounts in the names of Muhammad Ramzan, Asghar Ali and Suleman Zia by Javed Kiani.

 

Statement of Syed Wajahat Hussain, Foreign Exchange Manager, Habib Bank AG Zarich, Lahore, about operating of 3 accounts of Muhammad Ramzan, Asghar Ali and Salman Zia.

 

Statement of Zaka. A. Malik, Handwriting Expert about comparison of writings/figures on transactions of foreign exchange.

 

Copy of F.I.R. No.12 of 1994 under sections 419, 420, 468, 471 and 109, P.P.C. and section 5 of the Prevention of Corruption Act, 1947, against Directors of Hudaibiya Engineering (Ptv.) Ltd. Regarding opening of fictitious Accounts in Habib Bank AG Zurich, Lahore.

 

Copy of F.I.R. No. 13 of 1994 under sections 419, 420, 468, 471 and 109, P.P.C. read with section 5 of the Prevention of Corruption Act, 1947 and Article 3 of Holders of Representative Office (Punishment for Misconduct) Order, 1977, against Directors of Hudaibiya Paper Mills. ‘

 

Bank record about the Account of Salman Zia.

 

Bank record about the Account of Asghar Ali.

 

Bank record about the Account of Muhammad Ramzan.

 

Extracts from the British Virgin Island Corporate Register about payment for purchase of property in London.

 

Payments to Shamrock Consulting Corporation through Salman Zia.

 

Photographs of Land Registry Records about property purchased by Sharif ‘family in London.

 

Illustrative Charts about flood of funds from Salman Zia Account and money laundering by Sharif family.

 

Press clippings of foreign press about amassing of wealth by Sharif family.

 

Statement of Shezi Nackvi, Director of Al-Towfeek Co. as witness in the High Court of Justice Queens Bench Division.

 

Press clippings from News International titled “Living like a king Sharif’s litany of abuses”

 

Internet Report of Daily Dawn dated 22-10-1999 with the title “Sharifs business Partners deprived country of 110 Million Dollars.

 

Internet Report of Daily Dawn titled “four cases against Nawaz being sent to F.I.A.”.

 

Internet Report of Daily Dawn titled “Banks challenge Ittefaq claims of engineered loan default”.

 

Internet Report of Daily Dawn titled “Sharif family liable for all Ittefaq Group loans”.

 

Where do we stand today? Economic Crisis.

 

Police encounters during the period from 1-7-1997 to 30-6-1999

 

Death in Police custody during the period from 1-7-1997 to 30-6-1999.

 

Reasons of pendency of judicial inquiries in police encounters.

 

Details of murders/crime against women and motive behind murder.

 

Punishments awarded to police officials accused during the period from 1-7-1997 to 30-6-1999.

 

Article by Amir Nawaz published in Friday Times of 22/ 28-10-1999, titled “Treason case against Nawaz;”

 

Statement of Imran Khan, published in Pak. Observer, Islamabad dated 20-10-1999, to the effect that Army interference had become compulsory and the elections before accountability will be meaningless.

 

Statement of retired Generals published in daily Jang Rawalpindi dated 27-10-1999, demanding impartial accountability of those who plundered the national exchequer.

 

Statement of retired Generals published in daily Jang Rawalpindi dated 27-10-1999, demanding impartial accountability of those who plundered the national exchequer.

 

Statement of Mr. Farooq Ahmed Khan Leghari, former President published in Khabrain dated 14-10-1999 demanding severe accountability.

 

Review of economic performance 1990-99.

 

Brief of Finance Division, Government of Pakistan (E.F. Wing) on Lahore-Islamabad Motorway Project (M-2)

 

Brief of Finance Division (E.F. Wing) on Islamabad-Peshawar Motorway Project (M-I)

 

Brief of Finance Division (E.F. Wing) on Lahore International Airport. New passenger terminal complex.

 

Brief of Finance Division (E.F. Wing) on exact nature and scope of cooperative scandal to the Members of the National Assembly.

 

List of cooperative societies, their directors doing banking business illegally.

 

Package announced by Prime Minister on 7-12-1993 to compensate affectees of Cooperative Societies.

 

Report of Finance Division (Budget Wing), Government of Pakistan in respect of “Mera Ghar Scheme”.

 

List of defaulters of Rs.100 Million and above, as on 31-10-1999.

 

List of Telephone Numbers of Politicians tapped during previous regime without permission of D-.G., I.B.

 

List bf Telephone Numbers of Politicians monitored without approval of D.G., I. B. .

 

List of telephone numbers of Judiciary tapped without written approval of D.G., I.B.

 

CONDEMNATION OF DEPOSED REGIME

 

Press release .of Benazir Bhutto urging World condemnation of Nawaz reign of terror on Press in Pakistan.

 

Protest of the Committee to protect journalists against Government sponsored attacks on independent journalists, addressed to Nawaz Sharif.

 

BBC report about protest of journalists regarding arrest of Mr Najam Sethi, Editor Friday Times.

 

Article by Nadeem Shahid published in daily Nation Islamabad on 25-10-1999 titled “He wanted to be the King.”

 

Article -by M.S. Qazi, published in Frontier Post Peshawar on 18-10-1999, titled “Nawaz’s fall from grace”.

 

Statement of Lt. General Sardar F.S. Lodi published in Nation Islamabad dated 21-10-1999, with the title “Losing heavy mandate. “

 

Article by Aslam Effendi published in the daily Nation, Islamabad, dated 16-10=1999 titled “Operation retribution or coup de grace”.

 

Statement of Malik Meraj Khalid published in the daily Frontier Post dated 15-10-1999, hailing Army action with title “Nawaz’s misdeeds paved way for army.”

 

Statement of Altaf Hussain, MQM Chief published in daily news Islamabad with the title “Nawaz responsible for army action.

 

Radio Monitoring Report of BBC dated 14-10-1999, titled “Army coup outcome of Nawaz Sharif’s mistake”.

 

Statement of Gen.(Retd.) Mirza Aslam Beg, published in News Islamabad dated 6-12-1999, with the heading “politicians responsible for army take-over.

 

Interview of Aftab Ahmed Sheikh of MQM published in Takbeer Weekly dated 8-12-1999 titled “Nawaz Sharif. himself invited Army”.

 

Statement of Qazi Hussain, Ahmed published in News Islamabad dated 12-12-1999, with the title “only-Nawaz Sharif responsible for military coup.”

 

Statement of M. Azam Khan Hoti of ANP published in daily Frontier Post dated 27-12-1999, titled “Nawaz still conspiring against army”.

 

NECESSITY FOR TAKE OVER

 

Article by Amir Mir published .in daily news Islamabad, dated 13-10-1999 titled “Military Take-over legal under law of necessity according to Supreme Court ruling.”

 

Radio Monitoring Report of BBC dated 14-10-1999, titled “Musharraf terms military intervention as last resort”.

 

112. The learned Attorney-General submitted that the Proclamation of Emergency and the PCO are legislative instruments of extra-constitutional character, which fall within the ambit of doctrine of necessity, particularly in view of the question of State survival being involved in the present case, and as such the same are not open to judicial review. However, the status of all other acts and actions of the Chief Executive may stand on different footing in terms of the law laid down by this Court in Nusrat Bhutto’s case (supra), in particular the observations at pages 715, 720 and 721 of the report. He reiterated that prime object of the Chief Executive is to hold fresh elections after cleansing the system as soon as practicable and possible.

 

113. At the conclusion of his arguments, while making certain clarifications, the learned Attorney-General filed written submissions for the sake of precision and clarity so as to avoid misunderstanding and misgivings. His submissions were: -

 

SUBMISSIONS ON BEHALF OF THE FEDERATION

 

1.         In deference to observations of the Hon’ble Court on 5-5-2000, regarding the dates of transfer of properties at Raiwind, the Respondent Federation submits herewith the authenticated Revenue Extracts showing the dates of mutation/purchase of properties at Raiwind (8 pages) from 31-1-1984 to 24-9-1999 alongwith the letter dated 6-5-2000 of the Deputy Commissioner, Lahore.

 

2.         It is submitted on behalf of Respondent Federation before this Honourable Court that the contents of the documents produced at pp.13 to 135 in Volume-X of Respondent along with the Written Statement in compliance with observations and directions of the Hon’ble Court were verified by NAB from the Election Commission and Central Board of Revenue and concerned authorities before being supplied by the Government of Pakistan through NAB and each page bears the signature of an authorised officer of NAB. The documents are filed on behalf of and under instructions of the Federation and the - said documents contain information and declarations of the former Parliamentarians and Members of the Provincial Assemblies themselves before the Chief, Election Commissioner and Income Tax Authorities. NAB has prepared the documents on the basis of the declarations made before the said authorities. The said documents are produced for the purpose of showing discrepancies in the respective declarations for the same period, before the Election Commission arid the Wealth and Income Tax Authorities.

 

3.         The Attorney-General is appearing, before the Hon’ble Court as a part of his duty on behalf of the Federation and in response to notice from the Hon’ble Court, and not in his personal capacity. The Federation has filed separate lists of (a) loan defaulters (b) for misdeclaration of assets before the Election Commissioner and Tax authorities and (c) persons whose telephones were taped. Certain press reports appearing on 6-5-2000 have mixed up the names of one list with the other resulting in misunderstanding. The statements of some politicians on the basis of such reports as appearing in the press on 7-5-2000 imputing allegations against the Attorney-General are misleading, unjustified, motivated and denied as all facts and documents produced before the Hon’ble Court as per lists were based on instructions, verified record provided by NAB and the Federation. The above is respectfully brought to the notice of the Hon’ble Court so that there is no further interference with the course of justice.

 

4.         Volume-X similarly contains among others at pages 1 to 7 statement of expenditure in connection with expenses in the General Elections of 1985, 1988, 1990, 1993 and 1997, the last of which caused to the national exchequer a sum of Rs.1,054,495,101 as certified on 2-3-2000 by the Election Commission, Pages 1 to 7 disclose such expenditure as well as the total expenditure incurred by the MNAs in the General Elections of 1997 as well as the outstanding dues against the Members of the Parliament on account of room rent, utility bills etc. outstanding against former Parliamentarians as on 1-3-2000 (pages 8 to 14) as supplied by C.D.A.

 

5. Volume-II page 14 contains the statement of the Governor of State Bank of Pakistan that Rs.356 billion are payable as on 12-10-1999 by the Bank Defaulters to the various Banks. Some of the prominent names of Bank defaulters who are liable to pay Rs.100 Millions and above as on 31-10-1999, are mentioned at pages 167 to 182 of. Volume-IV and p. 111 and p.140 of Volume-VIII.

 

6.         Volume-III contains the order of the High Court of Justice Queen’s Bench Division, London dated 5-11-1999 at page 1 and Judgment, dated 16th March, 1999 disclosing the Suit filed by Al-Towfeek Company against (1) Hudaibiya Paper Mills, (2) Mian Muhammad Shehbaz Sharif, (3) Mian Muhammad Sharif, and (4) Mian Muhammad Abbas Sharif ordering the said defendants therein to pay a total sum of over US$ 32 Million to the Plaintiff Bank Al Towfeek Company for -loan advanced by the said Company to Hudaibiya Paper Mills owned by the Sharif family. At page 3, four flats at Park Lane are mentioned as belonging to Sharif family which were ordered to be attached in the said suit. At page 5, the Written Statement of Mr. Shezi Nackvi of the Plaintiff company before the Hon’ble Court of Justice at London sets out the details and the amounts payable by the Sharif family. The properties of the family are mentioned at page 7. At page 20, is the Judgment delivered on 16th of March, 1999 for payment of over US$ 14 millions as the first instalment. At page 23 a list of Directors of Hudaibiya as filed in the Court at London has been filed which shows the names of Members of the Sharif family as Directors. Pages 24 and 26 contain the signatures of Hussain Nawaz. Volume III contains those documents which were actually produced in the High Court of London including Bank Statements/cheques of foreign accounts held by the family of the former Prime Minister. The cheques are mentioned at page 106 onwards. All this information has been suppressed and not disclosed to concerned authorities in Pakistan, nor to this Hon’ble Court.

