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PCO Judges Case (Part 1)

(PART 1)

IN THE SUPREME COURT OF PAKISTAN

(Original Jurisdiction)

PRESENT:

Mr. Justice Iftikhar Muhammad Chaudhry, CJ

Mr. Justice Javed Iqbal

Mr. Justice Sardar Muhammad Raza Khan

Mr. Justice Khalil-ur-Rehman Ramday

Mr. Justice Mian Shakirullah Jan

Mr. Justice Tassaduq Hussain Jillani

Mr. Justice Nasir-ul-Mulk

Mr. Justice Raja Fayyaz Ahmed

Mr. Justice Ch. Ijaz Ahmed

Mr. Justice Ghulam Rabbani

Mr. Justice Sarmad Jalal Osmany

Mr. Justice Muhammad Sair Ali

Mr. Justice Mahmood Akhtar Shahid Siddiqui

Mr. Justice Jawwad S. Khawaja

CONSTITUTION PETITION NO. 09 OF 2009

Sindh High Court Bar Association through its Secretary…. PETITIONER

CONSTITUTION PETITION NO. 08 OF 2009

Nadeem Ahmed Advocate…. PETITIONER

VERSUS

Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others…. RESPONDENTS

(Both petitions)

For the petitioner: Mr. Hamid Khan, Sr. ASC

(Const.P.09/2009) Mr. Rashid A. Razvi, ASC

Mr. M. S. Khattak, AOR

Assisted by

M/s Waqar Rana, Waheed Khalid Khan

& Haq Nawaz Talpur, Advocates

For the petitioner: Mr. Muhammad Akram Sheikh, Sr. ASC

(Const.P.08/2009) Assisted by

Barristers Ms Natalya Kamal &

Mr. Sajeel Shehryar, Advocates

For respondent No.1: Sardar Muhammad Latif Khan Khosa

Attorney General for Pakistan

Agha Tariq Mehmood Khan, DAG

Mr. Shah Khawar, DAG

Ch. Akhtar Ali, AOR

For respondent No.2: Mr. Yousaf Khan Leghari, AG Sindh

Raja Abdul Ghafoor, AOR

For respondents Nos. 3 & 4: Nemo

Respondent No. 5: Mr. Mazhar Ali B. Chohan, AOR (absent)

Dates of hearing: 20th to 22nd and 29th to 31st July, 2009

——-

JUDGMENT

IFTIKHAR MUHAMMAD CHAUDHRY, CJ – These

Constitution Petitions were disposed of by the short order dated 31st July, 2009 as under: -

“The above Constitutional Petitions bearing Nos. 9 of 2009 and 8 of 2009 involve common questions of facts and law and are disposed of by this single judgment.

2. In the first mentioned petition, the petitioner while referring to several provisions of Constitution and the case law, beside making other contentions, legal and factual, has stated, in Para No.5, that: -

“The removal of Judges of Supreme Court and High Courts on 3.11.2007 was not only violative of Article 209 of the Constitution, 1973 but was against the rule laid down by the Bench of twelve (12) Judges of Supreme Court in the case of Syed Zafar Ali Shah (PLD 2000 SC 869). The subsequent validation in the case of Tikka Iqbal Khan (PLD 2008 SC 178) a smaller Bench of the Supreme Court is per-incuriam and in any event, is not by a Supreme Court that is de jure. It is respectfully submitted, that Justice Abdul Hameed Dogar could not be treated as Constitutional head of the Supreme Court even after the decision in the case of Tikka Iqbal Khan (supra) as he himself was the real beneficiary of the said judgment and contrary to one of the cardinal principles of Natural justice, “no person should be judge in his own cause” had headed the Bench. Hence, in view of the facts and reasons stated above Justice Iftikhar Muhammad Chaudhry is still the Chief Justice of Pakistan as per Constitution and all appointments and reappointments made in the Supreme Court and High Courts without consultation of de jure Chief Justice of Pakistan are unlawful, illegal, ultra-vires of the Constitution as well as mala fide”.

3. Having made above averments, the petitioner has, inter-alia, sought a declaration to the effect that the respondents Nos. 3 and 4 namely Justice Zafar Ahmad Khan Sherwani and Justice Abdul Rasheed Kalwar are and continue to be Judges of High Court of Sindh and that they would continue as Additional Judges till 25.8.2010 and that their term of appointment has not expired as opined by Mr. Justice Abdul Hameed Dogar, as then he was called.

During the course of his submissions, learned counsel appearing for him prayed further that following declarations be also granted:

i) that the purported acts done by General Pervez Musharraf, (Rtd.) between 3.11.2007 to 16.12.2007 aimed at to suspend and amend the Constitution through several instruments are unconstitutional, invalid and without any legal consequence;

ii) that on account of his acts taken during 3.11.2007 to 15.12.2007 relating to superior judiciary, General Pervez Musharraf (Rtd.) became a usurper;

iii) all the appointments of Judges of superior judiciary on or after 3.11.2007 up till 22.3.2008 which were without consultation of dejure Chief Justice of Pakistan are/were unconstitutional, invalid and without any legal consequence;

iv) that the two (so called) Judgments dated 23.11.2007 and 15.2.2008 on Constitutional Petitions No. 87 and 88 of 2007 filed by Tikka Iqbal Muhammad and WATAN Party and the Review Petition No.7 of 2008 filed by the former are/were nullity in law, being decisions per incuriam, coram non judice, without any legal basis and based on mala-fide proceedings rendered by biased persons of Tribunal (then calling themselves as Judges of this Court) fraudulently, collusively and lacking in bona-fides:

4. In the other petition No. 8 of 2009 which has been filed by Nadeem Ahmad, a practicing Advocate, while criticizing the judgment delivered in case of Tikka Iqbal Muhammad v. Federation of Pakistan (PLD 2008 SC 178), the petitioner has, inter-alia, averred as follows:

“All the persons who were not judges on 3rd November 2007 but who were brought into Supreme Court and High Courts as ‘judges’ despite the fact that the Honourable Chief Justice of Pakistan was never consulted before their appointment which meant that they were never appointed under the Constitution. AND

“On the night of 22 March 2009, issuance of cause lists comprising persons who have not been appointed in strict adherence to Article 177 and who are therefore complete strangers to the Supreme court, is a serious matter and it is incumbent on the Honourable Chief Justice, before proceeding with any other judicial work, to forthwith stop all these persons from hearing any cases till such time that he, along with other validly appointed judges, are able to look into and judicially determine validity of their appointments as judges.”

5. The petitioner has, among others, sought a declaration that all those persons, both in Supreme Court and High Courts, regardless of whether they have taken oath under PCO or the Constitution, who have been appointed without ‘consultation’ of Honourable Chief Justice of Pakistan as not judges and therefore, not entitled to function as such.

6. On 22.7.2009 a notice was issued to General Pervez Musharraf (Rtd.) on his available address intimating him about the proceedings in this case and 29.7.2009 as the date fixed therein before this Court. The Process Serving Officer reported on the same day that he had gone to the residential place viz. C-1, B Park Road, Chak Shahzad, Islamabad where a person identifying himself as Muhammad Hussain son of Amir and that on formers offer the latter refused to receive the notice. The factum of issuance of the afore-referred notice was widely televised through National and International T.V. channels. Also, it was widely published in National and International print media, but, on the date so fixed no one entered appearance.

7. We have heard learned counsel for petitioners and learned Attorney General for Pakistan.

8. Before dilating upon the pleas taken in the arguments by learned counsel for the parties, in our view, some of the facts/events which took place before 3rd November, 2007 touching the very basis of the issues involved in the matter are brought on record.

9. In our country, during sixty years of its independence after partition, to the misfortune of people, several times, the Constitutions framed by Legislative Bodies were desecrated. Sovereignty of people was not allowed to flourish and get deeprooted in the polity of our country. Prior to 3rd November, 2007, the Constitutions were either abrogated or put in abeyance and the democratic system of governance was put to an end. For the first time, Constitution of 1956 was abrogated on 7th October, 1958 and Martial Law was imposed by the then President, Iskandar Mirza who dismissed the Central and Provincial Governments; dissolved the Parliament and Provincial Assemblies and abolished all Political Parties and appointed General Muhammad Ayub Khan, the then Commander in Chief as Martial Law Administrator. Iskandar Mirza was soon, within few days, replaced by the latter. On 25th March, 1969, again the then head of Army, General Agha Muhammad Yahya Khan, abrogated the Constitution of 1962 and by proclamation (PLD 1969 Central Statutes 42) Promulgated Martial Law followed by Provisional Constitution Order (Gazette of Pakistan, Extraordinary 4th April, 1969). On 5th July, 1977 once again Martial Law was imposed throughout the country by the then head of Army Chief viz. former General Muhammad Ziaul Haq, who, vide Proclamation of Martial Law (PLD 1969 Federal Statutes 326) dissolved the National Assembly, the Senate, the Provincial Assemblies etc. and put the Constitution of 1973 in abeyance followed by Laws (Continuance in Force) Order, 1977. When the Constitution was revived, it was undeniably, in a mutilated form by the notorious Eighth Amendment.

10. Later, there was another onslaught on the ongoing democratic system of governance. On 12th October, 1999, the then Chief of Army Staff, General Pervez Musharraf, now retired, once more, put the Constitution in abeyance and the whole of Pakistan was brought under the control of Armed Forces. The National

Assembly, the Senate and the Provincial Assemblies were suspended, so also, the Chairman and Deputy Chairman of Senate, the Speaker and Deputy Speaker of the National Assembly and the Provincial Assemblies were suspended and it was declared that the Prime Minister, Federal Ministers, Parliamentary Secretaries, the Provincial Governors, the Provincial Chief Ministers and the Advisor to the Chief Ministers would ceased to hold offices, followed by issuance of Provisional Constitution Order and the Oath of Office (Judges) Order 2000. General Pervez Musharraf (Rtd.), self styled himself as Chief Executive and started ruling the country under the new dispensation. Later, he, unceremoniously, occupied the office of President and in the coming years revived the Constitution with Seventeenth Amendment.

11. Again, on 3rd November, 2007 the General Pervez Musharraf, (Rtd.), in his capacity as Chief of Army Staff, in the garb of declaration of emergency, put the Constitution in abeyance, issued Provisional Constitution Order No.1 of 2007 followed by the Oath of Office (Judges) Order, 2007, making as many as sixty one

(61) Judges of superior judiciary including Chief Justice of Pakistan and Chief Justices of three Provinces dysfunctional for many of them either did not agree to take or were not given the oath. Of them were; from Supreme Court 13 out of 18 (17 permanent and one ad-hoc) Judges including Chief Justice of Pakistan, 18 out of 31 Judges of the Lahore High Court, 24 out of 28 Judges including Chief Justice of High Court of Sindh, 6 out of 13 Judges including Chief Justice of Peshawar High Court. It is quite saddening that all the five Judges including the Chief Justice of Balochistan High Court took oath under the Oath of Office (Judges) Order, 2007.

12. An independent and strong judiciary is a back bone of viable democratic system all over the world. The time tested experience has proved that independent and strong judiciary provides strength to the institutions running government particularly, those who roll on the wheels of democracy. Equally the independent and strong judiciary acts as an arbiter striking balance among various segments of Democratic system. It helps State organs, such, as, Legislature, Executive and the judiciary itself to function smoothly maintaining balance inter se. The constitution of Pakistan, of 1973, too, provides the judiciary guarantees enshrined in it and states that the judiciary shall be fully secured, but, unfortunately, to its great dismay, this organ of State has, all along been under the wrath of adventurers imposing their dictatorial terms obviously for their ulterior designs. The history of this country witnessed that in a set up of one government tenure of a Chief Justice of Pakistan was curtailed with ulterior motives and was restored to its original position when the designs were stood achieved. Likewise, through various instruments, the favourites and pliant members of superior judiciary were out rightly given underserved benefits while the others were shown doors. This happened during the era of the then Martial Law Administrator General Ziaul Haq and following the same foot steps, General Pervez Musharraf (Rtd.) did the same in the year 2000. Many judges of superior judiciary who declined to toe his line of action were unceremoniously sacked.

13. General Pervez Musharraf (Rtd.) through his 1999/2000 action, declared that the national Assembly, the provincial Assemblies, Senate, Chairman and Deputy Chairman of Senate, Speaker of National Assembly and the Provincial Assemblies were suspended and the Prime Minister, Federal Ministers, Parliamentary Secretaries, the Provincial Governors and the provincial Chief Ministers and the Advisors to the Chief Ministers, to have ceased to hold offices. However, his November, 2007 action was a singular in nature, in that, the onslaught was on judiciary alone. All other institutions were intact. The independence of judiciary was given a serious blow. In order to save the judiciary from being destroyed, for the first time in the history of this Country, a seven member Bench of this Court headed by the de jure Chief Justice of Pakistan, passed an order, inter-alia, restraining the President and Prime Minister of Pakistan from undertaking any such action, which was contrary to the Independence of Judiciary. So also the Judges of this Court and that of the High Courts including Chief Justice (s) were required not to take oath under the Provincial Constitution Order or any other extra Constitutional step and on the same day viz. 3.11.2007, the order was served on the members of superior judiciary through the respective Registrars of the Courts by way of Fax. It was also sent to all the relevant Executive functionaries.

14. The action of General Pervez Musharraf (Rtd.) was, undeniably, taken to prevent the 11 member Bench of this Court which was hearing the Petition No. 73 of 2007 filed by Mr. Justice (Rtd.) Wajihuddin Ahmad and others in which the qualification of the General was in question, and perhaps, he was not expecting a favourable decision. The reasons shall, in that behalf be found in the detailed judgment. Be that as it may, Justice Abdul Hameed Dogar, as then he was called, along with four other Judges of this Court took oath in pursuance of unconstitutional Provisional Constitution Order and the Oath of Office (Judges) Order, 2007 and by that he also violated the order of seven member Bench of this Court which was headed by de jure Chief Justice of Pakistan. Mr. Justice Abdul Hameed Dogar took the oath of Chief Justice of Pakistan, although, the office was not vacant. Some of High Courts Judges too took oath likewise violating the Constitution and the order of seven-member Bench, legally and lawfully passed. Besides, many other Judges in this Court and in the High Courts were appointed and they took oath in violation of constitutional provisions and the order of seven-member Bench of this Court.

15. Subsequently, in order to dilute the effect of afore-referred 7 member Bench order, Mr. Justice Abdul Hameed Dogar, the CJP, as then was called, constituted a Bench of 8 Judges including those appointed afresh in pursuance of Provisional Constitution Order and took up CMA bearing No.2874 of 2007 in Constitution Petition No.73 of 2007 and by their order dated 6.11.2007 illegally and unlawfully, without the mandate of the Constitution, declared the order dated 3.11.2007 to be illegal and without jurisdiction. Later, a 10 member Bench was also constituted which was headed by Mr. Justice Abdul Hameed Dogar, Chief Justice of Pakistan, as then he was called. This Bench again illegally and unlawfully took up and dismissed the petition No.73 and Original Criminal Petition No.51 of 2007 filed by Justice (Rtd.) Wajihuddin Ahmad calling in question the eligibility of General Pervez Musharraf to contest election to the office of President although, it already stood dismissed for want of instruction. Further details in this behalf shall be given in the detailed judgment.

16. Also subsequently, an other 7 member Bench headed by Mr. Justice Abdul Hameed Dogar, Chief Justice of Pakistan, as then he was called, took up hearing the case of Tikka Iqbal Muhammad Khan and WATAN Party and decided the same on the principle of ‘Salus Populi Supreme Lex’ and granted that relief which was even not prayed by the petitioner. This judgment is/was, ex-facie, per incuriam, coram-non-judice illegal and unlawful. Later, a time barred Review Petition was filed by Tikka Iqbal Khan which was heard by 13-member Bench and was dismissed, palpably to give impression that a larger Bench decided the matter to dilute the effect of a previous judgment handed down in case of Syed Zafar Ali Shah (PLD 2000 SC 869).

17. It may be noted that the chosen representative of the time, too, did not extend validation to the unconstitutional acts taken upto 3rd November, 2007 as is universally known. It is, however, quite heartening that, for the first time, in the history of our beloved country, the chosen representative of people, who took their offices as a result of election taking place on 18th February, 2008 have, commendably, stayed their hands off and have not sanctified the unconstitutional acts, such as, the Declaration of Emergency, the Provisional Constitution Order No.1, the Oath of Office (Judges), Order, 2007, the Constitution (Amendment) Order, 2007 (President’s Order No.5 of 2007), the Constitution (Second Amendment) Order of 2007 (President’s Order No.6 of 2007) and many other instruments made and declared by General Pervez Musharraf (Rtd.). In this, their restraint not extending validity to all these unconstitutional and illegal instruments and other steps taken by retired General are laudable. Evidently, this was done by the present representatives of people believing firmly that the prosperity of the country lies in the strong and independent democratic system which can alone flourish and survive with democratic steps to be taken in the better interest of people always apt and keen to choose them in such a viable system of governance. We are sanguine that the current democratic dispensation comprising of the President, the Prime Minister, Ministers and the Parliament shall continue to uphold the Constitution, its institutions and sacred values.

18. From above, the conclusions drawn are that:

i) The General Pervez Musharraf (Rtd.) in the garb of Emergency Plus and the Provisional Constitution Order made amendments in the Constitution by self-acquired the powers which all are unconstitutional, unauthorized, without any legal basis, hence, without any legal consequences;

ii) Mr. Justice Abdul Hameed Dogar, took oath as CJP in violation of the order dated 3.11.2007 passed by a 7 member Bench headed by de-jure Chief Justice of Pakistan and in pursuance of unconstitutional instruments introduced by General Pervez Musharraf (Rtd.), additionally knowing well that the office of Chief Justice of Pakistan was not lying vacant;

iii) Also, the Judges who were either retired or were not holding any judicial office, beside those in High Courts took fresh oath on their appointment on and after 3.11.2007 till 15.12.2007 in Supreme Court where the full strength of Judges along with an Ad-hoc Judge appointed under the Constitution were already working and thus there was no vacancy. Similarly, many Judges took oath in Provincial High Courts. All of them did so in violation of order dated 3.11.2007 passed by 7 member Bench headed by de-jure Chief Justice of Pakistan. Four incumbent Judges already functioning in the Supreme Court took fresh oath under the influence of and in pursuance of unconstitutional steps of General Pervez Musharraf (Rtd.);

iv) The Petition No.73 of 2007 filed by Mr. Justice (Rtd.) Wajihuddin Ahmad challenging the eligibility of General Pervez Musharraf (Rtd.) to contest for the office of President in uniform was dismissed purportedly on merits although the record maintained in the Supreme Court revealed otherwise;

iv) The decisions in the cases of Tikka Iqbal Muhammad Khan granting validity to the actions of General Pervez Musharraf (Rtd.) were per incuriam, coram-non-judice, without any legal basis hence, of no legal consequences;

vi) The amendments in the Supreme Court (Number of Judges) Act, (XXXIII, 1997) 1997 by way of Finance Act, 2008 raising the strength of Judges in Supreme Court from 17 (1+ 16) to 30 (1+29) seemingly aimed at providing allocation of funds for increasing the strength of Judges is unconstitutional because the strengths of Judges of Supreme Court is be increased by Parliament as defined in Article 50 to be read with Article 260 of the Constitution which defines the acts of Parliaments;

vii) Surprisingly, in the past the Courts of the time used to extend favours empowering the adventurers to amend the Constitution in actual effect were to achieve their overt and covert agenda but this time, such powers were acquired by the General Pervez Musharraf (Rtd.) himself through the PCO and brought a host of unconstitutional amendments for his own benefits; and

viii) The present representative of people firmly believe in strong and independent judiciary and the democratic system which is evident that the deposed Judges of Supreme Court, High Courts and the de-jure Chief Justice of Pakistan were restored with effect from 3rd of November, 2007 implied that the present representatives of people denied the validity of the actions of General Pervez Musharraf (Rtd.) taken from 3.11.2007 to 15.12.2007 during which the Constitution remained suspended.

19. Considering the above, in the light of submissions of learned counsel for the parties and on examination of the material brought before us and for the detailed reasons to be recorded, we dispose the above petitions as follows.

20. The judgment purported to have been delivered in Constitutional Petitions bearing No: 87 and 88 of 2007 in the case titled as TIKKA IQBAL MUHAMMAD KHAN VS. GENERAL PERVEZ MUSHARRAF AND OTHERS (PLD 2008 SC 25 and PLD 2008 SC 178) and the judgment dated 15.2.2008, purported to have been passed in C.R.P.No.7 of 2008 titled as TIKKA IQBAL MUHAMMAD KHAN VS. GENERAL PERVEZ MUSHARRAF AND OTHERS and any other judgment/judgments passed on the strength of the said two judgments are hereby declared to be void ab initio.

21. The Proclamation of Emergency issued by General Pervez Musharraf as the Chief of Army Staff (as he then was) on November 3, 2007; the Provisional Constitution Order No.1 of 2007 issued by him on the same date in his said capacity; the Oath of Office (Judges) Order of 2007 issued by him also on the same date though as the President of Pakistan but in exercise of powers under the aforesaid Proclamation of Emergency and the Provisional Constitution Order No.1 of 2007; The Provisional Constitution (Amendment) Order, 2007 issued by him like-wise on 15.11.2007; the Constitution (Amendment) Order, 2007 being President’s Order No.5 of 2007 issued on November 20, 2007; the Constitution (Second Amendment) Order, 2007 being the President’s Order No.6 of 2007 issued on 14th December, 2007; the Islamabad High Court (Establishment) Order 2007 dated 14th December 2007 being the President’s Order No.7 of 2007; the High Court Judges (Pensionary Benefits) Order, 2007 being President’s Order No.8 of 2007; the Supreme Court Judges (Pensionary Benefits) Order, 2007 being President’s Order No.9 of 2007 dated 14th December, 2007 are hereby declared to be un-constitutional, ultra-vires of the Constitution and consequently being illegal and of no legal effect.

22. As a consequence thereof: -

i) the Chief Justice of Pakistan; the Judges of the Supreme Court of Pakistan; any Chief Justice of any of the High Courts and the Judges of the High Courts who were declared to have ceased to hold their respective offices in pursuance of the afore-mentioned alleged judgments or any other such judgment and on account of the instruments mentioned in Para 21 above, shall be deemed never to have ceased to be such Judges, irrespective of any notification issued regarding their reappointment or restoration;

ii) it is declared that the office of the Chief Justice of Pakistan never fell vacant on November 3, 2007 and as a consequence thereof it is further declared that the appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan was unconstitutional; void ab initio and of no legal effect;

Provided that subject to whatever is contained hereinafter, the said un-constitutional appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan shall not affect the validity of any administrative or financial acts performed by him or of any oath made before him in the ordinary course of the affairs of the said office;

iii) since Mr. Justice Abdul Hameed Dogar was never a constitutional Chief Justice of Pakistan, therefore, all appointments of Judges of the Supreme Court of Pakistan, of the Chief Justices of the High Courts and of the Judges of the High Courts made, in consultation with him, during the period that he, unconstitutionally, held the said office from 3.11.2007 to 22.3.2009 (both days inclusive) are hereby declared to be un-constitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith;

Provided that the Judges so un-constitutionally appointed to the Supreme Court while holding the offices as Judges of any of the High Courts shall revert back as Judges of the respective High Courts subject to their age of superannuation and like-wise, the Judges of the High Courts, who were District and Sessions Judges before their said un-constitutional elevation to the High Courts shall revert back as District and Sessions Judge subject to limitation of superannuation;

iv) the Judges of the Supreme Court of Pakistan, if any, the Chief Justices of the High Court, if any, and the Judges of any of the High Courts, if any, who stood appointed to the said offices prior to 3.11.2007 but who made oath or took oath of their respective offices in disobedience to the order passed by a Seven Member Bench of the Supreme Court of Pakistan on 3.11.2007 in C.M.A.No.2869 of 2007 in Constitution Petition No.73 of 2007, shall be proceeded against under Article 209 of the Constitution. The Secretary of the Law Division of the Government of Pakistan shall take steps in the matter accordingly;

Provided that nothing hereinabove shall affect those Judges who though had been appointed as Judges/Chief Justices of any of the High Courts between 3.11.2007 to 22.3.2009 but had subsequently been appointed afresh to other offices in consultation with or with the approval of or with the consent of the Constitutional Chief Justice of Pakistan;

v) any judgments delivered or orders made or any decrees passed by any Bench of the Supreme Court or of any of the High Courts which comprised of or which included the afore-described Judges whose appointments had been declared void ab initio, are protected on the principle laid down in MALIK ASAD ALI’S CASE (PLD 1998 SC 161);

vi) since the Constitution (Amendment) Order, 2007 being the President’s Order No.5 of 2007 and the Islamabad High Court (Establishment) Order being President’s Order No.7 of 2007 establishing Islamabad High Court for the Federal Capital Territory, have been declared to be un-constitutional and of no legal effect, therefore, the said Islamabad High Court shall cease to exist forthwith. All judicial matters pending before the said High Court before the passing of this order shall revert/stand transferred to the courts which had jurisdiction in the said matters before the promulgation of afore-mentioned President’s Order No.5 of 2007 and President’s Order No.7 of 2007 promulgated on 14th December, 2007. The Judges of the said Court shall, as a consequence thereof, cease to be Judges except such Judges or the Chief Justice of the said court, who prior to their appointments in the said Islamabad High Court, were Judges of some other High Court who shall revert to the court of which they were originally the Judges, subject to their age of superannuation. The officers and employees of the said Court shall also cease to hold their respective appointments and shall become part of the Federal Government Surplus Pool for their further appointments. However, if any such officer or employee was an officer or an employee of some other court or department or office, such officers or employees shall revert to their respective courts, departments or offices to which they belonged before joining the service in the Islamabad High court, subject again to their age of superannuation; We would like to mention here that establishment of a High Court or a Federal Court for the Federal Capital Territory might be a desirable act but it is unfortunate that such a step was taken in an un-constitutional and a highly objectionable manner. We may, therefore, add that notwithstanding what has been declared and ordered above, the relevant and competent authorities may take steps to establish such a court in accordance with the Constitution/the law;

vii) the Ordinances promulgated by the President or a Governor of a Province before 3.11.2007 which were given permanence by the Provisional Constitution Order No.1 of 2007 as also the Ordinances issued by the President or a Governor between 3.11.2007 and 15.12.2007 (both days inclusive) which were also, like-wise given permanence through the same instrument and which legislative measures along with the said Provisional Constitution Order had been validated by the afore-mentioned judgment delivered in TIKKA IQBAL MUHAMAD KHAN’S CASE, stand shorn of their purported permanence on account of our afore-mentioned declarations. Since on account of the said judgment in TIKKA IQBAL MUHAMMAD KHAN’S CASE purporting to be a judgment of this Court, the presumption that the said Ordinances were valid laws not requiring approval of the Parliament or the respective Provincial Assemblies in terms of Article 89 or 128 of the Constitution and since it is today that this Court has attributed invalidity to the said legislative instruments, therefore, the period of 120 days and 90 days mentioned respectively in the said Article 89 and the said Article 128 of the Constitution, would be deemed to commence to run from today and steps may be taken to place the said Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law;

viii) since the Constitution, through its Article 176, authorizes only the Parliament to determine the number of Judges of the Supreme Court of Pakistan and since the Parliament had so done through the Supreme Court (Number of Judges) Act XXXIII of 1997, therefore, the increase in the strength of the Judges through the Finance Act of 2008 which Act was not passed by the Parliament but was passed only by the National Assembly would be deemed to be valid only for financial purposes and not for the purposes of Article 176 of the Constitution. It is resultantly declared that the number of Judges of the Supreme Court for purposes of the said Article 176 shall continue to remain sixteen;

ix) in the Code of Conduct prescribed for the Judges of the Superior Courts in terms of Article 209(8) of the Constitution, a new clause shall be added commanding that no such Judge shall, hereinafter, offer any support in whatever manner to any unconstitutional functionary who acquires power otherwise than through the modes envisaged by the Constitution and that any violation of the said clause would be deemed to be misconduct in terms of the said Article 209 of the Constitution;

x) in view of our findings above regarding Mr. Justice Abdul Hameed Dogar not being a constitutional and a valid consultee, the notification dated 26.8.2008 and the notification dated 15.9.2008 extending the term of office of Mr. Justice Abdur Rasheed Kalwar and of Mr. Justice Zafar Ahmed Khan Sherwani as Additional Judges of the High Court of Sindh are declared to be unconstitutional and of no legal effect;

xi) that the court acknowledges and respects the mandate given by the sovereign authority i.e. electorate to the democratically elected Government on 18th February, 2008 and would continue to jealously guard the principle of trichotomy of powers enshrined in the Constitution, which is the essence of the rule of law. Any declaration made in this judgment shall not in any manner affect the General Elections held and the Government formed as a result thereof i.e. the President, the Prime Minister, the Parliament, the Provincial Governments, anything done by these institutions in the discharge of their functions. These acts are fully protected in terms of the age old of principle of Salus populi est suprema lex reflected in PLD 1972 SC 139;

xii) Before parting with the judgment, we would like to reiterate that to defend, protect and uphold the Constitution is the sacred function of the Supreme Court. The Constitution in its preamble, inter alia, mandates that there shall be democratic governance in the country, “wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed; …………….. wherein the independence of judiciary shall be fully secured.” While rendering this judgment, these abiding values have weighed with us. We are sanguine that the current democratic dispensation comprising of the President, Prime Minister and the Parliament shall equally uphold these values and the mandate of their oaths;

23. A copy of this judgment shall be sent to the Secretary Law and Parliamentary Affairs, Government of Pakistan, for compliance.” Hereinbelow are the detailed reasons for the above short order.

2. The Sindh High Court Bar Association through its Secretary filed Constitution Petition No. 09 of 2009 under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 with the following prayer: -

“The petitioner, therefore, prays that this Hon’ble Court may be pleased: -

(i) To declare that the respondents Nos. 3 and 4 are and continue to be Judges of the High Court of Sindh and would continue as Additional Judges till 25th August, 2010 and that their term of appointment has not expired as opined by Justice Abdul Hameed Dogar;

(ii) To declare and direct Registrar of the High Court of Sindh that the respondents should be assigned regular work as Judges of the Sindh High Court;

(iii) To issue writ of mandamus directing the respondents to act in accordance with Constitution and the Law in the matter of appointment of Judges, in particular, the respondents Nos. 3 and 4, further directing the continuance of respondents Nos. 3 and 4 to perform functions and duties as Judges of the High Court of Sindh unless justiciable reasons are placed on record to ignore the recommendations by constitutional consultees asked through office memorandum dated 13th March, 2009;

(iv) To issue directions to the respondent No. 1 and the Registrar of the High Court of Sindh to place the entire record of proceedings of consultation leading to issuance of notification dated 12th March, 2009 before this Hon’ble Court;

(v) To issue a writ of mandamus to appoint the respondents Nos. 3 and 4 as permanent Judges of the High Court of Sindh under Article 193 of the Constitution of the Islamic Republic of Pakistan;

(vi) To grant costs of the petition; and

(vii) To grant any other relief or reliefs as may be considered appropriate and just in the circumstances of the case.”

3. It was averred in the petition that M/S Zafar Ahmed Khan Sherwani and Abdul Rasheed Kalwar, respondents Nos. 3 and 4 in the instant petition were appointed, along with others, as Additional Judges of the High Court of Sindh vide notification No. F.5(1)/2007-A.II., dated 15.9.2007 for a period of one year on and from the date they took oath of their office. On 3rd November 2007, General Pervez Musharraf issued Proclamation of Emergency, Provisional Constitution Order No.1 of 2007 (hereinafter referred to as PCO No. 1 of 2007) and Oath of Office (Judges) Order, 2007 (hereinafter referred to as Oath Order, 2007), though there was no provision in the Constitution, which authorized Chief of Army Staff to impose emergency and, in fact, it was martial law aimed at removing the Judges who were hearing the petitions filed against him. The Constitution of Pakistan was held in abeyance. All the Judges of the Supreme Court, Federal Shariat Court and the High Courts, including Chief Justices were declared to have ceased to hold office. Only those Judges would continue in office who made oath under PCO No. 1 of 2007. The same day, the Chief Justice of Pakistan and 6 other Judges of the Supreme Court passed order on the miscellaneous application, which had been filed in Wajihuddin Ahmed’s case (Constitution Petition No. 73 of 2007) on 2nd November, 2007 restraining, inter alia, the Judges of the Supreme Court and the High Courts including Chief Justices from making oath under PCO No. 1 of 2007. In compliance with the aforesaid Order of the Supreme Court, a large number of Judges of the Supreme Court and the High Courts including the respondents Nos. 3 & 4 did not make oath under PCO No. 1 of 2007, therefore, all such non-compliant Judges were declared to have ceased to hold office vide notifications of different dates issued by the Ministry of Law and Justice. The notification dated 3rd November, 2007 issued by the Ministry of Law and Justice declaring certain Judges of the High Court of Sindh including the respondents Nos. 3 and 4 (shown at serial No.9 & 11 below) to have ceased to hold office read as under: -

“NOTIFICATION

No. F.12(d)/2007-A.II. – In pursuance to Article 3 of the Oath of Office (Judges) Order, 2007 (Order No.1 of 2007), the following persons have ceased to hold office of Judges of High Court of Sindh with effect from 3rd November, 2007: -

1. Mr. Justice Rahmat Hussain Jafferi

2. Mr. Justice Khilji Arif Hussain

3. Mr. Justice Amir Hani Muslim

4. Mr. Justice Gulzar Ahmed

5. Mr. Justice Maqbool Baqar

6. Mr. Justice Muhammad Athar Saeed

7. Mr. Justice Faisal Arab

8. Mr. Justice Sajjad Ali Shah

9. Mr. Justice Zafar Ahmed Khan Sherwani

10. Mr. Justice Salman Ansari

11. Mr. Justice Abdul Rasheed Kalwar

12. Mr. Justice Arshad Siraj

Sd/-

(Malik Hakam Khan)

Acting Secretary”

4. It was further averred that vide notification No. F.1(2)/2008-AII., dated 26.08.2008, the respondents Nos. 3 & 4 were re-appointed as the Additional Judges of the High Court of Sindh with effect from the date they took oath of their offices for the period mentioned in notification No. F.5(1)/2007-A.II., dated 15.09.2007. Later, vide another notification No. F.5(1)/2007 dated 15.9.2008, the tenure of the respondents Nos. 3 & 4, along with others, was extended for a period of six months with effect from the date their term expired.

5. It was stated that the Chief Justice, High Court of Sindh vide his letter dated 10.09.2008 recommended one year extension in the tenure of five Additional Judges including the respondents Nos. 3 & 4, but an extension of six months was granted, which, according to the Chief Justice was to expire on 14.03.2009. He, therefore, vide letter dated 25.02.2009 again took up the matter of appointment of five Additional Judges including respondents Nos. 3 & 4 and recommended that they be appointed as permanent Judges under Article 193 of the Constitution. However, vide notification dated 12.03.2009, only three persons, namely, Abdur Rahman Faruq Pirzada, Salman Ansari and Syed Mahmood Alam Rizvi were appointed as Judges under Article 193 of the Constitution. Once again, the Chief Justice, High Court of Sindh, vide his letter dated 13.03.2009 reiterated his recommendation regarding the permanent appointment of the respondents Nos. 3 & 4. The Ministry of Law and Justice was under the impression that since the respondents Nos. 3 and 4 were not recommended by the then incumbent Chief Justice of Pakistan for their permanent appointment, therefore, on expiry of their tenure on or about 16.03.2009, they ceased to be Judges of the High Court.

6. After a preliminary hearing of the petition, a three-member Bench of this Court vide order dated 3rd April, 2009 issued notices to the respondents for filing of Para-wise comments/written statements. Notice was also issued to the learned Attorney General for Pakistan under Order XXVII-A of the Code of Civil Procedure, 1908 read with Order XXIX of the Supreme Court Rules, 1980 as important questions requiring interpretation of the Constitutional provisions by this Court were involved therein. The contentions raised by the learned counsel for the petitioners, noted in Paragraphs 2 to 4 of the aforesaid Order, were as under: -

“2. The learned counsel contended that respondents Nos. 3 and 4 (Mr. Justice Zafar Ahmed Khan Sherwani and Mr. Justice Abdul Rasheed Kalwar) were illegally directed to cease to hold office in pursuance of Proclamation of Emergency of 3rd November, 2007, which was incorrectly validated by a 7-Member Bench of this Court in the case of Tikka Iqbal Muhammad Khan v. General Pervez Musharraf (PLD 2008 SC 178) holding, inter alia, that the Judges who had not taken oath under the Provisional Constitution Order, 2007 (PCO 2007) had ceased to hold office. According to the learned counsel, this judgment was per incuriam in view of the 12-Member Bench judgment in the case of Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) wherein it was held in unambiguous terms that after the pronouncement of this judgment, no Judge of a Superior Court could be removed except by following the procedure laid down in Article 209 of the Constitution. According to him, in the case of Tikka Iqbal Muhammad Khan, the judgment in the case of Zafar Ali Shah was not examined in the correct perspective. Therefore, the judgment of the 12 Judges would prevail.

“3. The learned counsel further contended that the respondents Nos. 3 and 4 were reappointed for a period of one year vide notification dated 26.08.2008, which, in effect, was the revival of their original appointment as they were given the seniority position prevailing on 2nd November, 2007. He pointed out that later on vide notification dated 15.09.2008 the period of their appointment as Additional Judges of the High Court was extended for six months with effect from the date their present term expired. Thus, according to the learned counsel, this period of six months would be added to the earlier period of appointment as Additional Judges, which was to expire on 25.08.2009 and for all intents and purposes they would be entitled to continue their service as Additional Judges up to 25.02.2010. He submitted that although the Chief Justice, High Court of Sindh earlier misunderstood and misinterpreted the notifications dated 26.08.2008 and 15.09.2008, but on a representation made by the respondents Nos. 3 and 4, corrected the error and assigned them Court work. Subsequently, the Ministry of Law as well as the then incumbent of the office of Chief Justice of Pakistan, through their separate letters, interpreted the notifications dated 26.08.2008 and 15.09.2008 in a manner that their period of appointment as Additional Judges had already expired, which according to the learned counsel, was not the correct interpretation of both the notifications.

“4. The learned counsel also contended that without prejudice to his plea with regard to the interpretation of the notifications dated 26.08.2008 and 15.09.2008, the Chief Justice and the Governor of Sindh both recommended the two Additional Judges for their appointment as permanent Judges under Article 193 of the Constitution of the Islamic Republic of Pakistan, 1973. The learned counsel maintained that after recommendation of the Chief Justice and the Governor of Sindh regarding permanent appointment of the respondents Nos. 3 and 4, in view of the law laid down in Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), therespondents ought to have been appointed accordingly.”

Constitution Petition No. 08 of 2009 filed by Mr. Muhammad Akram Sheikh, Sr. ASC, on behalf of Nadeem Ahmed, Advocate, challenging the action of General Pervez Musharraf dated 3rd November, 2007 was ordered to be listed and notice was issued to the respondent therein, namely, Federation of Pakistan, through Secretary, Ministry of Law and Justice, Islamabad. Vide order dated 22nd July, 2009, notice of the proceedings was also issued to General Pervez Musharraf.

7. It was averred in Constitution Petition No. 8 of 2009 that General Pervez Musharraf, the then Chief of Army Staff had forcibly prevented all the Judges of the Supreme Court and the High Courts from functioning as Judges of their respective courts by means of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007. The restraint Order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case was binding upon all concerned. The Chief Justice of Pakistan and many other Judges along with their family members were illegally placed under house arrest. Abdul Hameed Dogar, J was illegally appointed as the Chief Justice of Pa kistan. The Judges of the Supreme Court and the High Courts, who made oath under PCO No. 1 of 2007 read with Oath Order, 2007 were continued in office. General Pervez Musharraf, without regard to merit, competence and repute and without consultation with the Chief Justice of Pakistan ‘packed the courts’ with dozens of persons by placing them in the Supreme Court and the High Courts, who occupied office of Judge in violation of the Constitution and the Order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case. Such Judges, in Tikka Iqbal Muhammad Khan’s case, purportedly set aside the very Order dated 3rd November, 2007 that they had violated and upheld all the illegal actions of General Pervez Musharraf. A declaration was sought to the effect that all the persons regardless of their oath under PCO No. 1 of 2007, or the Constitution, who were appointed on or after 3rd November 2007 without consulting the Chief Justice of Pakistan were not Judges under the Constitution and, therefore, not entitled to function as such.

8. Mr. Rashid A. Rizvi, ASC, learned counsel for the petitioner in Constitution Petition No. 9 of 2009 made the following arguments: -

(1) Respondents Nos. 3 and 4 were illegally directed to cease to hold office in pursuance of Proclamation of Emergency of 3rd November, 2007, which was incorrectly validated by a 7-Member Bench of this Court in the case of Tikka Iqbal Muhammad Khan’s case holding, inter alia, that the Judges who had not taken oath under PCO No. 1 of 2007 had ceased to hold office;

(2) The judgments in Tikka Iqbal Muhammad Khan v. General Pervez Musharraf (PLD 2008 SC 178) and Wajihuddin Ahmed v. Chief Election Commissioner (PLD 2008 SC 25) were violative of Article 209 of the Constitution 1973 and per incuriam as they failed to take into consideration the law laid down in the cases of Asma Jilani v. Government of the Punjab (PLD 1972 SC 139), Liaquat Husain v. Federation of Pakistan (PLD 1999 SC 504), Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) and Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) on legal and factual planes. Therefore, the judgment of the 12 Judges would prevail. In Asma Jilani’s case, the assumption of power by General Agha Muhammad Yahya Khan was declared to be illegal and unconstitutional and he was termed as a usurper, while in Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504), this Court in unequivocal terms rejected the law of necessity invoked earlier in the cases of State v. Dosso (PLD 1958 SC 533) and Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1977 SC 657) as a means for validation of unconstitutional and illegal actions of the concerned military commanders. In Zafar Ali Shah’s case this Court, in unambiguous terms, held that after the pronouncement of that judgment, no Judge of a Superior Court would be removed except by following the procedure laid down in Article 209 of the Constitution. Therefore, the imposition of emergency on 3rd November, 2007 and promulgation of PCO No. 1 of 2007 and Oath Order, 2007 and the consequential measures/laws/ordinances were unlawful and violative of the Constitution and liable to be declared illegal, unjustified, mala fide and of no legal effect;

(3) The imposition of emergency on 3rd November, 2007 was aimed at destroying the independence of judiciary and to obtain a favourable verdict in Wajihuddin Ahmed’s case challenging the candidature of General Pervez Musharraf for the election of President, which was evident from the press clippings placed on record vide CMA No. 2361 of 2009;

(4) Notification dated 03.12.2007 by which twelve judges of the Sindh High Court were declared “to have ceased to hold office” was illegal, mala fide and ultra vires of the Article 209 of the Constitution and the law laid down in the cases of Asma Jilani, Liaquat Husain, Zafar Ali Shah, Al-Jehad Trust and Asad Ali;

(5) The respondents No.3 and 4 were victimized for obeying the Order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case and thereby refusing to take oath under PCO No. 1 of 2007 and Oath Order, 2007;

(6) Vide notification dated 15.09.2008 the period of the appointment of the respondents Nos. 3 & 4 as Additional Judges of the High Court was extended for six months with effect from the date their present term expired. Thus, this period of six months would be added to the earlier period of appointment as Additional Judges, which was to expire on 25.08.2009 and for all intents and purposes they would be entitled to continue their service as Additional Judges up to 25.02.2010;

(7) Although the Chief Justice, High Court of Sindh earlier misunderstood and misinterpreted the notifications dated 26.08.2008 and 15.09.2008, but on a representation made by the respondents Nos. 3 and 4, corrected the error and assigned them Court work. Subsequently, the Ministry of Law as well as the then incumbent of the office of Chief Justice of Pakistan, through their separate letters, interpreted the notifications dated 26.08.2008

and 15.09.2008 in a manner that their period of appointment as Additional Judges had already expired, which was not the correct interpretation of both the notifications;

(8) Without prejudice to the plea with regard to the interpretation of the notifications dated 26.08.2008 and 15.09.2008, the Chief Justice and the Governor of Sindh both recommended the respondents Nos. 3 & 4 for their appointment as permanent Judges under Article 193 of the Constitution of the Islamic Republic of Pakistan, 1973. Therefore, in view of the law laid down in Al-Jehad Trust case, the respondents ought to have been appointed accordingly;

(9) It was a matter of record that the respondents Nos. 3 & 4 were initially appointed as Additional Judges of the High Court of Sindh on 15th September, 2007 on the recommendation of Chief Justice of Pakistan Justice Iftikhar Muhammad Chaudhry and Chief Justice of Sindh High Court Justice Sabihuddin Ahmed (late). They were declared to have ceased to hold office of Judge as a result of illegal, unconstitutional and mala fide emergency on 3rd November, 2007 imposed by General Pervez Musharraf. Subsequently, they were reappointed on 26th August, 2008 for the same period i.e. one year. Again on 15th September, 2008 through another notification their tenure was extended for six months. No adverse remarks were passed by any of the constitutional consultees during the entire consultative process. Thus, non-acceptance of the recommendation under Article 193 by Abdul Hameed Dogar, J, was result of mala fide and ill-will;

(10) Where there were two conflicting recommendations for appointment of a Judge under Article 193; one by de facto Chief Justice of Pakistan who had assumed his office in violation of constitutional provisions and the other by a de jure Chief Justice of High Court, the Executive/President ought to accept the views of the de jure Chief Justice of High Court, particularly in view of the fact that the Chief Justice of the High Court has had the opportunity and privilege of directly watching the conduct and performance of the Additional Judges;

(11) The respondents No.3 and 4 were condemned unheard and since notification dated 3rd December 2007 was violative of the principle of natural justice, therefore, the same was void and liable to be set aside;

(12) The respondents Nos. 3 & 4 were liable to be declared to be Additional Judges of the High Court of Sindh and the proceedings for their appointment under Article 193 of the Constitution ought to be initiated de novo; and

(13) The issue was required to be determined by the apex Court because the same had not been dealt with in the Al-Jehad Trust case, which laid down that the opinion of the Chief Justice of the High Court and the Chief Justice of Pakistan regarding fitness and suitability of a candidate for judgeship, being the experts of the field, was entitled to be accepted in the absence of valid reasons to be assigned by the executive, which would be justiciable. The judgment in Al-Jehad Trust case proceeded on the assumption of consensus between the two judicial consultees. The said judgment did not deal with a situation where there was divergence of views between the two Chief Justices. The non-justiciability of the views of the two Chief Justices was also founded upon the same consideration of a consensus between the said two consultees. The views of the Chief Justices would become justiciable where there was a difference of opinion between the two of them. The respondents Nos. 3 and 4 were reappointed for a period of one year vide notification dated 26.08.2008, which, in effect, was the revival of their original appointment as they were given the seniority position prevailing on 2nd November, 2007.

9. Mr. Hamid Khan, Sr. ASC, learned counsel for the petitioner in Constitution Petition No. 9 of 2009 raised the following contentions: -

(1) General Pervez Musharraf imposed an unconstitutional and illegal emergency, unconstitutionally and illegally held in abeyance the Constitution in abeyance and in its place imposed a new constitutional order, called PCO No. 1 of 2007 and Oath Order, 2007. Therefore, the acts/actions and instruments brought about by him from 3rd November, 2007 till 15th December, 2007 (both days inclusive) were unconstitutional, ultra vires and void and were liable to be so declared;

(2) Two of the instruments, namely, Proclamation of Emergency and PCO No. 1 of 2007 were issued by General Pervez Musharraf in his capacity as the Chief of Army Staff, while the third instrument, namely, Oath Order, 2007 was issued by him in his capacity as President of Pakistan. Neither the Constitution nor any law permitted him to promulgate any of the said instruments in any of his capacities. Therefore, the actions of 3rd November, 2007 were patently unconstitutional, illegal and invalid. The unconstitutional and illegal assumption of power as described in the aforesaid instruments made him a usurper and he was liable to be so declared;

(3) Oath Order, 2007 was issued by General Pervez Musharraf in his capacity as the President of Pakistan as a delegatee of the Chief of Army Staff, which was against the scheme of the Constitution and the law, inasmuch as neither any subordinate authority could delegate its functions to a superior authority nor the President was empowered under the Constitution to issue such an Order;

(4) The instruments of 3rd November, 2007 were purported to be laws of permanent and perpetual character. On the other hand, under Article 89 of the Constitution the President was empowered to promulgate Ordinances for a period of four months. The Chief of Army Staff did not have any power or authority under any law to promulgate any of the aforesaid unconstitutional measures. As such, the same were issued neither under any provision of the Constitution nor under any law on the statute book;

(5) The actions of 3rd November 2007 up to 15th December 2007 (both days inclusive) were the creation and for the benefit of one individual alone, namely, General Pervez Musharraf. Any reference he made to other institutions in any of the instruments of that date and onward was incorrect in the course of history and an attempt to involve other institutions and persons with the sole object of his own personal aggrandizement and political benefit. The Pakistan Army was dragged into it and confronted with the people. Earlier, as a result of agreement with the Muttahida Majlis-e-Amal (MMA), he got inserted into Article 41 of the Constitution clause (7) – his assumption of the office of President in pursuance of the Referendum held in April 2002 for a term of five years; clause (8) – for a vote of confidence for further affirmation of his being in office; and clause (9) for regulating the proceedings for the vote of confidence by the Chief Election Commissioner in accordance with such procedure and the counting of votes in such manner as may be prescribed by the rules framed by the Federal Government – all notwithstanding any provision of the Constitution or any other law for the time being in force. All these were special provisions made for one person;

(6) After the acts of 3rd November, 2007 General Pervez Musharraf was as much a usurper as was General Agha Muhammad Yahya Khan after the imposition of martial law in 1969. Therefore, as stated by Yaqub Ali Khan, J., in Asma Jilani’s case, at the first available opportunity, on the ouster of the usurper, his actions should be nullified and he would be liable to be tried for high treason and punished;

(7) General Pervez Musharraf could not have introduced his own amendments into the Constitution for selfservice and benefit during the so called emergency. The surreptitious validation, affirmation and adoption made by him through insertion of Article 270AAA were invalid and thus had no legal effect in the absence of a parliamentary validation in accordance with Articles 238 and 239 of the Constitution. The unconstitutional acts of General Pervez Musharraf were never extended constitutional protection by the Parliament through a constitutional amendment. The said amendments were unconstitutionally and illegally validated by the so called judgments in Tikka Iqbal Muhammad Khan’s case. Therefore, the constitutional amendments along with the judgments were required to be done away with;

(8) All the consequential acts based upon or flowing from those actions would also be ineffective, that is to say, all the actions of 3rd November, 2007 up to 15th December, 2007 would have to be declared invalid and ineffective;

(9) Before the schedule of election was announced, Constitution Petitions No. 58, 59, 61, 62, 63 and 68 of 2007 were filed in the Supreme Court in August 2007 on behalf of Jamat-e-Islami, Imran Khan and others challenging the dual office of General Pervez Musharraf as well as his candidature for the election of President on the ground that being a person in the service of Pakistan, he was not eligible to contest election of President in view of the provision of Article 63(1)(d) of the Constitution. The petitions were held to be not maintainable by a majority of 6 to 3. Later, the nomination papers filed by General Pervez Musharraf were challenged before the Supreme Court, inter alia, on the ground that the schedule of election was against the provision of Clause (4) of Article 41, which provided that the election to the office of President shall be held not earlier than sixty days and not later than thirty days before the expiry of the term of the President in office. His term was to expire on 15th November, 2007, therefore, his election had to take place between 15th September, 2007 and 15th December, 2007. However, before the verdict was given in Wajihuddin Ahmed’s case, apprehending without any legal and valid justification that the said petitions would be decided against him, Proclamation of Emergency of 3rd November 2007 was unconstitutionally and illegally promulgated;

(10) The so called judgments in Tikka Iqbal Muhammad Khan’s case (though they were not judgments in the eye of law because the body of persons who sat in judgment over the actions of 3rd November 2007, having been appointed under PCO No. 1 of 2007, and not under the Constitution, did not constitute Supreme Court of Pakistan, therefore, at the most that body would be described as a tribunal) were in any case per incuriam because they were violative of the law laid down in Zafar Ali Shah’s case and thus were void and nullity in law;

(11) It had illegally and unjustifiably been held in Tikka Iqbal Muhammad Khan’s case that the proceedings in Wajihuddin Ahmed’s case were being delayed by the petitioner’s counsel. In reality, the situation was the other way round because it was the counsel for the respondent General Pervez Musharraf and the learned Attorney General for Pakistan who were delaying the proceedings by reading lengthy excerpts from the books being cited at the bar;

(12) It was wrongly held in Tikka Iqbal Muhammad Khan’s case that before Order dated 3rd November, 2007 was passed, the Hon’ble Judges of the 7 – Member of the Supreme Court had ceased to be the Judges because a Judge would cease to hold office only in accordance with the procedure laid down in Article 209 of the Constitution, and by no other means;

(13) By 5th November, 2007 the strength of the tribunal was not more than 5, therefore, they were in a hurry to increase the number beyond seven. Accordingly vide notification dated 05.11.2007 four persons were purportedly appointed to the Supreme Court under PCO No. 1 of 2007 and Oath Order, 2007 whereafter the tribunal took up matter for hearing on 6th November, 2007 and passed the order on that date;

(14) One of the grounds for setting aside the Order dated 03.11.2007 given in the order dated 06.11.2007 was that it was passed without notice, but surprisingly, the order dated 06.11.2007 itself was passed without any notice, even to the petitioner;

(15) The judgments in Tikka Iqbal Muhammad Khan’s case were clearly motivated by collateral and ulterior purposes of acting in collusion with the usurper to depose the de jure Chief Justice of Pakistan and Judges of the Supreme Court and the High Courts, upholding his unconstitutional actions and validating the unconstitutional appointments. The personal interest and bias of Abdul Hameed Dogar, J, and others was apparent on the face of the record, which rendered their decisions void;

(16) The judgments in Tikka Iqbal Muhammad Khan’s case were void inasmuch as the ratio of the judgments in the cases of Begum Nusrat Bhutto’s case did not apply to this case and the application of the doctrine of civil and state necessity and maxim of salus populi est suprema lex (welfare of the people was the supreme law) were not at all applicable. Rather the dictum laid down in Asma Jilani’s case was applicable;

(17) The striking difference and distinction between the actions of 5th July 1977 and 12th October 1999 on the one hand, and the action of 3rd November 2007 on the other, was that the former were affirmed, adopted and validated by the Parliament through the Eighth and Seventeenth Amendments of the Constitution respectively whereas the latter was not validated or ratified by the Parliament. Reference in this behalf was made to Article 270C, which though was first introduced under the Legal Framework Order, 2002, but it was later inserted into the Constitution under the Seventeenth Amendment. In absence of any validation or ratification by the Parliament, Abdul Hameed Dogar and other persons who were ostensibly styled as Chief Justices would not be consultees for the purposes of Articles 177, 193 and 197 of the Constitution. Hence, all the appointments made in consultation with such Chief Justices would be void ab initio;

(18) The actions of 3rd November 2007 were directed against one organ of the State alone, namely, the judicial branch as against the earlier two military takeovers of 5th July 1977 and 12th October 1999 when the whole of the governmental structure was demolished, the Constitution was held in abeyance, the Federal and the Provincial Governments (Prime Minister and Chief Ministers along with their Cabinets) were dismissed, and the National and the Provincial Assemblies were dissolved. In the instant case, emergency was imposed and the use of the words “martial law” was avoided, though rumours were spread that “emergency plus” was being imposed. Therefore, the principles enunciated in the cases Begum Nusrat Bhutto and Zafar Ali Shah were not applicable, rather the instant case would be governed, as nearly as may be, by the principles laid down in the case of Asma Jilani;

(19) The actions of 3rd November, 2007, in the course of our history, were different from the previous ones, inasmuch as they were never accepted or acquiesced by the Judges, the lawyers, political activists and the people of Pakistan. Thousands of lawyers and political activists were arrested and detained. The apex Court could take judicial notice of the fact that there was nationwide movement, joined by each and every segment of the nation. Initially on the first day, a large number of Judges including 13 out of 18 Judges, i.e. ¾ Judges of the Supreme Court itself, did not make oath under PCO No. 1 of 2007 read with Oath Order, 2007. None of the Judges who did not accept the aforesaid oath applied for pension, or for revival of his licence to practice law. Had the tribunal looked into the earlier judgments, the conclusion reached by it in Tikka Iqbal Muhammad Khan’s case would not have been reached. As a matter of fact, it was a selective application of the law laid down in those judgments. It was repugnant to the earlier judgments;

(20) Under Article 190 of the Constitution, all authorities including General Pervez Musharraf were obligated to act in aid of the Supreme Court. Since the Order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case was in force, therefore, the acts of General Pervez Musharraf, besides being unconstitutional and illegal, also violated the Order of the Supreme Court, hence, the same were void. There was a judicial order restraining General Pervez Musharraf from imposing emergency, or doing anything against the independence of judiciary and requiring the Judges not to take oath. Despite that, General Pervez Musharraf took the action of 3rd November 2007 and certain Judges took oath under PCO No. 1 of 2007 read with Oath Order, 2007. This aspect was different from the earlier cases;

(21) The Judges of the superior courts who had taken oath to preserve, protect and defend the Constitution ought not break their oath under any circumstances and not submit to the will of the military adventurer. All the Judges of the Supreme Court including Abdul Hameed Dogar, J, and all the Judges of the High Courts including Chief Justices, who were appointed under PCO No. 1 of 2007 and who took oath of office under it, despite the Order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case were not only unconstitutionally and illegally appointed as such Chief Justices and Judges and their appointments were inherently invalid, but they would also be guilty of misconduct and liable to be proceeded against under Article 209 of the Constitution;

(22) The fresh appointments were made after 3rd November, 2007 in consultation with Abdul Hameed Dogar, J, who was neither a de facto Chief Justice of Pakistan, nor could he be described as the Acting Chief Justice of Pakistan within the meaning of Article 180 of the Constitution;

(23) At the relevant time, there was no vacancy either in the office of the Chief Justice of Pakistan or any Judge of the Supreme Court according to the law. Under the Supreme Court (Number of Judges) Act, 1997 (Act No. XXXIII of 1997), the strength of the Supreme Court was Chief Justice and 16 Judges. The number of Judges of the Supreme Court was raised from 16 to “not more than 29″ by the Finance Act, 2008, which was unconstitutional and invalid for the reason that the Act of 1997 could only be amended by an Act of Parliament. The Finance Act was not an Act of Parliament, inasmuch as it was passed only by the National Assembly. As a matter of fact, Finance Bills were never placed before the two Houses of Parliament and were directly passed by the National Assembly. While the Finance Act remained valid for the purposes of financial allocations, it would be invalid as regards the increase of number of Judges of the Supreme Court was concerned;

(24) On 3rd November 2007, not only the Chief Justice and 16 Judges were in place, but one ad hoc Judge was also working in the Supreme Court. Thus, there was no vacancy against which anyone could be appointed as the Chief Justice of Pakistan, or as a Judge of the Supreme Court;

(25) All the 13 Judges of the Supreme Court who had not made oath under PCO No. 1 of 2007 read with Oath Order, 2007, though they were put under house arrest, were available for performing their functions. They could not be said to have vacated office and there could not be appointment of permanent Judges in their place. The tribunal, therefore, exercised the usurped jurisdiction of the Supreme Court and acted with clear mala fides, which rendered its decisions as without jurisdiction and of no legal effect;

(26) Since there was no vacancy in the Supreme Court of Pakistan, and no consultation with the constitutional consultee ever took place regarding the appointment of any of the persons purporting to act as the Judges of the Supreme Court in Tikka Iqbal Muhammad Khan’s case to purportedly confer validity on the actions of 3rd November 2007, the tribunal was coram non judice and the members of the tribunal were not even de facto Judges;

(27) The so called judgments in Tikka Iqbal Muhammad Khan’s case wrongly placed reliance on the cases of Begum Nusrat Bhutto and Zafar Ali Shah as the facts and circumstances were entirely different which formed the basis for the said judgments and the dictum laid down therein could not be extended to it, as was attempted to be done by the tribunal. Even otherwise, the lawyers and the people of Pakistan never considered the aforesaid two judgments a good law of the land, and perhaps a time had come that the same were revisited;

(28) The Supreme Court had the jurisdiction to reconsider and revisit any of its previous judgments. It was not unprecedented that the Supreme Court had also reconsidered or revisited its previous view even after a review against the previous decision had been heard and decided. The Supreme Court has reconsidered and revisited its previous decision even in exercise of its suo motu jurisdiction;

(29) The whole nation, the judiciary, the lawyers and political parties all rejected the actions of 3rd November 2007, therefore, unlike what was being said in earlier judgments that the military takeovers were welcomed and sweets were distributed, was not the situation in the present case;

(30) The doctrine of civil or state necessity was at best a doctrine of condonation and not of validation. But while extending condonation, a wrong could not be made right, at the best it could only be ignored, pardoned, etc. In any case, not everything would be condoned, and more specifically a usurper’s acts to entrench himself into power would not be condoned, as held in Asma Jilani’s case;

(31) The petition of Tikka Iqbal Muhammad Khan having been filed under Article 184 (3), was not competent because -

(a) As held in Watan Party v. Chief Executive (PLD 2003 SC 74) the petitioner had no locus standi because he was neither a leader of any political party nor a political worker; and

(b) No question relating to the enforcement of his fundamental rights was involved. Moreover, the fundamental rights were suspended and it was purportedly held so by the said tribunal. The petitioners had no interest in or nexus with the proceedings. Even the members of the tribunal were feeling difficulty how to treat the proceedings adversary.

In the earlier cases, the bona fides of the petitioners were established on the face of the record inasmuch as in Asma Jilani’s case, the daughter of the detenu, in Begum Nusrat Bhutto’s case the wife of the detenu, and in Zafar Ali Shah’s case, a member of the National Assembly had filed the petitions. Tikka Iqbal Muhammad Khan and Zafarullah Khan, the so called President of the so called Watan Party were definitely planted and inspired to bring the petitions. The whole exercise was mala fide and an abuse of the jurisdiction of the Supreme Court and also of its process. Since it was well settled that discretionary jurisdiction could not be exercised to perpetuate injustice, the jurisdiction was wrongly exercised.

10. Mr. Hamid Khan, learned Sr. ASC prayed that the following declaration may be issued by this Court: -

(1) General Pervez Musharraf became a usurper as a result of the acts of 3rd November 2007 to 15th December, 2007 and that he be so declared;

(2) All his acts/actions purportedly done to suspend and amend the Constitution between 3rd November, 2007 and 15th December, 2007 (both days inclusive) were unconstitutional and invalid and may be so declared;

(3) All appointments of Judges on and after 3rd November, 2007 till 24th March, 2009 not made in consultation with the de jure Chief Justice of Pakistan were unconstitutional and invalid, and were liable to be so declared, and that such Judges were not even de facto Judges;

(4) The two so called judgments in Tikka Iqbal Muhammad Khan’s case dated 23.11.2007 and 15.2.2008 were nullity in law being per incuriam, coram non judice, without any legal basis, based on mala fide proceedings, rendered by biased persons of the tribunal and given on collusive and fraudulent petitions lacking bona fide. Because the judgments in the cases of Begum Nusrat Bhutto and Zafar Ali Shah were no longer considered good law in Pakistan, perhaps it was time to revisit the same; and

(5) The elections of 18th February 2008 were constitutionally valid because they were held after the expiry of the constitutional term of the National and Provincial Assemblies between 15th and 22nd November 2007 and were actually a consequence of the constitutional mandate contained in Article 224 of the Constitution, hence the same were liable to be declared as such.

11. Mr. Muhammad Akram Sheikh, Sr. ASC, learned counsel for the petitioner in Constitution Petition No. 8 of 2009, challenging the legality of the actions of 3rd November 2007 made the following submissions: -

(1) All the actions taken by General Pervez Musharraf on 3rd November, 2007 and thereafter holding the Constitution in abeyance, deposing and putting under arrest the Judges of the Superior Courts and appointing strangers as such Judges and getting his all such acts validated by those strangers were patently illegal. General Pervez Musharraf, being a member of the Armed Forces of Pakistan and bound by his oath under the Constitution , the illegality was more blatant;

(2) The decisions in Tikka Iqbal Muhammad Khan’s case were unconstitutional and Article 270AAA as inserted into the Constitution by General Pervez Musharraf could not be treated as part of the Constitution. The decisions rendered in Tikka Iqbal Muhammad Khan’s case were coram non judice and a nullity in law, having been rendered by persons who stood disqualified to act as Judges under the Order dated 03.11.2007 passed by a seven – member Bench of the Supreme Court;

(3) It was laid down in Al-Jehad Trust case that the consultation referred to in Articles 177 and 193 of the Constitution was to be meaningful and would be binding upon the Executive/President and a consultation with an Acting Chief Justice did not meet the criteria laid down in the aforesaid Articles. The possibility of arbitrary judicial appointments by the executive stands overruled;

(4) Ever since the 30th of June, 2005, the date of his taking oath, Mr. Justice Iftikhar Muhammad Chaudhry continued to be the Chief Justice of Pakistan without any interruption of a single day. The office of the Chief Justice of Pakistan never fell vacant in terms of Article 180 of the Constitution. Therefore, Abdul Hameed Dogar, J, could not, in law, be said to be an Acting Chief Justice, nor could he be treated as entitled to perform the constitutional function of being consulted for appointment of new Judges of the Supreme Court and the High Courts and the consultation made with him for such appointments did not meet the requirement of Articles 177 and 193 of the Constitution;

(5) General Pervez Musharraf, without any regard to merit, competence or repute, and without any consultation with the Hon’ble Chief Justice of Pakistan, ‘packed the courts’ with dozens of persons on and after 3rd November, 2007. The persons so brought into the Supreme Court and the High Courts were not duly appointed Judges under the Constitution;

(6) Such forum illegally reversed the Order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case and illegally upheld all the illegal actions of General Pervez Musharraf taken by him on and after 3rd November, 2007;

(7) A government servant, such as General Pervez Musharraf, who is bound by his Constitutional oath to defend the Constitution, could not hold the Constitution in abeyance, dismiss and arrest the Judges of superior courts of Pakistan, appoint strangers as Judges of superior courts and get his illegal acts validated by those strangers. Even the Executive organ of State or any executive officer could not dismiss or restrain any Judge of superior courts or stop him from performing his judicial functions because Judges of superior courts could be removed from their offices by no process other than the one provided in Article 209 of the Constitution;

(8) Non-performance of functions of his office by the Chief Justice of Pakistan from 3rd November 2007 till 16th March 2009 due to the forcible restraint placed upon him by the Executive could not be construed as resulting in his “absence” from office, or his “inability” to perform his functions or causing “vacancy” in his office so as to appoint the next most senior Judge as Acting Chief Justice under Article 180 or to appoint a permanent incumbent under Article 177;

(9) Abdul Hameed Dogar, J, in the presence of Chief Justice of Pakistan from 3rd November 2007 till 16th March 2009 was neither a permanent Chief Justice nor an Acting Chief Justice. Therefore, he could not validly be “consulted” for the appointment of Supreme Court and High Court Judges under Articles 177 and 193 of the Constitution, something for which even a duly appointed Acting Chief Justice was not competent;

(10) The Constitution could only be amended by following the procedure prescribed in Articles 238 and 239 of the Constitution and the Supreme Court did not have the power and jurisdiction to allow any person to amend it. The amendments made by the usurpers in the past, even though made under the purported authority of the Supreme Court in the cases of Begum Nusrat Bhutto and Zafar Ali Shah, remained invalid until they were validated and protected by the Parliament by means of the Eighth and the Seventeenth Amendments to the Constitution. The purported validation by insertion of Article 270AAA by General Pervez Musharraf was invalid, which was even otherwise in direct clash with the principle of independence of judiciary, which was a salient feature of the constitutional framework and hence illegal;

(11) This Court had a constitutional duty to safeguard the independence and dignity of the judiciary, security of tenure of the Judges of superior Courts and also to block the possibility of future constitutional adventurism and a possible judicial recognition thereof by overruling the ratio of the cases of Dosso, Begum Nusrat Bhutto and Zafar Ali Shah and all other such judgments to the extent that they provided justification for validation of constitutional breach; while

(12) This Court may, in the larger public interest, indemnify the judgments and orders rendered in the name of the Supreme Court and of all the High Courts of the country from 3rd November 2007 till the date of pronouncement of judgment in the instant petition, except any judgment or order that would stand in conflict with the Order of 7-member Bench passed in Constitution Petition No. 73 of 2007.

12. Sardar Muhammad Latif Khan Khosa, learned Attorney General for Pakistan appeared in response to the Court’s notice issued in terms of Order XXVII-A of the Code of Civil Procedure, 1908 read with Order XXIX of the Supreme Court Rules, 1980 as important questions relating to interpretation of the provisions of the Constitution were involved in the case. In his address to the Court, the learned Attorney General briefly and broadly recounted the constitutional developments in the history of Pakistan, from its coming into existence on 14th August, 1947 under the Indian Independence Act, such as – The dissolution of the Constituent Assembly by the Governor-General Ghulam Muhammad on 24th October, 1954 and upholding of such dissolution by the Federal Court in the case of Federation of Pakistan v. Moulvi Tamizuddin Khan (PLD 1955 FC 240) on a purely legal ground, rather a technicality that the Sindh Chief Court was divested of the power and jurisdiction to issue the writ it did, declaring the dissolution of the assembly illegal and restoring it, due to invalidity of the law for want of requisite assent by the Governor-General; The imposition of martial law by General Ayub Khan by means of Proclamation of 7th October, 1958, annulment of the Constitution, dissolution of the National and the Provincial Assemblies and dismissal of the Central and the Provincial Cabinets and justification of all acts of General Ayub Khan by the Supreme Court in Dosso’s case on the principle of revolutionary legality; The promulgation of a new Constitution in 1962 by General Ayub Khan; imposition of second martial law by General Yahya Khan on 25th March, 1969, abrogation of the Constitution, dissolution of the legislatures and dismissal of the governments, assumption of the office of President, promulgation of Provisional Constitution Order on 4th April, 1969 and decision in Asma Jilani’s case declaring the assumption of power by General Yahya Khan as a usurper and the law laid down in Dosso’s case being declared unsustainable both on the principle of revolutionary legality, stare decisis or otherwise; The elections of 1970, dismemberment of Pakistan, enactment of Interim Constitution on 21st April, 1972 and then enforcement of the Constitution of the Islamic Republic of Pakistan, 1973 on 14th August, 1973; The imposition of third martial law by General Muhammad Ziaul Haq on 5th July, 1977, holding in abeyance the Constitution, arrests and detentions of the political activists, including the then Prime Minister of Pakistan, Zulfikar Ali Bhutto and the decision of the Supreme Court in Begum Nusrat Bhutto’s case filed against the detention of her husband justifying the military takeover under the doctrine of necessity and the maxim salus populi est suprema lex and the departure thus made from the dictum enunciated in Asma Jilani’s case, authorizing the Army Chief to amend the Constitution for attainment of his declared objectives, the execution of Zulfikar Ali Bhutto, boycott of the non-party elections of 1985, the passing of the Eighth Amendment to the Constitution on 31st December 1985, dissolution of the Assemblies on 29th May 1988; Imposition of emergency on 12th October, 1999 by General Pervez Musharraf, holding the Constitution in abeyance, issuance of Provisional Constitution Order, 1999, dissolution of the National and the Provincial Assemblies, dismissal of the Government of Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan having two-third majority in the Parliament and the Oath of Office (Judges) Order, 2000, sacking of Judges of the superior courts and the validation of all his acts by the Supreme Court in Zafar Ali Shah’s case authorizing him to run the affairs of the government including the power to amend the Constitution; Holding of Referendum on 30th April, 2002 by General

Pervez Musharraf to become the President of Pakistan for a term of five years and the decision of the Supreme Court in Hussain Ahmad v. Pervez Musharraf, Chief Executive (PLD 2002 SC 853) holding that the consequences flowing from the holding of Referendum were purely academic, hypothetical and presumptive in nature and leaving the same to be determined at a proper forum at the appropriate time; Promulgation of the Legal Framework Order, 2002 making large scale amendments in the Constitution and the decision of the Supreme Court in Watan Party v. Chief Executive/President of Pakistan (PLD 2003 SC 74) case holding that the elected Parliament and not the Supreme Court was the appropriate forum to consider all these amendments; Election of October 2002, formation of government by PML (Q) under the patronage of General Pervez Musharraf, periodical restoration of the Constitution, the passing of the Seventeenth Amendment to the Constitution as a result of an accord with the MMA, the Pakistan People’s Party and the Pakistan Muslim League (N) boycotting the proceedings; and Announcement of the schedule of election of the President on 20.09.2007, filing of nomination papers by General Pervez Musharraf, filing of Constitution Petitions by Makhdoom Amin Faheem and Wajihuddin Ahmed and dismissal thereof by the Supreme Court holding the petitions not maintainable and asking the petitioners to submit objections before the Chief Election Commissioner in the first instance, acceptance of his nomination papers, again filing of petition by Wajihuddin Ahmed, its hearing, conclusion of arguments of the petitioner and the promulgation of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 by General Pervez Musharraf and the judgment in Tikka Iqbal Muhammad Khan’s case validating all his acts and empowering him to amend the Constitution, restoration of the Constitution on 15th December, 2007, holding of election on 18th February, 2008, formation of the Federal and the Provincial Governments by the Pakistan People’s Party and establishment of a complete democratic set up in the country.

13. The learned Attorney General stated that the acts and instruments of 3rd November 2007 of General Pervez Musharraf, which were obviously extra-constitutional, were not accepted, rather were objected to by all the democratic political parties except Pakistan Muslim League (Quaid-e-Azam), hereinafter referred to as “PML (Q)”, which had tabled a resolution in the National Assembly to endorse the said actions and got it passed. He unequivocally declared that neither he was supporting General Pervez Musharraf’s actions of 3rd November, 2007 nor he would defend him in the instant proceedings. He made the following arguments: -

(1) The present democratic government had never accepted extra-constitutional promulgation of Orders and/or any other repressive measures. The respect for judiciary had always been hallmark of its ideology and judicial process was resorted to by their leaders even in the most trying circumstances. The verdict in Tikka Iqbal Muhammad Khan’s case was affirmed in review by a 13 – member Bench of the Supreme Court whereby the acts of 3rd November 2007 were validated on the principles of state necessity and salus populi est suprema lex, which even otherwise ceased to exist on revival of the Constitution on 15th December 2007;

(2) Notwithstanding the aforesaid position, the present fourteen-member Bench may like to revisit the cases of Dosso, Begum Nusrat Bhutto, Mehmood Khan Achakzai, Zafar Ali Shah, Watan Party, Pakistan Lawyers Forum, and Tikka Iqbal Muhammad Khan, but such revisiting would be prospective as held in a chain of authorities, including Punjab Province v. Malik Khizar Hayat Khan Tiwana (PLD 1956 FC 200), etc;

(3) Much water having flown under the bridge in the interregnum, the de facto doctrine would call for judicial restraint because complete annulment would create chaos and confusion of great magnitude. In re: Reference by H.E. The Governor-General (PLD 1955 FC 435), certain Ordinances were saved for consideration of their validity by the Constituent Assembly. Reliance was also placed on Cooley’s Constitutional Limitations 8th Edition, Vol. 2, p. 137, Sabir Shah v. Federation of Pakistan (PLD 1994 SC 738), Managing Director, Sui Southern Gas Co. Ltd. v. Ghulam Abbas (PLD 2003 SC 724), etc;

(4) The objection with regard to increase of number of the Judges of the Supreme Court was neither part of the pleadings nor was any prayer made for annulment of section 13 of the Finance Act, 2008. The striking down of a legislative instrument could not be pleaded collaterally which was not permissible in law. The Money Bill even otherwise was simultaneously sent to the Senate of Pakistan and their recommendations solicited. Money bill as a matter of fact was unanimously passed in terms of Article 73 of the Constitution and was duly passed by the National Assembly after consideration of the Senate and assented to by the President of Pakistan. The Finance Act, 2008 was passed in line with the consistent and constant practice, inasmuch as laws were amended through the Money Bills so as to work out the financial implications and to budget the expenditure from the national exchequer. Hence, no exception could be taken to it.

14. On merits of Constitution Petition No. 09 of 2009, the learned Attorney General took the position that the respondents Nos. 3 and 4, being aggrieved of their non-confirmation could have filed a petition, but not the Sindh High Court Bar Association. The respondents Nos. 3 & 4 were recommended by the Chief Justice of the High Court alone, while the Governor, the Chief Justice of Pakistan, the Prime Minister and the President of Pakistan had not agreed. The opinion of the Chief Justice of Pakistan, being the pater familias, deserved primacy, which even otherwise was not justiciable in view of the law laid down in Supreme Court Bar Association v. Federation of Pakistan (PLD 2002 SC 939). He, however, stated that whatever view was taken by the apex Court, it would be acceptable to the Government.

15. Mr. Yousaf Khan Leghari, learned Advocate General Sindh, who appeared on behalf of the respondent No. 2 (Government of Sindh through Chief Secretary), stated that he had clear instructions not tosupport the actions of 3rd November 2007. The learned Advocate General made the following submissions on the main petition: -

(1) The petition ought to be decided by the High Court in the first instance so that the apex Court had the benefit of the views of that Court. In the alternative, it should be heard by a smaller Bench, so that the same could be reviewed by a larger Bench;

(2) A Bar Association was not competent to invoke jurisdiction of the apex Court under Article 184(3) of the Constitution asking for appointment of Judges from amongst its members, or for denotifying the appointments of the Judges;

(3) It was clear from notification dated 26.08.2008 that the respondents Nos. 3 & 4 were appointed as Additional Judges for a period of one year from the date of their oath for the period mentioned in the notification dated 15.09.2007 otherwise the notification dated 26.08.2008 would have mentioned period of one year. On the other hand, the notification recited “for the period mentioned in notification dated 15.09.2007″. Thus, the appointment made vide notification dated 26.08.2008 was for the remaining period of the year, which commenced from the date of their oath under the notification dated 15.09.2007, that is to say, it was only for 22 days; and

16. Having heard the learned counsel for the petitioners in both the petitions, the learned Attorney General for Pakistan and the learned Advocate General Sindh, and having perused the record of Constitution Petitions No. 59 of 2007 as also Constitution Petitions No. 73 of 2007 together with other connected petitions, which were repeatedly referred to by the learned counsel for the petitioners in the course of arguments, and also having gone through the case-law cited at the bar, we now proceed to determine the issues involved in the present petitions. The appointment of the respondents No.3 and 4 as Additional Judges of the Sindh High Court on 15.09.2007 for a period of one year, their reappointment vide notification dated 26.08.2008 for the period mentioned in the notification dated 15.09.2007, extension in their tenure for a period of six months vide notification dated 15.09.2008 and ultimately their non-confirmation were interjected by the actions of 3rd November, 2007 taken by General Pervez Musharraf, in consequence whereof not only the respondents Nos. 3 & 4 but a large number of other Judges of the Supreme Court and High Courts, including the Chief Justice of Pakistan were declared to have ceased to hold office. The next interjection was the judgment reported as Tikka Iqbal Muhammad Khan v. General Pervez Musharraf (PLD 2008 SC 178) whereby the actions of 3rd November, 2007 were validated and the power to amend the Constitution as provided in Article 2 of PCO No. 1 of 2007 to be exercised by the President was reaffirmed. Thus, it is imperative to determine the validity of the judgment in Tikka Iqbal Muhammad Khan’s case, side by side with the actions of 3rd November, 2007, which formed the foundation upon which the whole superstructure of the later actions rested.

17. Indeed, we have a chequered history of constitutional developments in Pakistan. Before dealing with the issues raised in these petitions, it is necessary to have a cursory glance at the major constitutional developments. The first major event in this behalf was the dissolution of the Constituent Assembly of Pakistan by Governor-General Ghulam Muhammad in 1954, which he did on the following grounds: -

“(1) The Governor-General having considered the political crisis with which the country is faced, has with deep 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 can no longer function;

(2) The ultimate authority vests in the people who will decide all issues including constitutional issues through their representatives to be elected afresh. Elections will be held as early as possible;

(3) Until such time as elections are held, the administration of the country will be carried on by a reconstituted Cabinet. He has called upon the Prime Minister to reform the Cabinet with a view to giving the country a vigorous and stable administration. The invitation has been accepted; and

(4) The security and stability of the country are of paramount importance. All personal, sectional and provincial interests must be subordinated to the supreme national interest.”

This act of the Governor-General was challenged by Moulvi Tamizuddin Khan, President of the Constituent Assembly, in the Chief Court of Sindh. The Chief Court of Sindh allowed the petition and declared the dissolution of the Assembly as illegal. It was held that the Acts of the Constituent Assembly when it did not function as the Federal Legislature did not require the Governor-General’s assent. The Federation of Pakistan challenged the judgment of the Sindh Chief Court before the Federal Court. The Federal Court reversed the judgment of the Sindh Chief Court on the ground that the assent of the Governor-General was necessary to the validity of all the laws and the amendments made in the Government of India Act, 1935. The Court held that since section 223-A of the Government of India Act under which the Chief Court of Sindh assumed jurisdiction to issue the writs did not receive assent of the Governor- General, it was not yet law, and that, therefore, the Chief Court had no jurisdiction to issue the writs. However, in his dissenting judgment, Cornelius J, (later CJ,) held that there was nothing in section 6(3) of the Indian Independence Act, or in the status of Pakistan as a Dominion which created the obligation that all laws made by the Constituent Assembly of a constitutional nature, required the assent of the Governor-General for their validity and operation. Thus, by majority, the dissolution of the assembly was upheld on a legal ground. As to the merits of the case, it was observed that it was wholly unnecessary to go into the other issues, and nothing said in the judgment was to be taken as an expression of opinion on anyone of those issues.

18. The next case of constitutional importance was Usif Patel v. Crown (PLD 1955 FC 387). The appellants in that case were proceeded against under the Sind Control of Goondas Act, 1952. They were declared to be goondas, directed to furnish heavy security, and for their failure to give security confined to prison. Against their detention in prison, the petitioners approached the Sind Chief Court by an application under section 491 of the Code of Criminal Procedure, 1898 alleging that their imprisonment was wrongful and prayed that they be set at liberty. Some of the petitioners moved revision petitions under section 17 of the aforesaid Act before the Chief Court.

19. By means of the Emergency Powers Ordinance, 1955 (Ordinance No. IX of 1955) issued under section 42 of the Government of India Act, 1935 the Governor-General sought to validate all those Acts by indicating his assent with retrospective operation. The ground urged before the Chief Court on which their imprisonment was alleged to be illegal was that the Governor’s Act under which action had been taken against them was invalid because it was passed by the Governor in exercise of the powers which were conferred on him by a Proclamation issued by the Governor-General under section 92A of the Government of India Act, 1935, which section had been inserted in the Government of India Act, 1935 by an Order of the Governor-General under section 9 of the Indian Independence Act, 1947. It was contended that this action of the Governor-General was ultra vires of the provisions of the aforesaid section

9. The contention was repelled by the Chief Court and the detentions of the

petitioners were held to be legal and their applications rejected.

20. The matter came up in appeal before the Federal Court where the questions requiring determination were as under: -

(1) Whether the Governor-General could by an Ordinance validate the Indian Independence (Amendment) Act, 1948; and

(2) Whether the Governor-General could give assent to constitutional legislation made by the Constituent Assembly with retrospective effect.

It was held that a Legislature could not validate an invalid law if it did not possess the power to legislate on the subject to which the invalid law related, the principle governing validation being that validation being itself legislation, one could not validate what one could not legislate upon. The essence of a federal legislature was that it was not a sovereign legislature, competent to make laws on all matters; in particular it could not, unless specifically empowered by the Constitution, legislate on matters which were assigned by the Constitution to other bodies. Nor was it competent to remove the limitations imposed by the Constitution on its legislative powers. The power of the legislature of the dominion for the purpose of making provision as to the constitution of the Dominion could, under subsection 1 of section 8 of the Indian Independence Act, 1947, be exercised only by the Constituent Assembly, and that, such power could not be exercised by that Assembly when it functioned as the Federal Legislature within the limits imposed upon it by the Government of India Act, 1935. The Governor-General could not, by an Ordinance, repeal any provision of the Indian Independence Act, 1947 or the Government of India Act, 1935 and assume unto himself all powers of legislation.

21. Since the Amendment Act of 1948 was not presented to the Governor-General for his assent, it did not have the effect of extending the date from 31st March, 1948 to 31st March, 1949 and that since section 92A was added to the Government of India Act, 1935 after 31st March, 1948, it never became a valid provision of that Act. Thus, the Governor-General had no authority to act under section 92A and the Governor derived no power to legislate from a Proclamation under that section. Accordingly, the Sind Goondas Act was ultra vires and no action under it could be taken against the appellants. That being so, it was argued, the detention of the appellants in jail was illegal.

22. The Federal Court held that the Acts mentioned in the Schedule to the aforesaid Ordinance could not be validated by the Governor-General under section 42 of the Government of India Act, 1935, nor could retrospective effect be given to them. A noteworthy fact was that the Constituent Assembly, having already been dissolved by the Governor-General by a Proclamation on 24th October, 1954 had ceased to function and no legislature competent to validate these Acts was in existence. In conclusion, the Court observed as under: -

“It might have been expected that, conformably with the attitude taken before us by responsible counsel for the Crown the first concern of the Government would have been to bring into existence another representative body to exercise the powers of the Constituent Assembly so that all invalid legislation could have been immediately validated by the new body. Such a course would have been consistent with constitutional practice in relation to such a situation as has arisen. Events, however, show that other counsels have since prevailed. The Ordinance contains no reference to elections, and all that the learned Advocate-General can say is that they are intended to be held.”

23. Next case of significant relevance was the Reference by H. E. The Governor-General reported as PLD 1955 FC 435. The Federal Court having held in Maulvi Tamizuddin Khan’s case that assent of the Governor- General was necessary to all laws passed by the Constituent Assembly, the Governor-General sought to validate such Acts by indicating his assent, with retrospective operation, by means of the Emergency Powers Ordinance, 1955 (Ordinance No. IX of 1955) issued under section 42 of the Government of India Act, 1935. The Federal Court in Usif Patel’s case, however, declared that the Acts mentioned in the Schedule to that Ordinance could not be validated under section 42 of the Government of India Act, 1935, nor could retrospective effect be given to them. A noteworthy fact was that the Constituent Assembly had ceased to function, having already been dissolved by the Governor-General by a Proclamation on 24th October 1954, and no legislature competent to validate these Acts was in existence.