 

7.         On the basis of this, the High Court of London passed a Decree/Order, dated 5-11-1999 for execution of the Decree, of nearly US $ 32 Million as stated above out of which the Sharif family has paid to the plaintiffs a sum of approximately US$ 9 Million on March, 2000 as first instalment in part payment. This fact has also been suppressed and on the other hand shows the assets of the family abroad which, remain undisclosed to a substantial extent.

 

8.         Volume-VII of the respondent contains the affidavits of Lt. Gen. (Retd.) Nasirullah Babar and Lt. Gen. Asad Durrani in H.R.C. No. 19 of 1996 filed by Air Marshal (Retd.) Asghar Khan pending in this Hon’ble Court setting out therein the fact of payment of a sum of Rs. 140 million to the various politicians including IJI. This shown that the electoral mandate was obtained by corrupt practices.

 

9.         Volume-VIII at pages 140 to 155 shows a sum of Rs. 6,146 Million borrowed by Mian Nawaz Sharif Family and business concerns from 31-Banks/DFIs (p.141) which remain to be cleared. Volume VIII at p.69 to 106 and p.156 to p.I90 contains detailed list of properties including those held in Chunian which after purchase was declared as Tax Free Zone and Industrial Area for illegal gain. At pA66 of Volume-VIII the names of 5 Industrial Units of the Sharif Family are mentioned as located in Tax Free Zone. The’ map showing the zone is at p.190.

 

10.       At pages 136 and 137 of Volume-X is the tabulation of the statements of 37 Banks/DFIs in respect of withdrawal of Foreign Exchange of over 171 Million US Dollars, from 11-5-1998 to 28-5-1998 showing mismanagement and misgovernance.

 

11.       House at Raiwind Farm was declared as official residence of the former Prime Minister and Pak PWD was assigned responsibility of its maintenance (P.152 of Volume-X)

 

12.       The Respondent Federation submits that the Proclamation dated 14-10--1999, the Provisional Constitution Order of the same date and any other Order made by the Chief Executive pursuant to the said proclamation are valid and cannot be called, its question on the basis of the Judgment delivered in Begum Nusrat Bhutto’s case reported in PLD 1977 SC 657 at pages 721-722 and further reaffirmed by this Hon’ble Court in the case of Mehmood Khan Achakzai reported as PLD 1997 SC 426 at page 472, para. 45 on the ground of State necessity and State survival.

 

“It is further submitted, however, that the Proclamation dated 14-10-1999 cannot form the subject-matter of judicial review based as it is upon the doctrine of necessity and State survival and accordingly the Chief Executive is fully competent to perform all such acts and promulgate and take all legislative measures which have been recognized by judicial authorities as falling within the scope of the doctrine of necessity as held and declared at pages 715 and 716 inter alia in paragraphs (iii) (a) (b) (c) (d), (iv) and (v) thereof, and paragraphs (i) to (vii) at pages 721 and 722 in the judgment of Begum Nusrat Bhutto’s case and reaffirmed in the case of Mehmood Khan Achakzai by this Hon’ble Court on the grounds of State Necessity and State survival, and-for orderly running of the State.

 

“Without prejudice to the contents of the Statement of the Federation and documents already on record, it is submitted, that the petitions are accordingly liable to be dismissed by this Hon’ble Court.”

 

ARGUMENTS OF MR. KHALID ANWAR IN REBUTTAL

 

114. Rebutting the arguments advanced by Syed Sharifuddin Pirzada, learned Senior ASC and Mr. Aziz A. Munshi, learned Attorney-General for Pakistan, Mr Khalid Anwar submitted that in the opening session, Syed Sharifuddin Pirzada admitted the fact that the Supreme Court has full power of judicial review and notwithstanding the Proclamation of Emergency and the PCO, this Court retained its jurisdiction and power of judicial review and further that the new oath under the Oath of Office (Judges) Order No. 1 of 2000, has in no way affected the ability of the Judges of this Court to decide the validity, legal effectiveness and operation of the above instruments. He added that there is a consensus statement of the lawyers of the petitioners and the respondents on this point. He further clarified that though the Constitution in a technical sense has been suspended but it still rules indirectly because jurisdiction is conferred upon this Court by the Constitution and not the Proclamation of Emergency or the PCO, therefore, the power of judicial review of this Court is still intact. He argued that in the present scenario it is only the Supreme Court and no other institution or authority, which can validate the Proclamation of Emergency and the PCO and thereby grant legitimacy to the present Government, which is the relief they are seeking from this Court. He drew attention of the Court to the concise statement of Syed Sharifuddin Pirzada whereby he has only sought validation of the action of 12th October, 1999 by this Court and made no prayer seeking powers to amend the Constitution or carrying out economic, political or social reforms in the society. He then read out a part of the speech delivered by the Chief Executive on 13th October, 1999 to contend that the sole purpose of the Army take-over on 12-10-1999 was to prevent any further destabilization of the country and that the situation was perfectly calm and under control. . He contended that the Chief Executive in his above speech further appealed to the people to remain calm and support the Army in the re-establishment of order, which meant that he did not seek to create a new order through changes in the Constitution or laws.

 

115. Mr Khalid Anwar submitted that he would rely on material cited on behalf of the respondents because their own material supported his view. He thereafter dealt with each item of the case law relied upon by Syed Sharifuddin Pirzada. He argued that “65-Corpus Juris Secundum” (page 389), sub-heading “Public Necessity”, relied upon by Syed Sharifuddin Pirzada, makes it clear that the existence of public necessity would be decided by the legislature and no one else. Relevant portion reads thus:’

 

“Public necessity. A relative term meaning urgent public convenience; in this connection inconvenience may be so great as to amount to necessity.”

 

“With reference to legislative action, that, urgent, immediate public need arising from existing conditions which, in the judgment of the legislature, justifies a disturbance of private rights which otherwise might be legally exempt from such interference. It does not necessarily mean public benefit. The term is employed to designate the requirement of what is needed for reasonable convenience, facility, and completeness in accomplishing a public purpose.”

 

He referred to “Judicial Review on Administration Action” by De Smith, wherein it was observed at page 544 as under:

 

“A person who is subject to disqualification at common law may be required to decide the matter if there is no other competent tribunal or if a quorum cannot be formed without him. Here the doctrine of necessity is applied to prevent a failure of justice. So, if proceedings were brought against all the superior Judges, they would have to sit as Judges in their own cause...”

 

116. His precise plea was that the respondents had mixed up the “doctrine of necessity” and “doctrine of State necessity”, in that a wide range of case law referred to by Syed Sharifuddin Pirzada deals with application of “doctrine of necessity” in criminal law, in order to save life and not “doctrine of State necessity” with which we are concerned in the present case. . While dealing with the “doctrine of proportionality” he referred to page 595 of the report, wherein three tests are laid down by the European Courts of Justice in relation to the context of “doctrine of proportionality” viz.

 

(i)         The balancing test requires a balancing of the ends which an official decision attempts to achieve against the means applied `to achieve them. .

 

(ii)        The necessity test requires that, where a particular objective can be achieved by more than one available means, the least harmful of these means should be adopted to achieve a particular objective.

 

(iii)       The suitability test requires authorities to employ means which are .appropriate to the accomplishment of a given law, and which are not in themselves incapable of implementation or unlawful. “

 

and contended that the remedy should be proportional to the disease. He asserted that both America and Europe are one on the selection of least harmful means in order to achieve the objective, which, according to the Chief Executive, is re-establishment of order in the country on 12th October, 2000.

 

117. He then reverted to Farzand Ali’s case,(supra) and contended that no reliance can be placed on the de facto doctrine by the Government on the basis of this case, inasmuch as, the finding in the above case was that if a person is holding an office illegally, no one can challenge the validity of his acts in a collateral proceedings for the sake of order and regularity except by direct proceedings instituted by the State or by someone claiming the office de jure. He argued that since the present proceedings were resorted to by the parliamentarians directly claiming to hold the office of members of National Assembly, Senate and Provincial Assemblies, they are entitled to challenge the same.

 

118. As to the case titled “Mokotso v. H.M. King Moshoehoe II (1989 LRC (Const.) 24), referred to by Mr Pirzada, Mr Khalid Anwar submitted that this was a case of coup d’etat and could not be a model for Pakistan. Then he proceeded to deal with the case of Mitchell v. Director of Public Prosecutions (1986 LRC (Const.) 35). and contended that the said case is similar to that of Mahmood Khan Achakzai in which the 8th Amendment was ultimately approved and upheld by the Supreme Court, in that, in the former case, the Grenada Courts held that because Constitutional Government has been restored, it is the action of the Constitutional Government, which has conferred validity and legitimacy on the Martial Law. Mr Khalid Anwar argued that this case goes against the arguments of Mr Pirzada because principles of International Law have nothing to do with it.

 

119. Adverting to the case of The Attorney General of Republic v. Mustafa Ibrahim, Mr. Khalid Anwar contended that an impression was sought to be created that in France, Germany, Italy, etc. there have been martial laws or military coups d’etat and surely this Court can take judicial notice of all these things but it was all about “doctrine of necessity” and not of “doctrine of State necessity”, therefore, it does not advance the case of the respondents. He contended that it was common ground in Begum Nusrat Bhutto’s case that Martial Law had been imposed in the country whereas in the present case it has been argued by Syed Shariffuddin Pirzada that this is not Martial Law, therefore, the ratio decidendi of Nusrat Bhutto’s case is not applicable to this case.

 

120. Mr. Khalid Anwar then took up Volume “B” filed by Mr. Pirzada and referring to the case of Fred Toyosaburo Korematsu v. United States of America at page 132 thereof, contended that it again relates to “public necessity” and not “State necessity” and that this judgment was criticized in volume `G’ filed by him, page 77, footnote 5 and also page 83. He next referred to a report namely “States of Emergency” - A study prepared by the International Commission of Jurists, which was read out by Syed Sharifuddin Pirzada at some length from page 14 onwards. Mr. Khalid Anwar referred to its criticism at pages 17,18,21-23.

 

121. Mr. Khalid Anwar submitted that if reliance can be placed on the Commonwealth Finance Ministers Meeting about corruption, then surely, reliance can be placed on the Commonwealth Prime Ministers Conference in which Pakistan was suspended from the Commonwealth for having an undemocratic Government.

 

122. According to Mr. Khalid Anwar, the only question before the Court today is as to which of Mr. Pirzada’s view in his capacity as (i) Counsel; and (ii) Legal Scholar has to be referred as the views expressed by him as a writer are his true views, therefore, he accepts them in toto in so far as they relate to the present controversy.

 

123. He referred to Article 260 of the proposed Constitution of Pakistan, which, according to Mr Pirzada was drafted by Justice A.R. Cornelius, who was then Law Minister and contended that firstly, this Constitution never came into force and secondly, the responsibility rested on General Yahya Khan and that surely this was the action of General Yahya Khan, the then Chief Martial Law Administrator, who is not considered as a model today. Instead, he was the man who was responsible for the dismemberment of Pakistan.

 

124. Mr. Khalid Anwar argued that there is a saying, “Power corrupts and absolute power corrupts absolutely” and if that be true then the Supreme Court should not confer absolute power on the Chief Executive to get rid of the legislature and authorise him to exercise all powers by validating the impugned action of 12th October, 1999. ,

 

125. Mr Khalid Anwar further contended “Constitutional and Administrative Law” by Hilaire Barnett and “Constitutional and Administrative Law” by Stanley De Smith and Rodney Brazier relied upon , by Mr. Pirzada talked about the doctrine of necessity and not state necessity.

 

126. As regards the arguments, of Mr. Aziz A. Munshi, the learned, Attorney-General for Pakistan, Mr Khalid Anwar submitted that in regard to facts and figures about turnover in the last four general elections, held in 1988, 1990, 1993 and 1997, it is interesting to observe that in 1997 general election, no party in the history of Pakistan got more seats than the Pakistan Muslim League. He further submitted that in 1993, the PPP got 7.8 million votes while in 1997 it came down 4.2 Million. In 1993 Muslim League got a major chunk of 8.2 million votes. He argued that what had happened was that people who were loyal to the PPP by and large did not vote for the Muslim League and stayed away. Regarding Al-Towfeeq & Co., it was argued that Nawaz Sharif was not a party to this case and a wrong impression was sought to be created that the same proved default against Nawaz Sharif.

 

127. Mr Khalid Anwar referred to the submission of the learned Attorney-General relating to fake foreign currency accounts of one Salman Zia allegedly sponsored by Mian Nawaz Sharif’s family and submitted that this entire transaction forms subject-matter of a Full Bench judgment and Division Bench judgment of the Lahore High Court respectively reported as Hamza Shehbaz Sharif v. Federation of Pakistan (NLR 1998 (Crl.) 103) and Huddaibia Engineering v. Pakistan (PLD 1998 Lahore 90). He referred to paragraphs 5 and 6 of the latter report to contend that these . cases were quashed:

 

“5. On 8-11-1994 the appellant filed the Constitutional Petition (W. P. No. 14532/94) seeking a direction ~ to the Federal Investigation Agency to refrain from taking any proceedings under the F.I.R. This petition was dismissed by the learned single Judge on 19-12-1994 who was of the view that immunity and protection granted by section 5 of the Protection of Economic Reforms Act, 1992 only extended to those transactions in foreign currency accounts which were bona fide. It was observed that sections 5 and 9 of the Act have to be read together and as section 9 protects only bona fide banking transactions the immunity granted by section 5 of the Act was not pervasive but limited to transactions which are bona fide and not otherwise.”

 

“6.        During the pendency of this appeal, certain developments took place of which notice must be taken. After investigation of the case, Federal Investigation Agency had submitted challan to the Special Court constituted under the Offences in respect of Banks (Special Courts) Ordinance, 1984 under section 419/420/468/471 read with section 109, P.P.C. The other offences mentioned in the F.I.R. namely section 5 of the Prevention of Corruption Act, 1947 and Article 3 of the Presidential Order 16 of 1997 seeking quashment of the challans submitted to the Special Court were filed by Mukhtar Hussain and.Hamza Shehbaz. A Full Bench of this Court has since allowed these two petitions holding that the case had been registered by the F.I.A. without any lawful authority and even on merits no case was made out on the face of record and the continuous prosecution would be an abuse of the process of the Court. However, while disposing of those Constitutional petitions, the question as to the effect and scope of Protection of Economic Reforms Act, 1992 was not gone into by that Bench and was left to be determined in this appeal by observing that:-

 

“As regards the Intra-Court Appeal presently pending, his submission is that it would be pressed only to the extent of the decision of the learned single Judge with regard to the interpretation placed by him on the relevant law, regarding the immunity available to the foreign exchange accounts under Economic Reforms Act XII of 1992.”

 

128. He next submitted that the only reference actually filed against Mian Nawaz Sharif is the helicopter case in which it was alleged that though he used the helicopter during his election campaign but did not declare it as a part of his asset.

 

129. Mr. Khalid Anwar argued that since Mian Nawaz Sharif is neither a petitioner nor a respondent, no observation should be made by this Court regarding his conduct. He added that this is especially true when criminal cases are pending -against him which will ultimately come in appeal before this Court, therefore, it would be most improper for the Government to bring his conduct under the subject-matter of the present litigation. To support this point, he referred to the case of Mushtaq Ahmed Gormani v. State (PLD 1958 SC 333), wherein certain observations were made against the then Prime Minister, Malik Feroz Khan Noon, which were ultimately expunged by the Supreme Court because he was not a party to the proceedings. Reliance was also placed on Amanullah Khan v. Federal Government of Pakistan (PLD 1990 SC 1092) for the same proposition.

 

130. Referring to the allegation made by the learned Attorney-General that Chunian Estate in Kasur was purchased just before the issuance of Notification in 1987 creating an Industrial Estate there by the CBR and, thus, derived benefits, Mr Khalid Anwar contended that the alleged estate was purchased by Nawaz Sharif family in 1984, much prior to the issuance of the above notification and that in 1987 Military Government was in power, therefore, if any corruption was committed, the blame would rest on the then Military Government.

 

131. Regarding allegation of misdeclaration of assets before the Election Commission and the Wealth Tax Authorities, Mr Khalid Anwar contended that there was no real misdeclaration of assets, in that, under the Wealth Tax, one declares the cost of property or market price and under the Election laws one declares the value which is artificially calculated to represent 10 years’ annual letting value. Referring to the alleged misdeclaration of pension of $ 20,000 per annum received by Mr. Sartaj Aziz from United Nations, he contended that pension is like salary and not an asset. He also pointed out that under the Wealth Tax Act, dollars are not taxable.

 

132. Further dealing with the argument advanced by the learned Attorney-General that the references filed in the Accountability Courts under the NAB Ordinance have established corruption of the politicians, Mr Khalid Anwar contended that the list of References included names of Air Vice Marshal Waqar Azim, several businessmen and some politicians, who are not party to the present proceedings and, therefore, no comments could be made about them.

 

133. He submitted that in the budget for the years 1997, 1998 and 1999, civil departments of the Government were allocated Rs. 69 billion only, whereas defence department of Pakistan was allocated Rs. 145 billion i.e. just one department of the Government incurs double expenditure. The argument was that military officers are outside the ambit of accountability and they have been excluded from accountability despite the fact that there is a serving General, who is head of the NAB, which fact negates the plea of across the board accountability.

 

134. He further contended that in 1977 according to Begum Nusrat. Bhutto’s cast, the military government wanted time to carry out accountability before elections. He argued that ninety days became ninety months but no accountability was carried out and that corruption at the end of the latter period had in fact multiplied.

 

135. Mr Khalid Anwar also referred to the submission regarding Mehran Bank Scandal on which the learned Attorney-General had laid great emphasis to show corruption of politicians and contended that Mirza Aslam Baig former Chief of Army Staff obtained Rs. 14 crores from Younis Habib. Chairman of Mehran Bank for disbursement to various politicians and all those payments were made by Lt. Col. Mir Akbar Ali Khan, Rawalpindi Headquarters.

 

136. Regarding telephone tapping by the former Government of Mian Nawaz Sharif, Mr. Khalid Anwar condemned tapping of the telephones of Chief Justice of Pakistan and other Judges of the superior Judiciary and called it a shameful act.

 

137. As to the judgment of Anti-Terrorist Court in the plane hijacking case against Mian Nawaz Sharif, Mr. Khalid Anwar submitted that reference to the case in these proceedings is not appropriate in that an appeal is pending in the High Court and the matter is likely to come before this Court.

 

138. Mr. Khalid Anwar denied the allegation that 15th Constitutional Amendment bill was intended to be introduced with a view to grabbing more powers by the Prime Minister.

 

139. Mr. Khalid Anwar further argued that the reaction of the people in welcoming the Military take-over is of no consequence in that the political parties which earlier welcomed the impugned action of the Chief Executive are now stressing for early restoration of democratic rule. He also referred to a book titled ““Public Opinion” and Political Developments in Pakistan by Inamur Rehman to contend that public opinion is transient in nature. He further argued that charges of corruption and corrupt practices against the previous Government are of no consequence in that there is corruption in many other countries of the world including Germany, England, Italy, Japan, etc.

 

140. Mr. Khalid Anwar further submitted that the mere fact that the decision of Army take-over was allegedly made by the Corps Commanders and the Principal Staff Officers as contended by the learned Attorney-General is of no legal consequence in that none of the above officers has any constitutional role to do so. He reiterated his submission that Begum Nusrat Bhutto’s case warranted revisiting. He vehemently contended that- the Elections of 1997 were fair and transparent.

 

ARGUMENTS OF S. M. ZAFAR, LEARNED AMICUS CURIAE

 

141. Mr. S.M. Zafar, learned amicus curiae submitted that whenever there is a constitutional breakdown, coup detat or otherwise, Judges are invariably confronted with an ethical dilemma on each occasion for which law prescribed no solution. He submitted that every Judge makes up his own mind either to resign or to continue as a Judge under the new dispensation. Those who opt to continue in office, as the Judges of this Court have done, they take upon themselves a very important historical burden of maintaining national legal order in the face of unconstitutional or extra-constitutional takeovers.

 

142. Mr. S.M. Zafar next submitted that since its inception, Pakistan has actually struggled with various Constitutions as well as couple of forms of Government i.e. Presidential, Parliamentary or abrupt political changes not contemplated by the Constitution. He submitted that in this milieu of changes, it is significant to note that whatever the nature or magnitude of a change, the Judiciary has continued to survive, inasmuch as, there has been no institutional interruption or discontinuity of Judiciary as such. He then proceeded to narrate a brief history of Judiciary to show as to why there has been no institutional interruption. ,

 

143. He submitted that on independence, Pakistan inherited a reconstituted faction or part of Federal Court of India as the Federal Court of Pakistan by virtue of the Government of India Act, 1935 and more importantly by virtue of PCO 1947. On 24th of October, the then Governor-General Malik Ghulam Muhammad dissolved the Constituent Assembly, but Judiciary continued and it not only continued, but it was finally able to decide the issue of dissolution of the Constituent Assembly. That was the first interruption that took place. On .23-3-1956 the first Constitution was passed. It did change the nomenclature of the Court from Federal Court to Supreme Court of Pakistan under Articles 148 and 227(3) of 1956 Constitution:

 

“ 148. There shall be a Supreme Court of Pakistan consisting of a Chief Justice, to be known as the Chief Justice of Pakistan, and not more than six other Judges:

 

Provided that Parliament may by Act increase the number of other Judges beyond six.”

 

“227(3).- All legal proceedings pending in the Federal Court, immediately before the Constitution Day, shall, on such day, stand transferred to, and be deemed to be pending before, the Supreme Court for determination; and any judgment or order of the Federal Court delivered or made before the Constitution Day shall have the same force and effect as if it had been delivered or made by the Supreme Court.

 

144. He next submitted that first Martial Law was imposed in October 1958 abrogating the Contitution of 1956, but paragraph (ii) of the Laws (Continuance in Force) Order, 1958 maintained and continued the Supreme court and all other Courts in existence before the promulgation of Martial Law. On 8-6-1962 the Constitution of 1962 was enforced. It changed the form of Government from parliamentary to presidential, but under Article 49 read with Articles 227 and 234 of the 1962 Constitution the Courts continued to exisat to exercise theire jurisdiction as before. The 1962 Constitution was abrogated on 25-3-1969 but, under paragraph 6 (ii) of the PCO, 1969, the Supreme Court and all other Courts continued to function as before as also to exercise their jurisdiction as before. On 24-4-1972, Interim Constitution of 1972 was enforced. Article 171 read with Articles 285 and 295 maintained the continuity of the judiciary as an institution without any interruption. On 14-8-1973 the Constitution of 1973 was promulgated. Article 175 read with Article 275(2)(4) ensured the continuity, of the Judiciary. He submitted that on 5-7-1977, General Ziaul Haq held the Constitution in abeyance and proclaimed Martial Law but by paragraph 2 of the Laws (Continuance in Force) Order, 1977, the Judiciary as such was continued and finally on 31-12-1985 the Constitution was revived again. Lastly, on 12-10-1999 through Proclamation of Emergency, the Constitution of 1973 has been kept in abeyance for the second time, but under the PCO 1 of 1999 paragraph (ii), Judiciary as an institution has been preserved and continued. His formulation was that the Superior Judiciary, as history indicates, structured since 1947 and established as Supreme Court and High Courts of various Provinces under the Constitution of 1956 have been jealously maintained intact in spite of successive constitutional changes. He referred to the case of M. Inayat Khan v. M. Anwar and 2 others (PLD 1976 SC 354), wherein at pages 369, 371, 372, 374 and 375, it was observed:

 

“Now, in the present case, Mr. M. Anwar had himself filed an appeal in the Supreme Court in Asma Jillani’s case against the original judgment of the Lahore High Court. The hearing of the appeal was scheduled to commence on the 16th of March, 1972, whereas Mr. Anwar’s interview was published in the weekly ‘Kahani’ bearing the date 10th March, 1972. In this interview he had expressed himself strongly against the decision of the Supreme Court in Dosso’s case, and this was also his main stand in the appeal filed by him. We have already seen that in his interview Mr. Anwar had not only questioned the correctness of the judgment in that case but had also attributed motives to the. learned Chief Justice who delivered the leading judgment and had also indicated in no mild terms, the other judges of the Supreme Court who had concurred with the learned Chief Justice. Even if we may not go along all the way with the learned Attorney-General in thinking that the publication of the interview, a few days before the commencement of the hearing of the appeal in Asma Jillani’s case, was intended to “brow-beat and blackmail” the Judges of this Court, it is clear that the publication was indeed calculated to influencing the mind of the Judges against endorsing the view taken in Dosso’s case. It is irrelevant whether this was the intention of the respondents in publishing the interview or whether it has to be seen is whether the publication had the tendency to prejudice their minds in the matter. We consider, therefore, that the publication in question also amounts to contempt of Court as it had the tendency to prejudice the determination of a matter pending before this Court.