24. The Governor-General made a Reference to the Federal Court under section 213 of the Government of India Act, 1935 asking for the Court’s opinion on the question whether there was any provision in the Constitution or any rule of law applicable to the situation by which the Governor-General could, by Order or otherwise, declare that all orders made, decisions taken, and other acts done under those laws, should be valid and enforceable and those laws, which could not without danger to the State be removed from the existing legal system, should be treated as part of the law of the land until the question of their validation was determined by the new Constituent Convention.

25. The answer returned by the Federal Court (by majority) was that in the situation presented by the Reference, the Governor-General had, during the interim period, the power under the common law of civil or state necessity of retrospectively validating the laws listed in the Schedule to the Emergency Powers Ordinance, 1955, and all those laws, until the question of their validation was decided upon by the Constituent Assembly, were, during the aforesaid period, valid and enforceable in the same way as if they had been valid from the date on which they purported to come into force.

26. In Dosso’s case, the respondents in one of the appeals were tried by a Jirga (Council of Elders) under the provisions of the Frontier Crimes Regulation, 1901 (FCR) and convicted and sentenced under different provisions of the Pakistan Penal Code, 1860. They filed applications before the High Court for a writ of habeas corpus and certiorari on the ground that the provisions of the FCR enabling the executive authorities to refer a criminal case to a Council of Elders were void under Article 4 of the Constitution of the Islamic Republic of Pakistan, 1956. The High Court accepted the contention and held that the provisions of FCR could be enforced under subsection (4) of section 1 ibid only against Pathans and Baluchis and against such other class of persons the local government may notify and as this was not a reasonable classification, those provisions were ultra vires of Article 5 of the Constitution. The convictions and sentences were set aside, and the respondents were ordered to be treated as under trial prisoners, it being left to the government to refer their cases to a court of law. On appeals filed by the State before the Federal Court against the impugned orders of the High Court, the validity of the exercise of power by the High Court was adjudged in the context of the actions of 7th October, 1958. What happened was that by Proclamation of that date, the President of Pakistan annulled the Constitution of 1956, dismissed the Central Cabinet and the Provincial Cabinets and dissolved the National Assembly and both the Provincial Assemblies. Simultaneously, martial law was declared throughout the country and Commander-in-Chief of the Pakistan Army was appointed as the Chief Martial Law Administrator. Three days later, the President promulgated the Laws (Continuance in Force) Order, 1958, the general effect of which was the validation of laws other than the late Constitution, that were in force before Proclamation, and restoration of the jurisdiction of all Courts including the Supreme Court and High Courts. The Order contained the further direction that the country, thereafter to be known as Pakistan and not the Islamic Republic of Pakistan, should be governed as nearly as may be in accordance with the late Constitution.

27. Under Clause (7) of Article 2 of the Laws (Continuance in Force) Order, 1958, all writ petitions pending in High Courts seeking enforcement of fundamental rights stood abated. The Court held that if the Constitution was destroyed by a successful revolution, the validity of the prevalent laws depended upon the will of the new law-creating organ. Therefore, if the new legal order preserved any one or more laws of the old legal order, then a writ would lie for violation of the same. As regards pending applications for writs or writs already issued but which were either sub judice before the Supreme Court or required enforcement, the Court in the light of the Laws (Continuance in Force) Order, 1958 held that excepting the writs issued by the Supreme Court after Proclamation and before the promulgation of the Order, no writ or order for a writ issued or made after Proclamation shall have any legal effect unless the writ was issued on the ground that anyone or more of the laws mentioned in Article 4 or any other right kept alive by the new Order had been contravened.

28. The Supreme Court, on the basis of the theory propounded by Hans Kelsen, accorded legitimacy to the assumption of power by General Ayub Khan holding that coup d’état was a legitimate means to bring about change in the government and particularly so when the new order brought about by the change had been accepted by the people. It was held that where a Constitution and the national legal order under it was disrupted by an abrupt political change not within the contemplation of the Constitution, then such a change would be a revolution and its legal effect would not only be the destruction of the Constitution but also the validity of the national legal order, irrespective of how or by whom such a change was brought about. In the result, in accordance with the judgments of the majority, the proceedings for writs in each of these cases were held to have abated. The result was that the directions made and the writs issued by the High Court were set aside.

29. According to the facts of Asma Jilani’s case, President Ayub Khan vide his letter of 25th March, 1969 addressed to General Yahya Khan called upon him to discharge his legal and constitutional responsibility not only to defend the country against external aggression but also to save it from internal disorder and chaos. But, the Commander-in-Chief on the very same day, on his own proclaimed martial law throughout the length and breadth of Pakistan and assumed the powers of the Chief Martial Law Administrator. He abrogated the Constitution, dissolved the National and Provincial Assemblies and declared that all persons holding office as President, members of the President’s Council, Ministers, Governors of Provinces and members of their Council of Ministers shall cease to hold office with immediate effect. Existing laws and Courts were, however, preserved with the proviso that no writ or other order shall be issued against the Chief Martial Law Administrator or any person exercising powers or jurisdiction under the authority of the Chief Martial Law Administrator.

30. Ms Asma Jilani filed a petition before the High Court under Article 98(2)(b)(i) of the Constitution of 1962 to question the validity of the detention of her father, Malik Ghulam Jilani, who was arrested at Karachi under the Defence of Pakistan Rules, 1971. The Government raised a preliminary objection that the High Court could not assume jurisdiction in the matter because of the bar contained in the jurisdiction of Courts (Removal of Doubts) Order, 1969 promulgated by the last martial law regime. The High Court relying on Dosso’s case held that the Order of 1969 was a valid and binding law and that, as such, it had no jurisdiction in the matter by reason of the provisions of clause (2) of the said Order.

31. On a petition filed before this Court, leave was granted to consider: (1) as to whether the doctrine enunciated in Dosso’s case was correct, (2) even if correct, whether the doctrine applied to the facts and circumstances in which FM Ayub Khan transferred power to General Yahya Khan and (3) if the source of power assumed by General Yahya Khan was illegal and unconstitutional, then whether all legislative and executive acts done by him including the imposition of martial law and the promulgation of Martial law Regulations and Orders were illegal. It was held that the doctrine of legal positivism founded on Hans Kelsen’s theory and recognized in Dosso’s case was inapplicable, General Yahya Khan was termed as a usurper and all actions taken by him except those in the welfare of the people were declared to be illegal. The principle laid down in Dosso’s case was held to be wholly unsustainable and could not be treated as good law either on the principle of stare decisis or otherwise. Proclamation of martial law did not by itself involve abrogation of civil law and functioning of civil authorities and certainly did not vest the Commander of the Armed Forces with the power of abrogating the fundamental law of the country.

32. It was held that 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 favoured totalitarianism.

33. The seizing of power by Yahya Khan having been declared by the Supreme Court to be entirely illegal, question arose whether everything (legislative measures and other acts) done during his illegal regime, whether good or bad, could be treated in the same manner and branded as illegal and of no effect. It was held that grave responsibility, in such circumstances, rested upon Courts not to do anything which might make confusion worse confounded or create a greater state of chaos if that could possibly be avoided consistently with their duty to decide in accordance with law. Acts done by those actually in control without lawful authority may be recognized as valid and acted upon by the Courts within certain limitations, on principles of necessity. It was observed that a usurper would have done things both good and bad, and he would have during the period of usurpation also made many Regulations or taken actions which would be valid if they emanated from a lawful government and which would have, in the course of time, affected the enforcement of contracts, the celebration of marriages, the settlement of estates, the transfer of property and similar subjects. All these could not be invalidated

and the country landed once again into confusion.

34. It was, therefore, held that recourse had 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 one had to disagree with the view that it was a doctrine for validating the illegal acts of usurpers. Rather, the doctrine could be invoked in aid only after the Court came to the conclusion that the acts of the usurpers were illegal and illegitimate. It was only then that the question would arise as to how many of his acts, legislative or otherwise, should be condoned or maintained, notwithstanding their illegality in the wider public interest. This principle would be called a principle of condonation and not legitimization. Applying this test the Court condoned -

(1) all transactions which were past and closed, for, no useful purpose could be served by re-opening them,

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

(3) all acts which tended to advance or promote the good of the people, and

(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 the objectives in the Objectives Resolution.

It was held that the Court 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. The Court would not also condone anything which seriously impaired the rights of the citizens except in so far as they may be designed to advance the social welfare and national solidarity.

35. In Begum Nusrat Bhutto’s case, the facts were that on 5th July 1977 General Ziaul Haq, the then Chief of Army Staff imposed martial law and held in abeyance the Constitution of 1973. Prime Minister Zulfikar Ali Bhutto and other leaders of the Pakistan People’s Party were detained under Martial Law Order No. 12 of 1977. Begum Nusrat Bhutto filed a petition under Article 184(3) of the Constitution against the detention of her husband and others. The Court declared the imposition of martial law as valid on the doctrine of state necessity.

36. Explaining the circumstances for Army’s intervention, General Ziaul Haq, in his address of 5th July 1977 said: -

“The Army take-over is never a pleasant act because the Armed Forces of Pakistan genuinely want that the administration of the country should remain in the hands of the representatives of the people who are its real masters. The people exercise this right through their elected representatives who are chosen in every democratic country through periodic elections. The elections were held in our beloved homeland on March 7 last. The election results, however, were rejected by one of the contending parties, namely, the Pakistan National Alliance. They alleged that the elections had been rigged on a large scale and demanded fresh elections. To press their demand for re-elections, they launched a movement which assumed such dimensions that people even started saying that democracy was not workable in Pakistan. But, I genuinely feel that the survival of this country lies in democracy and democracy alone. It is mainly due to this belief that the Armed Forces resisted the temptation to take over during the recent provocative circumstances in spite of diverse massive political pressures. The Armed Forces have always desired and tried for the political solution to political problems. That is why the Armed Forces stressed on the then Government that they should reach a compromise with their political rivals without any loss of time. The Government needed time to hold these talks. The Armed Forces bought them this valuable period of time by maintaining law and order in the country. The Armed Forces were subjected to criticism from certain quarters for their role in aid of the civil administration, but we tolerated this criticism and ridicules in the hope that it was a passing phase. We hoped that when this climate of agitational frenzy comes to an end, the nation would be able to appreciate the correct and constitutional role of the Armed Forces and all fears would be allayed. I have just given you a very broad-outline picture of the situation obtaining in the country. It must be quite clear to you now that when the political leaders failed to steer the country out of a crisis, it is an inexcusable sin for the Armed Forces to sit as silent spectators. It is primarily for this reason that the Army, perforce, had to intervene to save the country. I would like to point out here that I saw no prospects of a compromise between the People’s Party and the P.N.A. because of their mutual distrust and lack of faith. It was feared that the failure of the P.N.A. and P.P.P. to reach a compromise would throw the country into chaos and the country would thus be plunged into a more serious crisis. This risk could not be taken in view of the larger interests of the country. The Army had, therefore, to act as a result of which the Government of Mr. Bhutto had ceased to exist; martial law has been imposed throughout the country; the National and Provincial Assemblies have been dissolved and the Provincial Governors and Ministers have been removed.” The Court, in the course of the judgment, took 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 the 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 deadlock between Mr. Z.A. Bhutto and the Pakistan National Alliance leadership the Punjab Government sanctioned the distribution of fire-arms licences 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. On consideration of the aforesaid facts and circumstances, the Court held as under: -

“In the light of these facts, it becomes clear, therefore, that from the 7th of March 1977 onward, Mr. Z. A. Bhutto’s constitutional and moral authority to rule the country as Prime Minister stood seriously eroded. His Government was finding it more and more difficult to maintain law and order, to run the orderly ordinary administration of the country, to keep open educational institutions and to ensure normal economic activity. These conclusions find support from the declaration of loyalty to Mr. Z. A. Bhutto’s Government made by the Chairman of the Joint Chiefs of Staff and the Chiefs of Staff of the Pakistan Army, Pakistan Navy and Pakistan Air Force on the 28th of April 1977. There has been some controversy between the parties as to whether Mr. Bhutto had requested the Service Chiefs for such a declaration, or it was voluntarily made by them on their own initiative, but the fact remains that the situation had deteriorated to such an extent that either Mr. Bhutto or the Service Chiefs themselves felt that a declaration of loyalty to Mr. Bhutto’s Government was needed at that critical juncture so as to boost up his authority and to help in the restoration of law and order and a return to normal conditions. It is again a fact that even this declaration did no have any visible impact on the momentum of the agitation launched by the Opposition which continued unabated. The Constitutional authority of not only the Prime Minister but also of the other Federal Ministers, as well as of the Provincial Governments was being repudiated on a large scale throughout the country. The representative character of the National and the Provincial Assemblies was also not being accepted by the people at large. There was thus a serious political crisis in the country leading to a break-down of the constitutional machinery in so far as the executive and the legislative organs of the State were concerned. A situation had, therefore, arisen for which the Constitution provided no solution. It was in these circumstances that the Armed Forces of Pakistan, headed by the Chief of Staff of the Pakistan Army, General Mohammad Ziaul Haq intervened 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. It was undoubtedly an extra-constitutional step, but obviously dictated by the highest considerations of State necessity and welfare of the people. It was precisely for this reason that the declaration of Martial Law on the morning of the 5th of July 1977 was spontaneously welcomed by almost all sections of the population which heaved a sigh of relief after having suffered extreme hardships during the unprecedented disturbances spread over a period of nearly four months.”

The petition was decided as under: -

“As the present petition under clause (3) of Article 184 of the Constitution is intended for the enforcement of certain Fundamental Rights of the detenus, it is not maintainable for the reason that the Fundamental Rights stand validly suspended since the 5th of July 1977 under clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977. On this view of the matter, it is not necessary for this Court to examine the contention that the Martial Law Order No. 12 under which detentions have been ordered is not valid, or that the detentions are mala fide.

The final position as emerging from this somewhat lengthy discussion of the various questions arising in this case may briefly be 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 breakdown 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 recognized 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.

“As a result, the present petition fails and is hereby dismissed. However, it will be for the detenus, if so advised, to move the High Courts concerned under Article 199 of the Constitution. It was also observed as under: -

“While the Court does not consider it appropriate to issue any directions, as suggested by Mr. Yahya Bakhtiar, as to a definite time-table for the holding of elections, the Court would like to state in clear terms that it has found it possible to validate the extra-Constitutional action of the Chief Martial Law Administrator not only for the reason that he stepped in to save the country at a time of grave national crisis and constitutional breakdown, but also because of the solemn pledge given by him that the period of constitutional deviation shall be of as short a duration as possible, and that during this period all his energies shall be directed towards creating conditions conducive to the holding of free and fair elections, leading to the restoration of democratic rule in accordance with the dictates of the Constitution. The Court, therefore, expects the Chief Martial Law Administrator to redeem this pledge, which must be construed in the nature of a mandate from the people of Pakistan, who have, by and large, willingly accepted his administration as the interim Government of Pakistan.”

37. The facts in Syed Zafar Ali Shah’s case were that on 12th October, 1999 Prime Minister Muhammad Nawaz Sharif removed General Pervez Musharraf, Chief of Army Staff from his office, who was out of country at the relevant time and appointed Lt. General Ziauddin as the Chief of Army Staff. General Pervez Musharraf, on his arrival in Pakistan the same evening, seized power, disbanded the government and put the Prime Minister under arrest on grounds of interfering in the affairs of the Armed Forces, politicising the Army, destabilizing it and trying to create dissension within its ranks. He briefly addressed the nation on radio and television at 3.00 a.m. on 13th October, 1999. The text of the Chief of Army Staff’s speech read as under: -

“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 PIA 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, Insha’Allah, 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.”

38. On 14th October, 1999, he issued Proclamation of Emergency effective from 12th October, 1999 and held the Constitution in abeyance and also issued Provisional Constitution Order, 1999. On 25th January, 2000, he issued Oath of Office (Judges) Order, 2000 in pursuance whereof the Chief Justice of Pakistan and certain other Judges of the Supreme Court and High Courts were removed from office. Syed Zafar Ali Shah, a member of the purportedly dissolved National Assembly and few others filed Constitution Petitions before this Court under Article 184(3) of the Constitution challenging the validity of the aforesaid actions of General Pervez Musharraf. The petitions came up for hearing before the Full Court presided over by Saiduzzaman Siddiqui, CJ, and notices were issued to the respondents and the Attorney General for Pakistan. However, before the petitions could be taken up, on 26th January 2000, General Pervez Musharraf issued the Oath Order, 2000 which required the Judges of the superior Courts to take a fresh oath under PCO No. 1 of 1999 in terms of the said Oath Order. The Chief Justice of Pakistan and five other Judges of the Supreme Court did not make the said oath. Irshad Hasan Khan, J, was appointed as Chief Justice of Pakistan and oath of office was administered to him along with other Judges by the President of Pakistan, Mr. Muhammad Rafiq Tarar under PCO No. 1 of 1999 and Oath Order, 2000 on 26th January 2000. The petition of Syed Zafar Ali Shah was heard by a 12-member Bench of the reconstituted Supreme Court with Irshad Hasan Khan as the Chief Justice. By the Short Order dated 12.05.2000, the action of 12th October, 1999 was 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. General Pervez Musharraf was held entitled to perform all acts or legislative measures, which were in accordance with, or could have been made under the Constitution, including the power to amend it and to perform all such measures as would establish or lead to the establishment of his declared objectives. As to the power to amend the Constitution, it was held that constitutional amendments could be resorted to only if the Constitution failed to provide a solution for attainment of his declared objectives, but 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; and last but not the least, three years’ period from the date of Army takeover, viz., 12th October, 1999 was allowed to him for achieving his declared objectives. Some of the findings of the Court are reproduced below: -

“284. We, therefore, declare that 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 Judges 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.”

“TAKING OF OATH UNDER PCO NO. 1 OF 1999

Fresh oath under Oath of Office (Judges) Order No. 1 of 2000, does not in any way preclude the Judges of this Court from examining the questions raised in the above petitions, 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.”

“INTERVENTION BY ARMED FORCES

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 processes 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 running 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 of 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 the Constitution, which resulted into a slanderous campaign against the Judiciary launched by the former Prime 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 1998 SC 388, that tapping of telephones and eavesdropping 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 this 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 in 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 Constitution offered no solution to the present crisis.”

“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. We are firmly committed to the governance of the country by the people’s representatives and we reiterate 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. It has already been emphasized in the Short Order that prolonged involvement of the Army in civil affairs ran 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.”

“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 recognized 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 oath under the Oath of Office (Judges) Order No. 1 of 2000, does not in any manner derogate from this position, as the Courts had been originally established under the 1973 Constitution, and have continued in their functions in spite of the Proclamation of Emergency and PCO No. 1 of 1999 and other legislative instruments issued by the Chief Executive from time to time;

“6(i) That General Pervez Musharraf, Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff through Proclamation of Emergency, dated the 14th October, 1999, followed by PCO No. 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.

“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, Chief of the Army Staff and 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 takeover 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 a general election 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.” The review petition against the above judgment was filed by Mr. Wasim Sajjad, but the same was dismissed vide judgment reported as Wasim Sajjad v. Federation of Pakistan (PLD 2001 SC 233).

39. The Supreme Court, in this case, allowed General Pervez Musharraf a period of three years for the purpose of achieving his declared objectives and for that limited purpose, in the interest of the State necessity and for the welfare of the people, held him entitled to perform the acts mentioned in Para 6(i) of the Short Order, including the power to amend the Constitution to achieve his declared objectives. Accordingly, the power to amend the Constitution, as declared in the aforesaid terms, could only be resorted to by General Pervez Musharraf if the Constitution failed to provide a solution for attainment of his declared objectives. It was a mere declaration of an already existing fact having no bearing at all on the amending power of Majlis-e-Shoora (Parliament). By the Proclamation of Emergency of 14th October, 1999 and the PCO No. 1 of 1999 General Pervez Musharraf had already purportedly assumed powers whereby he held the Constitution in abeyance, though continued the President in office, but suspended (later dissolved) the Senate, National Assembly and the Provincial Assemblies along with Chairman/Deputy Chairman of the Senate and Speakers of the Assemblies, and declared that the Prime Minister, Chief Minister, Federal and the Provincial Ministers, State Ministers, Advisors, etc. ceased to hold office and he himself assumed the office of Chief Executive of Pakistan, all in derogation and in violation of, the provisions of the Constitution.

40. General Pervez Musharraf, while acting as Chief Executive of Pakistan, in which capacity he was to perform certain legislative and administrative acts, as referred to above, by Provisional Constitution (Amendment) Order, 2000 (Chief Executive’s Order No. 10 of 2000 dated 14.11.2000, amended PCO No. 1 of 1999, so as to provide that the words “Prime Minister” and the words “Chief Minister” wherever occurring, shall be deemed to be substituted by the words “Chief Executive of the Islamic Republic of Pakistan” and “Governor” respectively.

41. In June 2001, he promulgated the President’s Succession Order 2001 (Chief Executive’s Order No. III of 2001) on 20th June, 2001 in pursuance whereof Mr. Muhammad Rafiq Tarar, President of Pakistan was ousted from office and on 21st June, 2001 he himself assumed that office. Nothing has come on record to indicate that President Tarar was, in any manner, hampering the exercise of power by General Pervez Musharraf as the Chief Executive in the attainment of his declared objectives – he already having administered oath of office to Irshad Hasan Khan, J, as the Chief Justice of Pakistan and other Judges of the Supreme Court under PCO No. 1 of 2000 and Oath Order 2000, which had been issued in derogation of the provisions of the Constitution. President Tarar, like the Judges of the Supreme Court of that time, had two options, either to tender resignation, or to accept the situation, as it was, in an attempt to save what institutional values remained to be saved, and he too opted for the latter. But unfortunately, the tide of time was not with him so as to enable him to play any role in bringing the country back on the democratic path. He was unceremoniously made to quit the office of President against the provisions of the Constitution. It too, was one of the many coups General Pervez Musharraf made since the 12th October, 1999. This was not the first time that a President had met such a fate. In 1958 President Iskandar Mirza abrogated the Constitution, declared martial law in the country and appointed General Ayub Khan as the Chief Martial Law Administrator. The latter did not take too long to oust President Iskandar Mirza from the Presidency and to assume unto himself the office of President also. In 1969, Ayub Khan by his letter of 25th March asked Commander-in-Chief of the Army General Yahya Khan to play his constitutional and legal duty of bringing normalcy in the agitation stricken country, but he imposed martial law in the country and soon thereafter assumed the office of President. On 5th July, 1977 General Ziaul Haq continued to accept President Mr. Fazal Elahi Chaudhry in office and assumed the office of President on the completion of the latter’s term in 1978. However, it is noteworthy that though President Tarar continued to function under the extra-constitutional set up, but when he was made to quit the Presidency earlier than the completion of his term by means of the President’s Succession Order, 2001, he did not resign from his office. Thus, constitutionally and legally the office of President had not fallen vacant so as to enable anyone else to assume the same. At any rate, General Pervez Musharraf, having captured the office of President, as mentioned earlier, by means of Chief Executive’s Order No. XII of 2002 dated 30th April, 2002 next proceeded to hold Referendum asking for a vote on his continuation in the office of President for next five years so as to achieve his “declared objectives”. We would not like to make any comments on the results of the Referendum, except that it was a replica of the Referendum held in 1985 by General Ziaul Haq for his continuation as President of Pakistan for a term of five years and, therefore, the overwhelming success of General Pervez Musharraf too, was a foregone conclusion. He was returned with more than 99 % of the polled votes.

42. Nearing the completion of the three years’ period, he took in hand the work of amendment of the Constitution at a large scale. On 21st August, 2002, he issued the LFO (Chief Executive’s Order No. 24 of 2002 whereby he made amendments in Articles 17, 41, 51, 58, 59, 62, 63, 63A, 70, 71 (new Article), 73, 75, 106, 112, 140A (new Article), 152A (new Article), 199, 203C, 209, 218, 224, 243, 260, 268, 270AA (new Article), 270B, 270C (new Article) and the Sixth Schedule to the Constitution wherein new entries 25 to 35 were made. By the Legal Framework (Amendment) Order, 2002 (Chief Executive’s Order No. 29 of 2002 dated 9th October, 2002), he made amendments in Articles 51, 63, 106, 179, 193 and 195 of the Constitution. By the Legal Framework (Second Amendment) Order, 2002 (Chief Executive’s Order No. 32 of 2002 dated 26th October, 2002) he amended Articles 59 and 152 of the Constitution.

43. Article 2 of the LFO provided the manner of convening of first meetings of the National Assembly, Senate and the Provincial Assemblies. Under Article 3 of the LFO, the Constitution was amended to the extent and in the manner specified in column 3 of the Schedule to the LFO. Article 4 provided that the Constitution shall stand revived on such day as the Chief Executive may, by notification in the Official Gazette, appoint and different days may be so appointed in respect of different provisions. Article 5 provided that the provisions of LFO shall have effect notwithstanding anything contained in the Constitution or any other Order or law for the time being in force. The LFO was challenged before the Supreme Court through a Constitution Petition filed by Watan Party. The petition was dismissed vide judgment dated 7th October, 2002 on the ground that the petitioner had no locus standi to file the same. It was further held that the elected Parliament and not the Supreme Court was the appropriate forum to consider all these amendments.

44. Elections to the National Assembly and the Provincial Assemblies were held on 10th October, 2002, i.e. within the timeframe given by the Supreme Court in Zafar Ali Shah’s case. By notification dated 15th November, 2002 certain Articles of the Constitution were revived, and on 16th November 2002 General Pervez Musharraf took oath of the office of President. On the same date, the members of the National Assembly were also sworn in. Vide notification dated 20th November, 2002 remaining Articles of the Constitution were revived, to come into effect on different dates mentioned in the notification. The members of the Senate took oath on 23rd November, 2002 while the four Chief Ministers were sworn in on 12th March, 2003.

45. Under the judgment in Zafar Ali Shah’s case, General Pervez Musharraf was allowed a period of three years to achieve his declared objectives, hold elections before the end of the said period and handover power to the civilians. Further, he would resort to amending the Constitution in case the Constitution failed to provide a solution of any problem hampering the achievement of his declared objectives. However, from 12th October, 1999 until 20th August, 2002 he made, so to say, no amendment in the Constitution and remained content with the available constitutional and legal apparatus. However, nearing the close of his three years period, he took in hand the work of amendment of the Constitution, obviously not for achieving his declared objectives – the constitutional deviation made by him having been validated for a transitional period – but to go ahead with his plans of his continuation in power for an indefinite period of time, because if it were not so, he would have made amendments in the Constitution as and when needed in the execution of his functions. Earlier, General Ziaul Haq, at the time of imposition of martial law on 5th July, 1977, too had come up with a similar stance of achieving his declared objectives, holding of elections within 90 days and restoring of democracy in the country. In his speech of that day, he had stated -

“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 organize free and fair elections which would be held 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.”

46. The amendments made in the Constitution by General Pervez Musharraf by means of the LFO remained a bone of contention among the political parties on the floors of the Houses of Parliament for a long period of more than a year. Ultimately, as a sequel to the accord between the PML (Q) and MMA, the Seventeenth Amendment to the Constitution was passed on 31st March, 2003 whereby certain further amendments were made in the Constitution. As quoted in S.M. Zafar’s book “Dialogue on the political chess board”, first edition 2004, p. 276, a salient feature of the accord was that Article 63(1)(d) of the Constitution would be effective from 31st December, 2004, which meant that General Pervez Musharraf would be able to retain the office of Chief of Army Staff until the said date. Article 270AA, as inserted under the Seventeenth Amendment, read as under: -

Validation and affirmation of laws etc. Article 270AA.-(1) The Proclamation of Emergency of the fourteenth day of October, 1999, all President’s Orders, Ordinances, Chief Executive’s Orders, including the Provisional Constitution Order No.1 of 1999, the Oath of Office (Judges) Order, 2000 (No.1 of 2000), Chief Executive’s Order No.12 of 2002, the amendments made in the Constitution through the Legal Framework Order, 2002 (Chief Executive’s Orders No.24 of 2002), the Legal Framework (Amendment) Order, 2002 (Chief Executive’s Order No.29 of 2002), the Legal Framework (Second Amendment) Order, 2002 (Chief Executive’s Order No.32 of 2002) and all other laws made between the twelfth day of October, one thousand nine hundred and ninety-nine and the date on which this Article comes into force (both days inclusive), having been validly made by the competent authority, are hereby further affirmed, adopted and declared to have been validly made and notwithstanding anything contained in the Constitution shall not be called in question in any Court or forum on any ground whatsoever.

(2) All orders made, proceedings taken, appointments made including secondments and deputations and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, between the twelfth day of October, one thousand nine hundred and ninety-nine, and the date on Which this Article comes into force (both days inclusive), in exercise of the powers derived from any Proclamation, President’s Orders, Ordinances, Chief Executive’s Orders, enactments, including amendments in the Constitution, notifications, rules, orders, byelaws, or in execution of or in compliance with any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court or forum on any ground whatsoever.

(3) All Proclamations, President’s Orders, Ordinances, Chief Executive’s Orders, laws, regulations, enactments, including amendments in the Constitution, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by the competent authority.

Explanation. – In this clause, “competent authority” means, -

(a) in respect of President’s Orders, Ordinances, Chief Executive’s Orders and enactments, including amendments in the Constitution, the appropriate Legislature; and

(b) in respect of notifications, rules, orders and bye- laws, the authority in which the power to make, alter, repeal or amend the same vests under the law.

(4) No suit, prosecution or other legal proceedings, including writ petitions, shall lie in any Court or forum against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.

(5) For the purposes of clauses (1), (2) and (4), all orders made, proceedings taken, appointments made, including secondments and deputations, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby.”

47. This brings us to the latest case in a series of Proclamations of Emergencies promulgated in the country from time to time. It was the case of Tikka Iqbal Muhammad Khan. On 3rd November 2007, General Pervez Musharraf, the then President of Pakistan and also the Chief of Army Staff at that time, promulgated three instruments, namely, Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007. The first two instruments were issued by him in his capacity as the Chief of Army Staff while the third was issued by him as the President of Pakistan, but in pursuance of the first two instruments, namely, Proclamation of Emergency and PCO No. 1 of 2007. By Proclamation of Emergency, General Pervez Musharraf Chief of Army Staff purported to impose emergency throughout Pakistan and held in abeyance the Constitution of 1973 on the following grounds: -

(1) There, is visible ascendancy in the activities of extremists and incidents of terrorist attacks, including suicide bombings, IED explosions, rocket firing and bomb explosions and the banding together of some militant groups have taken such activities to an unprecedented level of violent intensity posing a grave threat to the life and property of the citizens of Pakistan;

(2) There has also been a spate of attacks on State infrastructure and on law enforcement agencies;

(3) Some members of the judiciary are working at cross purposes with the executive and legislature in the fight against terrorism and extremism thereby weakening the Government and the nation’s resolve and diluting the efficacy of its actions to control this menace;

(4) There has been increasing interference by some members of the judiciary in government policy, adversely affecting economic growth, in particular;

(5) Constant interference in executive functions, including but not limited to the control of terrorist activity, economic policy, price controls, downsizing of corporations and urban planning, has weakened the writ of the government; the police force has been completely demoralized and is fast losing its efficacy to fight terrorism and Intelligence Agencies have been thwarted in their activities and prevented from pursuing terrorists;

(6) Some hard core militants, extremists, terrorists and suicide bombers, who were arrested and being investigated were ordered to be released. The persons so released have subsequently been involved in heinous terrorist activities, resulting in loss of human life and property. Militants across the country have, thus, been encouraged while law enforcement agencies subdued;

(7) Some judges by overstepping the limits of judicial authority have taken over the executive and legislative functions;

(8) The Government is committed to the independence of the judiciary and the rule of law and holds the superior judiciary in high esteem, it is nonetheless of paramount importance that the honourable Judges confine the scope of their activity to the judicial function and not assume charge of administration;

(9) An important constitutional institution, the Supreme Judicial Council, has been made entirely irrelevant and non est by a recent order and judges have, thus, made themselves immune from inquiry into their conduct and put themselves beyond accountability;

(10) The humiliating treatment meted to government officials by some members of the judiciary on a routine basis during court proceedings has demoralized the civil bureaucracy and senior government functionaries, to avoid being harassed, prefer inaction;

(11) The law and order situation in the country as well as the economy have been adversely affected and trichotomy of powers eroded; and

(12) A situation has thus arisen where the government of the country cannot be carried on in accordance with the Constitution and as the Constitution provides no solution for this situation, there is no way out except through emergent and extraordinary measures.

The second instrument issued by General Pervez Musharraf, namely, PCO No. 1 of 2007 provided as under: -

(i) Notwithstanding the abeyance of the Constitution, Pakistan would, subject to PCO No. 1 of 2007 and any other Order made by the President, be governed, as nearly as may be, in accordance with the Constitution;

(ii) The President may, from time to time, by Order amend the Constitution, as is deemed expedient;

(iii) The Fundamental Rights under Articles 9, 10, 15, 16, 17, 19 and 25 shall remain suspended;

(iv) Notwithstanding anything contained in the Proclamation of the 3rd day of November, 2007, or this Order or any other law for the time being in force, all provisions of the Constitution of the Islamic Republic of Pakistan embodying Islamic Injunctions including Articles 2, 2A, 31, 203A to 203J, 227 to 231 and 260(3)(a) and (b) shall continue to be in force;

(v) Subject to clause (1) above and the Oath Order, 2007, all courts in existence immediately before the commencement of this Order shall continue to function and to exercise their respective powers and jurisdiction;

(vi) The Supreme Court or a High Court and any other court shall not have the power to make any order against the President or the Prime Minister or any person exercising powers or jurisdiction under their authority;

(vii) All persons who immediately before the commencement of this Order were in office as judges of the Supreme Court, the Federal Shariat Court or a High Court, shall be governed by and be subject to Oath Order, 2007, and such further Orders as the President may pass;

(viii) Subject to clause (1) above, the Majlis-e-Shoora (Parliament) and the Provincial Assemblies shall continue to function;

(ix) All persons who, immediately before the commencement of this Order, were holding any service, post or office in connection with the affairs of the Federation or of a Province, including an All Pakistan Service, service in the Armed Forces and any other service declared to be a Service of Pakistan by or under Act of Majlis-e-Shoora (Parliament) or of a Provincial Assembly, or Chief Election Commissioner or Auditor General shall continue in the said service on the same terms and conditions and shall enjoy the same privileges, if any, unless these are changed under Orders of the President;

(x) No court, including the Supreme Court, the Federal Shariat Court, and the High Courts, and any tribunal or other authority, shall call or permit to be called in question this Order, the Proclamation of Emergency of the 3rd day of November, 2007, Oath Order, 2007 or any Order made in pursuance thereof;

(xi) No judgment, decree, writ, order or process whatsoever shall be made or issued by any court or tribunal against the President or the Prime Minister or any authority designated by the President;

(xii) Notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the President, 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 continue in force until altered, or repealed by the President or any authority designated by him;

(xiii) An Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution; and

(xiv) The above provision shall also apply to an Ordinance issued by the President or by a Governor which was in force immediately before the commencement of the Proclamation of Emergency of the 3rd day of November, 2007.

48. The third instrument of 3rd November, 2007 issued by General Pervez Musharraf, viz., Oath Order, 2007 provided as under: -

(a) A person holding office immediately before this Order as a Judge of the Supreme Court, the Federal Shariat Court or a High Court shall cease to hold that office with immediate effect;

(b) A person who is given, and does make Oath in the form set out in the Schedule, before the expiration of such time from such commencement as the President may determine or within such further time as may be allowed by the President shall be deemed to continue to hold the office of a Judge of the Supreme Court, the Federal Shariat Court or a High Court, as the case may be;

(c) A Judge of a Superior Court appointed after the commencement of this Order shall, before entering upon office, make Oath in the form set out in the Schedule;

(d) A person who has made oath as aforesaid shall be bound by the provisions of the Oath Order, 2007, Proclamation of Emergency of 3rd November, 2007, PCO No.1 of 2007, 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; and

(e) The Judges of the superior Courts including Chief Justices would cease to hold office on and from 3rd November 2007 and only such Judges would continue to hold office who made oath under PCO No. 1 of 2007 read with Oath Order, 2007.

The Chief Justice of Pakistan constituted a Bench of available 7 Judges of the Supreme Court, which passed a restraint order in Wajihuddin Ahmed’s case against the above instruments and measures and directed, inter alia, the Judges of Supreme Court and High Courts not to make oath under PCO or any other extra-constitutional step. Certain Judges of the Supreme Court including Chief Justice of Pakistan were put under house arrests. Immediately thereafter, General Pervez Musharraf purportedly made the appointment of Abdul Hameed Dogar, J, as the Chief Justice of Pakistan, who was at serial No. 4 of the seniority list of the Judges of the Supreme Court, i.e. Chief Justice of Pakistan, Rana Bhagwandas, J, (as he then was) and Javed Iqbal, J, by means of notification of even date, which is reproduced below: -

“GOVERNMENT OF PAKISTAN

LAW, JUSTICE AND HUMAN RIGHTS DIVISION

—–

Islamabad, the 3rd November, 2007

NOTIFICATION

No.F.2(1)/2007-A-II(A).- In exercise of the powers conferred by clause (1) of Article 177 of the Constitution of the Islamic Republic of Pakistan read with Provisional Constitution Order No.1 of 2007 and Oath of Office (Judges) Order, 2007, the President is pleased to appoint Mr. Justice Abdul Hameed Dogar, Judge, Supreme Court of Pakistan to be the Chief Justice of Pakistan with immediate effect.

Sd/- Mr. Justice (Retd.)

(Mian Muhammad Ajmal)

Principal Secretary”

In pursuance of the above notification, Abdul Hameed Dogar, J, was administered the oath of office as the Chief Justice of Pakistan during the night between 3rd and 4th November, 2007. The same night three Judges, namely, Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar and M. Javed Buttar, JJ, took oath as Judges of this Court under the new dispensation while Saiyed Saeed Ashhad, J, who was at Karachi at the relevant time, made similar oath as a Judge of this Court before the Governor of Sindh as nominee of the President. Likewise, some Judges of High Courts including Chief Justice of the Lahore High Court and all the five Judges of the Balochistan High Court including Chief Justice made oath under PCO No. 1 of 2007 and Oath Order, 2007. On 5th November, 2007, four persons were purportedly appointed in the Supreme Court by notification of even date issued by the Ministry of Law and Justice, which read as under: -

“Islamabad, the 5th November, 2007.

NOTIFICATION

No.F.2(1)/2007-A-II(A).- In exercise of the powers conferred by clause (1) of Article 177 of the Constitution of the Islamic Republic of Pakistan read with Provisional Constitution Order No.1 of 2007 and Oath of Office (Judges) Order, 2007, the President is pleased to appoint the following as Judges of Supreme Court of Pakistan on and from the date they take oath of their office: -

1. Mr. Justice Ijaz-ul-Hassan, Judge

Peshawar High Court.

2. Mr. Justice Muhammad Qaim Jan Khan

Judge, Peshawar High Court.

3. Mr. Justice Mohammad Moosa K. Leghari,

Judge, High Court of Sindh.

4. Mr. Justice Ch. Ejaz Yousaf,

Former Chief Justice,

Federal Shariat Court.

Sd/-

Mr. Justice (Retd.)

(Mian Muhammad Ajmal)

Principal Secretary”

Later, more appointments were made details of which are given in later

part of the judgment.

49. Tikka Iqbal Muhammad Khan and Zafarullah Khan, by Constitution Petitions No. 87 and 88 of 2007 filed on 10th & 12th November, 2007 respectively, called in question the validity of the instruments and measures of 3rd November 2007. They prayed that the deposed Judges of the superior Courts and the Fundamental Rights be restored; the general election to the National Assembly and the Provincial Assemblies be held within the period provided by the Constitution; the detenus held under preventive detention laws be released forthwith; and restrictions on the media be lifted. The Constitution Petitions were disposed of by means of the Short Order dated 23rd November, 2007. The detailed reasons were furnished by judgment dated 13th February, 2008. It was held, inter alia, as under: -

“In the recent past the whole of Pakistan was afflicted with extremism, terrorism and suicide attacks using bombs, hand grenades, missiles, mines, including similar attacks on the armed forces and law enforcing agencies, which reached climax on 18th of October 2007 when in a similar attack on a public rally, at least 150 people were killed and more than 500 seriously injured. The extremists/terrorists resorted to abduction of foreigners, which badly impaired the image of Pakistan in the comity of nations, and adversely affected its economic growth. The situation in Islamabad and various places in NWFP, Balochistan and tribal areas was analogous to “a state within the state”. Unfortunately, no effort by the government succeeded in curbing extremism, terrorism and suicide attacks. The Prime Minister apprised the President of the situation through his letter of the 3rd of November 2007;

“The Constitution of Pakistan is based on the principle of trichotomy of powers. All the three organs of the State, namely, the legislature, the executive and the judiciary are required to perform their functions and exercise their powers within their specified sphere. Unfortunately, some members of the superior judiciary by way of judicial activism transgressed the constitutional limits and ignored the well-entrenched principle of judicial restraint. Thousands of applications involving individual grievances were being processed as suo motu cases ostensibly in the exercise of power under Article 184(3) of the Constitution, which provision is resorted to the enforcement of fundamental rights involving questions of law of general public importance. Instances of transgression of judicial authority at large scale may be found in the cases of determination of prices of fruits, vegetables and other edibles, suspension and transfers of government officials, frequent directions to enact particular laws, stoppage of various development projects, such as New Murree City, Islamabad Chalets, Lahore Canal Road and many more. They rendered the State machinery, particularly legislative and executive branches of the government paralyzed and nugatory. They made ineffective the institution of the Supreme Judicial Council set up under the Constitution for the accountability of the members of the superior judiciary;

“The sum total of the circumstances led to a situation where the running of the government in accordance with the provisions of the Constitution became impossible for which the Constitution provided no remedy or satisfactory solution. There was a strong apprehension of disastrous consequences that would have followed in case the action of the 3rd day of November 2007 was not taken by the Chief of Army Staff/President;

“The situation which led to the issuance of Proclamation of Emergency of the 3rd day of November 2007 as well as the other two Orders, referred to above, was similar to the situation which prevailed in the country on the 5th of July 1977 and the 12th of October 1999 warranting the extra-constitutional steps, which had been validated by the Supreme Court of Pakistan in Begum Nusrat Bhutto v. Chief of the Army Staff (PLD 1977 SC 657) and Syed Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) in the interest of the State and for the welfare of the people, as also the fact that the Constitution was not abrogated, but merely held in abeyance.”