 

“The fact that, while deciding Asma Jillani’s case, the Supreme Court did ultimately accept the position canvassed by Mr. Anwar against the doctrine expounded in Dosso’s case, and expressed itself rather strongly in this behalf, has, however, no bearing on the nature of the publication we are considering here. It is axiomatic that the Court is bound to decide a pending cause in the view expressed in the offending publication, cannot in any manner detract from its pernicious tendency to prejudice the determination of the cause when it was still pending. At best such judicial endorsement might be urged was a mitigating circumstance in the matter of punishment for the contemner.

 

“A reference to the terms of this Article does indeed show that it is not in the nature of a provision for the continued existence and functioning of the President or the Chief Justices, and Judges holding office under the previous Constitutional Order; but it does, nevertheless, indicate a sense of continuity by providing that, for the purposes of this Constitution, in relation to a period prior to the commencing day, any reference to the holders of these offices shall be construed as a reference to the incumbents in office immediately before the commencing day.

 

“However, it is difficult to place this meaning on this clause for the reason that the Supreme Court has generally not been regarded as falling in the category of a civil, criminal or revenue Court, nor have the Chief Justice and Judges been described as judicial officers. The Court as well as the Chief Justice and the Judges fall in a distinct category created by the Constitution, and different from civil, criminal and revenue Courts and the Presiding Officers thereof. We consider, therefore, that irrespective of the entry appearing in the index to the 1962 Constitution, clause (5) of Article 234 has no application to the Supreme Court and the Chief Justice and Judges thereof.

 

“The combined effect of these provision was that all pending proceedings in the Supreme Court as well as the other Courts in the country were to continue in accordance with the law under which they were commenced or instituted. It also followed that such proceedings would be continued in the same forum in which they were commenced, unless the Constitution expressly provided to the contrary. As a result, the Supreme Court established under the 1962 Constitution automatically assumed jurisdiction in all matter which were pending before the Supreme Court immediately before the commencing day. This position was not altered in any manner by the fact that the 1962 Constitution may have varied the jurisdiction of the Supreme Court as compared to the one available under the 1956 Constitution.

 

“For all these reasons, we have no doubt in our mind that the Supreme Court as established under the 1956 Constitution itself was abrogated in 1958 on the proclamation of Martial Law, and the Laws (Continuance in Force) Order, 1958, was in turn repealed by Article 225 of the 1962 Constitution, which provided for the establishment of a Supreme Court, and at the same time contemplated that the Chief Justice and the Judges in office immediately before the commencing day shall continue to hold their respective offices, but take a new oath of office and allegiance to. the new Constitution as soon as practicable after the commencing day. Such being the case, the Supreme Court functioning under the 1962 Constitution would by fully competent to punish any contempt relating to the Supreme Court of Pakistan or any of its Judges as constituted in 1958.

 

“The present proceedings before us were instituted on 17-3-1972 under Article 123 of the 1962 Constitution. As is well-known, the 1962 Constitution was abrogated on the 25th of March, 1969 on the proclamation of the second Martial Law, but under paragraph 6(2) of the Provisional Constitution Order, 1969, the Supreme Court, the High Courts and all other Courts and tribunals were enabled to exercise the same powers and jurisdiction as they had immediately before the issuance of the proclamation. Accordingly, the Supreme Court had the Jurisdiction to deal with this matter under Article 123 of the 1962 Constitution at the time it was initiated.

 

“The provisions contained in the Interim Constitution of 1972 as well as in the Permanent Constitution of 1973 follow the same pattern as was adopted in the 1962 Constitution to ensure the continuity of the legal order, the functioning of institutions like the Supreme Court, the High Courts and other civil, revenue and criminal Courts, and the continuance in office of the Chief Justice and Judges of the Supreme Court and the High Courts, as well as of all other persons in the service of Pakistan. It follows, therefore, that it is a misconception to think that the present Supreme Court, or the Supreme Court constituted under the 1962 Constitution, was, in any manner, a new or a different institution. The correct position appears to be that the Supreme Court and the High Courts established under the 1956 Constitution have been assiduously maintained intact in spite of successive constitutional changes; and their continuity is reflected .not only by the fact that their Chief Justices and the Judges have been continued in office, but also by the fact that all pending proceedings have been continued by the respective Courts under the laws under which they were initiated or continue to be competent to punish any acts amounting to contempt even though they relate to the functioning of these Courts or these Judges as constituted under earlier constitutional instruments.

 

It will be seen from the authorities, to which we have already referred in an earlier part of-this judgment, while considering the question whether the offending Article constitutes contempt or not, as well as from the terms of clause (2) of Article 123 of the 1962 Constitution, that the offence of contempt of Court is committed if there is interference with or obstruction of the process of the Court; or scandalisation of the Court or nay Judge of the Court such as is calculated to diminish the dignity or authority of the Court and to impair public confidence in its independence, impartiality, and integrity. As observed in the cage of Fakhre Alam v. State (1), the object of contempt proceedings is not the vindication of the character or conduct of an individual Judge, but to protect the Court from attack and calumny, so as to keep the fount of justice pure and unsullied and to maintain public confidence in the ability and power of the Courts to administer justice.

 

Reference was also made to a passage from Nusrat Bhutto’s case at ?age 717:

 

“Next, even if for any reason the principle or power of judicial review embodied in the relevant provisions of the 1973 Constitution be held not to be available under the new dispensation the fact remains that the ideology of Pakistan embodying the doctrine that sovereignty belongs to Allah and is to be exercised on his behalf as a sacred trust by the chosen representatives of the people, strongly militates against placing the ruler for the time being above the law, and not accountable to any one in the realm. Muslim rulers have always regarded themselves as being accountable to the Courts of the land for all their actions and have never claimed exemption even from personal appearance in the Courts. The Courts of Justice are an embodiment and a symbol of the conscience of the Millat (Muslim community), and provided an effective safeguard for the rights of the subjects. On this principle as well, the power of judicial review for judging the validity of the actions of the Martial Law Authorities must continue to remain in the superior Courts.”

 

“Lastly, the Court is bound to take note of the fact that already several instances have been brought to its notice where the ordinary civil rights of the people are being interfered with by the subordinate Martial Law Authorities even though the laws of the land, which have been kept alive under the Laws (Continuance in Force) Order, 1977, m;kke full provision for their adjudication. In some cases, interference has occurred even when the contending parties had already been litigating in the civil Courts regarding the same disputes. The necessity which justified the Proclamation of Martial Law did not arise owing to the failure of the Courts to adjudicate on these matters. Such matters must, therefore, continue to fall outside the purview of the Martial Law Authorities, and the only remedy to the citizens against any such encroachment can be by way of judicial review in the superior Courts. “

 

145. The learned amicus curiae referred to certain passages from the book titled “Pakistan in the 80s law and Constitution” Edited by Wolfgang Peter Zingel Stephanie Zingel Ave Lalemant:

 

“IN DEFENCE OF THE CONTINUITY OF LAW PAKISTAN’S COURTS IN CRISES OF STATE by Dieter Conrad which say:-

 

1.         An uphill task

 

“Repeatedly, the Courts have been involved in the paradoxical task of delineating, from first principles, some constitutional contours of extra-constitutional action. They have, thus, produced a whole series of judicial pronouncements dealing at explicit length with the validity of extra-constitutional emergency measures and of revolutionary changes.”

 

2.         Two prototypes of constitutional crisis

 

“The pivotal practical question in this context, as to how the law Courts should re-act to suspension of, and revolutionary changes in, the Constitution, has been discussed more than once. It is the underlying question in the recent study on the `doctrine of necessity’.

 

“It appears from this analysis, with convincing clarity, that there are two basic types of Court responses to constitutional break-down classed by him as `necessity’ cases and “Kelsen” cases respectively.”

 

“It seems to me that the two types of judgments should be viewed in relation to two different types of political situation, and that a Court’s re-action might reasonably differ in the two.”

 

“These two types of extra-constitutional action may conveniently be characterized by drawing on a distinction from German doctrinal discussion, namely of commissarial and sovereign dictatorship.”

 

“………………………….The difference is that the commissarial dictator is ultimately bound to, though not presently restricted by, the existing Constitution, while the sovereign dictator justifying his actions from the future order is not measured by any precise constitutional yardstick. “

 

5. Alternatives of judicial policy

 

“The upshot of this brief recapitulation is that the Pakistan Court has resorted to the doctrine of necessity in situations offering a reasonable prospect that extra-constitutional action might be kept within the bounds of commissarial dictatorship;”

 

“A change of the Constitution, revolutionary or otherwise, need not imply a-change of the total legal order; the fiction of a total change is inappropriate to describe what actually is nothing but a change of the power to effect changes in the legal order. If all existing law becomes subordinate to a new law creating authority, it does not follow that its continued validity derives from it: valid law simply remains valid unless or until altered by the law creating organ. Constitutional provisions expressly keeping in force the bulk of existing law (Laws Continuance in Force Orders) have primarily a declaratory, or perhaps clarificatory, effect.”

 

“It is plain to see that a principle of minimal recognition with respect to illegal constitutional change, or, the endeavour to limit legal effects of political changes to the narrow political sphere under the doctrine of implied mandate, would easily fit into this general conception. “

 

“the difference between a legal system’s apex norm, and the Constitution, stands out more clearly. We have to perceive the Constitution not as the foundation of a legal system, but as itself founded in it.”

 

“The significance of Pakistan’s great constitutional cases lies in the fact that the Courts have constantly assumed the power `to say whether what had happened, was legal or illegal’ i.e. to Judge the validity of constitutional enactments.”

 

“There are no convincing reasons, why Courts should be any less entitled than the executive to claim extraordinary powers under State Necessity in order to overcome legal chaos and effect an ordered transition to legality. Thus, necessity can be invoked as an independent basis of jurisdiction, if no other remedy is left; this has been held in the Cyprus case of A.G. v. Mustafa Ibrahim.”

 

“for an oath to administer law in accordance with such a Constitution could be legally imposed on a Judge only in so far as that constitution is `law’ itself, i.e. legally valid. A political oath could, therefore, not restrain a Court of law from exercising its inherent judicial power to inquire into the legal validity of a Constitution, even if its own jurisdiction is conferred by it.”

 

146. He submitted that the survival and continuation of the Judiciary is relatable to the fact that in each constitutional interruption, there was no allegation of malfunctioning of the Judiciary, rather it was the failure of the political organ of the State which was made the cause of constitutional interruption. Thus, Judiciary stands acquitted in history, but this is not a free acquittal. It is burdened simultaneously with the responsibility to adjudicate and pronounce upon the nature and merits of the change and more importantly the quantum of its legislative capacity. He submitted that the Judiciary must adjudicate all the controversial/thorny issues and the reason is that if the Judiciary were to decline to adjudicate, it may open itself to the charge that although the coup makers did not interfere with the Judiciary, yet it renounced its powers and became dis functional, therefore, judicial abdication will be self-condemnatory and destructive. He submitted that the Judiciary survived in history and must continue to exercise its judicial powers and thereby control, in a significant way, the possible recklessness of the use of the legislative power that has come to vest in the new regime on account of the attending circumstances leading to the change in question. He submitted that since the respondents are claiming legislative power, it is the duty of this Court to place checks on it, inasmuch as,, in the absence of appropriate representative institutions, such power shall remain uncontrolled, unaccountable and, thus, may become arbitrary.