“The Constitution of the Islamic Republic of Pakistan, 1973 still remains to be the supreme law of the land albeit certain parts thereof have been held in abeyance in the larger interest of the country and the people of Pakistan;

“The extra-constitutional steps of Proclamation of Emergency of the 3rd day of November, 2007, the Provisional Constitution Order No.1 of 2007, the Provisional Constitution (Amendment) Order, 2007, Oath Order, 2007 and the President’s Order No. 5 of 2007 are hereby declared to have been validly made by the Chief of Army Staff/President subject to the condition that the country shall be governed, as nearly as may be, in accordance with the Constitution. All acts and actions taken for the orderly running of the State and for the advancement and good of the people are also validated. In absence of the Parliament, General Pervez Musharraf, Chief of Army Staff/President, in pursuance of the Proclamation of Emergency of the 3rd day of November 2007 may, in the larger public interest and the safety, security and integrity of Pakistan, under the principle of salus populi est suprema lex, may perform -

(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; and

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

“The old Legal Order has not been completely suppressed or destroyed, but it is a case of constitutional deviation for a limited transitional period;

“Constitutional amendments can be resorted to only if the Constitution fails to provide a solution for the attainment of the declared objectives of the Chief of Army Staff/President, but without affecting the salient features of the Constitution, i.e. independence of Judiciary, federalism, parliamentary form of Government blended with Islamic provisions;

“The President, the Federal Government and the Election Commission of Pakistan shall ensure the holding of fair, free and transparent elections as required by the Constitution and the law;

“The superior Courts continue to have the power of judicial review, to judge the validity of any act or action of the Chief of Army Staff, or the President notwithstanding the ouster of their jurisdiction by the aforesaid extra-constitutional measures;

“The Chief Justices and Judges of the superior courts (Supreme Court of Pakistan, Federal Shariat Court and the High Courts) are subject to accountability only before the Supreme Judicial Council in accordance with the procedure laid down in Article 209 of the Constitution;

“The learned Chief Justices and Judges of the superior courts, (Supreme Court of Pakistan, Federal Shariat Court and the High Courts), who have not been given, and who have not made, oath under Oath Order, 2007 have ceased to hold their respective offices on the 3rd of November 2007. Their cases cannot be re-opened being hit by the doctrine of past and closed transaction; and

“Proclamation of Emergency of the 3rd day of November, 2007 shall be revoked by the President and/or the Chief of Army Staff at the earliest so that the period of constitutional deviation is brought to an end. However, this Court may, at any stage, re-examine the continuation of Proclamation of Emergency if the circumstances so warrant.”

In pursuance of PCO No. 1 of 2007, General Pervez Musharraf, as President of Pakistan, purported to make amendments in the Constitution, inter alia, protecting his own actions including removal of Judges, establishment of Islamabad High Court, etc., by insertion of Article 270AAA into the Constitution. On 28th November, 2007, he relinquished the office of Chief of Army Staff. On 15th December, 2007 by means of Revocation of Proclamation of Emergency Order, 2007, he revoked the emergency imposed on 3rd November, 2007 and restored the Constitution as amended by him. General Elections were held on 18th February, 2008. The newly elected representatives of the people were sworn in, the National Assembly and Provincial Assemblies came into existence and governments at the Federal and the Provincial levels were formed. On 24th March, 2008, pursuant to an announcement made by the newly elected Prime Minister, restrictions on the movement of Judges were lifted. In the wake of resolutions passed by all the four Provincial Assemblies calling upon General Pervez Musharraf to quit the office of President otherwise impeachment resolution would be moved against him, he resigned from the office of President on 18th August, 2008. Election for the office of President was held on 6th September, 2008 wherein Mr. Asif Ali Zardari was returned as the successful candidate. He made oath of office of President on 9th September, 2008. Vide notification dated 17th March, 2009, the Chief Justice of Pakistan was restored to the position he was holding immediately before 3rd November, 2007. Later, by different notifications, Judges of Supreme Court and High Courts, who were declared to have ceased to hold office on or after 3rd November, 2007 were restored to the position they were holding prior to 3rd November, 2007. The relevant details are given in later part of the judgment.

50. In the above background, instant Constitution Petitions No. 8 and 9 of 2009 were filed wherein the constitutionality of the actions of 3rd November, 2007 as also the judgment in Tikka Iqbal Muhammad Khan’s case validating and legitimizing the aforesaid actions were questioned.

51. On the fateful day of 3rd November, 2007, General Pervez Musharraf, who was wearing two hats, one of the President of Pakistan and the other of the Chief of Army Staff, issued Proclamation of Emergency and PCO No. 1 of 2007 in his capacity as Chief of Army Staff, while as President of Pakistan he issued Oath Order, 2007 in pursuance of the aforesaid two instruments. By this, according to the learned counsel for the petitioners, two wrong impressions were created: (1) the Chief of Army Staff was an authority superior to the President of Pakistan, and (2) he was competent to proclaim emergency and promulgate PCO No. 1 of 2007 notwithstanding the provisions of the Constitution and the law. The learned counsel for the petitioners contended that no such power was vested in the Chief of Army Staff either under the Constitution or under any law nor a reference could usefully be made to the cases of Begum Nusrat Bhutto and Zafar Ali Shah, which were decided by this Court in different sets of facts and circumstances narrated hereinabove for comparison and analysis. The learned counsel also strenuously questioned the validity of the Oath Order 2007 issued by General Pervez Musharraf in his capacity as President of Pakistan because the Constitution did not empower him to promulgate an Order, which was not in accordance with any provision of the Constitution, but it also contravened a host of provisions of the Constitution, e.g. Articles 2A, 209, etc. relating to the independence of judiciary, an important pillar of the constitutional edifice of the State of Pakistan. The learned counsel canvassed that the instant case would be governed, as nearly as may be, in accordance with the law laid down in the cases of Asma Jilani and Liaquat Hussain. At the same time, they also urged that the judgments in the cases of Begum Nusrat Bhutto and Zafar Ali Shah were required to be revisited because they were never considered a good law. On the latter point, the learned Attorney General for Pakistan also made a similar submission. To deal with the above contentions, it is necessary to examine the role and functions of the Armed Forces in the light of the provisions of the Constitution.

52. Chapter 2 of Part XII of the Constitution deals with the Armed Forces. Clause (1) of Article 243 provides that the Federal Government shall have control and command of the Armed Forces while under clause (1A) it is provided that without prejudice to the generality of the provisions of clause (1), the supreme command of the Armed Forces shall vest in the President. Under clause (3), the President shall, in consultation with the Prime Minister, appoint -

(a) the Chairman, Joint Chiefs of Staff Committee;

(b) the Chief of the Army Staff;

(c) the Chief of the Naval Staff; and

(d) the Chief of the Air Staff.

Under Article 244, every member of the Armed Forces shall make oath in the form set out in the Third Schedule, which recites as under:-

“I _________, do solemnly swear that I will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law.

May Allah Almighty help and guide me (A’meen).”

Article 245(1) of the Constitution deals with the functions of the Armed Forces of Pakistan. It provides as under: -

“(1) The Armed Forces shall, under the directions of the Federal Government 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.”

53. On a plain reading of the provisions of Article 245(1), the functions of the Armed Forces can be bifurcated into two categories, namely, they shall (1) defend Pakistan against external aggression or threat of war, and (2) subject to law, act in aid of civil power when called upon to do so. Under clause (1) of Article 243, the control and command of the Armed Forces is vested in the Federal Government, therefore, in the performance of both the categories of functions, the Armed Forces act under the directions of the Federal Government. Thus, the provisions of clause (1A) of Article 243 under which the supreme command of the Armed Forces vests in the President, does not, in any manner, derogate from the power of the Federal Government to require the Armed Forces to defend Pakistan against external aggression or threat of war, or to act in aid of civil power in accordance with law. The Constitution does not envisage any situation where the Armed Forces may act without any direction by the Federal Government. The following observations by this Court in Asma Jilani’s case are apt in the context of the above discussion: -

“From this examination of the authorities I am driven to the conclusion that the Proclamation of Martial Law does not by itself involve the abrogation of the civil law and the functioning of the civil authorities and certainly does not vest the Commander of the Armed Forces with the power of abrogating the fundamental law of the country. It would be paradoxical indeed if such a result could flow from the invocation in the aid of a State of any agency set up and maintained by the State itself for its own protection from external invasion and internal disorder. If the argument is valid that the proclamation of the Martial Law by itself leads to the complete destruction of the legal order, then the armed forces do not assist the state in suppressing disorder but actually create further disorder, by disrupting the entire legal order of the State. I cannot, therefore, agree with the learned Attorney-General that the proclamation of Martial Law by itself must necessarily give the Commander of the armed forces the power to abrogate the Constitution, which he is bound by his oath to defend.

If this be so, then from where did General Agha Muhammad Yahya Khan acquire the right to assume control of the reins of Government? Field Marshal Muhammad Ayub Khan did not appoint him as his successor by his letter of the 24th March 1969. He merely called upon him to perform his “constitutional and legal duty to restore order” in the country. If this was his authority, then the only authority he got was to restore order and nothing more. Even the imposition of Martial Law by his proclamation is of doubtful validity, because the proclamation should have come from the civil authorities and it was only then that under the proclamation the Commander of the armed forces could have moved into action. There is no provision in any law which gives the Commander of the armed forces the right to proclaim Martial Law, although he has like all other loyal citizens of the country a bounden duty to assist the State, when called upon to do so. If the magnitude of the insurrection is so great that the Courts and the civil administration are unable to function, the military may exercise all such powers that may be necessary to achieve their objective and in doing so may even set up Military Tribunals to promptly punish wrong-doers but this, whether done throughout the country or in a restricted area within the country, merely temporarily suspends the functioning of the civil Courts and the civil administration. As soon as the necessity for the exercise of the military power is over, the civil administration must, of necessity, be restored, and assume its normal role.”

Thus, essentially, a proclamation requiring the aid of the Armed Forces must come from the civilian authorities and as soon as the necessity for the exercise of the military power is over, the civil administration must, of necessity, be restored, and assume its normal role. 54. In the cases of Dosso, Begum Nusrat Bhutto, Zafar Ali Shah and Tikka Iqbal Muhammad Khan the Court did not take into consideration the above aspect of the matter and rendered judgments, not on the force of the constitutional provisions, but by recourse to the theory of revolutionary legality propounded by Hans Kelsen, the doctrine of civil and state necessity and the principle of salus populi est suprema lex, and thus kept open the gate for military intervention for all times to come. Let it be made clear that any action of the Armed Forces undertaken without a direction by the Federal Government shall be unconstitutional, illegal, void ab initio and consequently of no legal effect. Any member of the Armed Forces, including the Chairman, Joint Chiefs of Staff Committee and the three Services Chiefs, namely, the Chief of Army Staff, the Chief of Naval Staff and the Chief of Air Staff, or any person acting under their authority, or on their behalf, who acts in the performance of either of his functions of defending Pakistan against external aggression, or of acting, subject to law, in aid of civil power without any direction by the Federal Government acts in violation of the Constitution and the law and does so at his own risk and cost. This Court, in Liaquat Hussain’s case (at page 626 of the report), has held that martial law cannot be imposed in Pakistan in view of the change in the language of Article 237 of the Constitution wherein the words “martial law” have been omitted, the legal effect of which is that the Parliament cannot make any law 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. This change in the language of Article 237 of the Constitution was preceded by a discussion of the term ‘martial law’ in Asma Jilani’s case, a decision which was rendered only a year before the promulgation of the Constitution of 1973. Hamoodur Rahman, CJ, in the cited case held as under: -

“As both President’s Order No. 3 of 1969 and Martial Law Regulation 78 were intended to deny to the Courts the performance of their judicial functions, an object opposed to the concept of law. Neither would be recognized by Courts as law. We may now turn to the methodology of law-making during the Martial Law which was imposed by Yahya Khan on the 26th March 1969. Pakistan came into being with a written Constitution Government of India Act, 1935 (26 Geo. 5, Ch. 2) and the Indian Independence Act, 1947 (10 & 11 Geo. 6, Ch. 30). These constitutional instruments were, in time, replaced by the Constitution of 1956 which in turn was substituted by the Constitution of 1962. It is still in force either by its own vitality or under the Provisional Constitution Order, 1969. The written Constitution of a State is, according to Kelsen, its basic norm. It regulates all other legal norms. Pakistan has unfortunately suffered long spells of Martial Law, but its basic structure was democratic from its inception. There was distribution of powers between the executive, legislature and judiciary. During Martial Law the legislative powers of the State were usurped by the Executive and attempt made to deny to Courts the exercise of judicial functions.

The usurpation of legislative powers of the state by the Chief Martial Law Administrator was therefore against the basic norm. The new Legal Order consisting of Martial Law Orders, Martial Law Regulations, Presidential Orders and Presidential Ordinances was, therefore, unconstitutional and void ab initio.

This Order would have become legal only if the Government of Yahya Khan was recognized by Courts as de jure and the Order he gave to the country was held valid. This question has already been answered in the negative.

In this connection, we may examine also the nature of Martial Law imposed by Yahya Khan on the 26th March 1969, for lest it is said that the Martial Law Regulations, and Martial Law Orders were not laws in juristic sense, but they derived their validity from the Proclamation of the 25th March 1969. Martial Law is of three types: (i) the law regulating discipline and other matters determining the rule of conduct applicable to the Armed forces. We are not concerned with it; (ii) law which is imposed on an alien territory under occupation by an armed force. The classic function of this type of Martial Law was given by the Duke of Wellington when he stated in the House of Lords that “Martial Law is neither more nor less than the will of the General who commands the Army. In fact Martial Law means no law at all.” We are also not concerned with this type of Martial Law; and (iii) law which relates to and arises out of a situation in which the civil power is unable to maintain law and order and the military power is used to meet force and recreate conditions of peace and tranquility in which the civil power can re-assert its authority. The Martial Law Regulations and Martial Law Orders passed under this type of Martial Law must be germane only to the restoration of peace and tranquility and induced during the period of unrest.

In practice, the Martial Law imposed by Yahya Khan belonged to the second category. A large number of Martial Law Regulations and Martial Law Orders passed by him between 25th March 1969 and 20th March 1971 had no nexus with civil disturbances. In fact, peace and tranquility was restored in the country within a few days of his stepping in. Martial Law should, therefore, have come to an end but the entire structure of institutions of Pakistan including superior Courts were made to appear by Yahya Khan as merely the expression of his will which a victorious military commander imposes on an alien territory to regulate the conduct and behaviour of its subjugated populace. Neither Pakistan was a conquered territory, nor the Pakistan Army commanded by Yahya Khan was an alien force to justify the imposition of this type of Martial Law.

The Martial Law imposed by Yahya Khan was, therefore, in itself illegal and all Martial Law Regulations and Martial Law Orders issued by him were on this simple ground void ab initio and of no legal effect.

Let us next examine the validity of the Presidential Orders and Ordinances issued by Yahya Khan between 26th March 1969, and 20th December 1971. He assumed the office of President on 31-3-1969 with effect from the 25th March 1969. Under Article 16 of the 1962 Constitution if at any time the President was unable to perform the functions of his office, the Speaker of the National Assembly was to act as President. Muhammad Ayub Khan could not, therefore, transfer the office of the President to Yahya Khan. Indeed, he did not even purport to do so. He simply asked him to perform his constitutional and legal responsibilities. Yahya Khan, therefore, assumed the office in violation of Article 16 of the Constitution to which he had taken oath of allegiance as Commander-in-Chief. It could not, therefore, be postulated that Yahya Khan had become the lawful President of Pakistan and was competent to promulgate Orders and Ordinances in exercise of the legislative functions conferred by the Constitution on the President. All Presidential Orders and Ordinances which were issued by him were, therefore, equally void and of no legal effect.”

Along with Article 237 as finally approved, the framers of the Constitution also legislated Article 6 of the Constitution, which provided that any person who abrogated or attempted or conspired to abrogate, subverted or attempted or conspired to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.

55. It appears that the draftsman, who drafted the Proclamations of Emergency of 14th October, 1999 and 3rd November, 2007 and the relevant PCOs had an eye on the constitutional developments taking place in the country at the legislative and the judicial forums. He changed the earlier methodology to facilitate the intending military adventurer to wriggle out of the fence erected by the judiciary and the legislature to prevent repetition of the military takeovers. In 1999, as opposed to the previous practice of imposing martial law, the draftsman came up with the idea of promulgating a simple Proclamation of Emergency and holding the Constitution in abeyance and by the PCO making a provision that subject to the PCO and any other Order issued by the Chief of Army Staff, Pakistan shall, as nearly as may be, be governed in accordance with the Constitution of 1973. Thus the term ‘martial law’ was not used, but a mere emergency proclaimed, the practical effect of which was exactly the same as it was of the impositions of martial law on 5th July, 1977, 25th March, 1969 or 7th October, 1958. In 1977 and 1999, Oath Orders were issued and attempts made to make the superior Courts subservient to the orders and other legislative and administrative measures issued by the Chief of Army Staff. In October, 1958 and March, 1969 the Constitutions were abrogated, and martial law imposed. But in July 1977, though martial law was imposed, but the Constitution was not abrogated, rather it was held in abeyance. In October 1999, a new methodology was adopted, i.e., only an emergency was proclaimed, which was nothing but a chip off the old block. On all the previous four occasions, the Parliament and the Provincial Assemblies were dissolved; the Federal and the Provincial Governments were dismissed and Prime Minister, Federal Ministers, Chief Ministers, Provincial Ministers, Chairman and Deputy Chairman Senate and Speakers and Deputy Speakers of the National and the Provincial Assemblies were declared to have ceased to hold office. In November 2007, though emergency was proclaimed and the PCO and the Oath Order issued on the pattern of 12th October, 1999, but as opposed to the past practice, the legislative and executive organs of the State were kept intact, and the judiciary alone was shown the door because it was apprehended that a favourable decision was not likely to be rendered in the disqualification case of General Pervez Musharraf. However, a new dimension in the present case was that the vast majority of the Judges including Chief Justice of Pakistan did not make oath under PCO No. 1 of 2007 read with Oath Order, 2007. All such non-compliant Judges were put under house arrest along with their family members. In the above background, we affirm and approve the law laid down in Asma Jilani’s case that martial law in any form and by whatever name called, for any purpose whatsoever cannot be imposed in Pakistan. We also firmly lay down that no proclamation of emergency can be issued, the effect of which is to hold in abeyance the Constitution, or its subsequent mutilation by incorporating amendments in it by an authority not mentioned in the Constitution and in a manner not provided for in the Constitution.

56. Each member of the Armed Forces, as per his oath under the Third Schedule to the Constitution in pursuance of Article 244, is bound to bear true faith and allegiance to Pakistan and uphold the Constitution which embodies the will of the people. He is also sworn not to engage himself in any political activities whatsoever. He also solemnly affirms and declares that he will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law. The learned counsel for the petitioners vehemently contended that General Pervez Musharraf, by his actions of 3rd November, 2007, not only violated his oath as a member of the Armed Forces, but also overthrew the solemn pledge he made as President of Pakistan of performing his functions and discharging his duties honestly, to the best of his ability, faithfully in accordance with the Constitution and the law. We agree with the contention of the learned counsel that General Pervez Musharraf failed to abide by his oath to preserve, protect and defend the Constitution. The Constitution was framed to continue to be in force at all times. By Article 6, an in-built mechanism was provided to safeguard the Constitution from its abrogation or subversion by anyone, that is to say, it could neither be cancelled by anyone nor could it be overthrown or undermined by anyone in any manner or mode whatsoever. Thus, unless and until the Constitution is altered or amended in accordance with the procedure laid down in Articles 238 and 239, or it is repealed on the pattern of the Interim Constitution under the provisions of Article 266, which too, is possible by recourse to the provisions of Articles 238 and 239, its operation and enforceability cannot be interrupted even for a single day, nay a single moment except as specifically provided in the Constitution itself. The Constitution has not contemplated any situation where it can be held in abeyance at the will or whims of the Chief of Army Staff and to be revived after he has achieved his objectives. Let it be stated in unequivocal terms that the validity accorded in the past did not give a licence to any holder of the office of Chief of Army Staff of repeating such acts at his will. It is hereby firmly laid down that the holding in abeyance of the Constitution or any other act having the effect of discontinuing the operation and the enforceability of the Constitution for a single moment in a manner not authorized under the Constitution is nothing but an overthrowing of the Constitution, so to say, the subversion of the Constitution and thus constitutes the offence of high treason.

57. The State of Pakistan emerged on the map of the globe on 14th August 1947 wherein up till November 2007, i.e., in a span of 60 years, there were made five military coups all of which were challenged, some directly while others indirectly, before the apex Court of the country. With the exception of the imposition of martial law by General Yahya Khan on 25th March, 1969, which was examined in Asma Jilani’s case, the validity of all other military takeovers/actions was not adjudged on the touchstone of the Constitution, ostensibly taking the view that the takeover was an extraconstitutional step, that is to say, a step outside the Constitution itself, or a step not envisaged by any provision of the Constitution, taken in a situation for which the Constitution provided no remedy, therefore, the same was not liable to be adjudicated upon in the light of any provision of the Constitution. A wrong that was committed in 1954 by the Federal Court with its decision in Moulvi Tamizuddin Khan’s case, given not on merits, but on a purely legal – rather a hyper-technical question, continued to be perpetuated every now and then under the garb of different theories and doctrines. Had the Court adopted a constitutional approach in the very first case, and followed the same in just one or two more cases if such an occasion arose, the course of history would have been, certainly not the one that this nation has treaded all along, and the country would not have landed in the quagmire it is presently found in. Be that as it may, it is our firm belief that Pakistan came into existence as a result of sacrifices made by the people in its cause. The people of Pakistan are committed and dedicated to preserving democracy achieved by their unremitting struggle against oppression and tyranny, as duly voiced and recognized in the Preamble to the Constitution of the Islamic Republic of Pakistan. The Founder of Pakistan, the Quaid-i-Azam Muhammad Ali Jinnah declared that Pakistan would be a democratic State based on Islamic principles of social justice. While addressing a gathering of the civil officers of Balochistan on 14th February, 1948, he said – “………… Until we finally frame our Constitution which, of course, can only be done by the Constituent Assembly; our present provisional constitution based on the fundamental principles of democracy, not bureaucracy or autocracy or dictatorship, must be worked. ……….” Therefore, the military rule, direct or indirect, is to be shunned once and for all. Let it be made clear that it was wrongly justified in the past and it ought not to be justified in future on any ground, principle, doctrine or theory whatsoever. Military rule is against the dignity, honour and glory of the nation that it achieved after great sacrifices 62 years ago; it is against the dignity and honour of the people of Pakistan, who are committed to upholding the sovereignty and integrity of the nation by all means; and it is against the dignity and honour of each and every soldier of the Armed Forces: Pakistan Army, Pakistan Navy and Pakistan Air Force, who is oath-bound to bear true faith and allegiance to Pakistan and uphold the Constitution, which embodies the will of the people; not to engage himself in any political activities whatsoever; and to honestly and faithfully serve Pakistan in the respective services. Within such parameters, a soldier must remain committed to defending Pakistan until the last drop of his blood against external aggression or threat of war, and subject to law, acting in aid of civil power when called upon to do so under the directions of the Federal Government. In the course of the discharge of his duties, a soldier, therefore, is obligated to seeing that the Constitution is upheld, it is not abrogated, it is not subverted, it is not mutilated, and to say the least, it is not held in abeyance and it is not amended by an authority not competent to do so under the Constitution. If a member of the Armed Forces acts in aid of a person who does any of the above acts, or any other similar act, he violates his oath and renders himself liable to action under and in accordance with the Constitution and the law.

58. In the instant case, the actions of 3rd November 2007 taken by General Pervez Musharraf, viz., Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 were preceded by a letter of even date addressed by Prime Minister of Pakistan Shaukat Aziz to the President of Pakistan General Pervez Musharraf, in which he wrote as under: -

“SUBJECT: NATIONAL SECURITY SITUATION

Dear Mr. President,

I am writing to you to share my thoughts on the current national security situation and the risks that it represents for the future of Pakistan.

2. The Government has made serious and sincere efforts to revive the economy, maintain law and order and to curb extremism and terrorism in the country. In the last few months, however, militancy, extremism and terrorist activities have been in ascendance, particularly in some districts of NWFP where the writ of the government is being eroded and non-State militants are apparently gaining control. There have been a number of bomb blasts and suicide attacks in other parts of the country including the recent suicide attack on a political rally in Karachi on 18th October, 2007. During the last ten months, 1322 precious lives have been lost and 3183 persons have been injured. Details of such incidents between April – October, 2007 are enclosed. The executive measures taken against extremist elements to contain militancy and terrorist activities have, on a number of occasions, been called into question by some members of the judiciary making effective action impossible.

3. There has been increasing interference by some members of the judiciary in government policy, adversely affecting economic growth, in particular. The corner stone of the economic policies of the government is privatization, liberalization and deregulation which create economic growth and investment. Both local and foreign investment has been negatively affected.

4. It cannot be disputed that the legality of executive measures is open to judicial scrutiny. The wisdom or necessity of a policy or a measure is an executive function and not open to judicial review, however, in the recent past, some members of the judiciary have, nevertheless, departed from these norms. While we all are committed to the independency of the judiciary and the rule of law and hold the superior judiciary in high esteem, it is nonetheless of paramount importance that the Honourable Judges confine the scope of their activity to the judicial function. While judges must adjudicate they must neither legislate nor assume the charge of administration.

5. Most importantly, constant interference in executive functions, including but not limited to the control of terrorist activity, economic policy, price controls, downsizing of corporations and urban planning, has weakened the writ of the government. This has increased the incidents of terrorist attacks thereby posing grave threat to the life and property of the citizens of Pakistan and negatively impacting the economy. Wide-ranging suo motu actions of the courts negate the fundamentals of an adversarial system of justice. The police force has been completely demoralized and is fast losing its efficacy to fight terrorism. Intelligence Agencies have been thwarted in their activities and prevented from pursuing terrorists.

6. A large number of hard core militants, extremists, terrorists and suicide bombers, who were arrested and being investigated have been released. The persons so released are reported to be involved in heinous terrorist activities, resulting in loss of human life and property. Militants across the country have, thus, been encouraged while law enforcement agencies subdued.

7. There is a widespread perception of overstepping the limits of judicial authority and taking over of executive functions. Privatization is at a standstill while domestic and foreign investors are being compelled to reconsider investment plans thus adversely affecting the economy.

8. On the other hand, an important constitutional institution, the Supreme Judicial Council, has been made entirely irrelevant by a recent order. Detailed reasons for this order are still awaited despite a lapse of three months. Judges have, thus, made themselves immune from inquiry into their conduct and are now beyond accountability.

9. The law and order condition in the country as well as the economy have been adversely affected and trichotomy of powers eroded. A situation has thus arisen where the routine and smooth functioning of government machinery is becoming increasingly difficult and causing grave concern among ordinary citizens about their security. As evident from the attached list, there has been an unusual increase in security related incidents highlighting the gravity of the situation.

10. Mr. President, the contents of this letter reflect my views and public opinion about the current scenario. For any State to function, all the three pillars of State must act in harmony in the best national interest. Pakistan is a country that achieved independence after immense sacrifices and has tremendous potential to develop. Prosper and be recognized among the comity of nations as a country with an exciting future.”

Yours sincerely,

Sd/-

(Shaukat Aziz)

General Pervez Musharraf

President

Islamic Republic of Pakistan

Aiwan-e-Sadr, Islamabad”

59. As is evident from the opening paragraph of the letter, the Prime Minister wrote to the President “to share his thoughts on the national security situation and the risks” that it represented for the “future of Pakistan”. In Paragraph 2, the Prime Minister noted ascendancy in militancy, extremism and terrorist activities, bomb blasts and suicide attacks including suicide attack on a political rally in Karachi on 18th October, 2007, etc., and the writ of the government being eroded as non- State militants were gaining control, and stated that the executive measures taken against extremist elements to contain militancy and terrorist activities were called into question by some members of the judiciary making effective action impossible. Paragraphs 3 to 8 dilated upon the interference by some members of the judiciary in the executive functions and in Paragraph 9 he stated that a situation had arisen where the routine and smooth functioning of government machinery was becoming increasingly difficult and causing grave concern among ordinary citizens about their security. In Paragraph 10, the Prime Minister closed his letter by saying that his letter reflected his views and public opinion about the current scenario, observing that for any State to function, all the three pillars of State must act in harmony in the best national interest, and that Pakistan achieved independence after immense sacrifices, which had tremendous potential to develop, prosper and be recognized among the comity of nations as a country with an exciting future.

60. From the contents of the letter of the Prime Minister, it cannot be said that he issued any direction to the Armed Forces in terms of Article 245 of the Constitution to act in aid of the civil power, nor the actions of General Pervez Musharraf of 3rd November, 2007 could be said to have been taken or done while acting in aid of the civil power. Even otherwise, the letter was addressed to the President of Pakistan and not to the Chief of Army Staff. But for the sake of argument, it may be stated that even if the letter was addressed to the Chief of Army Staff, it could not be construed to give to the latter any power to take the kind of steps that he took in pursuance of the aforesaid letter. With a slight change in the modus operandi, it was a replay of the events of 25th March, 1969 where President Ayub Khan wrote a letter to the Commander-in-Chief of Army General Yahya Khan asking him to discharge his constitutional and legal duty of restoring law and order situation in the country, which had worsened on account of agitation and riots throughout the length and breadth of the country. In turn, General Yahya Khan, imposed martial law, abrogated the Constitution of 1962 and brought the country under the control of the Armed Forces and took upon himself the governance of the affairs of the country by means of the PCO of 1969. In Asma Jilani’s case, such assumption of power by General Yahya Khan was declared to be illegal and he was termed as a usurper because no such power vested in the Commander-in-Chief of Army to take the kind of steps that he took in pursuance of the letter of President Ayub Khan. In the instant case too, no power vested in the Chief of Army Staff General Pervez Musharraf under the Constitution and the law to issue Proclamation of Emergency and PCO No. 1 of 2007 on a letter of the Prime Minister written to the President bringing to his notice the national security situation, which was worsening on account of terrorism, extremism, militancy, suicide attacks and the erosion of trichotomy as a result of suo motu actions being taken by some members of the superior judiciary. If the President, on receipt of such a letter, wanted to take any action including imposition of emergency, the same would have been in terms of constitutional provisions on emergency.

Nowhere the Prime Minister asked the President to take the actions that he took on 3rd November, 2007. In any case, it was not an advice tendered by the Prime Minister in terms of Article 48 of the Constitution. Neither on receipt of such a letter, could the President have authorized Chief of Army Staff to take that kind of steps. The Constitution does not empower the President to issue an Oath Order, which he did in pursuance of Proclamation of Emergency and PCO No.1 of 2007. Instead of upholding the Constitution in terms of the oath taken by him as member of the Armed Forces he violated the Constitution, suspended it, assumed to himself unconstitutional and illegal powers and imposed upon the country unconstitutional and illegal emergency and PCO No. 1 of 2007. Likewise, in terms of his oath as President of Pakistan, instead of preserving, protecting and defending the Constitution, and performing his functions, honestly, to the best of his ability, faithfully in accordance with the Constitution and the law, and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of Pakistan, issued Oath Order, 2007, illegally assumed to himself power to remove Judges of the superior Courts in violation of Articles 2A and 209 of the Constitution, which respectively required the securing of independence of judiciary and the guaranteeing of the tenure of the Judges of the Supreme Court and the High Courts.

61. In the cases of Begum Nusrat Bhutto, Zafar Ali Shah and Tikka Iqbal Muhammad Khan, such acts of the concerned Chief of Army Staff were described as extra-constitutional steps or measures and were dealt with on an extra-constitutional plane. We, however, take the view that the aforesaid acts of General Pervez Musharraf were violative of the Constitution, pure and simple. In Begum Nusrat Bhutto’s case, Syed Sharifuddin Pirzada, Sr. ASC, while appearing as Attorney General for Pakistan, described such assumption of power by the Chief of Army Staff General Ziaul Haq as “supra-constitutional”. Anwarul Haq, CJ, while dilating upon such submission of the learned Attorney General, chose to term it as “extra-constitutional” and granted validity keeping aside the provisions of the Constitution. It was not right to expend so much judicial talent, legal acumen, industry, time and energy on the part of the Bench and the bar to coin the terms of “supra-constitutional” and “extraconstitutional”, that is to say, in an exercise, which was aimed at finding justifications for the unconstitutional and illegal acts of usurpers of power by devising and using such or similar terms and phrases. In our view, such terminology would hardly change the unconstitutional nature and character of the said actions, which not only ex facie lacked the backing of any provision of the Constitution or the law, but were done in violation of the Constitution and the law.

62. It was contended that after the acts of 3rd November, 2007 General Pervez Musharraf was as much a usurper as was General Yahya Khan after the imposition of martial law in 1969. A detailed analysis of the judgment in Asma Jilani’s case has already been made in the preceding paragraphs. In the said case, General Yahya Khan was declared usurper by this Court in the following manner: -

“Looked at, therefore, either from the constitutional point of view or the Martial Law point of view whatever was done in March 1969, either by Field-Marshal Muhammad Ayub Khan or General Agha Muhammad Yahya Khan was entirely without any legal foundation. It was not even a revolution or a military coup d’état in any sense of those terms. The Military Commander did not takeover the reins of Government by force nor did he oust the constitutional President. The constitutional President out of his own free will and accord in response to the public demand, stepped aside and called upon the Military Commander to restore law and order, as he was bound to do both under the law and under the Constitution. On the stepping aside of the constitutional President the constitutional machinery should have automatically come into effect and the Speaker should have taken over as Acting President until fresh elections were held for the choice of a successor. The political machinery would then have moved according to the Constitution and the National and Provincial Assemblies would have taken steps to resolve the political disputes, if any, if the Military Commander had not by an illegal order dissolved them. The Military Commander, however, did not allow the constitutional machinery to come into effect but usurped the functions of Government and started issuing all kinds of Martial Law Regulations, Presidential Orders and even Ordinances.”

63. In Begum Nusrat Bhutto’s case, Anwarul Haq, CJ, referring to the ratio of the decision in Dosso’s case held 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, could not be judged by the sole criterion of its success or effectiveness, as contemplated by Kelsen’s pure theory of law. He observed that not only had that theory not been universally accepted, or applied, it was 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 excluded from consideration sociological factors or morality and justice which contributed to the acceptance or effectiveness of the new Legal Order. But, at the same time, he did not follow the law laid down by Hamoodur Rahman, CJ, in Asma Jilani’s case and went on to distinguish it by observing as under: -

“Now, it will be seen that in Asma Jilani’s case the Court has taken the view that the abrogation of the Constitution and assumption of all governmental power by the Army Commander-in-Chief was illegal because it was not justified by the circumstances in which he was called upon by the then President, Field Marshal Muhammad Ayub Khan to perform his legal and constitutional duty of restoring law and order. The Court took note of the fact that the Constitution itself contained a provision for the Speaker of the National Assembly to assume the office of Acting President, in case the sitting President wanted to resign or step aside, but this constitutional provision was frustrated by General Yahya Khan when he proclaimed himself to be the President of the country as well as the Chief Martial Law Administrator and abrogated the 1962 Constitution without there being any justification for the same. It is clear, therefore, that the conclusion that the acts of General Muhammad Yahya Khan amounted to a usurpation of powers flows directly from the circumstances obtaining in that case, and is not to be regarded as a general proposition of law to the effect that whenever power is assumed in an extra-Constitutional manner by an authority not mentioned in the Constitution, then it must amount to usurpation in all events. It would obviously be a question for determination in the circumstances of the particular case before the Court as to whether the assumption of power amounts to usurpation or not.”

Thus, Anwarul Haq, CJ, treated the decision in Asma Jilani’s case as restricted to the facts and circumstances of that case alone, and as not having laid down a general proposition of law that whenever power would be assumed in an extra-constitutional manner by an authority not mentioned in the Constitution, then it must amount to usurpation in all events. However, he did not notice a very loud and clear assertion of Hamoodur Rahman, CJ, when he said -

“I am not aware of any document or of any provision in any law which gives the Commander of the armed forces the right to proclaim Martial Law, although I am prepared to concede that he has like all other loyal citizens of the country a bounden duty to assist the State, when called upon to do so.”

The statement of Hamoodur Rahman, CJ, just quoted, referring to “any document or of any provision in any law which gives the Commander of the Armed Forces the right to proclaim martial law” could in no manner be treated as restricted to the assumption of power by General Yahya Khan alone. Further, in holding that “looked at, therefore, either from the constitutional point of view or the Martial Law point of view whatever was done in March 1969, either by Field-Marshal Muhammad Ayub Khan or General Agha Muhammad Yahya Khan was entirely without any legal foundation”, he minced no words.

It was a general statement and would apply to each and every situation in which an authority not mentioned in the Constitution assuming power would be treated as usurper. We lay it down firmly that the assumption of power by an authority not mentioned in the Constitution would be unconstitutional, illegal and void ab initio and not liable to be recognized by any court, including the Supreme Court. Henceforth, a Judge playing any role in future in the recognition of such assumption of power would be guilty of misconduct within the ambit of Article 209 of the Constitution.

64. As noted earlier, on 3rd November, 2007, General Pervez Musharraf issued Proclamation of Emergency and PCO No. 1 of 2007 in his capacity of Chief of Army Staff. In the former instrument, he incorporated the contents of the letter of the Prime Minister as grounds for proclaiming emergency throughout Pakistan and holding the Constitution in abeyance. By Article 2 of PCO No. 1 of 2007 it was provided that Pakistan shall, subject to the PCO and any other Order made by the President be governed, as nearly as may be, in accordance with the Constitution. Under the proviso to the above Article, it was provided that the President may amend the Constitution, as may be deemed expedient.

By clause (3) of Article 2 it was provided that all courts shall continue to function subject to PCO No. 1 of 2007 and Oath Order, 2007, but the Supreme Court, a High Court or any other court shall not have the power to make any order against the President or the Prime Minister or any person exercising powers or jurisdiction under their authority. By clauses (5) and (6) he kept intact the legislative and the executive organs of the State, but by Articles 4 and 5 of PCO No. 1 of 2007 provided that notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the President, 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 continue in force until altered, or repealed by the President or any authority designated by him.

Further, an Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution. Likewise, an Ordinance issued by the President or by a Governor which was in force immediately before the commencement of Proclamation of Emergency of the 3rd day of November, 2007 shall also not be subject to the limitations as to duration prescribed in the Constitution. He purported to assume all the absolute and unfettered powers of the legislative branch of the government, the executive branch being already under him with a compliant Prime Minister holding office during his pleasure, and the supreme command of the Armed Forces also vesting in him by virtue of clause (1A) of Article 243 of the Constitution.

65. To have full control over the judiciary, and to be free from the constitutional checks and balances, General Pervez Musharraf issued Oath Order, 2007 and thereby sought to replace the existing superior judiciary with a judiciary which was not bound by the Constitution so that his actions could not be challenged or adjudicated upon by an impartial court.

66. Mr. Hamid Khan, Sr. ASC, contended that the acts/actions of 3rd November, 2007 were taken by General Pervez Musharraf for his own benefit and the same were neither required in the interest of the State necessity nor for the welfare of the people of Pakistan, hence the same, besides being unconstitutional and void ab initio, were also mala fide. This aspect too, according to the learned counsel, made the instant case distinguishable from the cases of Begum Nusrat Bhutto and Zafar Ali Shah. To substantiate his contention, Mr. Hamid Khan referred to the events and circumstances, which led to the actions of 3rd November 2007.

67. On 31st December, 2004 the President to Hold Another Office Act, 2004 (Act No. VII of 2004) was enacted. Section 2 of the Act provided that the holder of the office of the President of Pakistan (General Pervez Musharraf) may, in addition to his office, hold the office of the Chief of the Army Staff which was declared not to disqualify its holder as provided under paragraph (d) of clause (1) of Article 63 read with proviso to paragraph (b) of clause (7) of Article 41 of the Constitution of the Islamic Republic of Pakistan or any other law for the time being in force, or any judgment of any Court or Tribunal. Proviso to above section provided that this provision shall be valid only for the present holder of the office of the President.

68. In the case of Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719) challenge was thrown, inter alia, to the LFO, 2002, the Seventeenth Amendment to the Constitution and the President to Hold Another Office Act, 2004. The petition was dismissed holding, inter alia, that General Pervez Musharraf was the President of Pakistan under clauses (7) and (8) of Article 41 of the Constitution, which provided that he shall hold the office of Chief of Army Staff notwithstanding anything in the Constitution to the contrary and that Articles 43, 243 & 244, by virtue of the overriding effect of aforesaid clauses (7) and (8), were held not applicable to him. Further, under the proviso to clause (7) ibid, the provisions of Article 63(1)(d) of the Constitution were made applicable to the continuation in office of General Pervez Musharraf as President on and after 31st December 2004, meaning thereby that he would have to relinquish the office of Chief of Army Staff after the said date. Thus, he continued to retain the office of Chief of Army Staff.

69. In May 2007, Qazi Hussain Ahmed, Ameer Jamat-e-Islami filed Constitution Petition No. 58 of 2007 in this Court under Article 184(3) of the Constitution with the prayer that General Pervez Musharraf (1) had ceased to be a member of the Armed Forces w.e.f. 11th August, 2003; (2) had violated his oath as a member of the Armed Forces by taking part in political activities and made himself liable to dismissal, etc.; (3) had rendered himself disqualified to hold the office of President due to his acting against the Constitution, betraying the nation, defying the oath, siding with, and campaigning for, the political parties of his personal liking, dragging the Army into politics for his own benefit, holding office of profit in the service of Pakistan and ridiculing the judiciary; and (4) he may be restrained from acting and posing himself as the Chief of Army Staff, as also from patronizing the government-led political parties and addressing political gatherings of such parties.

70. The aforesaid petition of Qazi Hussain Ahmed came up for hearing on 5th September, 2007 when it was ordered to be heard along with other identical petitions, as in the meantime, Constitution Petitions No. 59, 61, 62, 63, 68, 74, 79, 80, of 2007 had been filed by Jamat-e-Islami through its Ameer Qazi Hussain Ahmed, Imran Khan, Chairman, Pakistan Tehrik-e-Insaf, Engineer Jameel Ahmed Malik, Dr. Anwarul Haq, Pakistan Lawyers Forum through its President Mr. A.K. Dogar, Advocate, Makhdoom Muhammad Amin Fahim, President, Pakistan Peoples Party Parliamentarian, Muhammad Shahbaz Sharif, President, Pakistan Muslim League (N) and Tariq Asad, Advocate, respectively with similar prayers. From the 17th September 2007 the petitions were being heard on day to day basis. In the meantime, the Chief Election Commissioner, vide notification dated 20th September, 2007, announced the schedule of election for the office of President as under: -

(a) Filing of nomination papers with the Returning Officer at Islamabad and with each of the Presiding Officers at Lahore, Karachi, Peshawar and Quetta 27.09.2007 (upto 12.00 noon)

(b) Scrutiny of nomination papers by the Returning Officer at Islamabad 29.09.2007 (at 10.00 a.m.

(c) Withdrawal of candidature before the Returning Officer at Islamabad 01.10.2007 (upto 12.00 noon)

(d) Publication of the list of validly nominated candidates 01.10.2007 (at 01.00 p.m.)

(e) Polling day and polling time 06.10.2007 (from 10.00 a.m. to 03.00 p.m.)

Vide judgment dated 28.09.2007 reported as Jamat-e-Islami v. Federation of Pakistan (PLD 2009 SC 549), by a majority of 6 to 3, the petitions were held to be not maintainable under Article 184(3) of the Constitution, inter alia, holding that the petitions relating to the eligibility of President General Pervez Musharraf, a prospective candidate for the election of President, though involved questions of public importance, but the same did not relate to the enforcement of any of the Fundamental Rights so as to invoke jurisdiction of this Court under Article 184(3) of the Constitution, besides being premature, speculative and presumptive in nature. It was further held that the questions involved therein, in fact, fell in the domain of the Chief Election Commissioner of Pakistan. On the other hand, as per the minority view of Rana Bhagwandas, Sardar Muhammad Raza Khan and Mian Shakirullah Jan, JJ, the petitions were held to be maintainable under Article 184(3) of the Constitution and were allowed. General Pervez Musharraf was held not qualified to contest the election of President on account of his holding an office of profit in the service of Pakistan, viz., the Chief of Army Staff. Falak Sher, J, in his separate reasons concurred with the majority view that the petitions were not maintainable under Article 184(3) of the Constitution. However, on merits he held that General Pervez Musharraf, being in the service of Pakistan as Chief of Army Staff, was holding an office of profit within the contemplation of Article 63(1)(d) of the Constitution, and, therefore, was not qualified to contest the election of President. Thus, on merits four Judges allowed the petitions and held General Pervez Musharraf disqualified to contest the Presidential election.

71. It is pertinent to note that up till the date of above decision, General Pervez Musharraf, Prime Minister Shaukat Aziz and the Federal Cabinet were well contented with the role played by the judiciary. They exchanged the congratulations on the decision as is manifest from their statements appearing in the next day issues of several newspapers such as the Daily News, Islamabad, the Daily Nation, Islamabad, excerpts wherefrom are reproduced below: -

The Daily News, Islamabad, 29th September, 2007

“CABINET WELCOMES SC VERDICT”

Islamabad:

The federal cabinet Friday expressed profound happiness at the verdict of the Supreme Court and endorsed that Pakistan needs the vision and leadership of President General Pervez Musharraf to continue its march towards peace and prosperity.

The informal meeting of the cabinet was called by Prime Minister Shaukat Aziz here at the Prime Minister’s House soon after the announcement of Judgement by the Supreme Court in which the cabinet welcomed the Supreme Court’s decision related to the reelection of President General Pervez Musharraf for the second term.

The cabinet was of the view that the judgement given by the Supreme Court removes any uncertainty about the future developments and has put the country firmly on the path of growth and development. ………..”

And,

The Daily Nation, Islamabad, 29th September, 2007

“MUSHARRAF, AZIZ SAY JUSTICE TRIUMPHS”

President General Pervez Musharraf and Prime Minister Shaukat Aziz Friday welcomed the Supreme Court’s decision regarding dual offices saying that it would be milestone in the country’s journey towards democracy and has strengthened it.

Maj. Gen. (Retd.) Rashid Qureshi, spokesman for the President respected and honored the judgment of the Supreme Court. In a brief statement he said that justice had triumphed. Meanwhile, addressing a press briefing after chairing the emergency cabinet meeting following Supreme Court’s verdict on petitions to disqualify General Pervez Musharraf for re-election, Prime Minister Aziz said that the government was happy over the decision which proves that is rule of law, justice, democracy and parliament in the country.

“After the decision, I called an emergency cabinet meeting which has endorsed this verdict and greeted President General Pervez Musharraf on this success,” said Shaukat Aziz, who also phoned President General Pervez Musharraf to congratulate him on the issue. The PM was briefing the media about government stance on Supreme Court’s decision and special cabinet meeting.

He said that this judgement would also make the process of presidential elections smoother. “Let us all accept this landmark judgement with grace and dignity and move on with the electoral process in a mature (way), “Prime Minister said, adding that the opposition should also accept it in good spirit.

To a question that as to what step the government would take if the opposition went on strike on roads as some of its workers threw rotten eggs and tomatoes at the Supreme Court building and also announced streets struggle against the verdict, the Prime Minister said no one would be allowed to take law and order in their hands and damage the national assets.

“We would ensure implementation of Supreme Court decision…………………”

72. As per schedule of election, nomination papers filed by General Pervez Musharraf, Makhdoom Muhammad Amin Faheem, Mr. Wajihuddin Ahmed and Mrs. Faryal Talpur were scrutinized by the Chief Election Commissioner of Pakistan on 29th September, 2007. However, the objections raised on behalf of the latter three candidates against the candidature of General Pervez Musharraf were rejected vide order of even date.

73. One of the candidates of election of the President, namely, Mr. Wajihuddin Ahmed, a former Judge of the Supreme Court filed Constitution Petition No. 73 of 2007 in this Court with the following prayer: -

(1) The order of the Chief Election Commissioner dated 29.09.2007 accepting orally the nomination papers of General Pervez Musharraf as a candidate for the President of Pakistan may kindly be set aside as unconstitutional;

(2) General Pervez Musharraf may kindly be declared ineligible, lacking in qualifications under Article 62 and other provisions of the Constitution and disqualified under Article 63 of the Constitution to contest the election of the office of the President of Pakistan;

(3) After rejecting nomination papers of General Pervez Musharraf, the remaining electoral process for the election of President of Pakistan under the schedule announced by the Chief Election Commissioner may be set aside; and

(4) As a consequence, fresh Presidential elections through the new electoral college to be inducted after holding general election be ordered.

74. Two other petitions, namely, Constitution Petitions Nos. 74 & 75 of 2007 were filed respectively by Makhdoom Amin Fahim and Waseem Rehan, which were clubbed with the main petition so as to be heard together with it. On 3rd October, 2007, the petitions came up for hearing before a Bench of 9 Judges including Sardar Muhammad Raza Khan, J, when the following order was passed: -

“In the judgment in Jamat-e-Islami v. Federation of Pakistan (Const. P. 59/2007), one of us (Mr. Justice Sardar Muhammad Raza Khan) has already expressed his complete views on merits and hence he expresses his inability to sit on the Bench. In the circumstances, the matters are referred to his lordship, the Hon’ble Chief Justice for reconstitution of the Bench.”

After the recusal of the said learned Judge, the matter was taken up by the remaining 8 members of the Bench who passed the following order: -

“After having heard the learned counsel on behalf of the petitioners at length we are of the view that prima facie some questions of law of public importance with reference to enforcement of fundamental rights are involved and besides that various Articles of the Constitution such as Articles 41, 43, 62, 63, 243 and 244, require interpretation and more-so the import, significance and impact of amendment made in the Presidential Election Rules, 1988 is also to be examined, therefore, it seems inevitable to issue notice to the learned Attorney General for Pakistan as well as the other respondents. To come up tomorrow i.e. 4.10.2007.”

On the same day, i.e. 3rd October, 2007, CMA No. 2683/2007 was filed on behalf of petitioner Wajihuddin Ahmed stating, inter alia, that the main petition involved important questions of public and national importance pertaining to the enforcement of fundamental rights and that the very constitutional and political future of the country was at stake, therefore, the petition ought to be heard by the Full Court. The application was placed before the Chief Justice of Pakistan who passed the following order: -

“This application has been moved for constitution of full Court to hear the subject petition. Keeping in view the availability of the Hon’ble Judges, a larger Bench has already been constituted with due diligence. However, if the petitioner is not satisfied and still desires for the constitution of full Court, his request will be considered later on, subject to availability of Hon’ble Judges. Petitioner may be informed accordingly.”

75. On 4th October, 2007, a Bench of 10 available Judges heard the petitions and adjourned the hearing to 5th October, 2007 on which date the following order was passed on the miscellaneous applications filed by the petitioner seeking stay of the Presidential election scheduled to be held on 6th October, 2007: -

“Having heard the learned counsel for the parties at some length, it is unanimously resolved and directed that the election process already commenced shall continue as per the schedule notified by the Chief Election Commissioner of Pakistan but the final notification of the election of the returned candidate shall not be issued till the final decision of these petitions.

2. The main petitions shall be set down for hearing on 17.10.2007.”

On passing of the above order, General Pervez Musharraf seemed to be fully satisfied. According to the news items appearing in the Daily News, Islamabad dated 6th October, 2007, he told the Treasury MPs that he was grateful to the judiciary on the “wonderful decision”. Elaborating the point, he observed that the decision was also beneficial to him and that he left it to the judiciary to decide, and expressed that they must bank upon the judiciary of Pakistan. The relevant excerpts are reproduced as below. The daily News, Islamabad, 6th October, 2007

“MUSHARRAF IN SEVENTH HEAVEN OVER SC VERDICT”

President General Pervez Musharraf told the treasury MPs Friday that he is grateful to the judiciary on the “wonderful decision” it made on presidential polls, adding he would be at liberty to say in uniform if the case lingers on even after October 17 and the election commission does not notify his victory in case he wins. He said any delay in court’s decision and the issuance of notification can win him even a year in army office. He said he would be under no compulsion to drop uniform before the judgement comes and he could be able to buy more time for wearing two hats in case the decision on the issue gets late. Elaborating the point that the court decision is also beneficial to him, he said there would be no hurdle in his way to continue holding the COAS office even for a year or so if the case is not decided. At the same time he also thanked the judiciary and said, “We should bank on the judiciary”.

“It is a good decision. We are grateful to the Supreme Court Bench,” he said while commenting on the decision of the larger Bench of the Supreme Court that the presidential polls should be held unhindered but the results be withheld up till October 17. He said he has good hopes from the judiciary in future as well and the government should trust it.

“I leave it to the judiciary to decide. We must bank on the judiciary of Pakistan,” an insider quoted him as telling the treasury members of parliament.

He also laughed at those smelling foul for him in the SC decision saying he considers it a “blessing in disguise”. Musharraf said those who consider it their defeat are wrong as the decision goes in his favour. Suppose, he said, the case keeps lingering even for a year or two, it would again be beneficial for him as he would not have to drop the army hat. “In that case, I would be at liberty to keep the uniform,” he told the legislators.”

The Attorney General Malik Muhammad Qayyum also expressed his satisfaction over the verdict, which was evident from his remarks published in the Daily News of 6th October, 2007, viz., “Attorney General Malik Qayyum expressed his satisfaction over the verdict and said they are happy as the court has accepted the viewpoint of the government.”

76. On 8th October, 2007, the Chief Justice of Pakistan, considering the availability position of the Judges, constituted an 11-member Bench consisting of the remaining available Judges. The petitions came up for hearing on 17th October, 2007, when the 11 member Bench passed the following order: -

“Mr. Hamid Khan, learned Sr. ASC, Dr. Farooq Hassan, Sr. ASC and Mr. A.K. Dogar, Sr. ASC have made a request for constitution of Full Court to hear these petitions. Let these petitions and the request made be placed before the Hon’ble Chief Justice to consider constitution of Full Court.”

The same day, the matter was placed before the Chief Justice of Pakistan who passed the following order: – “In view of the order of even date, passed by Bench-II, request of the petitioners has been considered once again. Meanwhile, the Registrar has also enquired from HJ(8) [Falak Sher, J.], who has expressed his inability to be a member of the Bench hearing the listed petitions, as according to him he has already expressed his opinion on merits in Constitution Petition No. 58 of 2007, etc. Same is the position of HJ(9) [Mian Shakirullah Jan], while HJ(1) [Rana Bhagwandas, J.] is out of country being on ex-Pakistan leave and HJ(13) [Nasir-ul-Mulk, J.] is proceeding abroad on official commitment on 20th morning, whereas HJ(12) [Saiyed Saeed Ashhad] is on medical leave. As far as the undersigned is concerned, I feel that the judicial propriety requires that I should not sit on the Bench hearing petitions involving election of the incumbent President of Pakistan being holder of two offices. Therefore, the Bench already constituted may proceed with the matter from tomorrow, i.e. 18th October, 2007 to dispose of the cases accordingly.”

77. After the above noted interim injunctive order was passed, election of the office of President took place as per schedule announced by the Chief Election Commissioner of Pakistan. While the petitions were being heard on day-to-day basis, apprehensions were expressed by the sympathizers of General Pervez Musharraf as to the consequences likely to follow in case a verdict adverse to him was returned by this Court, which were apparent, inter alia, from the following excerpts of the newspapers: – The daily DAWN, Islamabad 30th October, 2007 Attorney General Lists Options For Musharraf “President Pervez Musharraf may seek re-election from the present or the new assemblies if the Supreme Court gives a verdict against him on the petitions challenging his nomination as a presidential candidate, says Attorney-General Malik Muhammad Qayyum. Talking to Dawn on Monday, he said that before going for reelection the President would have to get removed – though the parliament and by Nov. 15-any legal or constitutional disqualification pointed out by the apex court. The worst case scenario would be if the apex court held that Gen Musharraf was not qualified to run for any legal or constitutional reason.

If the court pointed out some disqualification on legal grounds, the government would have to remove the same by amending the relevant law or enacting a new law. Similarly, if the disqualification was on constitutional ground, the president would have to get a constitutional amendment passed by the middle of November, by which day the assemblies would complete their tenure and stand dissolved:”

The daily News Islamabad, 30th October, 2007

“WHAT IF…?

“Now the Supreme Court is again under pressure to give a verdict favourable to the current military ruler of the country. In a interview with a private television channel on October 10, the general was asked how he would react if the court said he could not be president again. He left open all options: “We will cross the

bridge when we reach it,” he said. Prime Minister Shaukat Aziz, the cheerleader-in-chief of the Musharraf election campaign, said on October 14 that he expected the Supreme Court to uphold his election. Some Ministers have thrown dark hints that if decided ineligible, the General could proclaim a state of emergency or even impose martial law. In other words, he would not shrink from violating even the badly mutilated constitution that the country was given through the Seventeenth Amendment. So much for the General’s oath to “preserve, protect and defend the Constitution”.

The real question is what the general would do if the court decides against him. His past record gives some clause. He grudgingly accepted the restoration of the chief justice, because it did not directly touch on his powers. The decision of the court on the right of Nawaz Sharif to return to the country, on the other hand, threatened to disrupt Musharraf’s re-election plans and he flouted it openly. In the present case, his political survival is at stake. His reaction is therefore, expected to be robust, to say the least. Lastly, he could refuse to accept the verdict and either declare a state of emergency or impose martial law.

The general now lacks the authority to enforce a state of emergency or martial law, because the country has come a long way since March and the ground realities have changed dramatically.”

The Daily News, Islamabad, 3rd November, 2007

“SC JUDGMENT UNLIKELY ON TUESDAY

The Supreme Court will be able to hand down its ruling on petitions challenging General Pervez Musharraf’s eligibility as presidential candidate on Tuesday only if lawyers of the two sides hurriedly wrap up their arguments which seems impossible at the moment.

The eleven-judge Bench headed by Justice Javed Iqbal, which is hearing these petitions, dispelled the impression that it was delaying their disposal. It was even prepared to sit on non-court work day of Saturday but could not as some lawyers had other engagements.

Attorney General Justice (Retd.) Malik Qayyum has taken considerably long time, contrary to what was earlier believed, to argue the government case. He will take at least another hour on Monday, the next day of hearing, to finish his expositions.

After that, Barrister Wasim Sajjad, who represents the federal government, will take the floor. If the proceedings went ahead smoothly, he will be able to conclude his arguments by tea break at 11 am Tuesday.

Then will come on podium the constitutional guru, Syed Sharifuddin Pirzada, who requires a full day to defend the president’s eligibility. This means that the proceedings would spread to Wednesday.”

The Daily Time, Islamabad, 3rd November, 2007

“SUPREME COURT AND PRESIDENT MUSHARRAF

The remark has come in the midst of rumours that some steps “of a special nature” could be taken by the government if the verdict of the Court goes against the president. Some ministers have expressed their fears on this ground over a period of time, pointing to “alternative” options reserved by the government. Thus, over the last two days, these statements have given rise to rumours of “emergency or martial law” to which the honourable judge has referred. It is thought that the stock market in Karachi spiraled downwards on account of this, and Ms Benazir Bhutto may have gone to Dubai to avoid being stranded in Pakistan under martial law.

The federal ministers who have been talking about “options” have covered their tracks by saying that special measures have been discussed but no consensus exists inside the government over the President Musharraf might do if his candidature is rejected by the Supreme Court. According to his attorney general, Malik Muhammad Qayyum, President Musharraf would continue to hold the post of army chief if he was blocked from taking oath of the president’s office for another term.

The Daily News, Islamabad, 3rd November, 2007

“QAYYUM HINTS AT EMERGENCY IMPOSITION

The government on Friday night gave the strongest hint that emergency may be imposed in the country when Attorney General Justice ® Malik Qayyum told The News all major political cases being heard by the Supreme Court, including the case of General Musharraf’s eligibility, would cease if emergency was proclaimed. The attorney general talking exclusively Friday evening from Lahore said the much talked about stage of emergency, if imposed, would mean suspension of fundamental rights and end to all cases filed under Article 184(3) of the constitution.

“No petition could be entertained by the superior judiciary to challenge any act under the basic fundamental rights provisions of the constitution,” he said.” The Daily Nation, Islamabad, 3rd November, 2007

“EMERGENCY NEXT 48 HOURS CRUCIAL”

After high level consultations, the government has finalized the blueprint of a legal framework order to impose emergency in the country and a PCO purported to tame the judiciary, which has given a number of decisions against the Presidency and the government.

Under the new PCO, the judges will be required to take fresh oath, which will automatically exclude all the judges hostile to the Presidency from the future dispensation. Sources close to the Presidency claimed that emergency could be

enforced any time.

“Earlier the issue was when to impose emergency, whether before the Supreme Court decision on the eligibility of Gen Musharraf or after the ruling. But now there is probability that it will be promulgated within next 48 hours. The coming weekend is very crucial,” sources claimed.

There is a strong perception among the President’s aides that the SC’s verdict will be overwhelmingly against President Musharraf, hence the planning to impose emergency and PCO in order to disable the judiciary which most political analysts believe will not solve President Musharraf’s problems. The relations between the judiciary and executive turned sour after the former had given a number of decisions which were embarrassing to the Presidency and the government.”

78. In the above background, Mr. Hamid Khan, Sr. ASC, learned counsel for the petitioners in the instant petitions, who was one of the counsel for Wajihuddin Ahmed petitioner in Constitution Petition No. 73 of 2007, stated at the bar that on 2nd November, 2007 a miscellaneous application (later assigned CMA No. 2869 of 2007) was sought to be presented by Barrister Aitezaz Ahsan before the eleven-member Bench during the course of hearing, but it was directed that the same be filed in office. In the said miscellaneous application, it was stated, inter alia, that there were widespread reports in the print and electronic media, and some federal ministers had also stated, that the decision in the “disqualification case” would lead to imposition of martial law or emergency or some other unconstitutional steps including but not limited to a fresh Provisional Constitution Order, which would subvert the proceedings in the aforesaid case. It was prayed that the respondents may be directed to clarify their intent in this regard and may be restrained from taking any such step. The office brought the application on file with instruction to the Court Associate to bring it to the notice of the 11-member Bench when it resumed hearing of the petitions on 5th November, 2007.

79. The speculations came true on 3rd of November, 2007, when General Pervez Musharraf in the capacity of the Chief of the Army Staff issued a Proclamation of Emergency, whereby he held the Constitution in abeyance and also issued PCO No. 1 of 2007 and Oath Order, 2007. Immediately thereafter, the Registrar placed the file of Wajihuddin Ahmed’s case before the Chief Justice of Pakistan for taking up CMA No. 2869 of 2007 filed therein. Thus, a special Bench of 7 available Judges was immediately constituted and convened, which passed the following order: -

“This application was filed in Court on 2nd November 2007 praying that respondent-Government may change composition of Bench by adopting extra-constitutional measures, which could mean either by placing martial law or bringing PCO or by imposing emergency.

2. Application could not be taken up as it was not numbered. However, now it has been marked to Bench. In the meantime, in electronic and print media news appeared that PCO has been promulgated to enable Government to administer fresh oath to the Chief Justice as well as Judges of the Supreme Court so that favourable Judges could be appointed. Be that as it may, we feel that Government has no ground/reason to take extraconstitutional steps, particularly for the reasons being published in the newspapers that high profile case is pending and is not likely to be decided in favour of the Government, although matter is still pending. Therefore, a special Bench has been constituted and on considering pressing situation and news which have been published in newspapers, we direct as follows: -

(i) Government of Pakistan, i.e. President and Prime Minister of Pakistan are restrained from undertaking any such action, which is contrary to Independence of Judiciary;

(ii) No judge of the Supreme Court or the High Courts including Chief Justice(s) shall take oath under PCO or any other extra-Constitutional step;

(iii) Chief of Army Staff, Corps Commanders, Staff Officers and all concerned of the Civil and Military Authorities are hereby restrained from acting on PCO which has been issued or from administering fresh oath to Chief Justice of Pakistan or Judges of Supreme Court and Chief Justice or Judges of the Provincial High Courts;

(iv) They are also restrained to undertake any such action, which is contrary to independence of Judiciary. Any further appointment of the Chief Justice of Pakistan and Judges of the Supreme Court and Chief Justices of High Courts or Judges of Provinces, under new development shall be unlawful and without jurisdiction;

(v) Put up before full court on 5th November 2007.”

80. Seen in the above perspective, the actions of General Pervez Musharraf dated 3rd November, 2007 were the result of his apprehensions regarding the decision of Wajihuddin Ahmed’s case and his resultant disqualification to contest the election of President. Therefore, it could not be said that the said actions were taken for the welfare of the people. Clearly, the same were taken by him in his own interest and for illegal and unlawful personal gain of maneouvring another term in office of President, therefore, the same were mala fide as well. The statement made in Proclamation of Emergency that the situation had been reviewed in meetings with the Prime Minister, Governors of all the four Provinces, and with Chairman, Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice Chief of Army Staff and Corps Commanders of the Pakistan Army, and emergency was proclaimed in pursuance of the deliberations and decisions of the said meetings, was incorrect. The Proclamation of Emergency emanated from his person, which was apparent from the words “I, General Pervez Musharraf…….” used in it.

81. There is force in the submission of the learned counsel for the petitioners that the continuation in power of General Pervez Musharraf was all along the result of maneouvring. The holding of Referendum 2002 and the amendments made in the Constitution by means of the LFO, 2002 were hotly contested at the floors of the Houses of Parliament, but the amendments so made in the Constitution were ultimately accepted and the Seventeenth Amendment to the Constitution was passed on 31st December, 2003 under the umbrella of an accord between the PML (Q) and the MMA, thus paving the way for General Pervez Musharraf to be the President of Pakistan for the next five years, i.e. up to 15th November, 2007 while continuing to be the Chief of Army Staff at the same time in terms of the aforesaid Seventeenth Amendment. He promised to relinquish the office of Chief of Army Staff on or before 31st December, 2004, but later in deviation of his promise, he got enacted the President to Hold Another Office, Act, 2004. That is why his candidature for the election of President was challenged before the Supreme Court, first by the major political parties of the country in Jamat-e-Islami’s case, and later by the two rival candidates of the election of President in Wajihuddin Ahmed’s case. The majority decision in Jamat-e-Islami’s case was rendered in favour of General Pervez Musharraf only on a legal ground, namely, the petitions were not maintainable as it did not involve enforcement of any of the Fundamental Rights of the petitioners. However, four out of nine Judges gave decision on merits and held him disqualified to contest the election of President.

82. As to the constitutionality and the legality of the acts/actions of 3rd November, 2007, General Pervez Musharraf himself, in an interview to a foreign TV news channel (BBC) admitted that he had taken unconstitutional steps. Relevant portion from his interview, as reported in the Daily DAWN of 18th November, 2007 is reproduced below: -

The daily DAWN, Islamabad, 18th November, 2007

NO ILLEGAL STEP TAKEN BEFORE NOV. PRESIDENT:

“Before March, I was very good. Suddenly did I go mad after March or suddenly my personality changed, am I Doctor Jekyll and Mister Hyde or what is it?” He said. “Am I such a person?

“Please go into the details, the causes. What I am doing? Have I done anything unconstitutional, yes, I did it on Nov. 3. “Did I do it before? Not once.”

83. It is noteworthy that contrary to the practice in the past, the Parliament of the relevant time, as also the Parliament that came into existence as a result of the General Election held on 18th February, 2008, too, stayed their hands off and did not extend validation or protection to the unconstitutional acts of General Pervez Musharraf dated 3rd November, 2007, which displayed their commitment to the rule of law and supremacy of the Constitution.

84. In forming the opinion generally as to the prevailing state of affairs having bearing on the issues involved in the present petitions, reports of the relevant period from the electronic and print media have been taken into consideration, which this Court is entitled to, in the light of the law laid down in Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57), Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473), Benazir Bhutto v. President of Pakistan (PLD 1998 SC 388), Benazir Bhutto v. President of Pakistan (PLD 2000 SC 77), Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583), Watan Party v. Federation of Pakistan (PLD 2006 SC 697) and Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2004 Lahore 130).

85. In the light of the above discussion, the actions of General Pervez Musharraf dated 3rd November, 2007, viz., Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, etc. are held and declared to be unconstitutional, illegal, mala fide and void ab initio. In pursuance of the aforesaid declaration, it is further held and declared that the Chief Justice of Pakistan, the Judges of the Supreme Court of Pakistan, Chief Justices and Judges of High Courts who were declared to have ceased to hold office by the notifications issued by the Ministry of Law and Justice, Government of Pakistan in pursuance PCO No. 1 of 2007 and Oath Order, 2007 shall be deemed never to have ceased to be such Chief Justices or such Judges irrespective of any notification issued regarding their reappointment or restoration. The notifications issued by the Ministry of Law in this behalf are declared to be null and void.

86. General Pervez Musharraf, during the period of the emergency from 3rd November, 2007 to 15th December, 2007, in pursuance of the instruments and measures of 3rd November, 2007, which have been held and declared to be unconstitutional, illegal and void ab initio in the preceding paragraph, promulgated some more instruments, which are noted hereinafter. On 15th November, 2007, by Provisional Constitution (Amendment) Order, 2007, he purported to make amendments in PCO No. 1 of 2007 so as to provide power to repeal PCO No. 1 of 2007 and to revoke Proclamation of Emergency of 3rd November, 2007.

87. On 20th November, 2007, by means of the Constitution (Amendment) Order, 2007 (P. O. No. 5 of 2007) General Pervez Musharraf made certain amendments in the Constitution, i.e., in Articles 175, 198 and 218 (Establishment of High Court for Islamabad Capital Territory), Article 186A (withdrawal by the Supreme Court of any case, appeal or other proceedings pending before a High Court to it and disposing of the same), Article 270B (General Elections 2008 to the National Assembly and the Provincial Assemblies to be deemed to be held under the Constitution) and Article 270C (appointment/cessation of office of Judge under the Oath Order, 2007 to be deemed under the Constitution). By the same Order, he purported to add Article 270AAA in the Constitution (validation and affirmation of laws etc.).

88. On 14th December, 2007, by the Constitution (Second Amendment) Order, 2007 (P.O. No. 6 of 2007), amendments were made in Article 193 (appointment of a Judge of the High Court of Islamabad Capital Territory, age limit for appointment of High Court Judges to be 40 years instead of 45 years), Articles 194 and 208 (oath of the Chief Justice of Islamabad High Court and rules of the Islamabad High Court) and Article 270C (Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts who had not made oath under the Oath Order, 2007 to cease to hold office on and with effect from 3rd November 2007 and the Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts appointed and/or continued as such by virtue of the Oath Order, 2007, on revival of the Constitution to take oath as set out in the Third Schedule to the Constitution.

89. By the Islamabad High Court (Establishment) Order, 2007 (P.O. No. 7 of 2007 dated 14th December, 2007), matters relating to the establishment of the Islamabad High Court, appointment of Judges, jurisdiction, powers of Chief Justice and other Judges, other courts, procedure as to appeals to Supreme Court, practice and procedure, transfer of proceedings, enforcement of orders etc. of Lahore High Court, Right to appear or to act in proceedings transferred to Islamabad High Court, power to appoint officers and staff, expenditure charged upon the Federal Consolidated Fund, removal of difficulties, power to adapt laws, etc., were provided.

90. By the High Court Judges (Pensionary Benefits) Order, 2007 (P.O. No. 8 of 2007 dated 14th December, 2007) it was provided that a Judge who had ceased to hold office of a Judge of High Court in terms of Article 3 of Oath Order, 2007 or had otherwise retired from service as permanent Judge shall be entitled to full pension and other retirement benefits admissible to a permanent Judge of a High Court. A Judge of High Court who was holding the post of District & Sessions Judge immediately before his appointment as Judge and had ceased to hold office with effect from 3rd November, 2007 would not be entitled to pensionary benefits.

91. By the Supreme Court Judges (Pensionary Benefits) Order, 2007 (P.O. No. 9 of 2007), it was provided that a Judge of the Supreme Court who had ceased to hold office in pursuance of Article 3 of Oath Order, 2007 would be entitled to full pension and other retirement benefits.

92. Finally, on 15th December, 2007, by the Revocation of Proclamation of Emergency Order, 2007, the emergency proclaimed on 3rd November, 2007 was revoked on and with effect from 15th December 2007 and the Constitution as amended by P.Os. Nos. 5 & 6 of 2007 was revived on and from the same date. This Order also provided that the Chief Justice of Pakistan and Judges of the Supreme Court, the Chief Justice and the Judges of the Federal Shariat Court and Chief Justice and Judges of the High Courts holding office at the time of the revival of the Constitution shall make oath under the Constitution.

93. The learned counsel for the petitioners vehemently contended that General Pervez Musharraf could not have introduced his own amendments into the Constitution for self-service and benefit during the so called emergency. The surreptitious validation, affirmation and adoption made by him through insertion of Article 270AAA were invalid and thus had no legal effect in the absence of a parliamentary validation in accordance with Articles 238 and 239 of the Constitution. The unconstitutional acts of General Pervez Musharraf were never extended constitutional protection by the Parliament through a constitutional amendment. The said amendments were unconstitutionally and illegally validated by the so called judgments in Tikka Iqbal Muhammad Khan’s case.

Therefore, all such instruments and measures including constitutional amendments along with the judgments were required to be done away with. They were not liable to be condoned on the touchstone of the criteria laid down in Asma Jilani’s case. We have considered this aspect of the matter. An analysis of the first phase of amendments made under P.O. No. 5 of 2007 would show that they were intended to protect the unconstitutional and illegal act of removal of Judges, which was sought to be done by insertion of Articles 270C and 270AAA in the Constitution. The provision of Article 270B was also an eyewash, inasmuch as the holding of general elections was an act, which was required to be done under the Constitution. However, by providing that the General Elections of 2008 would be deemed to have been held under the Constitution, an old technique to blackmail the other players of the game was devised as it was done at the time of the passing of the Seventeenth Amendment to the Constitution when it was given to understand that if LFO 2002 was not accepted, the elections held in October, 2002 would stand vitiated. Even otherwise, the elections of 2008 were held under Conduct of General Election Order, 2002, which already stood protected under the Seventeenth Amendment to the Constitution. Further, when the elections were held on 18th February, 2008, the Constitution was in force having already been revived on 15th December, 2007.

94. To cover up the whole illegality, amendments were purportedly made in Part VII of the Constitution relating to the Judicature and a High Court established for the Islamabad Capital Territory, to be known as the Islamabad High Court. Indeed, the establishment of a High Court or a Federal Court for the Islamabad Capital Territory was an act, which could have been done under and in accordance with the Constitution. It would also tend to advance or promote the good of the people, but unfortunately, it was mixed up with the unconstitutional, illegal, void ab initio and mala fide acts. It was carried out by an authority not mentioned in the Constitution and in a manner not authorized therein.

Therefore, it was not possible to condone it. However, it would be open to the Majlis-e-Shoora (Parliament) to take steps to establish such a Court in accordance with the Constitution and the law. Even while making amendments relating to the Judicature, an amendment was made in Article 186A of the Constitution, making a provision for withdrawal of a case from a High Court to the Supreme Court, which was impregnated with the potential of being misused in the then scenario where Abdul Hameed Dogar, J, and such other Judges of the Supreme Court might have withdrawn any case from a High Court so as to decide it themselves on an apprehension that the concerned High Court in the case pending before it might give decision not suitable to General Pervez Musharraf.

95. Again, in the second phase of amendments purportedly made through P.O. No. 6 of 2007, judiciary related amendments, e.g. appointment age, oath of the Chief Justice, Islamabad High Court, the rules of that Court etc., which could be considered to “have been done for the ordinary orderly running of the State” were made in conjunction with mala fide amendments, which provided that the Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts, who had not made oath under Oath Order, 2007 shall cease to hold office on and with effect from 3rd November 2007 and that the Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts appointed and/or continued as such by virtue of the Oath Order, 2007, on revival of the Constitution shall make oath as set out in the Third Schedule to the Constitution.

96. Last, but not the least, the objective of unconstitutional and illegal removal of Judges including Chief Justices having been achieved, on 15th December, 2007, by the Revocation of Proclamation of Emergency Order, 2007, the emergency proclaimed on 3rd November, 2007 was revoked on and with effect from 15th December 2007 and the Constitution as amended by P.Os. Nos. 5 & 6 of 2007 was revived on and from the same date. This Order also provided that the Chief Justice of Pakistan and Judges of the Supreme Court, the Chief Justice and the Judges of the Federal Shariat Court and Chief Justice and Judges of the High Courts holding office at the time of the revival of the Constitution shall take oath under the Constitution. On the pattern of Zafar Ali Shah’s case, this was made to appear like “transactions which are past and closed, for, no useful purpose can be served by reopening them” as held in Asma Jilani’s case.

97. As noted earlier, Proclamation of Emergency and PCO No. 1 of 2007 were issued by the Chief of Army Staff while Oath Order, 2007 was issued by the President in pursuance of the aforesaid two instruments. The learned counsel for the petitioners picked up the point that the above scheme of things of the acts/actions of 3rd November, 2007 was against the scheme of the Constitution under which the President was the supreme commander of the Armed Forces while the Chief of Army Staff, being the head of the Pakistan Army alone, occupied a position much down the ladder, therefore, in what manner the President would act in pursuance of instruments issued by the Chief of Army Staff? The answer to this question is found in Asma Jilani’s case. Although by the Proclamation of Martial Law the office of President had ceased to exist yet General Yahya Khan, by another Proclamation of the 31st March, 1969, purported to assume that office with retrospective effect from the 25th of March 1969. Thereafter, on the 4th April, 1969 a Provisional Constitution Order was issued whereby the Constitution of 1962, was by and large restored, and it was provided that the country was to be governed as nearly as may be, in accordance with its terms, but subject to the Proclamation of Martial Law and subject to any Regulation or Order that may be made from time to time by the Chief Martial Law Administrator. The office of President was reintroduced by clause (2) of the same Article in the following terms: -

“The Chief Martial Law Administrator shall be the President of Pakistan hereinafter referred to as the President, and shall perform all functions assigned to the President of Pakistan by and under the said Constitution or by or under any law.” In the above context, Hamoodur Rahman, CJ, held as under: -

“This clearly indicated that the President was a subordinate functionary created by the Chief Martial Law Administrator, although he was himself to hold the same office, because, the powers of the President were limited to performing the functions assigned to him under the abrogated Constitution or under any law. By the other clauses almost all the fundamental rights were taken away and the Courts were debarred from issuing any order against any Martial Law Authority. Power was given to the President by Article 4 to issue Ordinances but provisions in law providing for reference of a detention order to an advisory Board were declared to be of no effect by Article 7 (2), and by Article 8 the President was also given the power to make orders for making such provisions “including constitutional provisions”, as he may deem fit for the administration of the affairs of the State.”

The above observations of Hamoodur Rahman, CJ, would sufficiently explain the scheme followed in the martial law imposed by General Yahya Khan. It is also noteworthy that such an arrangement was not confined to that case alone. At the time of every military takeover, the Army Chief, while abrogating or holding in abeyance the Constitution, as the case may be, would assume all the powers saying that “the Constitution had become unworkable”, or “a situation had arisen for which the Constitution provided no solution”; make all offices including the office of President subservient to himself; take upon himself the exercise of giving a new Constitution to the country, or bringing reforms by making amendments in it before its revival; and would ultimately leave the country in a black hole, taking it once more to square one, i.e., virtually at the point where he had begun. So, after his departure, the country and the nation would be at a loss how and from where to resume their constitutional journey afresh. From a perusal of the documents made by the military commanders on the eve of five military takeovers in 1958, 1969, 1977, 1999 and 2007, it appears that on each subsequent occasion, the earlier documents were copied and the new document prepared with necessary modifications here and there to suit their own needs. The differences would be noticeable and would point only to a gradual journey. But, in the general scheme and the overall approach, there would be hardly any differences. In 1958, the Constitution was abrogated but the country started to be governed as per the old legal order in terms of the Laws (Continuance in Force) Order, 1958. In 1969, the Constitution was abrogated, and the governance of the country started with the Proclamation of Martial Law, followed by a Provisional Constitution Order. In 1977, the Proclamation of Martial Law was followed by the Laws (Continuance in Force) Order, 1977. In this case, the Judges of the Supreme Court were administered oath at the very outset. Later, PCO and Judges Oath Order were also issued in 1981. In 1999, instead of declaring martial law, emergency was proclaimed and a PCO issued the same day. The Oath Order in this case was issued later on 26th January, 2000. In 2007, all three documents were issued together and the power to amend the Constitution directly provided in the PCO, though in 1977 it was not explicitly done either in the Proclamation of Martial Law, or the Laws (Continuance in Force) Order, 1977, but practically it was exercised in issuing the said documents in derogation of the provisions of the Constitution, and later exercised at the time of annulment of the Sixth and the Seventh Amendments to the Constitution. In issuing Oath Order, 2007, the President having acted in pursuance of the two instruments issued by the Chief of Army Staff, an authority not authorized to do so under the Constitution, it only showed blatant disregard and violation of the Constitution to which General Pervez Musharraf, or for that matter any military ruler in the past, never paid any heed.

98. As to the supra-constitutional powers claimed by the Chief Martial Law Administrator in Begum Nusrat Bhutto’s case, Anwarul Haq, CJ, noted the contention of the learned Attorney as under: -

“The question now arises as to what is the extent and scope of the powers which the Chief Martial Law Administrator may exercise during the temporary period for which he has taken control of the administration in Pakistan. It is contended by the learned Attorney-General that once the take-over is validated on the principle of necessity, then the Chief Martial Law Administrator would have the right to govern the country in any manner he thinks best, and the Courts in Pakistan will be bound by the provisions of the Laws (Continuance in Force) Order, 1977, which must henceforth be treated as a supra-Constitutional instrument, binding all authorities in Pakistan. He seeks to re-enforce this submission by referring to the implications of Martial Law as described in Corpus Juris Secundum Vol. 93, and “Salmond on Jurisprudence”, p. 190, 11th Edition.”

He then held that it was not a case where the old Legal Order had 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 Constitution of 1973. Thus, the imposition of martial law was validated on the doctrine of necessity, and the Chief Martial Law Administrator was held entitled to perform all such acts and promulgate all legislative measures, including amendment of the Constitution.

99. In the cases of Zafar Ali Shah and Tikka Iqbal Muhammad Khan, following the reasoning in Begum Nusrat Bhutto’s case, the action of Chief of Army Staff was treated as a constitutional deviation of a temporary character, which was necessitated in the larger interest of the State and the welfare of the people in view of the facts and circumstances noted therein. He was also held entitled to perform all acts and promulgate all legislative measures, including the power to amend the Constitution.

100. It may be mentioned that the power to amend the Constitution is an onerous task assigned to the Parliament, which represents the will of the people through their chosen representatives. It is to be carried out in accordance with the procedure prescribed in Articles 238 and 239 of the Constitution, viz. by a two-third majority of the members of both the Houses of Majlis-e-Shoora (Parliament), and by no other means, in no other manner, and by no one else. The holding in abeyance of the Constitution in the first place, and then making amendments in it by one man by the stroke of his pen, that is to say, in a manner not envisaged or permitted by the Constitution, are mutilation and/or subversion of the Constitution simpliciter, and no sanctity is attached to such amendments per se. No sanctity attaches to them if they are made after a declaration to that effect is made by the Court while adjudging the validity of such assumption of power. Equally bereft of sanctity remain the amendments of any such authority, which are ratified, affirmed or adopted by the Parliament subsequently and deemed to have been made by the competent authority. Why, because -

Firstly, they were void ab initio because they were made by an authority not competent to do so under the Constitution;

Secondly, Article 237, as presently worded, provides for indemnifying any person in the service of the Federal Government or a Provincial Government, or any other person only in respect of any act done in connection with the maintenance or restoration of order in any area in Pakistan, and nothing else. It does not provide for validation of unconstitutional, illegal and void ab initio acts of usurpers of power by the Majlis-e-Shoora (Parliament). It is noteworthy that Article 278 of the Interim Constitution provided as under: -

“278. Nothing in this Constitution shall prevent the Federal Legislature from making any law indemnifying any person in the service of the Federal 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, or validating any sentence passed, punishment inflicted, forfeiture ordered or other act done under Martial Law in such area. [Emphasis supplied]

However, the above provisions of Article 278 were not adopted in the Constitution of 1973, as they were, and the words “where Martial Law was in force, or validating any sentence passed, punishment inflicted, forfeiture ordered or other act done under Martial Law in such area” were omitted.

On a consideration of the above two provisions, Ajmal Mian, CJ, in his leading judgment in Liaquat Hussain’s case, held that imposition of martial law in connection with the maintenance or restoration of order in any area in Pakistan had been done away with in the Constitution of 1973. Thus, unless Article 237 was first amended, no validation, affirmation or adoption of unconstitutional, illegal and void ab initio acts of a usurper of power could be made by Majlis-e- Shoora (Parliament), otherwise one provision would render the other redundant and nugatory; the two of such provisions stand in an irreconcilable conflict, leaving no room for the Court except to ignore the one, or at the best to prefer one provision over the other, as it did in Al-Jehad Trust case and gave effect to Article 209 as against Article 203C, which was found to be violative of the independence of judiciary – a salient feature of the Constitution. By the Proclamations of Emergency of 14th October, 1999 and of 3rd November, 2007 only emergency was proclaimed (though it was nothing short of martial law as earlier imposed in the country), hardly realizing that emergency could be imposed by the President under Article 232 of the Constitution only in the given circumstances, which too would be justiciable as per the law laid down in Farooq Ahmed Khan Leghari’s case (supra), and Chief of Army Staff had nothing to do with it – the activity and the functions of the Armed Forces being restricted within the parameters of Article 245 as discussed in the preceding paragraphs. We would hasten to observe that as a matter of fact, in the garb of emergency, same objectives were sought to be achieved as were previously done through the imposition of martial law up to 1977. A new dimension in 2007 was that this time, even the whole of Pakistan was not brought under the control of the Armed Forces and the executive and legislative organs of the State were kept intact. While proclaiming emergency throughout Pakistan, it was simply ordered and proclaimed that the Constitution of Pakistan shall remain in abeyance;

Thirdly, the Constitution, for its amendment, has not envisaged any mode other than the one prescribed in Articles 238 and 239. Even if it were to be repealed, the same procedure would be required to be followed. These Articles, actually, provide the Constitution with the inner strength so as to withstand the invasions from within. On the eve of every military takeover, either it was said that the Constitution had become unworkable, or a situation had arisen for which the Constitution provided no solution. It was so, not because the Constitution had, in fact, become unworkable or in reality a situation had arisen for which indeed the Constitution provided no solution, but because of the fact that the people at the helm of affairs did not want to follow the Constitution;

Fourthly, Article 6 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. As a matter of fact, Article 6 has built a stronghold around the body of the Constitution to safeguard it from any encroachment or violation from without. If each time an authority were to put it aside at his will, and do whatever he liked to do with it, that too, by the use or show of force or by other unconstitutional means, the provisions of Article 6 would be rendered redundant and nugatory, rather meaningless, which was not the intent, nor was the same permissible. Indeed, the Constitution is an organic whole and a living document meant for all times to come. We, therefore, are of the view that the holding in abeyance of the Constitution and/or making amendments therein by any authority not mentioned in the Constitution otherwise than in accordance with the procedure prescribed in the Constitution itself, is tantamount to mutilating and/or subverting the Constitution. Thus, so long as Article 6 is part of the Constitution, the Parliament is debarred from even condoning unconstitutional acts of a usurper, what to talk of validating, affirming and adopting the same, or deeming the same to have been made by the competent authority on any ground whatsoever. It is noteworthy that the acts of General Yahya Khan were neither validated nor condoned by the Parliament while framing Articles 269 and 270 of the Constitution. The language of Article 237, which opens with the words, “Nothing in the Constitution shall prevent Majlis-e-Shoora (Parliament) from making any law indemnifying any person……” clearly points to the inhibitions contained in the Constitution itself, under which Majlis-e-Shoora (Parliament) might not be able to do certain things, such as, its inability to legislate against Fundamental Rights, the Injunctions of Islam as laid down in the Holy Quran and Sunnah, etc. Therefore, Majlis-e-Shoora (Parliament) is not supreme over everything else as is put in the common parlance, or as it is said of the Parliament of the United Kingdom, rather it is independent of other organs of the State, but it certainly operates within certain parameters. The validations, affirmations or adoptions made under the Eighth and the Seventeenth Amendments stand on a different footing and we would not like to go into the circumstances in which those amendments were passed.