 

147. He submitted that another somewhat similar but a priori reason why Judiciary must tie or untie the Gordian knot is that in most societies and particularly. in Pakistan, it is the only forum recognized by both the rulers and the ruled where questions of validity and legitimacy are capable of being resolved finally, controlling the recklessness of the new regime and declining to resolve it would be self-condemnation, self-destructive and betrayal of the trust of the people of Pakistan.

 

148. He submitted that any form of oath taken by or administered to the post-coup d’etat Judges can neither restrict the judicial power nor derogate from the legal position that the Courts, as final arbiters in any constitutional controversy, retain their right and jurisdiction to say as to what a particular provision of the Constitution means or does not mean even if that particular provision is one seeking to oust the jurisdiction of the Court itself. He submitted that any attempt to control or circumscribe the judicial power of the Superior Courts with a view to denying them the right to decide the validity and the quantum of legislative power of the new regime, would be an exercise in futility and that let it be known that changing the form of oath will not take away the inherent jurisdiction of this Court to say what a particular provision of the Constitution means or does not mean. He emphasised that notwithstanding the new oath or its language the Courts shall continue to have jurisdiction to decide the question whether the new oath and the “new constitutional document” under which the oath is administered, have any effect on the jurisdiction and power of the Court.

 

149. Mr. S.M. Zafar further submitted that learning from the previous change overs, although the draftsman has, in the new prescription of oath, substituted “upholding the 1973 Constitution” with “upholding the PCO” with a view to barring and restricting the Court’s jurisdiction yet there is nothing in the oath or inherent in the conditions prevalent today to derogate from the legal position that the validity of the provisions pertaining to the jurisdiction of the Court can be and shall be finally adjudicated upon by the Court. The changes in the language of the oath are merely declaratory and mere recognition of the fact that on October 12, 1999 some transformation did take place. Thus, if the Judges are continuing in office all the time, then any form of oath, any device, any language, any new or different situation will make no difference. It will be an exercise in futility and the final question would be whether the one who prescribed the oath, had the jurisdiction to prescribe it?

 

150. He submitted that the Judges of the Superior Courts follow the Code of Conduct for the Judges and inherently owe allegiance to the State of Pakistan, which requires this Court to decide the issue of validity of the new regime under which the Judges are being asked to take new oath, inasmuch as, such allegiance cannot be undone. However, oath administered under the Constitution is something different. According to him, such oath has to be respected because it draws its authority from the people of Pakistan.

 

151. He drew a distinction between `revolution’ and `coup d’etat’. He referred to the definition of the term `coup d’etat’ given in Black’s Law Dictionary, which is as under:          

 

“Coup d’etat.---Political move to overthrow existing Government by force.

 

“Revolution.-A complete overthrow of the established Government in any country or State by those who were previously subject to it. The word in its broadest significance is generally used to designate a sweeping change as applied to political change, it denotes a change in a method or system of Government, or of the power which controls the Government. It is frequently accomplished by or accompanied by violent acts, but it need not be violent in its methods and it does not necessarily denote force or violence.

 

He also referred to certain passages from the book titled “A HISTORY OF MILITARISM” CIVILIAN AND MILITARY by Alfred Vagts, to explain the meaning of the term `revolution’.

 

He submitted that coup d’etat and revolution may be distinguished and differentiated as under:

 

(i) “A coup d’etat is a sudden seizure of state power by a small segment of the people. Whereas a revolution is preceded by a long gestation/preparation and a sizeable portion of the people participates in the struggle.

 

(ii)        A revolution is aimed at and proclaimed to cause far reaching changes both in the social system and the national legal order. The coup d’etat is respectful and conservative towards the existing national order and seeks to remove certain deficiencies to improve its working.

 

(iii)       A revolution creates new structure out of the ashes of the old one; a coup d’etat subverts that .part of the Constitution which relates to the formation of the political organ with a view to reform it.

 

(iv)       A revolutionary asserts the right to stay, the coup d’etat leadership promises to return the trust to the political sovereign, the people, as soon as possible, and retains the functional framework of the State as well as the judicial branch.

 

(v)        In case of coup d’etat the legitimacy of the new regime is not completely autonomous/independent of pre-existing processes and institutions. The revolution is autonomous and disrespectful towards existing national order and attempts to transform the society altogether.

 

(vi)       Only one common thing which happens historically in the case of both is that an unsuccessful coup as well as unsuccessful revolution is treated as treason.”

 

152. The learned amicus curiae referred to the cases of Ex-Major General Akbar Khan v. The Crown (PLD 1954 FC 87), F. B. Ali v. The State (PLD 1975 SC 506) and Shahida Zahir Abbasi v. President of Pakistan (PLD 1996 SC 632), to contend that in all these cases the Supreme Court merely examined the trial procedure to ensure due process. He stated that the greatest mistake in Dosso’s case was that no distinction was made between revolution and coup d’etat and further that Kelsen’s theory of revolutionary legality was misunderstood/misapplied.

 

He also referred to para. 19 of the statement dated 2-5-2000 of Syed Sharifuddin Pirzada, learned Senior ASC, which reads thus

 

“ 19. The intervention is not of a permanent nature, but for a limited period and is of a temporary character to enable the country to return to a true democratic way of life as soon as possible.”

 

Mr. S.M. Zafar, the learned amicus curiae concluded that what happened on 12th October, 1999 was a coup d’etat and not a revolution.

 

153. He submitted that the issue of recognition or otherwise cannot be resolved on the basis of recognition accorded by the International community but is to be determined under the Municipal Law. In support of his contention; reliance was placed on Asma Jillani’s case (supra).

 

154. Reference was also made to the book titled “Recognition of Governments in International Law”-With Particular Reference to governments in Exile by Stefan Talmon wherein it was observed that recognition of governments denotes the act through which it becomes apparent that a State is willing to enter into certain relations with an authority as the Government of a State and/or that, in the opinion of the State, the authority qualifies as a Government in international law.

 

155. He submitted that the change on 12th October, 1999, does not claim to be based on the principle of revolutionary legality, hence the principle of Dosso’s case is not relevant and Kelsen’s theory is not applicable to the facts and circumstances of the present case. The logical conclusion is that the new regime, if it is not a revolutionary regime, cannot claim to be the law giving source and its legislative powers are to be spelt out by the Courts.

 

156. He submitted a brief account of the chequered political history of the nation by stating that the country had its legal birth and freedom with the adoption of Government of India Act, 1935 as the Interim Constitution along with the Indian Independence Act, 1947. After nine years, the 1956 Constitution was drafted and promulgated but it was a short lived document as it was abrogated on 7-10-1958. This was followed by the promulgation of the 1962 Constitution on 1-3-1962 which provided for Presidential form of Government. Seven years later, however, this Constitution was also abrogated and was followed by the Laws (Continuance in Force) Order, 1969 as well as the Legal Framework Order, 1970. Later, Interim Constitution of 1972 came into force which was succeeded by a permanent Constitution i.e. the Constitution of 1973 which came into force on 14-8-1973. This was a consensus document and, therefore, the Laws (Continuance in Force) Order, 1977 as well as Proclamation of Emergency and PCO 1 of 1999 merely held it in abeyance. He stated that every time there was a constitutional debacle, the Courts provided an appropriate solution through the application of doctrine of necessity or other formula in order to ensure continuity of the legal system.

 

In doing so, the judgments of the Court may be divided into two categories, (i) cases in which necessity was pleaded within the framework of an existing Constitution, and (ii) cases in which necessity was pleaded by an intervenor who acted extra-constitutionally. In the first category, the relevant case is that of Muhammad Umar Khan v. The Crown (PLD 1953 Lah. 528) in which military necessity was recognized, while in the second category the Reference by His Excellency the Governor-General (PLD 1955 FC 435) may be referred where civil necessity was spelt out as part of every written Constitution of a civilised people.

 

 He also referred to the Reference. by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan (PLD 1957 SC [Pak] 219), which was rejected by the Court. He also referred to the case of Darwesh M.Arbey v. Federation of Pakistan (PLD 1980 Lahore 206) wherein the military necessity was rejected on the touchstone of 1973 Constitution. He referred to the case of Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504) in which both the civil and military necessity were not allowed to be pleaded in violation of the Constitution.

 

157. He submitted that notwithstanding the negative comments, received by the Reference by His Excellency the Governor-General (PLD 1955 FC 435), this Court, inter alia, decided that the doctrine of necessity can be validly used only in defence of and for preservation of the Constitution and that only if a Constitutional authority i.e. Governor-General in that case, did something for preservation of the Constitution could plead for its validation under the doctrine of necessity. Quoting the history of constitutional developments in 50s he clarified that on 21-3-1955 in the case of Federation of Pakistan v. Moulvi Tamizuddin Khan (PLD 1955 FC 240) the Federal Court held that a law not assented to by the Governor-General was invalid. This ruling resulted in the invalidation of several Acts of the Legislature. So, the Governor-General on 27-3-1955 issued Emergency Powers Ordinance (IX of 1955) to retrospectively validate all those laws. But the Federal Court, in Usif Patel v. The Crown (PLD 1955 FC 387) decided on 12-4-1955, held the said Ordinance void on the ground tat the Governor-General could not exercise legislative powers nor could he delegate such powers in the absence: of Constituent Assembly. Subsequently, the Governor-General on 15-4-1955 called a meeting of the Constituent Assembly on 10-5-1955. It was only after the meeting of the Constituent Assembly had been called that on 16-4-1955 the Governor-General issued the Emergency Powers Ordinance (IX of 1955) again and also sent a Reference to this effect to the Federal Court. Thereafter, the Federal Court, on the doctrine of necessity, permitted validation for a limited period i.e. till the time the Constituent Assembly examines such laws. He submitted that following conclusions can be drawn from the dicta in Reference by His Excellency the Governor-General (supra):

 

(i)         One man cannot act legitimately to amend the Constitution or the law in the absence of Legislature;

 

(ii)        The doctrine of necessity may be applied only to preserve the Constitution;

 

(iii)       There should be a manifest assurance that the Legislative body will soon come into existence;

 

(iv)       That ultimate validation could be conferred by the Legislature and not the Court.

 

He also referred to the following observations made in the Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan (PLD 1957 SC 3 [Pak] 219 at 239):

 

“And then there is the point, and it is an important point, that if the power to dissolve an interim Provincial Assembly vests in the Governor, a similar power must be conceded to the President in respect of the National Assembly functioning under Article 223. For, a dictatorially minded President, there could be nothing easier than to dissolve the present National Assembly and constitute a new ad hoc Assembly consisting of members of his own way of thinking who by a two-third majority could repeal the whole Constitution and frame a new Constitution to serve their own ends. A legislature returned after an ordinary general election often has a different outlook and legislative bias and a gerrymandered election can certainly produce a completely subservient body. We are not suggesting that any President will act in that manner, but there can be no doubt that on Mr.Manzur Qadir’s interpretation of the Constitution such possibility would undoubtedly exist in law.”

 

‘158. He further submitted that in the case of Darwesh M. Arbey v. Federation of Pakistan (PLD 1980 Lahore 206) the Lahore High Court rejected the plea of necessity, the same being contrary to the constitutional provisions.

 

159. He stated that the case of The Attorney General of the Republic v. Mustafa Ibrahim and others (1964 Cyprus law Reports 195) brought about a distinction between necessity in the case of constitutional breakdown and necessity in the case of overthrow of a constitutional Government. He clarified that in case of breakdown the purpose is to fill in the vacuum arising within the constitutional parameters whereas in the case of overthrow the purpose is to have the Constitution functioning within the national legal order. He added that in case of constitutional breakdown the use of doctrine of necessity within the framework of the Constitution is minimal and. temporary and the Courts in Pakistan have not permitted its use to undermine any provision of the Constitution.

 

160. Coming to the constitutional overthrow, he submitted that there is only one case of Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan (PLD 1977 SC 657), wherein the doctrine of necessity was pleaded and this Court accepted the same by holding that the extra-constitutional action was a deviation dictated by the highest consideration of the State necessity and the welfare of the people. Then the learned Judges proceeded to determine the quantum of the legislative power of the Military regime and while delegating power, they included the power to amend the Constitution. Having done that, this Court further decided to have a supervisory jurisdiction over every action including legislative measures on the premises that the Court would test all of them on the basis of the doctrine of necessity, meaning thereby that the doctrine of necessity would not apply at the initial stage alone, but it will continue to apply as ‘long as the necessity persists. Thus, this Court broadened the 1955 ruling in the Governor-General’s Reference relating to the State necessity and extended it to an extra-constitutional measure and permitted amendment in the Constitution, which could be interpreted as a licence to change the Constitution according to the whims of the new regime.

 

161. He submitted that the case of Nusrat Bhutto (supra) came up for discussion and was approved in the case of Mahmood Khan Achakzia v. Federation of Pakistan (PLD 1997 SC 426) by majority. The learned amicus curiae argued that Mahmood Khan Achakzai’s case highlighted two aspects: (i) that the power of amendment was not extensive and it was deviated from by the then regime, and (ii) that the issue of time-frame was reviewable. He submitted that the above two flaws pinpointed in Mahmood Khan Achakzai’s case need to be rectified by this Court.

 

162. He submitted that the doctrine of necessity applied in Governor-General’s Reference (supra) insisted on a call to the electorate and that too in a very limited time-frame’ i.e. one and a half month whereas in Nusrat Bhutto’s case it was left to expectations, therefore, in case validation is granted in this case, a realistic time-schedule may be obtained from .the Government through the Attorney-General and determined and/or finalised by the Court itself. He emphasised that in the light of the past experience, particularly in the aftermath of Begum Nusrat Bhutto’s case when the time frame was stretched to unusual limits, the issue should not be left to mere commitments. He added that in case a time-frame is not determined, injustice will be done to national legal order, therefore, in view of the law laid down in the cases of Fauji Foundation, Asma Jilani, Begum Nusrat Bhutto and Mehmood Khan Achakzai (supra), it is the duty of this Court to see that national legal order is disturbed the least.

 

163. Regarding causes of military intervention in a country, the learned amicus curiae referred to the following passages of the book titled `The Man on Horseback’ The Role of the Military in Politics by S.E. Finer wherein it has been said:

 

“The causes which produce military intervention in politics ....lie not in the nature of the group but in the structure of society. In particular, they lie in the absence or weakness of effective political institutions in the society.”

 

THE PERFORMANCE FAILURES OF CIVILIAN GOVERNMENTS

 

“Praetorians invariably charge the civilian Governments whom they have overthrown with serious performance failures. Unconstitutional and illegal behaviour (especially widespread political corruption), responsibility for economic downturns or inflationary spirals, and an inability to handle political opposition and discontent without their erupting into disorderly and violent actions-these are the three most frequent performance failures used to justify the overthrow of civilian Governments. These charges commonly correspond to the reality of the situation, thereby making it all the easier for the praetorians to rationalise and justify their actions on behalf of Constitution and nation.”

 

“With regard to the first type of performance failure, the praetorians charge the civilian incumbents with various unconstitutional and illegal acts. These include the arbitrary application of the laws, the extension of their powers into areas that are prohibited by the .Constitution, the retention of their offices beyond the constitutionally prescribed limits, and by far the most frequent accusation, the flouting of legality in permitting or engaging in widespread corruption. Higher and lower governmental officials are charged with the outright pilfering of public funds, the granting of benefits and exemptions to political supporters, the sale of favours, and the acceptance-of kickbacks from contractors. The illegally acquired funds are used not only to enrich those who already have official positions but also to help ensure their continuation in office by financing party activities, patronage networks, and electoral campaigns. Since accusations of corruption are made far more often than other charges of unconstitutional and illegal behaviour, we shall concentrate on the connections between these and military intervention.”

 

“According to the praetorians themselves, their coups are inspired by the goal of political regeneration, eliminating venal practices and guaranteeing adherence to high standards of public honesty. Several; writers on the non-Western military have referred to its “puritanical” outlook and ascetic standards. “The military demands these qualities not only for itself, but for society as a whole, and it sets itself up as a standard-bearer of hard work and unflinching dedication” (Janowitz, 1964, p.64; Shils, p.24; Shils, p.24; Pauker, p.339). Luckham agrees with this generalization and suggests that the puritan ethic was of some importance in motivating the majors to carry out the first Nigerian coup (Luckham, pp.230, 282-83). Under civilian rule Nigeria certainly exhibited an inordinate amount of political corruption, whether gauged in terms of the diversity of corrupt practices, the number of politicians who engaged them, or the high offices that they occupied. The politicians regarded the illegal translation of authority into profit, power, and party advantage as acceptable perquisites of public office.”

 

“Although soldiers are occasionally motivated to overthrow civilian governments because their poor economic performance has adverse consequences for the middle class, there are two other connections between this kind of performance failure and intervention that have a more frequent and greater impact upon the decision to intervene. Economic performance failures can only solidify and intensify the military’s disrespect for the incumbents, heightened further by the belief that as highly competent professional officers, they could turn in a far better performance as economic decision makers. And the notable impact of economic performance failures upon the loss of governmental legitimacy goes a long way in facilitating the ‘ translation of motives into coup attempts.”

 

164. The learned amicus curiae submitted that in the case of Mian Nawaz Sharif (supra), corruption was not held to be a good ground for dissolution of the Assemblies and dismissal of the Government but, in Benazir Bhutto’s case (supra), it was accepted as a good ground. He submitted that corruption is of different kinds and, in this country, it has pervaded the society from generation to generation. He then referred to the following passages from Machiavelli On Modern Leadership by Michael A. Ledeen, wherein the author under the heading “corruption” lays the blame on corrupt leaders and then ultimately on the people themselves:

 

“CORRUPTION”

 

“If the spirit of liberty is so strong, why do free nations and enterprises fall, and dictators arise from their ruin? Machiavelli lays the blame on corrupt leaders, and then the corruption of the people themselves. “To usurp supreme and absolute authority ....in a free state, and subject it to tyranny, the people must have already become corrupt by gradual steps from generation to generation.” Once that has happened, the enterprise is probably doomed. Free societies depend upon the virtue of the people; there is a symbiotic relationship between the good laws and institutions upon which the enterprise rests, and the virtuous behavior of the citizens. Just as “good laws are necessary to maintain good customs, so good customs are necessary for good laws to be observed.”

 

“Weaken the one, and the other slides down into corruption, with terrible consequences: the indolence and selfishness that destroys even the greatest human achievements. Once the rot sets in even the finest institutions are useless. “Neither laws nor constitutional systems are sufficient to rein in a general corruption.”

 

The learned amicus curiae also referred to the following passages of his own book titled “THROUGH THE CRISIS”:

 

“MAN ON HORSEBACK”

 

“The Military in a country only intervenes in political crisis according to the occasion and its disposition. Its dispostion is inhibited by many factors, the foremost factor being the explicit and well accepted principle that the supremacy of the civil aspect of the government should be always observed. In fact many times that the Army had interfered in civil affairs, they had found that they were inadequately equipped for running a civil Government and this experience has been accepted over a long period as the reason for not taking over the civil Government by the Military.”

 

“Secondly, the professionalism of the Army is a vitally inhibiting factor.”

 

“Reverting to the disposition and the occasion for interference, the situation in the country as a whole at any particular time may determine the disposition. The lowering of international prestige of a nation or the fear that the country would face serious law and order problem have been the causes of moving the Army towards internal action: the power vacuum in the country, like the absence of political organizations have also been a cause of providing opportunity to interfere, particularly when the intervention is provided by the civilians.”

 

“Let me make it very clear that so long as there is a political vacuum in the country and institutions do not start functioning, in spite of the .natural inhibition of Armed Forces to interfere in the affairs of the country, the occasions for it to interfere in civil Government may arise again and again.”

 

165. Mr. S. M. Zafar, learned amicus curiae submitted that in case validation is given to October 12, 1999 action, then except for the Proclamation all other subsequent instruments including the PCO should be made subject to judicial review. ‘

 

166. Finally, he summed up his arguments as follows:

 

(i)-       The doctrine of necessity was earlier allowed only for the purpose of preservation of the Constitution for a very limited time and only on being assured that there will be representative assembly. If it is to be extended, it should be on positive assurance, programme, formula for the earliest possible.

 

(ii)        The Proclamation of Emergency alone can be justified under the doctrine of necessity, but not the subsequent PCOs.

 

(iii)       The new oath of the Judges under the PCO does not curtail jurisdiction of this Court to determine the validity of the PCO.

 

(iv)       Whatever be the social causes for the military to come, the Armed Forces should go back to their professionalism and defend the borders of the country. The loopholes in Begum Nusrat Bhutto’s case as have been pointed out in Mahmood Khan Achakzai’s case should be plugged.

 

SUBMISSIONS OF THE ADVOCATES GENERAL OF THE PROVINCES

 

167. The learned Advocate-General Punjab adopted the arguments addressed by the learned Attorney-General and further submitted that appropriate changes in the Constitution/laws should be brought about so as to avoid frequent recurrence of Military intervention and that the present ,Government should be facilitated to achieve its declared objectives.

 

168. The learned Advocates-General of N.-W.F.P., Sindh and Balochistan also adopted the arguments of the learned Attorney-General.

 

SUBMISSIONS OF MR. KADIR BAKHSH BHUTTO, VICE-CHAIRMAN, PAKISTAN BAR COUNCIL

 

169. Mr. Kadir Bakhsh Bhutto, Vice-Chairman, Pakistan Bar Council submitted that this Court has got the power of judicial review and the new oath cannot debar it from exercising that power. He further submitted that this Court should give a direction to the Government to hold elections at the earliest.

 

SUBMISSIONS OF MR. ABDUL HALEEM PIRZADA, PRESIDENT, SUPREME COURT BAR ASSOCIATION.

 

170. Mr. Abdul Haleem Pirzada, President, Supreme Court Bar Association submitted that this country is facing this dilemma for the fourth time. Judiciary-has always been put to test in these cases, the reason being that this is the only institution which has not been affected by all adventures. The Federation has been justifying the action from the facts that on that particular date, i.e. 12th of October, 1999 the Chief of Army Staff was coming back from Sri Lanka; his plane was directed to land either in India or get crashed. It was contended that the above assertion is incorrect. lie argued that the impugned action was resorted to only when the Chief of the Army Staff was removed but this is not a valid ground for the take-over.

 

171. He submitted that the nation has already suffered a lot on account of Military adventurism and it is for this Court to guard the country against it. He pleaded that the people have confidence in this Court and they hope that it will save them from this malady. He submitted that the charge of corruption against few people cannot deprive the people of Pakistan from their legitimate right to rule themselves through their elected representatives. He submitted that the people do make mistakes but, for-the mistake of few, the entire nation should not be punished. He submitted that though it may not be wholly possible to find ‘out any formula against Army intervention in a situation like the present one but an endeavour must be made by taking a step with a view, to forestalling its recurrence.

 

172. He submitted that corruption is rampant but such situation hardly constitutes a valid ground for intervention.

 

173. He further, submitted that it is a sad commentary that previous Governments, both Civil and Military, had taken the apex Court as a parallel government and hoped that the present regime does not commit such a mistake. He submitted that democracy must be restored at the earliest and the Armed Forces-should be made to go to the Barracks within a year from now. He further argued that the case of Moulvi Tamizuddin was not decided by the Federal Court on correct premises.

 

174. Mr. Haleem Pirzada submitted that the Judges of this Court who have taken oath have a greater responsibility. Those who did not take the responsibility, have nothing to worry and the entire burden is on this Court to discharge its duties and perform its functions in accordance with the Constitution and the law. He argued that the Constitution is not a limb of the body but a soul which must survive.

 

175. Mr. Haleem Pirzada strenuously criticised the submission made on behalf of the Federation that if the Army thought that there were reasonable basis for concluding that the existence of the State and its sovereignty were at stake, the Court would not substitute their judgment for that of the Army. He argued ‘that this Court, saddled with the power of judicial review, is the only and proper forum where such questions can be raised and adjudicated upon. He submitted that Mr. Sharifuddin Pirzada was clear on this aspect of the case and, was right in saying that this Court has the power of judicial review.

 

176. On the doctrine of State necessity, Mr. Haleem Pirzada argued that if it is not dead, it should be made to die and buried so deep that it should not come up again because the country has suffered a lot on that account. He submitted that State necessities are always there; but to justify Army take over under this doctrine will not be justifiable and this should be stopped for all times to come.