But, we would certainly observe that the amendments made by an authority not mentioned in the Constitution, and otherwise than in accordance with the procedure prescribed in the Constitution could hardly be given any sanctity vis-à-vis the amendments made by the Majlis-e-Shoora (Parliament) in accordance with the procedure laid down in Articles 238 and 239 of the Constitution, even on considerations such as the elected Parliaments were reduced to mere rubber stamps by the leaders of the Houses, or the representatives of the people, who were responsible for running the affairs of the State were themselves accused of massive corruption and corrupt practices, they had misdeclared their assets before the Election Commission and tax authorities, or they were resisting establishing good governance in the country, bank loans defaults were rampant, there was no economic or political stability, etc. etc. A wrong committed by one person does not furnish justification for, or give licence to, others to commit wrongs, even more blatant. In the above perspective, it is noteworthy that the Parliament elected in the General Elections of 18th February 2008 has not, and rightly so, put a seal of approval upon the unconstitutional, illegal and void ab initio acts/actions of General Pervez Musharraf of 3rd November, 2007 including the amendments made by him from that date up to 15th December, 2007. Unless such an approach is firmly entrenched into the body politic and the jurisprudence of this country, military takeovers previously in the name of martial law, and later in the garb of proclamation of emergency will continue to recur as heretofore, and there will be nothing stopping the repetition of the actions of the nature of 7th October, 1958, 25th March, 1969, 5th July, 1977, 12th October, 1999 and 3rd November, 2007 using unconstitutionally and illegally the cover of the Armed Forces.

Such exercise of power, therefore, cannot be indemnified by the Parliament under Article 237 of the Constitution. There is no other provision in the Constitution under which they can be validated, affirmed or adopted on any consideration whatsoever;

Fifthly, this Court, in Al-Jehad Trust case, has already given preference to the provisions of Article 209 over those of Article 203C on considerations, such as, Article 203C providing for appointment of a sitting Chief Justice of a High Court or a Judge thereof in the Federal Shariat Court without his consent was violative of Article 209; Article 203C was incorporated by the Chief Martial Law Administrator while Article 209 was enacted by the framers of the Constitution, which was a beneficial provision promoting independence of judiciary, inasmuch as it guaranteed the tenure of a Judge, therefore, in case of conflict between the two, Article 209 would prevail over Article 203C, which detracted from the dominant intent and spirit of the Constitution, namely, the guarantee of tenure of a Judge of the Supreme Court or a High Court and the independence of judiciary and consequently, such an appointment would be void. Likewise, it is not possible to reconcile the provisions of the Constitution validating, affirming and adopting the amendments made by an authority not competent to do so under the Constitution with the provisions of Articles 6 and 237 as also Articles 238 and 239 of the Constitution. The provisions containing successive validations, affirmations and adoptions have defeated the dominant intent and spirit behind aforesaid Articles by which the framers of the Constitution, by consensus, desired to secure the inviolability and the sanctity of the Constitution. It should be noted that Articles 6 and 237 were framed in the backdrop of the successive abrogation of the Constitutions and imposition of martial laws in the country from time to time by the General commanding the Army at his will and whim. It is the bounden duty of all the three organs of the State to ensure the inviolability and the sanctity of the Constitution. Amendments made by an authority not mentioned in the Constitution cannot be validated by any Court including the Supreme Court. Even otherwise, none of the judgments ever laid down that in future the Army Chief would have the power to amend the Constitution and such exercise of power by him or by any other authority not mentioned in the Constitution would always be protected. In any case, it is clarified that neither the Supreme Court itself possesses any power to amend the Constitution, nor can it bestow any such power on any authority or any individual. The amendment of the Constitution is the exclusive domain of Majlis-e-Shoora (Parliament) in terms of Articles 238 and 239 of the Constitution and this Court only 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.

101. In Asma Jilani’s case, Hamoodur Rahman, CJ, held that a Legislature could not validate an invalid law if it did not possess the power to legislate on the subject to which the invalid law related, the principle governing validation being that validation being itself legislation, one could not validate what one could not legislate upon. However, it appears that the above ruling as also the kind of acts that were found to be liable to be condoned in that case have been used by the successive military regimes for ulterior purposes of usurping power and retaining it indefinitely. To appreciate this aspect of the matter, it is necessary to examine the various categories of acts of the usurper, which were condoned in that case. They read as under: -

(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; and

(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, the objectives mentioned in the Objectives Resolution of 1954.

On a perusal of the above four categories of acts, it becomes clear that the exercise of power by the usurper was accepted and condoned in totality because, all transactions which were past and closed were protected. Next, all acts and legislative measures which were in accordance with, or could have been made under, the abrogated Constitution or the previous legal order were protected. Through this, absolute power of amendment of the Constitution, as exercised, was protected which, in the ordinary course, a duly constituted Parliament would find difficult most of the times to make for not having the requisite majority. In protecting all acts which tended to advance or promote the good of the people, every conceivable power exercised by the stroke of pen, at the will and whims of the person doing the same was protected. What the successive military rulers, on the strength of the above criteria, did was that they made amendments for their illegal and unlawful personal gain and then mixed the same with few amendments here and there giving them complexion of advancing or promoting good of the people. In our view, only those acts which were required to be done for the ordinary orderly running of the State could be protected. Similarly, only such past and closed transactions could have been protected, which were otherwise not illegal at the relevant time, and rights, privileges, obligations or liabilities had been acquired, accrued or incurred, or any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment had been taken. The actions taken by General Pervez Musharraf on 3rd November, 2007 and thereafter being unconstitutional, illegal and void ab initio, the principle of past and closed transaction was not attracted even otherwise on account of the distinguishing features between the martial laws of 1958 and 1977 and emergency of 1999 on the one hand, and the emergency of 3rd November, 2007 on the other, as explained in this judgment, including passing of order dated 3rd November, 2007 by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, arrest of Judges, Judges not accepting it or applying for pension, sustained resistance in the shape of protests by the Bar Associations, masses, including civil society, political workers, students, labourers, large scale arrests of lawyers, resolution of foreign bars, etc.

102. In the light of the above discussion, it is held and declared that the amendments purportedly made by General Pervez Musharraf from 3rd November, 2007 up till 15th December, 2007 (both days inclusive) were neither made by an authority mentioned in the Constitution nor the same were made following the procedure prescribed in the Constitution and were, therefore, unconstitutional, illegal and void ab initio. Accordingly, the Constitution (Amendment) Order, 2007 (President’s Order No. 5 of 2007), the Constitution (Second Amendment) Order, 2007 (President’s Order No. 6 of 2007) and PCO No. 1 of 2007 as also Oath Order, 2007, which were tantamount to amending Articles 238 & 239 and the Third Schedule to the Constitution (oath of office of Chief Justice/Judge) respectively, or any other instrument having similar effect are unconstitutional, illegal and ultra vires of the Constitution and consequently of no legal effect.

103. The learned counsel for the petitioners vehemently contended that the law of necessity, as discussed in the cases of Begum Nusrat Bhutto and Zafar Ali Shah, was wrongly applied in Tikka Iqbal Muhammad Khan’s case to the circumstances prevailing on 3rd November, 2007, inasmuch as the situations prevailing on 5th July, 1977 and 12th October, 1999 were entirely different to and distinct from the one prevailing on 3rd November, 2007, therefore, the aforesaid acts/actions of General Pervez Musharraf did not qualify to be validated or condoned on the touchstone of the doctrine of civil or state necessity and the maxim salus populi est suprema lex. The learned Attorney General for Pakistan had, at the very outset, stated that the rulings in the cases of Begum Nusrat Bhutto and Zafar Ali Shah were never considered a good law and the same were required to be overruled.

In a very recent case reported as Jamat-e-Islami v. Federation of Pakistan (PLD 2009 SC 549), one of us, Sardar Muhammad Raza Khan, J, dilated upon the doctrine of necessity in the context of the submission of Mr. Abdul Hafeez Pirzada, who appeared in the said case as an amicus curiae, that if a writ were issued by this Court declaring General Pervez Musharraf as disqualified to contest the election of President on account of his holding an office of profit in the service of Pakistan, namely, Chief of Army Staff, it would impede smooth transition from the Army rule to a pure democratic rule. Therefore, according to the learned amicus curiae, allowing General Pervez Musharraf to contest the election of President in uniform was, so to say, justified on the touchstone of the law of necessity and the maxim salus populi est suprema lex. The learned Judge, having alluded to the writings of philosophers, scholars and intellectuals, and having referred to various verses of the Holy Quran, held that the doctrine of necessity as used to prevent the decision of cases on merits in the name of achieving smooth transition in the interest of State necessity, was neither just nor fair nor legal and was violative of the Injunctions of Quran. Paragraphs 57 to 66 of his opinion are reproduced below for ready reference: -

“57. I have gone through the judgment handed down by my learned brother Rana Bhagwandas, J., being reasons for the short order dated 28th September, 2007, whereby we had held, while dissenting with majority view, that the petitions are maintainable under Article 184 (3) of the Constitution and hence accepted in totality. I agree with the reasoning adhered to in the judgment aforesaid but would like to dilate upon the view taken by Mr. Abdul Hafeez Pirzada, learned amicus curiae.

58. He did not controvert the merits of the case. His placing reliance upon Haji Saifullah case (PLD 1989 SC 166) was tantamount to saying that even if the petitioners have a good case on merits, it would not be in the fitness of the things to issue writ in their favour, as it would, most likely impede smooth transition from uniform rule to the rule of pure democracy. The stance so taken is nothing but reiterating the import of doctrine of State necessity, altogether forgetting that the favour did not work in the past. The transition provided only a reinvigorating space for a new Uniform rule, bringing the Nation back again and again to the zero point the marvel of doctrine of necessity

59. Doctrine of necessity is neither Law nor any rule nor regulation. It is a state of affairs where, in the given circumstances, unfair is justified in the name of expediency. Most of philosophers, scholars and pseudo-intellectuals in the west have been floating various ideas from time to time sparking debates the world over. Genuine things are adopted and promoted in the developed countries while underdeveloped are duped into the fantasies of in genuine, which unfortunately are followed a sacred commandments. Later category includes Hans Kelsen’s doctrine of State necessity and Machiavelli’s “Prince” cherished in the underdeveloped like Pakistan despite being damagingly hypocritical. The theories are by no means universally accepted nor do they form basis of modern jurisprudence. Borrowing words from Hamoodur Rehman C.J. (as his lordship then was); he while criticizing Muhammad Munir C.J. said that the latter “not only misapplied the doctrine of Hans Kelsen but also fell into error that it was a generally accepted doctrine of modern jurisprudence. Even the disciples of Kelsen have hesitated to go as far as Kelsen had gone.

60. What irks my mind most is not primarily the genuineness or otherwise of these draconian ideas of Kelsen or Machiavelli but whether or not we the Muslims have any legacy to follow or to refute or defy the evil ideologies though dead in the civilized countries yet flourishing in the third world. I firmly believe and hold that we the Muslims must seek ultimate guidance from the ultimate wisdom of revealed knowledge—-The Holy Qur’an.

61. A book that has to last for all times should always avoid minor details and must always lay down the principles. It is essentially true about the Holy Qur’an. Before that we seek guidance from the Book, it is necessary to comprehend as to what had been acted upon in a large number of cases. Thereafter when the Governor-General attempted to validate retrospectively by an Ordinance a vast body of such constitutional legislation, which had been passed between 1947 and 1954, the Ordinance itself was struck down in Usif Patel’s case. At this, the Governor-General invoked the advisory jurisdiction of the Federal Court under section 213 of the Government of India Act vide Governor-General’s Reference No. 1 of 1955 (P L D 1955 F C 435), and asked the Court to find a solution for the constitutional impasse created by the judgments of the Court itself. The Federal Court again came to his rescue and although no “law” of any kind could be found to meet the situation, it invoked in aid “the supreme principle of necessity embodied in the maxim salus populi est suprema lex”, and on the basis thereof evolved a new political formula for the setting up of a new Constituent Assembly, even though this very maxim when sought to be invoked in support of the contention of Moulvi Tamizuddin Khan that the invalidation of a large number of constitutional laws merely on the ground of want of formal assent of the Governor-General would cause “disaster” and create a “Constitutional impasse” had not found favour with the Court. In coming to the conclusion that he did, Muhammad Munir, CJ, relied on the address of Lord Mansfield in the proceedings against George Stretton and others that “the principle clearly emerging from this address of Lord Mansfield is that subject to the condition of absoluteness, extremeness and imminence, an act which would otherwise be illegal becomes legal if it is done bona fide under the stress of necessity, thenecessity being referable to an intention to preserve the Constitution, the State or the society and to prevent it from dissolution, and affirms Chitty’s statement that necessity knows no law, and the maxim cited by Bracton that necessity makes lawful which otherwise is not lawful.” In the words of Anwarul Haq, CJ, it was “a striking example of the invocation of the law of necessity to validate certain extra-constitutional measures dictated by the considerations of the welfare of the people and the avoidance of a legal vacuum owing to an earlier judgment of the Federal Court in Usif Patel’s case.” He next took into consideration a case from the Cyprus jurisdiction where a more or less similar situation had arisen owing to the difficulty of the Turkish members of the Cyprus Parliament participating in the passing of a law regarding the functioning of the Supreme Court itself. In the said judgment, after surveying the concept of the doctrine or law of necessity as obtaining in different countries the Court came to the conclusion that the Cyprus Constitution should be deemed to include in it the doctrine of necessity in exceptional circumstances which was an implied exception to particular provisions of the Constitution in order to ensure the very existence of the State. It was further stated that the following pre-requisites must be satisfied before this doctrine could become applicable: _

(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.

It was further laid down that “A law thus enacted is subject to the control of this Court to decide whether the aforesaid pre-requisites are satisfied, that is, whether there exists such a necessity and whether the measures taken were necessary to meet it.”

105. Anwarul Haq, CJ, next referred to the case of E. O. Lakanmi v. Attorney-General, West Nigeria [(1970) 6 N.S.C.C. 143] in which the question of the validity of a Decree issued by the Federal Military Government of Nigeria came up for examination. On 15th January, 1966 a section of the Army rebelled in different parts of the country. Two regional premiers were put to death and the Prime Minister of the Federation and one of his Ministers were captured and taken to an unknown destination; also some senior members of the Army were killed. The Council of Ministers met without the Prime Minister and decided to hand over the administration of the country to the Armed Forces before the situation got worsened. The Acting President of Nigeria himself announced the handing over of the administration of the country to the Armed Forces. This announcement was followed by a speech by the General Officer Commanding of the Nigerian Army in which he declared that he had accepted the invitation of the Acting President to form the interim military Government, and had suspended certain parts of the Constitution relating to the office of President, the establishment of Parliament and of the office of Prime Minister, and certain offices relating to the Regions. The Supreme Court of Nigeria distinguished the case before it from Dosso’s case of our country and held that the Federal Military Government of Nigeria was not a revolutionary Government, as it had made it clear before assuming power that the Constitution of the country would remain in force excepting certain sections which were being suspended. They went on to say that

“We have tried to ensure that the country is governed by the Constitution and Decrees which, from time to time, are enacted when the necessity arises and are then supreme when they are in conflict with the Constitution. It is clear that the Federal Military Government decided to govern the country by means of a Constitution and Decrees. The necessity must arise before a Decree is passed ousting any portion of the Constitution. In effect, the Constitution still remains the law of the country and all laws are subject to the Constitution excepting so far as by necessity the Constitution is amended by a Decree. This does not mean that the Constitution of the country ceases to have effect as a superior norm.

From the facts of the taking-over, as we have pointed out that the Federal Military Government is an interim Government of necessity concerned in the political cauldron of its inception as a means of dealing with the situation which has arisen and its main object is to protect lives and property and to maintain law and order.” It was further held that by recognizing the fact that there was a doctrine of necessity, they did not alter the law but applied it to facts as they existed and that the Decree in question was nothing short of a legislative judgment, an exercise of judicial power and, therefore, ultra vires and invalid under the Constitution of 1963, which envisaged a clear separation of judicial and legislative functions of the State. Anwarul Haq, CJ, also sought support from the statement made by Muhammad Munir, CJ, In Re: Reference by H. E. Governor-General to the effect that an act which would otherwise be illegal becomes legal if it was done bona fide under the stress of necessity, the necessity being referable to an intention to preserve the Constitution, the State or the society and to prevent it from dissolution, and also from a passage from Asma Jilani’s case on the point relating to condonation of acts of the usurper, and held that the imposition of martial law on 5th July, 1977 was impelled by high considerations of State necessity and welfare of the people, and thus validated the extra-constitutional step taken by the Chief of Army Staff to overthrow the Government of Mr. Z.A. Bhutto as well as the Provincial Governments and to dissolve the Federal and the Provincial Legislatures. The learned counsel for the petitioners have questioned the correctness of the application of the doctrine of necessity as applied to the facts of the case of Begum Nusrat Bhutto and its being followed subsequently in Zafar Ali Shah’s case and Tikka Iqbal Muhammad Khan’s case, inter alia, on the ground that the circumstances prevailing on 5th July, 1977 were quite different from those prevailing on 3rd November, 2007.

106. With great respect to the late Chief Justice, the reference to Asma Jilani’s case on the point of application of the doctrine of necessity to the facts and circumstances of Begum Nusrat Bhutto’s case was inapt because, as he himself noted, Hamoodur Rahman, CJ, was dealing, ex post facto, with the acts of the usurper and he had adopted the principles enunciated by Lord Pearce, who delivered the dissenting judgment in the Privy Council in the Rhodesian case, namely: -

(i) So far as they are directed to and reasonably required for ordinary orderly running of the State;

(ii) So far as they do not impair the rights of citizens under the lawful Constitution; and

(iii) So far as they are not intended to and do not in fact directly help the usurpation and do not run contrary to the policy of the lawful sovereign.

At page 708 of the report in Begum Nusrat Bhutto’s case, the Chief Justice having noticed that the concept of condonation, as expostulated in Asma Jilani’s case, had relevance not only to the acts of a usurper, but also to a situation which would arise when power had fallen from the hands of the usurper, and the Court confronted with protecting the rights and obligations which may have accrued under the acts of the usurper, during the time he was in power, suddenly came up with the proposition that in the case of an authority, whose extra-constitutional assumption of power was held valid by the Court on the doctrine of necessity, particularly when the authority concerned was still wielding State power, the concept of condonation would only have a negative effect and would not offer any solution for the continued administration of the country in accordance with the requirements of State necessity and welfare of the people. Therefore, according to him, once the assumption of power was held to be valid, then the legality of the actions taken by such an authority would have to be judged in the light of the principles pertaining to the law of necessity. Here, the Chief Justice surrounded himself in a cobweb of selfcontradictions.

He proceeded to reject the theory of Hans Kelsen by observing, inter alia, that the legal character and validity of any abrupt political change, brought about in a manner not contemplated by the preexisting Constitution or Legal Order, could not be judged by the sole criterion of its success or effectiveness as contemplated by Kelsen’s pure theory of law, though the Armed Forces were in effective control of the administration; the theory of revolutionary legality could have no application or relevance to a situation where the breach of legal continuity was of a purely temporary nature and for a specified limited purpose; such a phenomenon could more appropriately be described as one of constitutional deviation rather than of revolution; the 1973 Constitution still remained the supreme law; certain parts of the Constitution had been held in abeyance on account of State necessity; the President of Pakistan and the superior Courts continued to function under the Constitution; the superior Courts would 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 would 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 so forth and so on. Thus, he impliedly resurrected the theory of Hans Kelsen, which was completely rejected in Asma Jilani’s case.

107. Though Anwarul Haq, CJ, took note of the pre-requisites of the doctrine of necessity as given in the case from Cypress jurisdiction referred to above, but then made no attempt at all in the course of his leading judgment to test the action of 5th July, 1977 on the touchstone of those pre-requisites. Correct, that he noted the circumstances prevailing on or before the said date, but he did not take upon himself the examination of the provisions of the Constitution dealing with the type of situation presented by those circumstances, or the options with the government of Prime Minister Zulfikar Ali Bhutto, e.g., advising the President to dissolve the National Assembly, handing over power to an interim government for fresh elections, or holding fresh elections in the relevant constituencies to say the least, reference to the Supreme Court under Article 186, further recourse to political dialogue, etc. These options, and may be a host of others as well, as would have been available with the government under the Constitution, it could not be said that a situation had arisen for which the Constitution provided no solution. Constitutional remedies were there, but the same were neither explored nor allowed to be resorted to. As a matter of course, unfortunately from the year 1958, rather 1954, it had become the style to say that “a situation had arisen for which the Constitution provided no solution.” Will there be an end to this rhetoric somewhere?

108. The factual matrix on which Proclamations of Emergency were based differed in every case. There were entirely different sets of facts and circumstances prevailing on each takeover. The ground for takeover on 5th July 1977 was an alleged widespread agitation against the rigging in elections held in March 1977 and the consequential huge loss of human life. On 12th October, 1999, it was alleged that the State machinery at the centre and provinces had completely broken down, the Constitution had been rendered unworkable and a situation had arisen for which the Constitution provided no solution. On 3rd November, 2007, it was said that there was ascendency in militancy, extremism and terrorism and trichotomy of powers had been eroded due to wide ranging suo motu actions of the courts, which negated the fundamentals of an adversarial system of justice, and there was an increasing interference by some members of the judiciary in government policy, adversely affecting economic growth in particular. Therefore, it was ‘a situation for which the Constitution provided no solution.’ If we were to distinguish between these cases on the basis of facts and circumstances, they were all different from each other, and we would end up seeing each time a new scenario. Therefore, if a particular set of facts and circumstances was acknowledged as a justification for the military takeover and thereby an unconstitutional and illegal act validated, then a yet newer set of facts and circumstances would always be presented in future and on an analysis of those facts and circumstances, same or similar conclusion would be reached once more – up to what time, it is not possible to predict. Therefore, we have to pause for a while and see where the wrong lies, what options and remedies are available with us, and then make an objective analysis and reach some conclusion. Every now and then a situation arises for which the Constitution does not provide any solution and it becomes unworkable.

On the first two occasions, it was abrogated, but thereafter it was held in abeyance. Was it a reality that the Constitution had become unworkable each time? Were the situations on 7th October, 1958, 25th March, 1969, 5th July, 1977, 12th October, 1999 and 3rd November, 2007 really such that the Constitution provided no solution? Do similar situations not arise in other countries? Are there no protests, rallies, agitations, riots, loss of human life, etc. in other countries? Is there no corruption in the other countries? Are there no deficiencies or inefficiencies in the working of different departments and organizations in other countries? Are there no conflicts or differences of opinion among the various stakeholders of different organs of the State? Does rigging in elections not take place in other countries? What was the wrong with the judiciary in 1958, 1969, 1977 and 1999? Why were the Judges given new oaths each time and not allowed to perform their functions under the Constitution? Why the elected leaders were not allowed to complete their term and why the judgment over their performance not left to the electorate to whom they would be answerable?

Never was the need so dire, as it is today to find out answers to these and other similar and relevant questions. It is for the nation to address these questions in all earnestness.

109. As to the validity of the proclamations of martial laws or of emergencies issued by any functionary of the State, including the Chief of Army Staff, holding the Constitution in abeyance, issuing a PCO and an Oath Order, and thereby requiring the Judges of the superior Courts to make a fresh oath so as not to be able to pass any orders against such authority, in our view, it was wrongly examined earlier on the factual plane. On the contrary, all such acts must be judged on the touchstone of the provisions of the Constitution and on no other consideration or criteria, theory, doctrine or principle.

110. Anwarul Haq, CJ, validated the action of 5th July, 1977 applying the doctrine of necessity, the other pre-requisites of which were that the measure taken must be proportionate to the necessity and it must be of a temporary character limited to the duration of the exceptional circumstances. Was the action of 5th July 1977 proportionate to the necessity, was it of a temporary character, and was it limited to the duration of the exceptional circumstances were the questions never considered by the learned Chief Justice and to some – rather most of them, only time provided the answers that the entire process of reasoning was fundamentally flawed. Only time confirmed that the takeover was not of a temporary character, it was never intended to be, though announced at the beginning, but soon thereafter pushed back finding every now and then new justifications for prolonging the Army rule.

111. Further, he cited the principle of necessity, enunciated by Lord Mansfield in his address in the proceedings against George Stretton, as earlier noted by Muhammad Munir, CJ in his judgment in The Reference No. 1 of 1955, as “subject to the condition of absoluteness, extremeness and imminence, an act which would otherwise be illegal becomes legal if it is done bona fide under the stress of necessity, the necessity being referable to an intention to preserve the Constitution, the State or the society and to prevent it from dissolution”, and as affirming Chitty’s statement that “necessity knows no law”, and the maxim cited by Bracton that “necessity makes lawful which otherwise is not lawful.” In the first place, reference to the judgment in The Reference No. 1 of 1955 was off the mark. The Court there was confronted again with an ex post facto situation, the question of validation of the acts of Constituent Assembly, which had been rendered invalid by a decision of the Federal Court on account of lack of assent of the Governor-General being before it.

The facts of the case were entirely different and the law laid down there was hardly attracted to the facts of Begum Nusrat Bhutto’s case. Secondly, he never addressed the “condition of absoluteness, extremeness and imminence”, or “the necessity being referable to an intention to preserve the Constitution, the State or the society and to prevent it from dissolution”. Nothing was said about absoluteness, extremeness or imminence of the action of 5th July, 1977 and the principle of necessity was invoked for the destruction rather than preservation of the Constitution.

The Constitution is the cementing force of the State and the society. By making a Constitution, the society has already used and applied such a force and brought into existence a State and has chosen to govern itself in accordance with the Constitution so made. It has also unequivocally provided the method and manner for making any further changes in the Constitution and by no other manner or means. Thus, how an authority created under the Constitution itself and equipped with certain powers including use of force to be exercised and resorted to under the control and command of a still superior authority created under the Constitution one day turn around and overthrow the Constitution itself considering that the force so vested in it was liable to be used by it at its own, and not at the authorization by the superior authority designated by the Constitution.

That is the destruction of the Constitution and if the Constitution were to be destroyed, State and the society in the modern times could be preserved in no manner. Shall the Constitution of Pakistan continue to meet such a treatment in the garb of the civil and the State necessity and the welfare of the people, or in the name of “expediency”, as ably put by Sardar Muhammad Raza Khan J, in the case of Jamat-e-Islami, by its intermittent holding in abeyance or suspension, mutilation and subversion time and again at the will and whim of the military ruler by recourse to flimsy consideration of non-existing facts? It has already been held that the acts/actions of 3rd November 2007 of General Pervez Musharraf were motivated for personal illegal and unlawful gain, which he carried out to avoid his apprehended disqualification under a judgment of the Supreme Court. It is held and declared that the doctrine of civil and state necessity and the maxim salus populi est suprema lex were not applicable to all or any of the unconstitutional, illegal and ultra vires acts/actions taken by General Pervez Musharraf on and from 3rd November, 2007 until 15th December, 2007 (both days inclusive) because they were not taken in the interest of the State or for the welfare of the people. It is further held and declared that the doctrine of necessity and the maxim salus populi est suprema lex, as elucidated in the cases of Begum Nusrat Bhutto absolutely have no application to an unconstitutional and illegal assumption of power by an authority not mentioned in the Constitution in a manner not provided for in the Constitution, including but not limited to a purported promulgation of Proclamation of Martial Law, Proclamation of Emergency, Provisional Constitution Order, Oath Order, Amendments of the Constitution and the Orders, Ordinances, Regulations, Rules, etc. issued in pursuance thereof, notwithstanding any judgment of any Court, including the Supreme Court.

112. The learned counsel for the petitioners submitted that the actions of 3rd November, 2007, in the course of our history, were different from the previous military takeovers, inasmuch as they were never accepted or acquiesced by the Judges, lawyers, political activists and the people of Pakistan. He submitted that for the first time in the judicial history of Pakistan a restraint order was passed by a seven – member Bench of the Supreme Court in Wajihuddin Ahmed’s case against the unconstitutional and illegal acts of a General whereby the Judges of the Supreme Court and the High Courts were directed not to make oath under the unconstitutional instruments. Resultantly, according to the learned counsel for the petitioners, as many as 61 Judges: 13 Judges of the Supreme Court out of 18 (17 permanent Judges including Chief Justice and one Ad hoc Judge), 18 out of 31 Judges of the Lahore High Court, 24 out of 28 Judges including Chief Justice of High Court of Sindh and 6 out of 13 Judges including Chief Justice of Peshawar High Court did not make oath in pursuance of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case.

113. The submission of the learned counsel is well founded. In the instant case, none of the Judges who did not make oath in pursuance of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case applied for pension, or for revival of their licence to practice law as was the position in Zafar Ali Shah’s case. It was a strong rejection of the unconstitutional and illegal use of military force in suppression of the Fundamental Rights of the people. Even at the international level, grave concerns were expressed on the actions of 3rd November, 2007. Statements and resolutions were made by the Bar Associations across the globe, such as International Bar Association, American Bar Association, Australian Bar Association, Atlanta Bar Association, Beverly Hills Bar Association, Boston Bar Association, Bar Association of the District of Columbia, Connecticut Bar Association, Dupage County Bar Association, the Florida Bar, Hawaii Bar Association, Houston Bar Association, International Bar Association, Los Angeles County Bar Association, Maryland State Bar Association, State Bar of Michigan, National Association of Criminal Defence Lawyers, New Jersey State Bar Association, New York City Bar Association, New York State Bar Association, North Carolina Bar Association, Ohio State Bar Association, Tennessee Bar Association, Pennsylvania Bar Association, Philadelphia Bar Association, Vermont Bar Association and State Bar of Wisconsin.

Furthermore, events in support of lawyers in Pakistan were organized by Austin Bar Association, Dane County Bar Association, Monroe County Bar Association, New York County Bar Association, and Bar Associations of San Francisco and Seattle. A few of the statements and resolutions so passed are noted here. The International Bar Association, in its report of November, 2007 on the “state of emergency threatening rule of law in Pakistan” said -

“The International Bar Association’s Human Rights Institute (IBAHRI) is gravely concerned as Pakistan’s constitution is suspended and judges and lawyers are arrested. The latest developments in Pakistan represent a serious negation of the rule of law, throwing the country into yet greater turmoil.

‘The IBAHRI calls upon the Government of Pakistan to abide by the rule of law and reminds it that a state of emergency may only be called when the life of the nation is under threat. Until such time the constitution should be applied in full,’ says Justice Richard Goldstone, IBAHRI Co-Chair.

He adds, ‘Although Pakistan’s Constitution protects the independence of judges, the IBAHRI believes that the Government has subverted judicial independence by sanctioning the arrest of judges, instructing police to enter the Supreme Court and by making public statements undermining judicial authority.’

Ambassador Emilio Cardenas, IBAHRI Co-Chair says, ‘With respect to peaceful protests, the IBAHRI notes that the right to free speech and freedom of assembly are integral to democracy.

Although these principles are found within Pakistan’s constitution, today’s demonstrations by the legal fraternity have been broken up using tear gas and batons.’

The IBAHRI is concerned that unless the constitution is restored and properly applied, the rule of law in Pakistan will continue to deteriorate leading to greater human rights abuses and further departure from the principles of democracy.

On 3 November 2007 President Musharraf issued a televised broadcast at which he said that a state of emergency had been introduced and the constitution suspended due to a rise in extremism and in response to what he claimed was the paralysis of government by courts and judges.

In a wide-scale backlash against the courts, judges and lawyers were arrested and soldiers entered the Supreme Court where Chief Justice Iftikhar Muhammad Chaudhry and six other judges had reportedly declared the state of emergency illegal. The Chief Justice, who had previously been suspended by President Musharraf and then reinstated earlier this year, is reportedly under house arrest.

Today, lawyers in Lahore, Karachi and Rawalpindi have held protests against the Government. Lawyers’ associations across the country are understood to be calling for a three-day protest and boycott of courts. It is reported that throughout Pakistan protests have been broken up by the police using tear gas and batons, and an estimated 200 lawyers have been arrested. There is a clampdown on media reporting with Pakistani TV news channels being prevented from broadcasting.

The past year has seen President Musharraf face various crises. Prior to the presidential elections and in light of his declining popularity, President Musharraf faced mounting public protests.

Various legal challenges to his presidential candidacy were issued before the courts and after the results in early October, in which President Musharraf received 98 per cent of the vote, a further petition was lodged with the Supreme Court challenging the result.

Critics are suggesting that the introduction of a state of emergency was acting to pre-empt the decision of the Supreme Court as to the legality of the Presidential elections. The past months have also seen a rise in extremist violence and suicide attacks. The calls from IBAHRI to the Pakistani Government to reinstate the constitution are further to recommendations made in a recently released IBAHRI report addressing violations of the fundamental principles of the rule of law and the independence of the judiciary in Pakistan.

The report dealt specifically with the issues of General Musharraf preventing the Chief Justice, Iftikhar Muhammad Chaudhry, from carrying out his judicial day-to-day functions and the placing of Mr. Chaudhry incommunicado under house arrest for three days when he refused to resign his post. The report entitled, The Struggle to Maintain an Independent Judiciary: A Report on the Attempt to Remove the Chief Justice of Pakistan is available from the IBA website.

In its report to the House of Delegates, the American Bar Association, New York State Bar Association (Criminal Justice Section), the following resolutions were passed: -

RESOLVED, that the American Bar Association expresses its support for and solidarity with the Pakistani bar and Bench; and FURTHER RESOLVED, that given the importance of an independent bar, an independent judiciary, and a just constitution as cornerstones of the rule of law, the American Bar Association calls upon President Pervez Musharraf to restore Pakistan’s constitution as it existed before the November 3, 2007, emergency decree; reinstate Pakistan’s Supreme Court justices and high court judges who were removed from office and refused to take oaths of loyalty to the executive branch; and release all judges, lawyers and other people who were wrongly arrested.

The Australian Bar Association, in its media release of 3rd December, 2007 called for the return of the rule of law in Pakistan as under: -

“The Australian Bar Association yesterday joined with the leaders of the Bars of England and Wales, Scotland, Northern Ireland and Ire and in calling for the return of the Rule of Law in the Islamic Republic of Pakistan.

The President-Elect of the Australian Bar Association, Mr. Tom Bathurst QC said “The suspension of the Constitution, the interference with the independence of the judiciary and the legal profession and the denial of fundamental rights strike at the very heart of a fair and just society.”

“The dismissal and detention of Chief Justice Iftikhar Chaudhry is of particular concern to the Australian Bar”, he said. It is understood that 60% of Pakistan’s appellate court is currently under house arrest and thousands of lawyers have been imprisoned, some in solitary confinement. “It is a deplorable situation that cannot be allowed to continue”, Mr. Bathurst said. He noted that “People are being imprisoned, denied their fundamental rights for doing no more than during their duty to the Constitution, ensuring the maintenance of the rule of law and the securing an independent voice for the people of Pakistan”.

The Australian Bar Association called on the Commonwealth Government to use its best endeavours to ensure that diplomatic pressure was maintained on the military regime to respect the rule of law and to honour the promise of an overdue return to democratic rule in Pakistan.”

114. The Commonwealth Judicial Education Institute as a mark of solidarity with the Judges of Pakistan issued a detailed report highlighting the imposition of state of emergency on 3rd November, 2007 and the courageous stand taken by the Chief Justice of Pakistan and Judges of superior Courts in the country. The report, which was titled as “A Coup against Judicial Independence” carried message of the Right Honourable Sir Dennis Barren, President of the Commonwealth Judicial Education Institute. The resolution of the International Commission of Jurists, inter alia, demanded as follows: -

“The ICJ therefore calls on the Human Rights Council to:

Repeal the amendments to the Constitution and laws passed during State of, including post-Emergency laws reaffirming or continuing emergency measures;

Release all judges and lawyers remaining in detention, reinstate the justices and judges dismissed during the State of Emergency, and restore the licenses of all lawyers suspended or disbarred during the State of Emergency;

Restore all rights under the Constitution, withdraw charges arising from peaceful protest and lift restrictions on the media….”

115. Mr. William H. Neukom, President, American Bar Association along with a delegation of ABA leaders presented a statement signed by nearly 13,000 concerned American lawyers in the Embassy of Pakistan in Washington D.C. on 13th December, 2007, which read as under: -

“House of Delegates Chair Laurel Bellows, ABA President-elect H. Thomas Wells Jr., and I had a constructive dialogue with Ambassador Mahmud Ali Durrani.

In a conversation lasting nearly an hour, Ambassador Durrani agreed that the rule of law, including an independent judiciary, is crucial to his nation’s future. In turn, we offered to help Pakistan develop a judiciary and bar free from political interest, as the ABA has done in other nations.

But as we made clear during the conversation, the core concerns of the ABA petition have not been addressed. As we told Ambassador Durrani, the ABA remains committed to three outcomes:

(1) Restoration of the Pakistani constitution (as it existed before the Nov. 3 emergency decree);

(2) Reinstatement of the Supreme Court justices and high court judges who were removed from office;

(3) Release of all protesters wrongly arrested during the state of emergency.

While America’s lawyers and judges are inspired by the bravery of their counterparts in Pakistan, we seek to serve the interests of the people of Pakistan, not just one professional group.

Since our meeting with Ambassador Durrani, the assassination of Benazir Bhutto has shaken Pakistan, and made the future of that nation even more uncertain.

The ABA continues to believe that the rule of law offers the best future for Pakistan, and is the path to lasting security. America’s lawyers are committed to advancing the rule of law in Pakistan and other nations.

I am proud of, and grateful to, all American lawyers for your response.

Working together, we delivered our message with force. The ABA will continue to do so, until the rule of constitutional law is fully reestablished in Pakistan.”

In his letter of 6th November, 2007 addressed to General Pervez Musharraf, Mr. William H. Neukom, President of the American Bar Association wrote as under: -

“Mr. President:

The American Bar Association (BA) is gravely concerned at the indefinite state of emergency you declared in Pakistan on November 3, particularly as it relates to your suspension of the constitution, dismissal of Chief Justice Iftikhar Muhammad Chaudhry, and detention of lawyers and human rights advocates. The ABA is an independent, non-governmental organization representing more than 413,000 members worldwide. It regards the rule of law as the cornerstone of a free and fair society. It has a longstanding commitment to supporting the rule of law in the U.S. and abroad.

The Constitution of Pakistan and numerous international human rights instruments, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the UN Basic Principles on the Independence of the Judiciary, hold judicial independence and human rights indispensable to the just rule of law. While the ABA appreciates the serious challenges your government currently faces, it is in such situations that adherence to the rule of law is most important.

Indeed, judicial independence may be the most important element of the rule of law to preserve in trying times, as it ensures the legitimacy of government action in response to difficult circumstances.

Without an impartial judiciary, governmental claims of commitment to the rule of law, such as you made when declaring the state of emergency, ring hollow. Disbanding the Supreme Court, and arresting lawyers and human rights advocates, undermines popular support for the government.

The ABA therefore respectfully urges you to restore judicial independence in Pakistan, to heed the rulings of the Supreme Court and other judicial authorities, and to leave lawyers and human rights advocates free to do their vital work in defence of the rule of law.

Sincerely,

William H. Neukom”

116. The support extended by the American Bar Association culminated in conferral of its most prestigious award i.e. the Rule of Law Award for the year 2008, “to those judges and lawyers in Pakistan who demonstrated courage in upholding the rule of law in their country.” In August 2008 at New York, the American Bar Association held the Award giving Luncheon function which was participated among others by Judges of the Superior Courts from Untied States and leaders of the Bars from the world over. On behalf of the Judges, one of us (Tassaduq Hussain Jillani, J) was invited and on behalf of lawyers the President of Supreme Court Bar Association (Barrister Aitezaz Ahsan) was invited to receive the award. As a mark of solidarity with those courageous Judges in Pakistan, the speech sent by one of us (as Tassaduq Hussain Jillani, J, was unable to attend) was read out at the function by a sitting Judge of U.S. Court of Appeal (Judge Cliffard Wallace of U.S. Court of Appeal, 9th Circuit). It was a gesture unprecedented in the judicial history of the United States and was a tribute to independence of judiciary in our country.

117. We have waded through a momentous and inspirational period in Pakistan’s constitutional history. If one were to distinguish a headline from a trend line in assessing change, the Movement launched was a pointer to a moral renaissance and augured well for the spiritual health of the nation. Never before has so much been sacrificed by so many for the supremacy of law and justice. The assertion of judicial conscience, the rise of a vibrant Bar, the emergence of a vigilant civil society imbued with a spirit of idealism, the bold and moral profile of an independent media and the support received from international civil society would ultimately strengthen constitutional democracy, stable political institutions and ensure an expanded enforcement of the rule of law.

118. We have taken judicial notice of the fact that there was a nationwide movement launched by the lawyers, members of the civil society, political workers and the common man took to the streets. Thousands of lawyers and political activists were arrested and detained. The learned Attorney General for Pakistan submitted that Mohtarama Benazir Bhutto, the slain leader of the Pakistan Peoples Party, the party in power presently, had herself led rallies to protest against the action of 3rd November, 2007 and on one such occasion had vowed to hoist the Pakistan Flag at the residence of the Chief Justice of Pakistan. The learned Attorney General further stated that he himself, as a lawyer and as a political worker, had participated in such protests and had received injuries on his head and other parts of his body and thus gave blood to this movement. To show how severely the people had reacted against the action of 3rd November, 2007 rather than acquiescing in or accepting the same, reference may be made to the press clippings of the relevant period as under: -

Civil society flays emergency, new PCO

The Daily Nation, November 05, 2007 KARACHI – The representatives of civil society organisations on Sunday strongly condemned the emergency and the new Provisional Constitutional Order (PCO) imposed by General Pervez Musharraf.

The human right activists also slammed the reported curbs that have been imposed on media and large-scale arrests of politicians and lawyers including SCBA president Barrister Aitezaz Ahsan.

The Sindh Democratic Forum, Human Rights Protection Organization, Lawyers Human Rights Legal Forum and other organisations in their statements condemning the second coup of Musharraf, alleged that PCO was imposed to save and prolong the Presidential office.