 

177. He submitted that there are two groups of Judges; (i) who have not taken oath and (ii) who have taken oath. Those who have not taken the oath, they are sitting in their homes. Now it is for the Judges of this Court to lay down and make the common man understand that it was in the larger. interest of the country that they took oath according to their conscience to save the country from further collapse and to save its political structure. He argued that ‘Adl’ is the corner stone in Islam and the hallmark of Islamic society is fiercely independent Judiciary.

 

178. Before concluding his arguments, he reiterated that the Court may consider to allow twelve months’ time to the Armed Forces from now so that they can do the cleansing and go back to their Barracks.

 

DR. FAROOQ HASAN, BAR-AT-LAW, LAHORE HIGH COURT BAR ASSOCIATION

 

179. Dr. Farooq Hassan, learned Senior ASC outlined his submissions by stating that the case of both the parties could be summarized as below:-

 

Petitioner had contended that (a) 12th October, 1999, Army takeover had destroyed the democratic system in the country, and (b) that the Proclamation of Emergency and the Provisional Constitutional Order of 14-10-1999 were ultra vires of the Constitution.

On the other hand the’ Respondent Federation had responded by asserting that (a) there was no genuine democracy in the country prior to 12-10-1999, (b) the Armed Forces had acted to save the people and the country from further damage of great proportions of immense damage as the major-institutions of the Republic had been systematically destroyed by the former Prime Minister by altering the Constitution, and (c) in the circumstances the Court may adopt the 1971 ratio of the Nusrat Bhutto’s case and validate the said army action of 12-10-1999.

 

180. He has articulated four main formulations as under:-

 

1.         There was increasing disillusionment with the feigned democracy that was established after 1985. Hence, there was genuine public acceptance of the change that emerged on 12-10-1999. Neither there was any public mourning nor protests at the ouster of the previous regime to manifest substantial opposition from the people of the country.

 

2.         Clearly the Proclamation of Emergency was in violation of the Constitution of 1973. The question is, therefore, can it be conditionally validated as was done by this Court in 1977, or is it that such validation must be further subjected to the criteria laid down by this Court in later decision in 1997 and 1999 ?

 

3.         Whether apart from the perspective of established precedents in this field by our Courts, there are well recognized realities and guidelines from similar situations which have undergone coups d’etat?

 

4.         Given the current state of realities, what. is the “best” possible solution with which the Court can provide the country with much needed guidance for future in its judgment?

 

181. There have been 5 general elections in 12 years. In 1985 merely 54 % of the country’s population participated in the general elections and by 1997 the figure had fallen to 35 % . This would mean that the people have lost faith in elections, they are not interested because as has been held in Nawaz Khokhar’s case, the four Governments were accused of corruption and that without accountability of public office holders, there is no question of responsibility.

 

182. It was argued on behalf of the petitioners that for the fault of Nawaz Sharif, the Senate and the Assemblies should not be punished. The argument is totally misplaced because in parliamentary democracy the leader of the House, the Prime Minister, commands the majority of the National Assembly, therefore, if the Prime Minister is corrupt, it cannot be said that his colleagues are divorced from it.

 

183. In relation to the question, why do Martial Laws come, the following factors have a direct bearing on the issue: -

 

i)          Political instability;

 

ii)         Economic factor;

 

iii)         Lack of education;

 

iv)        Absence of means of redress;

 

v)         Lack of general confidence in the welfare of the country;

 

vi)        Absence of sense of belonging.

 

184. He submitted that what we have in Pakistan, is not democracy, it is only oligarchy. There are 787 members in the elected chambers. If a list of their assets were to be published, they will probably control the whole of Pakistan. This is the perpetuation of oligarchy. If elections are held, the same gentlemen will walk in. Therefore, there should be first cleansing of these 787 plus 2000 sitting under their wings.

 

185. He disagreed with the distinction made by Mr. S.M. Zafar between `coup d’etat’ and `revolution’ and argued that ‘coup d’etat’ is a French term, which means, cutting of the State. It is a change over from one legal order to another. He referred to an Article titled, “Juridical critique of successful treason” published in the “Stanford Journal of International Law”, . relevant passages whereof are given below:-

 

“Coup d’etat: Definition and Concept

 

“Illegal leadership change may or may not be accompanied by, or be the result of, a use of force by the new leaders against the incumbents they replaced. When governmental change through the use of force takes place a “revolution” or “coup d’etat” is said to occur. However, for the purpose of this paper, coups d’etat are to be distinguished from revolutions. The distinction will be observed because the cases to be analyzed hereinafter involved a change of governmental authority without bloodshed. The phrase “coup d’etat” better describes such occurrences. ‘Revolution ...involves the rapid, tearing down of existing political institutions and building them anew on different foundations.” This definition clearly implies that existing institutions are rapidly and forcibly substituted one for another. Thus, upheaval in the social order of that particular state is quick and violent, much like a civil war. The bloodshed and violence envisaged in such a metamorphosis and transformation is broad and affects the entire state.

 

“Our attention, on the other hand, is on the political change which is narrowly confined, and ususally very swift. One social scientist, Hannah Arendt, underscored this distinction when she said:

 

“Coups d’etat and palace revolutions, where power changes from one man to another, from one clique to another, depending upon on the form of government in which the coup d’etat occurs have been less feared because of the change they bring about is circumcised to the sphere of Government itself and carries a minimum of unquiet to the people at large”

 

“By defining coup d’etat in this manner, Arendt points out that the change is not to the society as a whole, but merely a change in the leadership of the Central Government. Implicit in this definition is the notion that violence and bloodshed are absent or miniscule when power is exchanged by the mechanism of a coup d’etat. Therefore, coups d’etat do not usually bring about the broad changes associated with revolutions, and the existing institutions of the Government and of that society in general normally are left untouched.”

 

He concluded that the two terms, `coup d’etat’ and `revolution’ are interchangeable.

 

186. As to the action of the respondents on 12th October, he argued that there is no ouster of jurisdiction and this Court has the power of judicial review to determine the validity/scope thereof.

 

He submitted that there is not a single case in which the Court sent the regime back and that some of the Latin American systems even do not allow the Courts to adjudicate upon such controversies. He concluded that the action of 12th October is covered by the pronouncement of 1977 plus other cases decided by this Court.

 

ARGUMENTS OF MR. SHAHID ORAKZAI

 

187. Mr. Shahid Orakzai submitted that the action of removal of General Pervez Musharraf, Chief of the Army Staff and the Chairman, Joint Chiefs of Staff Committee, was whimsical and it was not within the contemplation of .the Constitution. inasmuch as; the order of removal was made by the former Prime Minister alone and not the Cabinet and that the President should have referred the case back for reconsideration by the Cabinet. He emphasised that before considering the reaction, the Court should also go into the causes and legality of the action of 12th October, 1999, namely the illegal removal of the Chief. of the Army Staff. He stated that a combined reading of Article 90 (both old and its amended form) and Article 46, does not empower the Prime Minister to substitute the Cabinet and, therefore, his decision of removal of the Chief of Army Staff was unconstitutional. lie also referred to those Articles of the Constitution which deal with the removal of the President, Prime Minister, Speaker, Deputy Speaker, National Assembly, Federal Ministers, Governors, Chief Ministers, Provincial Ministers, Judges of the Superior Courts, etc. He submitted that since the Constitution contains a provision for the appointment of the Chiefs of Armed Forces as stipulated under Article 243 of the Constitution, therefore, the power of removal may also be inferred through interpretation of the Constitution. He concluded that removal of the Chief of Army Staff was violative of the Constitution and the law.

 

At the end of his arguments, Mr. Shahid Orakzai gave his formulations, which are as under:-

 

            FORMULATIONS OF SHAHID ORAKZAI

 

1.         A dispute between any two persons professedly acting under their Constitutional oaths cannot be resolved without a ruling first as to which one of them acted in accordance with or otherwise of the Constitution.

 

2.         Anyone guilty of violating the Constitution/Oath is not entitled to any relief before being penalized for the same. In principle, relief is always due to the one who has suffered.

 

3.         Though the derailment of the Constitution was caused by a conflict, apparently, within the Federal Executive, the National Assembly, being the mother House of the Federal Executive, is very much a party to the dispute. Therefore, the collective conduct of the National Assembly ought to be examined by this Court before granting any relief to any of its members.

 

4.         Any interpretation of Article 63(1)(a) of the Constitution that gives total control to the leadership of a party, ruling the Federation, over a Provincial Executive of the same party, would contravene the federal structure of the Islamic Republic of Pakistan. In view of the above, any Provincial Assembly that failed to check the unconstitutional Federal interference/negative influence over the Provincial Executive, too, is not entitled to any relief. By the Constitution, any legislature to which a cabinet is collectively responsible is legally inseparable from a dispute involving the conduct/misconduct of the cabinet. A mother willfully ignoring the constant misbehavior of her child must ultimately face the music.

 

5.         The Constitution of Pakistan is flexible enough to contain the prevalent crisis and, therefore, the Provisional Constitution Order, a bypass opted in rush by the Chairman Joint Chiefs of Staff Committee just after the mishap, is unnecessary.

 

6.         The plan for the restoration of the Constitution, to be evolved in these proceedings should involve the suspension of minimum provisions of the document, preserve/maintain Constitutional contingencies, stand as close as possible to the Emergency Provisions spelt out- in Part X and adhere to the fundamental principles of the Constitution in the transitional period than attempting to restore the full document by a single stroke of pen in the shortest possible time. A correct diagnosis and a gradual recovery, through a time consuming therapy that uproots a disease, is better than the fastest painkiller.

 

CONSTITUTION PETITION NO. 3 OF 2000

 

188. Mr. Fazal Elahi Siddiqui, learned ASC, petitioner argued with vehemence that Army had no locus to dislodge Civil Rule thrice, including the present take-over. He sought to draw a distinction between the role of the Armed Forces of Pakistan and those of India, who have much in common. In this connection, he placed reliance on 2-Books titled ‘The Indian Army’ and `The Pakistan Army’ written by Stephen P. Kohento contend that eversince partition of the sub-continent, the Indian Army has remained within its bounds and has not interfered with the affairs of the Government. According to him, this comparative situation is in itself sufficient for withholding validation of Army take-over on 12-10-1999.

 

189. He contended that the doctrine of necessity is not applicable to the facts and circumstances of this case and the new oath impinges on the independence of Judiciary.

 

SPED ZAFAR ALI SHAH. ASC

 

PETITIONER IN CONSTITUTIONAL PETITION N0.62 OF 1999

 

190. Syed Zafar Ali Shah, petitioner submitted in rebuttal that the Court is dealing with two philosophies, two different thoughts and two old litigants namely political democracy and Military authoritarianism. According to him, during arguments much has been said against the democracy, particularly against politicians as also the Parliament. Being a sitting Member of Parliament he had the privilege to move the motion against Article 58(2)(b) of the Constitution. It has been argued by the learned Attorney-General that 13th Amendment was passed in 13-minutes. This assertion is not correct. In fact it took more than 13 years to get rid of 8th Amendment which was passed in 1985.

 

191. He further submitted that same is the position with regard to 14th Amendment which was brought about with a view to putting an end to floor crossing/Lota’ism. Further, there is no substance in the allegation that the former Prime Minister stood to gain from it in that the power conferred by the amendment vests in the leader of the political party concerned.

 

MR. IOBAL HAIDER, PETITIONER

 

192. Syed Iqbal Haider, petitioner in Constitution Petition No. 57 of 1999, submitted that the Proclamation of Emergency and PCO 1. of 1999 are not extra-constitutional steps, in that, they are in accordance with the Constitution in the light of Article 2-A thereof. Reliance is placed on Ziaur Rehman’s case (PLD 1973 SC 49 at 71). He further submitted that this Court has inherent powers of judicial review under the Islamic Injunctions as laid down in the case of Mrs. Benazir Bhutto (PLD 1988 SC 416 at 522-UU).

 

193. On the question of applicability or otherwise of the doctrine of necessity he referred to the cases of Asma Jillani, Nusrat Bhutto and Liaqat Hussain (supra) wherein the parameters of this doctrine have been laid down.

 

194. He submitted that the parliamentarians who made contemptuous speeches in the National Assembly against the Judges of the Superior Courts violated the provisions of the Constitution specifically prohibiting discussion with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties and that they ignored the decisions of the Supreme Court in this regard despite the fact that certain members pointed out those decisions at the floor of the House. He referred to PLD 1989 SC 166 at 184, wherein this Court considered the debate of Parliament while interpreting the Constitution.

 

195. Mr. Iqbal Haider contended that new oath under Oath of Office (Judges) Order No. 1 of 2000 has not been taken by the Judges to accept the change of Government, rather it relates to the change of legal order.

 

196. He submitted that the deletion of Article 58(2)(b) is against the spirit of the Constitution, which should be revived so that checks and balances are provided in the Constitution for its successful working. In this behalf he placed reliance on PLD 1998 SC 1263 at 1310 H, 1356.

 

197. He submitted that the quota system is against the Injunctions of Islam and with the passing of the 16th Amendment, the members have become disqualified for violating the Injunctions of Islam under Article 63(1)(g). Reliance is placed on 1997 SCMR 1043 at 1057 and 1059:

 

198. He submitted that the allegation’ that all the Elected Members had been reduced to rubber stamps by the former Prime Minister is against the Parliament and not against the Provincial Assemblies and in particular the Provincial Assembly of Sindh, which had been allowed to perform to its legislative functions in -the case reported as Jalal Mahmood Shah (supra). He therefore,, prayed that the Provincial Assembly of Sindh merits restoration.

 

MR. IMTIAZ HUSSAIN BOKHARI

 

199: Mr. Imtiaz Hussain Bokhari, petitioner in 66 of 1999, submitted that the impugned action of 12th October, 1999 is the result of tussel between two individuals viz. General Pervez Musharraf and Mian Nawaz Sharif and does not relate to the whole of the Armed Forces of Pakistan, inasmuch as, the former was retired by the latter.

 

 200. He submitted that all the four military leaders, Ayub Khan, Yahya Khan, Ziaul Haq and Pervaiz Musharraf used the same pretext for usurping power as is obvious from the terminology employed in their respective first addresses to the nation.,

 

201. On the question of power of the Prime Minister to order retirement of the Chief of Army Staff, he relied on the instances of removal of Khalid Bin Walid and Muhammad Bin Qasim to contend that the order retiring Gen. Pervaiz Musharraf is not open to exception on the touchstone of the Constitution as well as the above historical instances.

 

202. He pleaded that Gen. Pervaiz Musharraf has committed high treason and is liable to be proceeded against in the light of provisions of Article 6 of the Constitution.

 

INDEPENDENCE OF JUDICIARY

 

AND

 

POWER OF JUDICIAL REVIEW

 

203. Before we embark upon the task of dealing with the merits of the case in the light of the arguments advanced on behalf of the parties, it would be appropriate to dilate on the question of jurisdiction of this Court especially in view of the fact that the Judges of the Superior Courts have taken new oath of their offices under the Order No. 1 of 2000 promulgated by the Chief Executive under the PCO 1 of 1999. The basic question, which needs to be resolved is whether the restriction imposed by the PCO 1 of 1999 on the jurisdiction of this Court does in any way restrict the power of judicial review of this Court whereunder it has an inherent power to A interpret any provision of the Constitution or any other legislative instrument or law, even if that particular provision’ is a provision which seeks to oust the jurisdiction of this Court.

 

204. M/s. Khalid Anwar and Ch. Muhammad Farooq, learned counsel for the petitioners in C. Ps. Nos. 63 and 62 of 1999 respectively addressed exhaustive arguments on the power of judicial review as well as on the question of maintainability of the petitions. Mr. Habib-ul-Wahab-ul-Khairi’s arguments mainly related to the maintenance and upholding of independence of Judiciary. Syed Sharifuddin Pirzada, learned Senior ASC for the Federation candidly conceded that the power of judicial review is intact notwithstanding the ouster clauses in the impugned instruments. Mr. S.M. Zafar, learned amicus curiae also contended that all the legislative instruments promulgated by the Chief Executive are subject to scrutiny by this Court for determination of the present controversy. Likewise, Mr. Haleem Pirzada, President, Supreme Court Bar Association advocated the independence of Judiciary and the power of judicial review. On this aspect of the case similar stance was presented by Dr. Farooq Hasan, representing the Lahore High Court Bar Association. However, Mr. Aziz A. Munshi, learned Attorney-General for Pakistan, expressed his reservations about the maintainability of the petitions and pleaded ouster of jurisdiction of this Court by means of the Proclamation of Emergency as also the PCO 1 of 1999.

 

205. We have examined the scope of the power of judicial review and the question of maintainability of the petitions in the light of the arguments addressed by the petitioners themselves, the learned counsel for the parties and the other learned counsel appearing in the case. Judiciary is the only forum recognized by both the rulers and the ruled where: (1) questions of validity and legitimacy are capable of being resolved finally with a view to controlling the recklessness of the Government in power and where (2) declining to resolve it would tantamount to self-condemnation, self destruction and betrayal of the trust of the people of Pakistan. It is the unanimous stand of the learned counsel for the parties and we also endorse it that no form of oath taken by or administered to the Judges of the Superior Courts can restrict the judicial power and derogate from the legal position that the Courts, as final arbiters in any constitutional controversy, retain their power and jurisdiction to say as to what a particular provision of the Constitution or the law means or does not mean even if that particular provision is one seeking to oust such jurisdiction of the Court. An analysis of the case law relating to ouster of jurisdiction of this Court shows that any attempt to control or circumscribe the judicial power of the superior Courts with a view to denying them the right to decide the validity and the quantum of legislative power of the new regime, would be an exercise in futility. We are of the considered view that changing the form of oath will neither take away power of judicial review nor the jurisdiction of this Court. Notwithstanding the new oath or its language, the Courts shall continue to have jurisdiction to decide the controversy involved as if the new oath and the “new constitutional documents” under which the oath is administered, do not adversely affect the jurisdiction and power of the Court. It is pertinent to note that the Superior Courts follow the Code of Conduct prescribed for the Judges and inherently owe allegiance to the State of Pakistan, which requires this Court to decide the issue of validity of the new regime under which the Judges are being asked to take new oath inasmuch as such allegiance cannot be taken away. Mr S.M. Zafar rightly pointed out that the oath administered under the Constitution has to be respected because that draws its authority from the people of Pakistan whereas the oath under the Constitution to defend the same has a different meaning than an oath administered under a document, validity whereof is yet to be determined and thus the two are incomparable.

 

206. The Objectives Resolution contained in the Preamble to the Constitution, which now. forms substantive part thereof by virtue of Article 2A as well as declaration of Quaid-e-Azam about democratic set-up and social justice, envisage independence of Judiciary.

 

207. First of all, reference may be made to Sura Al-Nisa, Verses 135136 English rendering whereof by Allama Abdullah Yousaf Ali reads thus:-

 

“O Ye who believe!

 

Stand out firmly

 

For justice, as witnesses

 

To Allah, even as against

 

Yourselves, or your parents,

 

Or your kin, and whether

 

It be (against) rich or poor;

 

For Allah can best protect both

 

Follow not the lusts

 

(Of your hearts), lest ye

 

Swerve, and if ye         

 

Distort (justice) or decline

 

To do justice, verily

 

Allah is well-acquainted

 

With all that ye do.”

 

The footnote to the above translation is as under:

 

“Justice is God’s attribute, and to stand firth for justice is to be a witness to God, even if it is detrimental to our own interests (as we conceive them) or the interests of those who are near and dear to us. According to the Latin saying, “Let justice be done though heaven should fall.”

 

“But Islamic justice is something higher than the formal justice of Roman Law or any other human law. It is even more penetrative than the subtler justice in the speculations of the Greek philosophers. It searches out the innermost motives, because we are to act as in the presence of God to Whom all things, acts, and motives are known.”

 

208. On the question of jurisdiction and power of this Court, we would like to observe that we have to decide the present controversy according to our conscience and the law. It would be pertinent to quote the following extracts from a letter sent by Hazrat Umar to Abu Musa AI-ash’ari, Governor Basra/Chief Qazi:-

 

“Administration of Justice is a decisive ordinance of God and (of  the Prophet (p.b.u.h.) which must be followed.”

 

“Decide after careful consideration (and execute it), if a suit is filed before you; for the announcement of a rightful judgment without its execution is useless.”

 

“Use your brain about matters that perplex you and to which neither the Qur’an nor the Sunnah of the Holy Prophet (p.b.u.h.) seem to apply. Study similar and analogous cases and evaluate the situation through analogy and adopt the judgment which is most pleasant to God and most in conformity with justice so far as you can see.”

 

209. The basic functions of the Judiciary are to promote the administration of justice, to protect Human Rights and to maintain Rule of D Law in the country. The 6th Conference of Chief Justices of Asia and the Pacific held at Beijing on 19th August, 1995 adopted the `Beijing Statement of Principles of the Independence of Judiciary in the LAWASIA Region’ as follows:

 

“1.        The Judiciary is an institution of the highest value in every society.

 

2.         The Universal Declaration of Human Rights (Art. 10) and the International Covenant on Civil and Political Rights (Art. 14(1) proclaim that every one should be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. An independent Judiciary is indispensable to the implementation of this right.

 

3.         Independence of the Judiciary requires that;

 

(a)        the Judiciary shall decide matters before it in accordance with its impartial assessment of the facts and its understanding of the law without improper influences, direct or indirect, from any source; and

 

(b)        the Judiciary has jurisdiction,, directly or by way of review, overall issues of a justiciable nature.

 

“33. The Judiciary must have jurisdiction overall issues of a justiciable nature and exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.

 

34.       The jurisdiction of the highest Court in a society should not be limited or restricted without the consent of the members of the court.” (The underlining is by way of emphasis)

 

210. The 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”. The rulings of the Supreme Court in the cases of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105, Al-Jehad Trust (supra) and Malik Asad Ali v. Federation of Pakistan (PLD 1998 SC 161), indeed, clarified the constitutional provisions and thereby further strengthened the principle of the independence of Judiciary, by providing for the separation of Judiciary from the executive, clarifying the qualifications for appointment of Judges of the High Courts, prescribing the procedure and the time frame for appointment of Judges, appointment of Chief Justices and the transfer of a Judge from a High Court to the Federal Shariat Court. Furthermore, the Supreme Court judgments in the cases of Mehram Ali and Liaquat Hussain (supra) are also in line with the above rulings, in as much as, they elaborated and reiterated the principle of judicial independence and the separation of Judiciary from the executive.

 

211. 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.

 

212. 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.

 

213. During the course of arguments on the question of judicial review, Syed Sharifuddin Pirzada. respectfully adopted the observations made by one of us (Irshad Hasan Khan, CJ) while delivering the inaugural address to  the Conference of Board of Directors, Asian Ombudsmen Association held at Islamabad on 22nd February, 2000, which reads thus:

 

“The independence of Judiciary requires that the Judiciary shall decide matters before it in accordance with its impartial assessment of the facts and its understanding of the law without improper influences, direct or indirect, from any source. The Judiciary in Pakistan is independent. It claims and has always claimed that it has the right to interpret the Constitution and any legislative instrument and to say as to what a particular provision of the Constitution or a legislative instrument means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of the Supreme Court.”.

 

214. At this juncture, it would be advantageous to refer to the following passages from the book titled “The Federalist Papers” by Alexander Hamilton-James Madison-John Jay: -

 

“The complete independence of the Courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of Courts of justice, whose duty must be to declare all acts contrary to the manifesto tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”

 

“This independence of the Judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arks of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have tendency, in the meantime, to occasion dangerous innovations in the government; and serious. oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies in questioning that fundamental principle of republican government which admits the right of the people to alter or abolish the established Constitution whenever they’ find it inconsistent with their happiness; yet it is not to be inferred from this principle that the representatives of the people; whenever a momentary inclination happens to lay hold of a majority of their constituents incompatible with the provisions in the existing Constitution would, on that account, be justifiable in a violation of those provisions; or that the Courts would be under a greater obligation to connive at infractions in this shape than when they had’ proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it prior to such an act. But it is easy to see that it would require an uncommon portion of fortitude in the Judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.”