“The new PCO and emergency is an illegal and unconstitutional decision and an attempt by a dismissed General to continue his illegal and unconstitutional rule” they stated and further said, the action should be universally condemned and the ambitious Generals in Pakistan should be forced to end their stranglehold on the country. We pay our compliments to a larger Bench of the Supreme Court that has taken up the issue and has declared the PCO and the imposition of emergency illegal and unconstitutional”, they added. They said we pay homage to those judges who rejected PCO including Mr. Justice Iftikhar Muhammad Chaudhry, Mr. Justice Bhagwandas, Mr. Justice Javed Iqbal, Mr. Justice Shakirullah Jan, Mr. Justice Ghulam Rabbani and Mr. Justice Nasir-ul-Mulk.

“We think the country is being held hostage by a dictator that could destroy the country. Such steps are against the will of the people and the law of the land and should be resisted on all the forums,” he observed. Justice (Retd) Fakhrudin G. Ebrhim on Sunday said that there was no room for PCO in the constitution and that the judges who took oath according to it were also breaking the constitution. Countrywide crackdown The Daily Dawn, November 05, 2007 Police and other law-enforcement personnel launched a crackdown across the country on Sunday, apparently fearing a large-scale protest campaign against imposition of emergency. Opposition politicians, prominent lawyers and rights activists were detained in large numbers in several cities and towns of the country.

Prominent among those detained included PML-N acting president Javed Hashmi, ANP Chief Asfandyar Wali Khan, former ISI Director-General Gen (Rtd.) Hameed Gul and human rights activists I.A. Rehman and Iqbal Haider and hundreds of other people on the second day.

Police detained over 600 people in Lahore. Javed Hashmi was arrested from Multan. I.A. Rehman and Iqbal Haider were lodged at Asma Jehangir’s house. Ms. Jehangir has been under housearrest since Saturday evening.

Around 70 civil society activists were arrested when they gathered at a Joint Action Committee meeting of the HRCP in Garden Town to discuss the situation after the imposition of emergency. Lahore District Bar President Mohammad Shah, Lahore High Court Bar Association President Ahsan Bhoon, advocates Ashtar Ausaaf, Khalid Hussain and Iftikhar Bhatti were also arrested. The Pakistan Mulsim League (Nawaz) and the Pakistan Tehrik-i- Insaaf claimed that over 1200 and 50 activists, respectively, had been detained in two days of crackdown.

In Rawalpindi, police rounded up nearly 60 people, including a retired judge, the former ISI Director-General, lawyers and human rights activists.

Officials said that around 400 preventive arrests had been made across the country.

Police baton-charge students rally.

The Daily The News, November 06, 2007

Hundreds of people including students, lawyers, political activists and members of the civil society staged a protest demonstration against the government policies and demanded restoration of deposed judges and lifting of ban on Geo TV.

The activists of Joint Students Movement and people belonging to different walks of life gathered at Aabpara Chowk and started chanting slogans against the government.

Police resorted to baton charge to disperse the mob when they reached near Aabpara Police Station causing injuries to many protesters. Angry people hurled stones at police and damaged two police vehicles while two police officials including the driver of a police vehicle were injured.

Demands of Pakistan’s solidarity

The Daily The News, November 07, 2007

The writing is on the wall. At this juncture the numbers may not be large but public rejection and resistance to General Pervez Musharraf’s imposition of martial law is growing. Despite the unrelenting crackdown by the State machinery to prevent all forms of protest public defiance is on the rise. The more the State applies coercive force the more it accentuates public anger. They know its ‘dictatorship on a roll. That must be stopped at all costs. It is now just basic cause and effect cycle that is at work. The otherwise docile peaceful educated middle class is bracing itself to face the increasing State repression. If the March 9 dismissal of the Chief Justice of Pakistan was a trigger for political activism for the lawyer community, the November 3 imposition of technical martial law is the trigger for a much wider scale of political activism. No matter what the Musharraf regime may call the November 3 action, it is martial law. Violating the constitutional process used for imposition of the PCO, Pakistan’s army chief chose to declare emergency himself. The calculation must have been that the use of the term ‘emergency’ and use of the civilian law enforcement forces would dilute international opposition to his move to take Pakistan off the democratic path. Also by giving martial law a civilian façade General Musharraf and his advisors may have hoped to keep the army leadership out of the ‘firing line’ of public resentment. But Pakistanis are hardened realists. With a decade of free media, the growing realization that unaccountable power is at the core of the dysfunctional state and of continuing political turmoil and violence, their political senses cannot be blunted by facades and propaganda.

We cannot let our country be at the mercy of an individual’s whims. The terrorism excuse for imposing martial law would have been amusing had it not been actually adversely affecting the future of a 160 million-strong nuclear-armed nation with tremendous strategic significance and unlimited economic potential. Equally preposterous is the argument that the judiciary’s attitude made martial law inevitable.

The Daily Frontier Post

The Dynamics of Musharraf’s Assault on Supreme Court Now I will try to explain Musharraf’s criminal assault on Supreme Court justices within the calculus of ‘Holy Trinity’ of criminal investigation. Obviously Musharraf has the means and coercive tools for the perpetration of this crime. On November 3rd, Gen. Musharraf as chief of Army Staff, a grade 22 officers with help of his military gang, held in abeyance supreme law of the land i.e. the 1973 Constitution of the Islamic Republic of Pakistan second time. Government lackeys euphemistically call it an extra-constitutional act. Anything outside the constitution is unconstitutional and hence criminal. PCO (provisional constitutional order) cannot make it kosher or halal. If one recites the entire Quran before killing a khinzir (pig), the khinzir will still remain haram. PCO is illegal and somebody taking oath on an illegal document cannot legitimate a usurper. The legal doctrine of “Fruit of the Poisonous Tree” says, if source of law is illegal then anything emanating from that source will be illegal. Anybody aiding or abetting such an illegal dispensation is equally guilty of crime. Anybody trespassing on the domain of the 1973 constitution is engaging in a treasonous act. Treason is clearly defined in Article 6 of 1973 Constitution and it says: High treason.

(1) 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.

(2) Any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason. The motive behind subversion of the constitution could be easily inferred from the crime scene i.e., the Supreme Court of Pakistan. In my opinion the Supreme Court of Pakistan was the primary target of this treasonous act. ……..”

Lawyers keep up anti-govt protests

The Daily The News, November 07,2007

The lawyers throughout the country Tuesday vowed to continue their struggle for supremacy of the constitution as opposition leaders leave legal fraternity to protest alone for a second day and bear the brunt of a police crackdown.

Opposition politicians, including PPP Chairperson Benazir Bhutto, have denounced emergency rule but have taken no concrete action so far, leaving public protests to the lawyers-hundreds of whom have been beaten with police batons and arrested.

Unrest broke out in Multan, when hundreds of police blocked about 1000 lawyers from leaving a district court complex to launch a street rally. Both sides pelted each other with stones and police swung batons to disperse the crowd.

Pakistan starves for information at a time when news is the need of the hour The Daily The News, November 07,2007 Since the state of emergency, cable television has become mindless with all news channels off air people are getting news on the internet and demand for newspapers is going up as people look at print media to deliver real news of what is actually happening Television has been dumped down and the only thing accessible is the sanctimonious PTV which gives you the impression that everything is coming up roses, when this is not the case at all.

Journalists have coined the term ‘Black Saturday’ for this last weekend. While one agrees that it was a dark day that carries on interminably, ‘Blank Saturday’ seems a far more apt label for it. The horror of what had happened was driven home by TV screens going blank. The nation watched in muted shock as news was blocked out, at a time in history when the only thing you need and want is news-real, reliable news, lively debate, opinions from every side. On Blank Saturday, PTV returned Pakistan to a time warp in the 1980s with the tilawat of Quranic verses, followed by the national anthem and then a speech by a military dictator, self styled President who hung up his army togs to doff an ominously black sherwani.

Crackdown on politicians continues across NWFP

(9 political leaders arrested; former PHC judge put under house arrest)

The Daily The News, November 07, 2007 Crackdown on politicians and lawyers continued across the Frontier province on third consecutive day as senior leaders of the Awami National Party (ANP) and Pakistan Muslim League-Nawaz (PML-N) were arrested from the capital city after clashes between police and protesters Tuesday.

Former provincial minister and senior leader of the ANP Bashir Ahmad Bilour and former Senator Syed Aqil Shah were arrested by police when they were going to lead a protest demonstration at Bacha Khan Chowk.

PUTA Offers Support To Lawyers

The Daily The News, November 07, 2007

The Peshawar University Teachers Association (PUTA) has condemned the imposition of emergency in the country and observed that it would result in deterioration of the situation instead of solving any problem.

A press release said the PUTA executive body in a meeting presided over by its President Dr. Shafiqur Rehman also condemned the suspension of the Constitution and basic rights. It strongly supported the members of the higher judiciary who sacrificed their positions for upholding the Constitution. The meeting also offered full support to the lawyers in their struggle.

The PUTA executive demanded of the government to hold general elections as per schedule, restore the democratic system in the country and lift the recently imposed curbs on the media.

Police disallow entry to courts

The Daily The News, November 07, 2007

A heavy contingent of police besieged the district courts here and did not allow anyone to enter the premises Tuesday while they arrested some seven junior lawyers but later released them.

Police locked all the three gates of the courts and did not allow lawyers, staff persons and litigants to enter the premises. A large number of lawyers and litigants gathered in front of the gates from where police arrested seven junior lawyers but later they were set free. However, hide and seek between the lawyers and police continued till late noon.

It was learnt that police have a list of 21 senior members of the legal fraternity belonging to various political and religious parties.

Lawyers have announced to boycott courts till Thursday and the litigants faced difficulties because of non-availability of lawyers and the court clerks had to extend dates.

Meanwhile, Central Vice President of Awami National Party (ANP) Khwaja Mohammad Khan Hoti condemned imposition of emergency and said it would plunge the country into darkness and uncertainty. He also criticized role of the political and religious parties who are avoiding agitation and resistance of the emergency.

Four lawyers arrested in Karak

The Daily The News, November 07, 2007

Police have registered FIR against 28 lawyers and arrested four of them while the rest went underground.

Amanullah, Ahmad Jan, Bahadur Sher and Sikandar advocates were arrested in raids at their residence and were shifted to Kohat.

A total of 28 lawyers have been charged in the district but only four have so far been arrested.

Meanwhile, the lawyers completely boycotted the courts proceedings on the second consecutive day on Tuesday.

Journalists, lawyers barred from entering SC

The Daily The News, November 07, 2007

Authorities Tuesday did not allow the media persons and lawyers community to enter the Supreme Court building on the second day and journalists were barred from covering the proceedings of the apex court.

Despite the assurance given by Attorney General Malik Muhammad Qayyum the other day that media would be allowed to cover the proceedings of the Supreme Court, neither any media person nor any one from the lawyers community was allowed to enter the Supreme Court building.

The main Constitution Avenue remained blocked right from Radio Pakistan Chowk as barbed wire and heavy blocks were put on the main avenue and movement of all sorts of vehicles was banned on this main important road.

Journalists approaching the Supreme Court building were stopped at Radio Pakistan Chowk and were not allowed to move towards the Parliament House area. Due to blockade of the Constitution Avenue, large number of government employees could not attend their offices in the locality.

Likewise the entrance to Constitution Avenue from the main Blue Area was also blocked and people were not allowed to go through the main road of Parliament Lodges, as a heavy contingent of police was deputed at the entrance and barbed wire and heavy blocks were placed on the road.

Representatives of Supreme Court Bar Association and Pakistan Bar Council were not allowed to enter the Supreme Court premises.

The media person tried their best to prevail upon the law enforcing agencies to let them perform their professional duties, but they were told that they could not be allowed to enter the Supreme Court building.

No arrested leader can get bail under PCO

The Daily The News, November 07, 2007

President General Pervez Musharraf has quietly clipped the powers of the judiciary to grant bail to all those defiant political workers, leaders, lawyers and members of the civil society who were arrested after the imposition of emergency in the country on November 3 and are now in jail.

Most of the top leaders including Aitezaz Ahsan, Javed Hashmi, Lt Gen (r) Hamid Gul and hundreds of others who were arrested during the last three days have been deprived of their basic human right to approach the courts to seek justice.

Although a lot of hue and cry is being made all over the world over the arrests of lawyers and political leaders in Pakistan, no court can take up their bail cases under the new laws.

The oath taken by the judges under the PCO has further made it constitutionally impossible for the judiciary to hear the cases of these leaders and workers. Under the PCO oath administered to these judges, every judge has declared that “I (judge) will abide by the provision of proclamation of emergency of November 3, the provisional constitutional order No.1, 2007 and the code of the conduct issued by the supreme judicial council”.

Sedition charges made lawyers see red

The Daily Dawn, November 09, 2007

Police on Thursday arrested four members of the Karachi Bar Association and at least one member of the Pakistan Bar Council from the steps of the Sindh High Court in an ongoing crackdown against lawyers outraged by the registration of sedition charges against members of the legal fraternity.

Over a hundred lawyers gathered at the City Courts to demand the release of incarcerated colleagues and protest the emergency rule while police retaliated by subsequently storming the building.

Orders are also learnt to have been issued for the arrests of another PBC members and two former presidents of the Sindh High Court Bar Association (SHCBA).

Meanwhile, the SHCBA passed a resolution extending until Nov 12 the boycott of judges who recently took an oath under the Provisional Constitution Order.

“The cases of treason lodged against lawyers, who had merely been protesting, was what actually sparked Thursday’s protest,” said a senior KBA member who attended the protest meeting but escaped arrest. The impromptu gathering of concerned lawyers suggests that the legal fraternity is reorganizing and notching up the pace of its protest to the PCO imposed by General Musharraf on Nov 3.

“The lawyers took the initiative themselves, after they came to know the offence their colleagues have been accused of” the KBA member told Dawn.

Resistance develops (Following the suspension of the Constitution, the resistance at home and pressure from the international community has been mounting)

The Daily The News, November 11, 2007

“Given the resistance at home against the so-called emergency and mounting pressure from the United States, it would not be surprising if Gen Pervez Musharraf backtracks on some of his recent steps by suspending the Constitution. The speculation is that Gen Musharraf is likely to remove his uniform by Nov 12 when he expects to get a favourable verdict on his election as president from the newly-installed judges of the apex court under the Provisional Constitution Order (PCO).

“Political parties seem to have geared up their protest after initial lukewarm response to Gen Musharraf’s second coup. PML-N and the Jamaat-i-Islami leaders are either under detention or underground. Only the PPP and the JUI-F have been spared the wrath of the administration. After the PCO, these two opposition parties had been high on rhetoric and short on action. Once the reports of postponing the general elections started pouring from the ruling Muslim League officials, Bhutto started putting heat on Gen Pervez Musharraf. She warned him that she would take to streets in protest if he does not retire as military chief till Nov 15 and does not announce holding of general elections till January 15.

Once Musharraf quits the army, some PPP leaders expect the current assemblies would be dissolved and an interim government would be set up to hold elections.

“For many it is again doubtful that he would keep his word. It is also feared that he may leave the military post but under the PCO may acquire substantial powers of the army chief such as making transfers and posting-thus effectively keeping the army under his command without being the chief of army staff. For many the mass movement and protests on the streets could be the effective way to get constitutional and democratic order restored. In their protest against the imposition of PCO and the sacking of disobedient judiciary, lawyers have again shown unity and boycotted the judicial work countrywide. The first time in the history of the country, a large number of judges of the superior courts who refused to take oath under the PCO have been detained at their homes that too without written orders.

“The long closure of the judicial system hurts not only the common man but the government and businesses as well. If this tempo continues for a few weeks, it will be hard for the government to run the business of state as usual. A section of university students in Lahore, Karachi and Islamabad have also joined the resistance movement by organizing demonstrations which is unprecedented in the recent history of the country. The media has so far not made any compromise on the newly introduced restrictions on its working and the journalists have started protesting against the media curbs.”

GT Road turns into battlefield as Jamaat activists clash with police

The Daily The News, November 14, 2007

The main Grand Trunk (GT) Road turned into battlefield as the police swooped down upon Jamaat-e-Islami workers who were rallying against the imposition of emergency here Tuesday.

Over 100 political leaders and workers were arrested as police fired teargas shells and resorted to baton-charge to disperse the unyielding protesters.

The GT Road near Hashtnagri and Firdos as well as different nearby streets looked like a battlefield when Jamaat workers clashed with heavy contingent of law enforcers.

Chanting anti-government slogans, the Jamaat workers marched from Chowk Yadgar to Nishterabad and from there to Firdos throughout the day and police resorted to baton-charge them to open the main highway for traffic.

Police, according to eyewitnesses, fired teargas shells to disperse the protesters but failed as the demonstrators used to appear in other areas where there were no police cops. Demonstrators included young students as well as senior party workers in the 70s.

The infuriated Jamaat workers clashed with law enforcers on a number of occasions and pelted them with stones. The hide and seek between the cops and demonstrators continued for several hours that kept the GT Road blocked in intervals till evening.

Dozens of Jamaat workers were held during protest. Many of them were later released while several were taken to the lockups and then shifted to central prison.

The Awami National Party (ANP) also staged a protest demonstration in Malgu Mandai where nationalist workers chanted slogans demanding restoration of the Constitution. Police baton-charged the protesters and fired teargas shells in a bid to disperse the ANP supporters, ANP Provincial President Afrasyab Khattak and Khwaja Hoti were among few leaders who were arrested on the occasion. An ANP workers was also injured during the rally.

Lawyers hold protest rally at District Courts

The Daily The News, November 14, 2007

The lawyers of Rawalpindi Bar Association, members of civil society, students and leaders of some political parties staged a rally in District Courts premises here on Tuesday to mark their protest against the imposition of emergency in the country.

Hundreds of protesters including prominent lawyers, like President Rawalpindi Bar Association Raja Khalid Ismael Abbasi, Joint Secretary Shahbaz Rajpoot, senior lawyers Sardar Ishaq Khan, Sanaullah Zahid, Rafaqat Bhatti, Farooq Awan, Malik Rab Nawaz Noon, General Secretary, Jamaat-e-Islami, Rawalpindi Division, Sham-ur-Rehman, Amir Jamaat-e-Islami Dr Kamal, workers of PML-N and students of Quaid-e-Azam University attended the rally.

The protestors carrying black flags and placards inscribed with anti-government slogans condemned the imposition of emergency in the country.

The lawyers tried to leave the premises of District Courts to stage a demonstration outside, however, a heavy contingent of Punjab police cordoning the area did not permit them to do so.

Lawyers’ protest gains momentum

The Daily Dawn, November 14, 2007

Lawyers anti-emergency protests here on Tuesday gained momentum as a number of workers of all opposition parties, students and media-persons joined their struggle.

As police crackdown on lawyers continued, more than 500 lawyers along with representatives of civil society, workers of political parties, students and media-persons staged rallies in the premises of the courts. They were not allowed to come on the roads by the heavy police deployed at the gates of the district courts.

The protesters chanted anti-Musharraf and pro-deposed judges slogans. They had black flags in their hands as sign of protest against the ‘unconstitutional’ steps of the regime. The lawyers also boycotted district and high courts on the call of Pakistan Bar Council.

Later, a protest meeting was held at the hall of District Bar Association (DBA) where speakers castigated the unconstitutional steps of the government and demanded immediate restoration of constitution in its real form, reinstatement of all deposed SC judges, release of all arrested lawyers, journalists, civil society members and political workers, formation of a Bench consisting of same 11 judges, to decide the case of eligibility of president, free and fair election under an independent election commission and end to blockade of all private TV channels.

PBC declares Monday ‘day of solidarity’ with media The Daily The News, November 17, 2007 The Pakistan Bar Council (PBC) Friday declared Monday, November 19, 2007, as a day of solidarity with the media and called upon lawyers to hold functions in honour of media-persons in the Bar Association building and joined them in their protest meetings and rallies.

Top KBA leader arrested

The Daily Dawn, Islamabad

The general secretary of the Karachi Bar Association, Naeem Qureshi, who escaped detention since the launch of an operation against protesting lawyers following the imposition of emergency rule by Gen Pervez Musharraf over two weeks back, was finally arrested when he emerged from hiding to address the association’s general body meeting on Monday afternoon.

Lawyers continue hunger strike, protest.

The Daily The News, November 27, 2007

Lawyers, members of civil society, students and workers of different political parties here on Monday continued their hunger strike and protest against imposition of emergency in the country.

During the protest, they demanded reopening of Geo TV. The protesters welcomed the lawyers who were released from different jails late Sunday night. They included High Court Bar Association President Sardar Asmat-ullah Khan, Shaukat Aziz Siddiqui, Mustafa Kanwal and General Secretary High Court Bar Association Sajid Ilyas Bhatti. The lawyers showered petals on their colleagues who were released from different jails of Pakistan. Some lawyers were dancing to celebrate the release of their colleagues. Former MNA Zamarud Khan was also present on the occasion.

The lawyers held a protest march in the District Courts premises. A large number of lawyers, members of civil society and students took part in the rally. They raised anti-government slogans and condemned judges who took oath under the PCO. Expressing solidarity with the media, they raised slogans in favour of Geo TV and demanded reopening of its transmission as early as possible.

The emotionally-charged lawyers beat their chests during the protest march.

The protesters carried black flags and placards inscribed with slogans against the imposition of emergency rule in the country.

The lawyers tried to leave the premises of District Courts to stage a protest demonstration outside, however, a heavy contingent of the Punjab Police did not allow them to do so. When lawyers were protesting in District Courts, many of their colleague and civil society representatives showered petals on them.

Musharraf unacceptable even as civilian president:

PHCBA

The Daily The News, November 29, 2007

The epoch-making movement of lawyers has made Gen Pervez Musharraf doff his uniform, which he dubbed as his second skin, Peshawar High Court Bar Association (PHCBA) said Wednesday.

“Hats off to the legal fraternity across the country, which compelled …… general to quit the post of chief of army staff……We’ve succeeded in the second phase of our countrywide drive against military rule,” said PHCBA President Abdul Lateef Afridi while addressing jubilant lawyers.

At a meeting held at the PHC building, Afridi said that Musharraf is not acceptable to the nation even as a civilian president. The NWFP Bar Council, PHCBA and Peshawar District Bar Association jointly arranged the meeting.

Lawyers’ body calls for protest today The Daily The News, November 29, 2007 Pakistan Bar Council (PBC) Wednesday asked the lawyers and Bar Associations throughout Pakistan to observe Thursday, the 29th November 2007 as a protest day against the illegal assumption of office of President by Pervez Musharraf.

President Pervez Musharraf who doffed his military uniform Wednesday is scheduled to take oath as civilian President today (Thursday). “As the legal fraternity does not recognize Gen Musharraf as qualified to hold the office of president, we call upon the lawyers and Bar Associations across the country to observe today (Thursday) as protest day against the illegal assumption of office of president by Pervez Musharraf,” said Mirza Aziz Akbar Baig, vice chairman PBC Lawyers observe completed strike

(Stage rallies, hold meetings, demand reinstatement of deposed judges)

The Daily The News, December 14, 2007

The lawyers on Thursday took out rallies and boycotted courts proceeding throughout the country to protest against the imposition of emergency, Provisional Constitution Order (PCO) and removal of the judges.

In Lahore, Lahore Bar Association and High Court Bar Association staged a joint protest rally against the imposition of emergency and sacking of the judges.

The rally started from Aiwan-e-Adal and terminated in front of the Punjab Assembly building.

The protesters were carrying placards and banners inscribed with different slogans in favour of independence of judiciary and supremacy of law.

The rally was also joined by the members of the civil society at the GPO Chowk where its participants staged a sit-in for half an hour.

The bar leaders urged all the political parties to boycott the upcoming elections for the sake of democracy and independence of the judiciary in the country.

In Karachi, the lawyers boycotted Sindh High Court, City court and Malir court on the call of Pakistan Bar Council (PBC) against the imposition of emergency and deposition of the judges.

The lawyers held a protest rally in Sindh High Court, which was led by President Sindh High Court Bar Association Rashid Rizvi. The protesting lawyers carried banners and placards inscribed with the slogans. They chanted slogans against the government. Another protest rally led by President Karachi Bar Association Iftikhar Javed Qazi and General Secretary Naeem Qureshi was held in the premises of the City court. The lawyers attended the rally in large number. The demonstrators called for immediate reinstatement of the deposed judges.

The general body meetings of Sindh High Court Bar Association and Karachi Bar Association were held in Lahore High Court and City court.

The leading lawyers while addressing the meetings said their struggle would continue till the reinstatement of the deposed judges Bars ask PBC to resume week-long court boycott The Daily The Nation, January 25, 2008 All four provincial bar councils and Azad Jammu Kashmir Bar Council have raised a common demand to restore the weeklong boycott of the PCO-Judges.

As per reports, the lawyers, through their movement, would press the government to restore neutral national government to hold fair and transparent elections.

Talking to the newsmen here on Thursday, members of Bar Council demanded that General (Rtd.) Pervez Musharraf should quit immediately because his further stay in power would be a security risk for the country.

Vice Chairman Punjab Bar Council Ch. Tariq, vice Chairman NWFP Bar Council, Qazi Muhammad Naeem, representatives of Sindh Bar Council, Aqil Lodhi, Chairman Executive Committee of the Bar, BC Arbab Syed, Chairman Ex Committee NWFP BC, Saeed Akhtar Khan, and Mian Imran, Chairman Co-ordination Committee also addressed a press conference.

After the meeting, they asked the PBC to review its January 13 decision regarding the boycott of the PCO judges. They said the lawyer’s community would never accept the PCO judges as they were not constitutional ones.

Lawyers march for restoration of judges The Daily The Nation, January 25, 2008 Lawyers, civil society, human rights activists and politicians on Thursday held a joint protest rally from Aiwan-e-Adl courts to Punjab Assembly building to press their demand for the restoration of deposed judges and release of detained lawyers.

Lahore High Court Bar Association (LHCBA) and Lahore Bar Association (LBA) held their separate general house meetings at their respective buildings and later took out rallies.

They were chanting slogans against the government and in favour of the deposed judges and their detained leaders-Barrister Aitezaz Ahsan, Munir A Malik, Tariq Mahmood and Ali Ahmed Kurd.

Police tear-gas lawyers

The Daily The Nation, January 25, 2008

Several lawyers were injured when police baton-charged and teargassed to disperse them here Thursday at judges Colony. They had gathered to show solidarity with deposed Chief Justice Iftikhar Muhammad Chaudhry.

A number of lawyers belonging to Rawalpindi, Talagang, Taxila and Chakwal Bar Associations brought out rallies from the residence of President Supreme Court Bar Association, Aitezaz Ahsan, for expressing solidarity with the deposed judges who had refused to take oath under the PCO.

A heavy contingent of police besieged the rally when it reached outside the Judges colony. Waving black flags and chanting anti-Musharraf slogans, the lawyers tried to break through a barricade outside Judges Colony. Police first baton charged and then teargassed to disperse lawyers. Several lawyers got injured in the incident.

Two coups in a row

The Daily Dawn

GENERAL Musharraf has once again imposed ‘martial law’ in the country and suspended the Constitution of Pakistan. Eight years ago when the elected prime minister had dismissed him from the office of COAS, he had responded by overthrowing the government and placing the Constitution in abeyance.

Now in 2007 he has once again put the Basic Law aside in what is believed to be an attempt to pre-empt the judgment of the Supreme Court which may have found him ineligible and disqualified to be re-elected as President of Pakistan.

With this coup, he has achieved the distinction of overthrowing the Constitution twice over – which even General Ayub Khan and General Ziaul Haq did not do. He is likely to even surpass the legacy of General Yahya Khan.

While his first coup in 1999 was aimed at displacing the parliament and the elected government, his second coup is aimed at the judiciary. As usual the media also took the brunt of this coup and all independent television channels were immediately restrained from broadcasting within the country.

The 1973 Constitution of Pakistan, the judiciary and the media were the major obstacles in the road to power. With the Proclamation of Emergency, the Provisional Constitution Order and amendment to the PEMRA Ordinance, the general has achieved all his goals in one stroke or so he believes.

A simple reading of the proclamation reveals that its allegations against the judiciary are misleading. It is equally intriguing in its reference to the sources of the general’s action. It is declared to be his deliberations with the prime minister, the provincial governors and the military leadership of the country.

It completely omits any reference to his consultations with the source of much of his strength namely the Americans. It also attributes this action to deliberations with the prime minister who, only hours before the coup, had categorically dispelled rumours of emergency or martial law. So much for the authenticity of the proclamation.

The Oath of Office (Judges) Order, 2007, has been promulgated with the effect that most of the judges of the Supreme Court and the provincial high courts have either refused to take oath under the PCO or were considered too independent and dangerous to be invited to join the new compliant judiciary. The new dispensation does not need judges, it needs judicial actors following the military rulers’ line.

It was indeed heartening to see that judges with unimpeachable integrity, dignity and ability led by the Chief Justice flatly refused to be part of this drama enacted in the name of the rule of law. Their names will be forever engraved in the hearts and minds of the people.

The Proclamation of Emergency and the PCO are not only unconstitutional instruments but are patently misconceived. Contrary to the false and frivolous allegations made in the proclamation against the judiciary, the primary motive behind this coup was to subdue and silence the courts which were beginning to redeem the constitutional pledge of an independent judiciary.

119. From a perusal of the above excerpts from the print media, it is evident that the nation had stood up against the unconstitutional and illegal acts of 3rd November, 2007. Not only those actions were not accepted by all and sundry, but they were repelled with an equal and opposite force and were thus rejected with vehemence and firmness, rather with contempt. All this was a healthy sign in the nation’s journey on the path of rule of law, constitutionalism and democracy.

120. However, we are inclined to take the view that in a situation where people did not show any reaction or failed to hold even peaceful rallies or protests against the unconstitutional, illegal and void ab initio acts of a usurper of power, such inaction and apathy could not be pressed into service to justify such unconstitutional and illegal acts, as was done in the previous cases. Indeed peaceful rallies and protests are acknowledged all over the world as the proper means of giving vent to the well-founded grievances of the people against the denial of their Fundamental Rights guaranteed under the Constitution. It is the duty of the law enforcing agencies to provide the requisite setting to the protesting crowds so that they remain peaceful and are not compelled or allowed to resort to violence. Resort to violence and use of force for the attainment of legal rights and entitlements cannot be approved. It is the duty of each organ of the State and each institution of the government to ensure that the grievances of the people are redressed by the mechanisms provided under the law and by recourse to peaceful constitutional and legal means so that they do not resort to protests or violence. It was equally wrong in the earlier cases to refer to the stray incidents of jubilations and sweet distributions at the military takeovers of July 1977 and October 1999 by certain quarters, which would always be politically motivated. We hold and declare that the unconstitutional and illegal acts would remain unconstitutional and illegal even though nobody comes up to challenge the same in a court of law, or nobody takes to the streets to protest against them, or the political opponents or other disgruntled elements resort to jubilations and sweet distributions at the unconstitutional and illegal ouster of those in power by means of imposition of martial law, Proclamation of Emergency, PCO, Oath Order, etc. This country owes its existence to a peaceful struggle launched and pursued by the Quaid-e-Azam Muhammad Ali Jinnah within the constitutional and legal framework. We, thus, disapprove the approach adopted in the said cases.

121. Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 per se having been found to be unconstitutional, illegal and ultra vires, the next limb of the contention of Mr. Hamid Khan, Sr. ASC was that all the acts based upon, or flowing from, the actions of 3rd November, 2007 were too, unconstitutional, illegal and ultra vires, therefore, all such acts including the appointment of Abdul Hameed Dogar, J, as the Chief Justice of Pakistan, the oath made by other Judges of the Supreme Court and High Courts, including Chief Justices, etc., and the appointment of Judges of the Supreme Court and High Courts in violation of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case and the appointments made in consultation with Abdul Hameed Dogar, J, were a nullity in the eye of law and of no legal effect and were liable to be so declared by this Court and such Judges had also rendered themselves liable for action under and in accordance with the Constitution and the law including action for contempt of Court.

122. We have considered this aspect of the matter in depth. Indeed, the 3rd of November, 2007 was not the first time that the Constitution was violated and unconstitutional and illegal Proclamation of Emergency, PCO and Oath Order issued. In a similar setting of imposition of martial laws in the country in 1958 and 1969, the superior courts were continued under the new dispensation with restriction on their powers to issue any writ against the Chief Martial Law Administrators. In Dosso’s case, it was held that the legality of the actions taken under the martial law regulations and other laws was to be judged on the basis of the new law creating fact, viz., the Laws (Continuance in Force) Order, 1958, and not on the touchstone of the old legal order (Constitution of 1956), which had effectively been suppressed. In Asma Jilani’s case, the Proclamation of Martial Law and the PCO of 1969 held the field until they were declared to be unconstitutional and illegal in the said case in 1972. There is no report that any Judge refused to abide by the above new dispensations. In 1977, the superior courts were continued on the above pattern, but the Judges of the Supreme Court were required to make oath, which they made en bloc. In 1981, a Provisional Constitution Order was issued in pursuance whereof certain Judges of the Supreme Court and the High Courts ceased to hold office, while few others including Fakhruddin G. Ebrahim (now Senior Advocate Supreme Court) did not make oath under it. In 1999, a somewhat similar pattern was followed. On 26th January 2000, Saiduzzaman Siddiqui, CJ, with five Judges of the Supreme Court did not make oath under PCO No. 1 of 1999 and Oath Order, 2000 while a few of the Judges of the High Courts also did not make the said oath. All such Judges including Saiduzzaman, CJ, were declared to have ceased to hold office. However, all the Judges so not making oath were left to fend for themselves, without the unprecedented outpouring of support which Judges have received from the public before and after 3rd November, 2007. Justice Dorab Patel, a leading light and respected figure of our constitutional history, has been quoted by Mr. Muneer A. Malik, Sr. ASC, in his book “The Pakistan Lawyers’ Movement – An Unfinished Agenda”. Justice Patel, he says, “felt compelled …… to defend his brethren. He justified previous judicial decisions …… on the grounds that they were made by a few old men left alone in face of entire army’s might”. It is reassuring that the previous pattern of judicial decisions has been reversed. It is noteworthy that all such Judges who did not make oath either in 2000 or in 1981 are still greatly respected and admired by all and sundry throughout the length and the breadth of the country. On the foundation so laid by very few first in 1981, and by a larger number in 2000, the largest block of the edifice of the rule of law and the supremacy of the Constitution came on 3rd November, 2007 when a vast majority of the Judges of the Supreme Court and the High Courts including the Chief Justice of Pakistan and two Chief Justices of the High Courts of Sindh and Peshawar did not make oath in pursuance of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, though many of such Judges had to undergo house arrests from 3rd November, 2007 until 24th March, 2008.

The restrictions placed on the movement of the concerned Judges and their family members were lifted only after an announcement was made by the newly elected Prime Minister on the floor of the National Assembly. The Daily Dawn webpage of 24th March, 2008 carried the following news: -

“PM Yusuf Gilani orders detained judges freed ISLAMABAD, March 24 (Reuters): Newly elected Pakistani Prime Minister Yousaf Raza Gilani ordered on Monday the immediate release of all judges detained by President Pervez Musharraf after he imposed emergency rule in November. “I order the immediate release of detained judges of the superior judiciary,” Gilani told the National Assembly, shortly after it overwhelmingly voted for him to become prime minister.

Gilani also appealed to judges to resolve disputes through parliament, not through protests. The prime minister also said he will ask parliament to pass a resolution seeking a U.N. probe into the assassination of Benazir Bhutto.”

While The Voice of America reported as under: -

“Mr. Yousaf Raza Gilani, in his first act as prime minister, ordered all deposed judges to be freed from house arrest. Barricades and barbed wire were moved aside in the judges’ enclave in the capital. The deposed chief justice of Pakistan and 60 other judges had been under house arrest in the compound and elsewhere for more than four months. Mr. Musharraf had replaced them with judges he considered less likely to invalidate his re-election as president. Mr. Musharraf, who came to power in a 1999 military coup, was also army chief when the election was held last October.”

Thus, on 3rd November, 2007 certainly it was the first time in the history of Pakistan that the judiciary, instead of accepting or acquiescing in the situation as per past practice, acted boldly and independently and took the most ever needed step, which conspicuously lacked in the past. A seven-member Bench of this Court, constituted and convened in the evening of the fateful day after the issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, passed the restraint order in Wajihuddin Ahmed’s case. This was the most striking distinction between the action of 3rd November, 2007 on the one hand and those of 12th October, 1999, 5th July, 1977, 25th March, 1969 and 7th October, 1958 on the other. In pursuance of the said order, a vast majority of the Judges of the superior courts rejected the actions of 3rd November, 2007 and did not make oath in pursuance with the order dated 3rd November, 2007 passed by a seven -member Bench of this Court in Wajihuddin Ahmed’s case. The lawyers, members of the civil society, political activists, the print and the electronic media personnel and the general public played their role for upholding the rule of law and supremacy of the Constitution in the country. Abdul Hameed Dogar, J, and some other Judges violated the aforesaid order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case. These Judges, whether they were in this Court or in the High Courts, have all rendered themselves liable for consequences under the Constitution for their disobedience of the aforesaid order of 3rd November, 2007.

123. The learned counsel for the petitioners also submitted that there was no vacancy either in the office of Chief Justice of Pakistan or any other Judge of the Supreme Court, therefore, the said appointments were unconstitutional, illegal and ultra vires. The learned counsel attacked the increase of number of Judges of Supreme Court from 16 to 29 on the ground that the same was unconstitutionally and illegally effected through Finance Act, 2008, rather than doing it by an Act of Majlis-e-Shoora (Parliament) in terms of Article 176 of the Constitution. The learned Attorney General for Pakistan submitted that much water having flown under the bridge in the interregnum, the de facto doctrine would call for judicial restraint because complete annulment would create chaos and confusion of great magnitude. Regarding the increase of strength, he took up the position that the objection with regard to increase of number of the Judges of the Supreme Court was neither part of the pleadings nor was any prayer made for annulment of section 13 of the Finance Act, 2008; in law, the striking down of a legislative instrument could not be pleaded collaterally; the Money Bill even otherwise was simultaneously sent to the Senate of Pakistan and their recommendations solicited; money bill as a matter of fact was unanimously passed by the National Assembly in terms of Article 73 of the Constitution after consideration of the Senate and was duly assented to by the President of Pakistan; the Finance Act, 2008 was passed in line with the consistent and constant practice, inasmuch as laws were amended through the Money Bills so as to work out the financial implications and to budget the expenditure from the national exchequer, hence, no exception could be taken to it.

124. To appreciate the above contention, it is necessary in the first instance to examine the relevant provisions of the Constitution. To begin with, Article 176 of the Constitution provides that the Supreme Court shall consist of a Chief Justice to be known as the Chief Justice of Pakistan and so many other Judges as may be determined by Act of Majlis-e-Shoora (Parliament) or, until so determined, as may be fixed by the President.

Thus, there is a provision of one Chief Justice of Pakistan alone. Next provision relating to the office of Chief Justice of Pakistan is Article 180. It provides that at any time when (a) the said office is vacant; or (b) he is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint the most senior of the other Judges of the Supreme Court to act as Chief Justice of Pakistan. On 3rd November, 2007, the Chief Justice of Pakistan was unconstitutionally and illegally prevented from the execution of the functions of his office. Mr. Akram Sheikh, Sr. ASC was right in contending that the Constitution envisaged only one office of Chief Justice of Pakistan and the incumbent Chief Justice had already been appointed. On account of a forcible restraint placed upon the movement of the Chief Justice, it could not be said that vacancy had occurred in that office so as to appoint anyone else as permanent Chief Justice. Further, he was neither absent nor unable to perform the functions of that office due to any other cause within the contemplation of Article 180.

Therefore, nobody else could be appointed as the Acting Chief Justice of Pakistan. In the circumstances, Abdul Hameed Dogar, J, could neither be appointed as permanent Chief Justice nor Acting Chief Justice. For the same argument, it may be mentioned that in case of a temporary vacancy, he could not be appointed as Acting Chief Justice in presence of Rana Bhagwandas, J, (as he then was) and Javed Iqbal, J, who were senior to him. The office of the Chief Justice of Pakistan never fell vacant throughout except as and when he was out of the country and an Acting Chief Justice was appointed under the Constitution. Therefore, it is held and declared that the Chief Justice of Pakistan had continued in office without interruption of a single day until the 17th March, 2009 when he was formally restored to the position he was holding prior to 3rd November, 2007. In illegally occupying the office of Chief Justice of Pakistan and taking upon himself the execution of the functions of that office in the presence and availability of its permanent incumbent, knowing fully well that the same had not fallen vacant, Abdul Hameed Dogar, J, became a usurper and he exercised the usurped powers and jurisdiction of the office of Chief Justice. His purported appointment as Chief Justice of Pakistan per se is, therefore, declared to be unconstitutional, illegal and ultra vires. It is further held and declared that Abdul Hameed Dogar, J, was never a constitutional Chief Justice of Pakistan.

125. Under Article 176 of the Constitution, the number of the Judges of the Supreme Court is to be determined by an Act of Majlis-e-Shoora (Parliament). Until the number of Judges is so determined, it may be such as may be fixed by the President. By the Supreme Court (Number of Judges) Act, 1997 (Act XXXIII of 1997), it was provided that the number of Judges of the Supreme Court of Pakistan other than the Chief Justice shall be sixteen. However, by section 13 of the Finance Act, 2008, the Act No. XXXIII of 1997 was amended and the words “be sixteen”, the words “not be more than twenty-nine” were substituted with a deeming clause that the same shall be deemed always to have been so substituted on the 3rd day of November, 2007. We have considered the contention of the learned counsel for the petitioners and the submission made in reply by the learned Attorney General for Pakistan. Clearly, under Article 176, the number of Judges is liable to be determined in two modes, viz. by an Act of Parliament, and until so determined, by the President. An Act of Parliament is different to and distinct from a Finance Act. All substantial legislation is made by an Act of Parliament, that is to say, the passing of the relevant bill by the two houses of Parliament as defined in Article 50 of the Constitution. On the other hand, a Finance Act, in general, is concerned with fiscal matters. Since the Constitution, through its Article 176, authorises only the Parliament to determine the number of Judges of the Supreme Court of Pakistan and since the Parliament had so done through the Supreme Court (Number of Judges) Act XXXIII of 1997, the increase in the strength of Judges through the Finance Act of 2008, which was not passed by Majlis-e-Shoora (Parliament), but by the National Assembly alone, the same would be deemed valid only for financial purposes and not for the purposes of Article 176 of the Constitution. Increase of number of Judges in such a manner also militates against the independence of the judiciary. Strength of Judges is only to be increased keeping in view its needs. It is also to be ensured that the courts are not packed with persons in disregard of merit. It may be noted that after 3rd November, 2007, after the purported increase of number of Judges of the Supreme Court by means of Finance Act, 2008, Judges of High Courts who did not possess the requisite qualification or who were not men of integrity, were appointed on quid pro quo basis. Against one such appointee, there were serious allegations of misconduct and impropriety. However, after restoration of the Judges to the position they were holding prior to 3rd November, 2007, he resigned from office. Thus, it is declared that the number of Judges of the Supreme Court for purposes of the said Article 176 would continue to remain sixteen.

126. At the relevant time, the Supreme Court was functioning with its full strength, i.e. Chief Justice plus 16 Judges. Even one Ad hoc Judge, namely, Ghulam Rabbani, J, had also been appointed as such. Thus, neither there was any vacancy in the office of Chief Justice of Pakistan nor any vacancy existed in the office of Judge Supreme Court, against which Abdul Hameed Dogar, J, or other Judges, as purportedly appointed, could have been appointed under the Constitution and the law.

127. Further, the purported appointment of Abdul Hameed Dogar, J, as the Chief Justice of Pakistan also stood vitiated by virtue of notification No. F.12(4)/2007-A.II dated 17th March, 2009 whereby the Chief Justice of Pakistan was restored to the position he was holding immediately before 3rd November, 2007. For reference, the notification is reproduced below: -

“Islamabad, the 17th March, 2009

NOTIFICATION

WHEREAS the Prime Minister of Pakistan was pleased to announce on 16th day of March, 2009 that the deposed Judges of the Supreme Court and High Courts including Mr. Justice Iftikhar Muhammad Chaudhry, the deposed Chief Justice of Pakistan, shall be restored to the position they were holding immediately before 3rd day of November, 2007.

NOW, THEREFORE, the President of Pakistan is pleased to restore Mr. Justice Iftikhar Muhammad Chaudhry, CJ, the deposed Chief Justice of Pakistan to the position he was holding immediately before 3rd day of November, 2007. Mr. Justice Iftikhar Muhammad Chaudhry will assume office of Chief Justice of Pakistan on 22nd March, 2009, after retirement of Mr. Justice Abdul Hameed Dogar, Chief Justice of Pakistan on 21st March, 2009.

Sd/-

Justice Agha Rafiq Ahmed Khan

Secretary”

By a separate notification No. F.12(4)/2007-A.II of even date, following Judges were restored to the position they were holding immediately before 3rd November, 2007: -

SUPREME COURT OF PAKISTAN

(1) Mr. Justice Javed Iqbal

(2) Mr. Justice Khalil-ur-Rehman Ramday

(3) Mr. Justice Raja Fayyaz Ahmed

(4) Mr. Justice Ch. Ijaz Ahmad

LAHORE HIGH COURT

(1) Mr. Justice Khawaja Muhammad Sharif

(2) Mr. Justice Ijaz Ahmed Chaudhry

(3) Mr. Justice Iqbal Hameed-ur-Rehman

HIGH COURT OF SINDH

(1) Mr. Justice Mushir Alam

(2) Mr. Justice Maqbool Baqar

PESHAWAR HIGH COURT

Mr. Justice Ejaz Afzal Khan

By notification No. F.12(4)/2007-A.II dated 13th April, 2009, the following deposed/retired Judges of the Supreme Court were restored to the position they were holding immediately before 3rd November, 2007 so that they drew their salaries and other benefits as per their entitlement in accordance with law during the intervening period: -

(1) Mr. Justice Rana Bhagwandas

(2) Mr. Justice Falak Sher

(3) Mr. Justice Ghulam Rabbani

By notification No. F.12(4)/2007-A.II. dated 4th June, 2009, following Judges of the Supreme Court and High Courts were restored to the position they were holding immediately before 3rd November, 2007 so that they drew their salaries and other benefits as per their entitlement in accordance with law: -

SUPREME COURT

(1) Mr. Justice Mian Shakirullah Jan

(2) Mr. Justice Tassaduq Hussain Jilani

(3) Mr. Justice Syed Jamshed Ali

(4) Mr. Justice Sardar Muhammad Raza Khan

(5) Mr. Justice Nasir-ul-Mulk

LAHORE HIGH COURT

(1) Mr. Justice Mian Saqib Nisar

(2) Mr. Justice Asif Saeed Khan Khosa

(3) Mr. Justice Sh. Azmat Saeed

(4) Mr. Justice Umar Ata Bandial

HIGH COURT OF SINDH

(1) Mr. Justice Anwar Zaheer Jamali

(2) Mr. Justice Khilji Arif Hussain

(3) Mr. Justice Amir Hani Muslim

(4) Mr. Justice Faisal Arab

(5) Mr. Justice Sajjad Ali Shah

(6) Mr. Justice Zafar Ahmed Khan Sherwani

(7) Mr. Justice Salman Ansari

(8) Mr. Justice Abdul Rasheed Kalwar

(9) Mr. Justice Sarmad Jalal Osmany

(10) Mr. Justice Gulzar Ahmed

(11) Mr. Justice Muhammad Ather Saeed

128. The learned counsel for the petitioners contended that notwithstanding the restoration of the Chief Justice of Pakistan to the position he was holding before 3rd November, 2007, by the terms of the said notification a wrong impression was created that the appointment of Abdul Hameed Dogar, J, as Chief Justice of Pakistan could be interpreted to have been recognized on the de facto doctrine, because the assumption of office by the incumbent Chief Justice of Pakistan was made effective from 22nd March, 2009, i.e. after the retirement of Abdul Hameed Dogar, J, which was taking place on 21st March, 2009. In the first instance, the purported appointment of Abdul Hameed Dogar, J, or for that matter the appointments of other Judges have already been declared to be unconstitutional, illegal and void ab initio. Further, the above recital in the notification, which is a contradiction in terms, stands nullified by the dominant intent and spirit of the notifications, which was the restoration of the Chief Justice of Pakistan and other Judges to the position they were holding prior to 3rd November, 2007. It was a loud and clear recognition of the fact that the Chief Justice of Pakistan and all other Judges of the Supreme Court and High Courts continued to be such Chief Justice and Judges despite their unconstitutional, illegal and forcible removal from office in violation of Article 209 of the Constitution and the said position, on the same considerations, was reversed in totality. A wrong stood declared wrong with no mincing of words, for all times to come.

129. The learned counsel contended that Abdul Hameed Dogar, J, and other Judges could not be regarded even as de facto Judges under the Constitution and the law. In this behalf reference was made, inter alia, to the following cases: -

Muhammad Ayub Khuhro v. Pakistan (PLD 1960 SC 237 at 251) “When a person is not competent to take cognizance of an offence, the entire proceedings before him would be void and coram non judice.”

At page 248 of the report, it was observed as under: -

“A judgment is void if it is pronounced by an incompetent Tribunal.”

Farzand Ali v. Province of West Pakistan (PLD 1970 SC 98 at 127) “An officer de facto is defined by Cooley in his book on Constitutional Limitations, Vol. 2, page 1355 as “one who by some color of right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact”. An intruder is defined in the same book at p. 1357 as “one who attempts to perform the duties of an office without authority of law and without the support of public acquiescence.”

Mahmood Khan Achakzai v. Federaion of Pakistan (PLD 1997 SC 426 at 435)

“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 an enactment passed by such Parliament is declared unconstitutional. It is only such situation that to preserve continuity, prevent disorder and protect private rights, this doctrine can be pressed in service.”

Asad Ali v. Federation of Pakistan (PLD 1998 SC 161)

“142. From the above discussion, it follows that the recognition of the principle of de facto exercise of power by a holder of the public office is based on sound principle of public policy to maintain regularity in the conduct of public business, to save the public from confusion and to protect private right which a person may acquire as a result of exercise of power by the de facto holder of the office. However, in the present cases only the acts done and orders passed by respondent No.2 in his de facto capacity of Chief Justice of Pakistan before 26-11-1997 will be protected under the doctrine of de facto exercise of power as on that date, he was restrained by a Bench of this Court through a judicial order from exercising any judicial or administrative function as the Chief Justice of Pakistan.”

Re James (an insolvent) [(1977) 1 All ER 364, at 378-379]

“In my judgment, it is immaterial whether the Rhodesian judges were appointed before or after UDI. The court whose jurisdiction they were exercising in 1974 was not a British Court but one established by persons who had cast off their allegiance with the British Crown. I think the High Court of Rhodesia was and is a court but not a British one.”

Coppard v. C & E Commissioners [(2003) 3 All ER 351 at p. 356]

“A de facto judge cannot be someone who knows that he is not a judge even if the world believes him to be a judge. The person who knows that he lacks authority includes a person who has shut his eyes to that fact when it is obvious. Such a person is a usurper.”

The ratio of the above case-law fully fits Abdul Hameed Dogar, J, and other Judges. They all knew that they were not Judges under the Constitution; they knew that they lacked authority, but they shut their eyes to that fact when it was obvious; they knew that some others were the rightful holders of those offices; they had no right in fact and they were not in possession of office by some colour of right; and they were usurpers.

They were also intruders because they attempted to perform the duties of an office without authority of law and without the support of public acquiescence. Thus, looked at from whatever angle, the purported appointments of Abdul Hameed Dogar, J, and such other Judges were unconstitutional, illegal and void ab initio. The same are so held and declared.

130. The other four Judges of the Supreme Court, namely, Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar, M. Javed Buttar and Saiyed Saeed Ashhad, JJ and the Judges including the Chief Justices of High Courts, who made oath in violation of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case were fully aware of the aforesaid restraint order, which was passed immediately after the announcement made on the TV channels regarding issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007. No sooner the order was passed, its copies were delivered to all the Judges of the Supreme Court at their residences.

Copies of the order were sent to the Registrars of all High Courts by fax so as to bring the same to the notice of the Chief Justices and Judges of High Courts at once for compliance. The detail of faxes sent on 3rd November, 2007 from telephone/fax No. 9213452, installed in the office of Registrar, Supreme Court is given below: -

DATE TIME NO CALLED DURATION

03.11.2007 19:25:29 0219203263 00:00:29

[Sindh High Court]

03.11.2007 19:29:51 0429212279 00:01:02

[Lahore High Court]

03.11.2007 19:40:18 0919210482 00:02:14

[Peshawar High Court]

03.11.2007 20:19:51 0819201365 00:01:12

[Balochistan High Court]

The TV channels repeatedly televised the contents of the aforesaid order before and after the taking of oath by Abdul Hameed Dogar, J, and other Judges. That continued even after 4th November, 2007. As seen above, the order was also published in the newspapers of 4th November, 2007. It formed the subject matter of various articles written in the newspapers and comments in the TV talk shows. Reference is here made to excerpts from the news clippings of 4th November, 2007 and onward, as also excerpts of the records of TV programmes:-

EXCERPTS FROM THE NEWSPAPERS

Seven judges reject PCO before being sent home The Daily Dawn, November 04, 2007 ISLAMABAD, No. 3: In an unprecedented move, seven judges of the Supreme Court on Saturday overturned the Provisional Constitutional Order and restrained the Chief of Army Staff, corps commanders, staff officers and other civil and military officers from acting under the decree. The judges restrained President Gen Pervez Musharraf and Prime Minister Shaukat Aziz from taking actions contrary to the independence of the judiciary and asked the judges of the Supreme Court and the high courts, including their chief justices, not to take an oath under the PCO or follow any other extra-constitutional step.

Headed by Chief Justice Iftikhar Muhammad Chaudhry, the Bench that handed down the unanimous two page order consisted of Justice Ran Bhagwandas, Justice Javed Iqbal, Justice Mian Shakiullah Jan, Justice Nasir-ul-Mulk, Justice Raja Fayyaz and Justice Ghulam Rabbani.

Anticipating something unusual, the judges remained in the Supreme Court till late afternoon on a day when the court never assembles. It otherwise would not have been possible for them to pass the order. “We feel that the government has no ground or reason to take extra constitutional steps, particularly for the reasons being published in newspapers that a high-profile case is pending and is not likely to be decided in favour of the government, although the matter is still pending, ” the order said.

Appointment of the chief justice or judges of the Supreme Court or chief justice of the high courts under the new PCO would be unlawful and without jurisdiction, it said.

Copies of the order were sneaked out to the awaiting newsmen outside the court premises.

The order came on an application of Supreme Court Bar Association president Barrister Aitezaz Ahsan. The application was fixed for Monday to be taken up by a full court.

A constitutional expert, who wished not be named, said the oath taking of the new chief justice was illegal because the PCO was struck down the moment it was issued.

More than seven judges of the Supreme Court were required to reverse the restraining order, he said, adding that to the best of his knowledge only four judges were available in the capital till late Saturday night.

SC turns down PCO

The Daily News, November 04,2007

ISLAMABAD: Setting aside the Provisional Constitution Order (PCO), a seven member Bench of the Supreme Court headed by Chief Justice Iftikhar Muhammad Chaudhry here on Saturday evening barred the president and prime minister from taking any action contrary to the independence of the judiciary.

It may be mentioned here that President General Pervez Musharraf by imposing emergency in the country suspended the constitution by issuing Provisional Constitutional Order Saturday evening.

A copy of the two-page Supreme Court order, which was handed over by an unidentified man on behalf of the court to journalists including The News, noted that no judge of the Supreme Court or high courts including chief justice should take oath under the PCO or any other extra constitutional step.

A chit carrying names of the chief justice and judges signing the order was afterwards provided to media persons, keenly waiting close to a small gate adjacent to the parking lot of the Supreme Court to see a glimpse of the chief justice. Other members of the Bench were Justice Rana Bhagwandas, Justice Javed Iqbal, Justice Mian Shakirullah Jan, Justice Nasir-ul-Mulk, Justice Raja Fayyaz and Justice Ghulam Rabbani.

Till the filing of this report, it was widely believed that the chief justice and other members of the Bench were inside the court building. Heavy security was around and no one was allowed to step in or step out of the SC premises.

The Bench also said that the chief of army staff, corps commanders, staff officers and all concerned of the civil and military authorities were thereby restrained from acting under the PCO, which has been issued, or from administering fresh oath to the chief justice of Pakistan or judges of the Supreme Court, and chief justice or judges of the high courts.

They were also restrained from undertaking any such action, which was contrary to the independence of judiciary.

Any further appointment of the chief justice and judges of the apex court and chief justices of high courts or judges of provinces under the new development shall be unlawful and without jurisdiction, the order said.

Earlier, after the unidentified person gave a copy of the order to Journalists, a few minutes later he asked the policemen to let them inside as the honourable chief justice wanted to talk to the media. But the cops declined to do so saying they could not allow them until they got clearance from their seniors.

One of them did talk to someone for advice and later told media persons that they were not given permission to let them inside the apex court.

All the road leading to the Constitution Avenue, on which besides the apex court, the Parliament House, Prime Minister House and other important offices are located, were blocked with boulders and barbed wire.

Only jeeps and trucks of rangers and the police were allowed to ply on the Constitution Avenue, which were seen carrying security personnel and rolls of barbed wire.

EXCERPTS FROM RECORDS OF ELECTRONIC MEDIA

DAWN NEWS

3rd November, 2007: 18:00 hours

“We had just received report that as Aitezaz Ahsan … it is probably find out … into as he was into …the announcement that a warrant of his arrest has also have been made. So it is to sum up what is being going on this last hour or hour and hour an half been arrived this team might explore surely things are moving in the direction of the imposition of an emergency Chief Justice along with number of his judges are still in the Supreme Court our correspondence Kamran Yousaf is saying that there was a large number of security forces arsenal movement have been seen inside the federal capital now a high level meeting of the president along senior PML-Q leadership is taking place ….. we also heard that there would be cabinet meeting now a lots going on here in federal capital so go over to our correspondent Mateen Haider for the latest updates. Mateen we just have heard this a warrant of arrest has been issued for Aitezaz Ahsan and we were just speaking to him short a while ago what details you have observed and anything which make transform in next …..”

18:02 hours

“Yes you are right Chief Justice of Pakistan Iftikhar Muhammad Chaudhry along with some of the judges …. And we tried to go into the Supreme Court right now along with the main gate of Supreme Court of Pakistan two military personal there are two soldiers from the Pakistan Army they are right at the front gate of the Supreme Court of Pakistan along with police right to we have just witnessing number of cameras, photographers who are capturing that short. Two soldiers from the Pakistan Army they are at the Supreme Court’s main gate so the media and the cameramen and reporters they are not being allowed to go inside the Supreme Court of Pakistan then we contacted to the security staff they’ve said that they’ve got instructions from the higher that no media person should be allowed to come inside in the Supreme Court and earlier in the day full fledge media entry has been banned into the Supreme Court right now.”

18:03 hours

“So the meeting at the presidency which general Pervez Musharraf for chairing right now is come to at end and the decision about the imposition of emergency that is been checked in now. But the formal announcement will be made right by some top governed functionaries and there are report that president general Pervez Musharraf may address to the nation shortly in which he will announce definitely the position of emergency will make formal announcement and the there are also report about the extra ordinary emergency cabinet meeting which is chaired by prime minister Shoukat Aziz at prime minister house security on the constitution avenue is still tight there is police van which is patrolling and at number of important entry points there is definitely a deployment of security personals. OK. Mateen Haider, thank you for that update.”

18:04 hours

“Just for anyone who may have joined or tuned on the Dawn News that there wide speculated in that the state of emergency is very eminent now and cable operators have incidentally and they have taken a large number of private television channels off and there is lot of different reports coming in different part of the country there is a slow build up of the security personal entry and exit point in and around Islamabad have been tightened up and most interesting news which is coming out now recently from Mateen Haider that he just told us the Chief Justice of Pakistan along with number of his judges is inside in the Supreme Court building he says that there is at least two army officials standing outside guard of the front of the Supreme Court building and entry for the media personals have been gathered outside the Supreme Court building have been prevented from entering.”

18:12 hours

“The government has imposed a state of emergency plus following cabinet meeting in capital there are reports that a new PCO is being introduced this would mean judges in the supreme Court of Pakistan will have to take a new oath for office. The Chief Justice of Pakistan is out the Supreme Court Attorney General is now with him. Pickets are being set up by the army key positions across the country. The broadcast of independent channels has been stopped in the capital. Now the PCO has been passed by the president as his capacity of the Chief of the Army Staff that is the latest breaking news it has been confirmed that the state of emergency has been imposed in Pakistan. The state of emergency can’t be challenged in any court of law. There are reports coming in the Chief Justice and other judges are reportedly being removed by the armed forces from the Supreme Court building a short while ago our spokesman correspondent Mateen Haider reported at the steps of the Supreme Court where he said that at least two to three military officials there is now been confirmed that the Chief Justice of Pakistan and number of judges are being escorted out of the Supreme Court building by army officials this is the latest development.”

18:16 hours

“Let’s go to our senior correspondent Mubashar Zaidi for the latest developments. Mubashar what do you understand in this latest situation has there been informal announcement yet? Formal announcement still being awaited which PTV has already announced that Chief of the Army Staff that is president general Pervez Musharraf has proclaimed emergency in the country and he has issued a PCO but all the development right now happening in the Supreme Court where Chief Justice Iftikhar Muhammad Chaudhry along with couple of judges are still present inside and written orders have been issued from the interior ministry by the chief commissioner to police to remove the Chief Justice and other judges from the Supreme Court and Army troops have already entered the Supreme Court building and they are trying to remove the staff of the Chief Justice, Registrar and other staff and they are unlikely to remove the Chief Justice and other judges who are present in the Court………”

20:01 hours

“President General Pervez Musharraf who is also the Chief of the Army Staff of Pakistan has imposed a state of Emergency and suspended the Constitution and introduced Provisional Constitutional Order however several judges who are inside the Supreme Court building in the time of the imposition of the emergency declared the PCO has unconstitutional and at least eight of those judges have refused to take oath under this new PCO. Un-official announcement is to at some point later on in the evening but there is a fact that a state of emergency obvious hasn’t officially announced it is quit evidently in place throughout the whole of Pakistan. Right time now go over twelve studio in Islamabad where Zafar Abbas the Editor of Dawn standing by with Farhan Bukhari to discuss what this means and what had happened today over the course of the whole of today when November the 3rd two thousand seven is the moment of the day when the state of emergency has been declared in Pakistan. Well Farhan obviously what the general mood like in the federal capital commentator is saying ? well Addel it is obviously very tense time in Islamabad last couple of hours since it became clear that another state of emergency has been imposed lots of people are comparing this to 12th October 1999 the day the coup when president Musharraf took over and lots of people are saying that more than eight years later this is a replay of what happened on that day troops are reports… moment that people are waiting for its president Musharraf’s speech which would come later any time I am joined in our Islamabad studio by Zafar Abbas resident editor of Dawn. Zafar just for the sake of this discussion if we tried to compare what is happened today or what is happening today with 12th October 1999? In somewhere yes mainly in terms of the kind of action that has been taken but it is really a very different situation it is situation where a government is not being removed and army is not stepping in to remove the government general Pervez Musharraf was already the president of Pakistan prime minister Shoukat Aziz was working under him what he is done is to impose emergency rule acting as the Chief of the Army Staff to prolong his stay in power because of the fear that the supreme court may declare his move to get himself elected for the second time as unconstitutional or illegal so it is an attempt to prolong his rule it is not attempt to remove a government which on 12th October 1999 that is the main different and the other difference is that this emergency rule has been brought in or imposed at the time when we have witnessed unprecedented action by the country superior judiciary and even as we speak some of the senior most judges are sitting inside the supreme court refusing to go away and as you all know they have already passed an order Chief Justice of Pakistan Chaudhry Iftikhar and other senior judges have passed an order declaring the emergency rule as illegal.”

20:04 hours

“Zafar a very interesting aspect of this situation; it is almost an eyeball to eyeball type of a situation. What is being well finally happened to the judges I mean they can’t stay inside the Supreme Court indefinitely they have passed an order which legal experts say in time would have its on significance but what do you think what will happen to the judges? You there are two things one is the judicial side of the whole matter the legal side of the whole matter and the other is administrative side. Obviously when we talk about the administrative side of this matter president Musharraf is also the Army Chief, the army is behind him and the security forces are with him the government is with him so the Supreme Court Chief Justice can’t do much about it; to be very honest. He and some of his brother judges as they are halt may continue to sit in the Supreme Court for a while and they will have to go to their respective residences and in all probability they will not be asked to take oath under the new PCO and they as the system had been in the past whenever marshal law has been imposed or emergency rule or this kind of an extra constitutional order has been imposed new set of judges have come and new Chief Justice has been appointed and this may happen again………………”

Dawn News

03rd November, 2007: 21:08 hours

Correspondence 2

“Well first of all let me explain that no body is allow to access in the Supreme Court and media is standing outside and we are depending on whatever information we are getting to our sources within the Supreme Court that we just got report that Chief Justice of Pakistan Justice Iftikhar Muhammad Chaudhry has constituted full court to hear the case of position of emergency in one day so Chief Justice is still resisting and he denied that the Government Pressure that his services are no more required because after issuing the Provision Constitution Order the General Musharraf the Chief Justice and some Judges who are belief to be who have given the decision against the Musharraf in the case were asked that their services are no more required by the government and it was expected that those judges included Chief Justice, Justice Rana Bhagwandas Justice Shakirullah Jan and few other judges would not be invited by the Government to take a fresh oath under the PCO right now the pressure is being mounted on the Chief Justice of Pakistan and he was asked by the Government that he must accept the decision he must accept the position of emergency in which General Musharraf has issued this evening so but we have got reports that full court was constituted by the Chief Justice and we have seen a convoy coming out of Supreme Court and going towards the Judge’s residences and we are not sure whether the Chief Justice was inside the car or not but it quite confusing situation in which no body is allow access to Supreme Court and we are relying on these information…………”

21:16

Correspondence 1

“Absolutely the situation is evolving here as you can hear the reports that Justice Abdul Hameed Dogar has taken oath as Acting Chief Justice of Pakistan so this is indeed very significant development after Government’s decision to impose emergency in the country and somewhat its seems that Chief Justice Iftikhar Muhammad Chaudhry opposed the decision and some other Judges as well.” of press reports, quoted with approval by this Court in the case of Watan Party (supra) were laid down: -

(i) Where direct evidence is not available;

(ii) Where it is sought to be proved that a person has notice of the contents of the newspaper report;

(iii) Where it is sought to be shown that a person is an author or otherwise responsible for the statement or article published in a newspaper, which is to be used against him;

(iv) In cases of defamation; and

(v) If the issue/occurrence is rather old and eyewitnesses are either wanting or less reliable.

Even CMA No. 2874 of 2007 was moved by the Federation in Wajihuddin Ahmed’s case on 6th November, 2007 seeking clarification regarding the order dated 3rd November, 2007 passed by a seven-member Bench of this Court in the said case stating, inter alia, therein that certain news items had appeared in the newspapers that after issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, “some of the former Judges, reportedly seven in number including the then Chief Justice” had passed some order restraining, inter alia, the Judges of the Supreme Court and High Courts, including Chief Justices from making oath under PCO or any other extra-constitutional step. Thus, all the Judges knew that a restraint order had been passed by the Supreme Court and also that Abdul Hameed Dogar, J, and some other Judges had made oath in violation of the said order. In fact, all and sundry in the length and breadth of the country knew about it. All such Judges, therefore, willfully violated the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case.

132. We next take up the purported appointments of Judges post 3rd November, 2007. Mr. Muhammad Akram Sheikh, Sr. ASC, contended that having unconstitutionally and illegally installed Abdul Hameed Dogar, J, in the office of the Chief Justice of Pakistan, General Pervez Musharraf unconstitutionally and illegally made purported appointments of Judges in the Supreme Court in a so-called consultation with Abdul Hameed Dogar, J, and ‘packed the courts’ with dozens of persons on and after 3rd November, 2007 in disregard of merit, competence or repute.

According to the learned counsel, since the said appointments were made in consultation, not with the Chief Justice of Pakistan who was holding office under the Constitution, but with Abdul Hameed Dogar, J, who was holding office under PCO No. 1 of 2007 and Oath Order, 2007, and was not authorized to be consulted for appointment of Supreme Court and High Court Judges under Articles 177 and 193 of the Constitution, for which even a duly appointed Acting Chief Justice was not authorized as laid down in Al-Jehad Trust case, therefore, the same too, were of no legal effect.

133. The appointment of Judges of the superior Courts indeed is a matter of great significance in ensuring the independence of the judiciary. The Constitution provides that appointment of Judges of the Supreme Court shall be made by the President in consultation with the Chief Justice of Pakistan, while that of Judges of the High Court shall be made in consultation with the Chief Justice of Pakistan, the Governor of the Province and the Chief Justice of the concerned High Court. It was held in Al-Jehad Trust case that the consultative process was mandatory and without it no appointment or confirmation could be made and that in absence of consultation as contemplated and interpreted, the appointment/ confirmation of a Judge in the superior Court shall be invalid. It was further held that the independence of the judiciary was inextricably linked and connected with the constitutional process of appointment of Judges of the superior judiciary. It was also held that an Acting Chief Justice was not a consultee as envisaged by the relevant Articles of the Constitution and, therefore, mandatory constitutional requirement of consultation would not be fulfilled by consulting an Acting Chief Justice except where the permanent Chief Justice concerned was unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness.

Accordingly, at declaration No. (xiii) of the Short Order passed in Al-Jehad Trust case, it was held 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 was 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. In the instant case, the permanent Chief Justice of Pakistan was very much available and able to perform the functions of his office. At page 528 of the cited case, it was unequivocally held that to have access to free, fair and independent court/tribunal would be a fundamental right enforceable by the Courts. Any deviation from the methods prescribed under the Constitution for appointment to the high office of Chief Justice of Pakistan would give rise to the infringement of the fundamental right of the citizens to have free, fair and equal access to justice through an independent and impartial Court/Tribunal, thus violating the right guaranteed under Articles 9 and 25 of the Constitution.

134. We, therefore, uphold the contention of the learned counsel that Abdul Hameed Dogar, J, who was holding office in violation of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, was not authorized to be consulted for such appointments. All the appointments of Judges of the Supreme Court and High Courts made in consultation with him during the period from 3rd November, 2007 to 21st March, 2009 were violative of the provisions of the Constitution as interpreted in Al-Jehad Trust case. Therefore, appointments of Judges made in consultation with Abdul Hameed Dogar, J, are held and declared to be unconstitutional, illegal, void ab initio and of no legal effect.

135. Besides, the purported appointment of four persons as Judges on 5th November, 2007, noted above, two such Judges, namely, Muhammad Akhtar Shabbir, J, a retired Judge of the Lahore High Court and Zia Pervez, J, a former Judge of the High Court of Sindh, though as a Judge of the High Court he had not made oath in violation of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, were appointed vide notification No. F.1(1)/2007-A-II(A) dated 12th November, 2007 in this Court. Three such Judges, namely, Mian Hamid Farooq and Syed Sakhi Hussain Bokhari, sitting Judges of the Lahore High Court and Syed Zawwar Hussain Jaffery, a retired Judge of the High Court of Sindh were appointed vide notification No. F.1(1)/2007-A.II. dated 9th December, 2007. All these appointments stood vitiated on account of the above declaration. Out of the above, the Judges who were sitting Judges of the High Courts violated the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, which was enforceable and binding upon them under Articles 187, 189 and 190 of the Constitution, particularly after it had come to their notice through the electronic and print media, or through the respective Registrars, and thus rendered themselves liable to action under and in accordance with the Constitution.

136. As to the remaining Judges, who were retired Judges of the High Courts or were taken on the basis of their practice, their appointments stood vitiated because the same were not made in consultation with the Chief Justice of Pakistan, but were made in consultation with Abdul Hameed Dogar, J, who was not a consultee within the ambit of Article 177 of the Constitution, as discussed hereinabove.

Furthermore, all these Judges were appointed against the vacancies occupied by the Judges appointed under the Constitution, who were available and able to perform the functions of their office. Accordingly, the appointments of all the above Judges are held and declared to be unconstitutional, illegal and void ab initio.

137. Similarly, the appointments of Judges made in consultation with Abdul Hameed Dogar, J, after the revocation of emergency up till 22nd March, 2009, the date of his retirement were too, violative of the provisions of the Constitution as interpreted in Al-Jehad Trust case. Two such Judges, namely, Sh. Hakim Ali, J, a sitting Judge of the Lahore High Court and Muhammad Farrukh Mahmood, J, a retired Judge of the Lahore High Court were appointed vide notification No. F.2(1)/2008-A-II(A) dated 7th February, 2008. Two Judges, namely, Sabihuddin Ahmed, CJ, and Sarmad Jalal Osmany, J of the High Court of Sindh, who had not made oath in violation of the order dated 3rd November, 2007 passed by a seven- member Bench of this Court in Wajihuddin Ahmed’s case, were appointed vide notification No. F.2(3)/2008-A-II. dated 19th September, 2008. One Judge, namely, Sardar Muhammad Aslam, CJ, Islamabad High Court was appointed vide notification No. F.2(1)/2009-A.II dated 7th March, 2009. Their appointments too, stood vitiated because the same were not made in consultation with the Chief Justice of Pakistan but were made in consultation with Abdul Hameed Dogar, J, who was not a consultee within the ambit of Article 177 of the Constitution, as discussed hereinabove. All the aforesaid Judges shall immediately cease to hold office forthwith.

However, such Judges who were sitting Judges of the High Court prior to their appointment in the Supreme Court in consultation with Abdul Hameed Dogar, J, shall revert to their respective High Courts subject to their age of superannuation.

138. Another category of appointments made during the period from 15th December, 2007 to 22nd March, 2009 relates to the reappointment of certain deposed Judges of the Supreme Court and the High Courts, who had not made oath in violation of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case whose cases were processed by Abdul Hameed Dogar, J, being in the office of Chief Justice of Pakistan at the relevant time.

However, the actions of 3rd November, 2007 per se having been held and declared to be unconstitutional, illegal and void ab initio, it has further been held and declared that the Chief Justice of Pakistan, the Judges of the Supreme Court of Pakistan, any Chief Justice of High Court and Judges of High Courts who were declared to have ceased to hold office in pursuance PCO No. 1 of 2007 and Oath Order, 2007 shall be deemed never to have ceased to be such Chief Justices or such Judges irrespective of any notification issued regarding their reappointment or restoration. The notification of restoration of such Judges has in fact superseded the earlier notification of their reappointment and is a loud and clear recognition that such Judges having been removed in violation of Article 209 of the Constitution, have now been brought back to their original position by force of the provisions of the Constitution itself. They continued to be such Judges throughout without interruption of a single day.

139. Zia Parwez J did not make oath as a Judge of High Court on or after 3rd November, 2007 after the order dated 3rd November, 2007 was passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, and was deposed from office. But his subsequent appointment as a Judge of the Supreme Court was made, firstly, in violation of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, and secondly, in consultation with Abdul Hameed Dogar, J, who was not competent or authorized under the Constitution for such consultation. Therefore, his appointment as a Judge of the Supreme Court has been found to be unconstitutional, illegal and void ab initio. Accordingly, he would cease to hold office of Judge of the Supreme Court.

140. The Judges including Chief Justices of High Courts, who made oath in violation of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, or were appointed in consultation with Abdul Hameed Dogar, J, whether during the period from 3rd November, 2007 to 15th December, 2007, or thereafter, shall be governed in the same terms. However, any of such Judges who was District & Sessions Judges prior to his appointment as Judge of High Court shall revert to his original positions subject to age of superannuation.

141. Now we proceed to determine the validity of the decisions rendered by Abdul Hameed Dogar, J, and Judges of the Supreme Court, Chief Justices and Judges of High Courts, who were Judges/Chief Justices on 3rd November, 2007 and who made oath in violation of order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, as also Chief Justices/Judges appointed in consultation with Abdul Hameed Dogar, J. The actions of 3rd November, 2007 have already been held and declared to be unconstitutional, illegal and ultra vires. The appointment of Abdul Hameed Dogar, J, as Chief Justice of Pakistan, appointments of Judges of Supreme Court and High Courts including Chief Justices made in consultation with Abdul Hameed Dogar, J, and oaths made in violation of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case all have been held to be unconstitutional, illegal and ultra vires. Therefore, as rightly contended by Mr. Hamid Khan, the Supreme Court manned by Abdul Hameed Dogar, J, and other Judges was coram non judice and bereft of the power and jurisdiction vested in the Supreme Court under the Constitution, as such they were not entitled to undertake upon themselves the execution of the functions of Judges of the Supreme Court. It has also been held that they exercised the usurped power and jurisdiction of Judges of the Supreme Court including Chief Justice of Pakistan and Chief Justices of High Courts. As such, the decisions rendered by them would be illegal and nullity in the eye of law.

142. A prime contention of the learned counsel for the petitioners on the status of the order dated 6th November, 2007 passed in Wajihuddin Ahmed’s case and the decisions rendered in Tikka Iqbal Muhammad Khan’s case was that Abdul Hameed Dogar, J, and other Judges, who were occupying the seats of the Chief Justice and Judges of the Supreme Court were acting in collusion with General Pervez Musharraf and consequently in their own interest because their own existence as such Chief Justice and Judges was dependent on the continuity and enforceability of the measures and instruments of General Pervez Musharraf of 3rd November, 2007. They, therefore, had no authority under the Constitution or in law to pass any order in Wajihuddin Ahmed’s case, which lay at the root of the actions of 3rd November, 2007. That is why, according to Mr. Hamid Khan, the anxiety of Abdul Hameed Dogar, J, and other Judges was to at once purportedly rescind the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case. The said order was not acceptable to General Pervez Musharraf and his camp because it denuded him of the absolute powers he attempted to wield in yet another coup, which proved to be the last of his successive coups, with a view to once again maneouvring another term of five years in Presidency before he relinquished the office of Chief of Army Staff. In presence of the said order, Abdul Hameed Dogar, J, and other Judges were not considering themselves secure or at ease to take upon themselves the execution of the functions of Judges of the Supreme Court and to confer validity on the actions of 3rd November, 2007. On 5th November, 2007, the number of such Judges was five, i.e. Abdul Hameed Dogar, J, plus 4 others out of whom one was not available at Islamabad, therefore, they could not pass any order in the said case on that day. However, the same day, Abdul Hameed Dogar, J, earnestly set himself unto the task of adding to the ranks of such Judges and increase their strength. Indeed, Abdul Hameed Dogar, J, was able to make some progress, in that, by notification of 5th November, 2007, four persons, namely, Ijaz-ul-Hassan, Muhammad Qaim Jan Khan, Mohammad Moosa K. Leghari and Ch. Ejaz Yousaf were purportedly appointed as the Judges of this Court. With it, the number was increased to 8 and thus they considered that they now would be able to rescind the order of 3rd November, 2007. Accordingly, on 6th November, 2007, a miscellaneous application (CMA No. 2874 of 2007) was moved on behalf of the Federation in Wajihuddin Ahmed’s case stating, inter alia, that – An application was sought to be submitted in Court on behalf of petitioner Wajihuddin Ahmed in Constitution Petition No. 73 of 2007 during its hearing, seeking a restraint order against the respondents, but it was not entertained, rather it was directed that the same be filed in the office and the same would be heard when the matter was fixed; To the utter surprise of the applicant, a news item was reported in a section of the press that after the issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, some of the former Judges including the Chief Justice of Pakistan had passed the aforesaid order;

To the best of the knowledge of the applicant, no such order was passed, or if passed, the same was non est because the said Judges had ceased to hold office in view of the actions of 3rd November, 2007 and they had no right or authority to

pass any such order;

No notice was given to the applicant nor any hearing had taken place, therefore, the order was totally without jurisdiction; and

Since the “so-called” order was published in the press, it had created confusion and had the potential of creating complications:

Thus, a clarification was sought that no such order as aforesaid had been passed, and if there was such an order, it was a nullity in the eye of law, having no legal value or binding force. By order of even date, it was held that in pursuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, Judges of the Supreme Court, Federal Shariat Court and High Courts including Chief Justices of those Courts immediately on Promulgation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, ceased to hold office and could not have performed their functions or exercised judicial powers and consequently, the Chief Justice and Judges who passed the order in question, could not have passed such an order as they had ceased to be the Judges. It was further held that the order in question was even otherwise not a valid order because it was passed without notice to the parties, or to the Attorney General for Pakistan under Order 27-A CPC read with Order XXIX of the Supreme Court Rules, 1980.

It was also held that the perusal of the order dated 3rd November, 2007, prima facie, showed that the question of validity or otherwise of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, was not as such examined and their operation was also not suspended, therefore, they were not called upon to express any opinion on those questions at that stage. Placing reliance on the case of Federation of Pakistan v. Aitezaz Ahsan (PLD 1989 SC 61), it was held that in presence of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, the order dated 3rd November, 2007 was a nullity in law. And finally, allowing the application, the prayed for clarification issued was that the impugned order dated 3.11.2007 was declared to be illegal and without jurisdiction and that the same would be deemed to have never been passed. [Underlining is for emphasis]

143. In the first place, since the appointments of all such Judges, including Abdul Hameed Dogar, J, have been found to be unconstitutional, illegal and ultra vires, all the decisions rendered by them including the order dated 6th November, 2007 passed in Wajihuddin Ahmed’s case as well as those in Tikka Iqbal Muhammad Khan’s case were coram non judice and a nullity in the eye of law.

144. Secondly, the order dated 6th November, 2007 marked the presence of Mr. Arshad Ali Chaudhry, ASC/AOR on behalf of the Federation (applicant), and the learned Attorney General for Pakistan was shown to have appeared on Court’s call, but surprisingly no notice was issued to the parties, nor even to the petitioner Wajihuddin Ahmed, or any of his counsel/AOR, though one of them, namely, Barrister Aitezaz Ahsan was in respondent Government’s own custody and it was quite convenient to procure his attendance. Therefore, this order suffered from the very flaw, which was wrongly alleged in respect of order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, i.e. it was passed without notice to the other side.

145. On 22nd July, 2009, when the above aspect was highlighted in the course of arguments, it was noticed that repeated references were being made by the learned counsel for the petitioners to the factual background of the pre and post 3rd November, 2007 events revolving around the person of General Pervez Musharraf. Therefore, it was inquired from Mr. Hamid Khan, Sr. ASC, as to whether it would not be fair and proper to issue notice of the instant proceedings to General Pervez Musharraf? He stated that as the Federation of Pakistan was a party in Constitution Petitions Nos. 8 & 9 of 2009 and was being represented by the learned Attorney General for Pakistan, there was no need to issue the aforesaid notice. At this, the learned Attorney General made a categorical statement at the bar that he was neither representing General Pervez Musharraf nor had he received any such instruction from the Government.

He further stated that the party in power (Pakistan Peoples Party) had all along been opposing dictatorial/repressive regimes and anti-people forces getting into the corridors of power through backdoor channels, therefore, the present democratic government led by their Party would not justify/support the action of 3rd November 2007. Therefore, vide order of the said date, in terms of Rule 9 of Order XXV of the Supreme Court Rules, 1980, notice of the instant proceedings was issued to General Pervez Musharraf at his residential address in Islamabad, leaving it up to him to appear before the Court or otherwise and the hearing of the case postponed to 29th July, 2009. In the order dated 22nd July, 2009, it was noted that the instant proceedings were going on for several days and were being widely publicized in the print and electronic media, therefore, anyone interested therein or concerned with the promulgation of Proclamation of Emergency and other measures of 3rd November 2007 had ample notice/knowledge and was at liberty to appear before the Court.

The process serving officer was deputed to deliver a copy of the order at the residential address of General Pervez Musharraf, viz. C-1-B, Park Road, Chak Shahzad, Islamabad, who reported that the person present there, namely, Muhammad Hussain son of Amir, refused to receive the notice. The factum of issuance of the afore-referred notice, too, was widely covered in the electronic and print media. However, no one appeared on his behalf.

146. However, we did not issue notices to the concerned Judges of the Supreme Court and High Courts who made oath in violation of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, as also the Judges who were appointed in consultation with Abdul Hameed Dogar, J, inter alia, on a consideration of the law laid down in Supreme Court Bar Association’s case where this Court examined the question of issuance of notice in a somewhat similar situation with reference to the law laid down in the cases of Al-Jehad Trust and Asad Ali (supra) and Ghulam Hyder Lakho v. Federation of Pakistan (PLD 2000 SC 179). It was held that the principle of natural justice would not be violated if no notices were issued to the concerned Judges. Relevant portion from the judgment is reproduced below: -

“32. This brings us to the next common contention that the senior Judges of the Lahore High Court were condemned unheard and even in these petitions notices have not been issued to them. It is rather unnecessary to consider the contention as we have already held that the recommendations of the judicial consultee are not justiciable. Be that as it may, the contention is misconceived. The recommendations in question were manifestation of subjective satisfaction of the judicial consultee, therefore, the principle of natural justice ‘audi alteram partem’ was not attracted. Moreover, the contention in essence is identical with contentions Nos. (iv) and (vii) raised in the case of Ghulam Hyder Lakho which read as under:

“(iv.) That the petitioners were de-notified or the appointments were nullified by the Government without hearing them and as such the action of Government nullifying their appointments as Judges of the High Court offended against the principles of natural justice. “

“(vii) That the removal of the petitioners from the office of Judges of the High Court in the above manner amounted to a stigma and as such the petitioners were entitled to be heard.”

The above contentions were held to be devoid of force as is evident from the following observations at page 196 of the judgment:–

“In these circumstances, we are inclined to hold that where the Chief Justice of the High Court concerned and the Chief Justice of Pakistan do not recommend a particular incumbent for confirmation or appointment as a Judge of the High Court and these recommendations are accepted by the President/Executive the same cannot be brought under challenge in the Court on the ground that the incumbent was not `heard before making such recommendations.”

33. As regards the question of notices we are of the considered view that issuance of notices to the concerned Judges will do more harm than good. This question was considered in the Judges’ case also and it was clearly held at page 534 of the judgment that the principle of natural justice is not violated if notice is not issued to the concerned Judges. The observations in Asad Ali’s case at page 327 of the judgment are also relevant which read as under:–

“It must be borne in mind that Judges of superior Courts by their tradition, maintain high degree of comity amongst themselves. They are not expected to go public on their differences over any issue. They are also not expected to litigate in Courts like ordinary litigant in case of denial of a right connected with their offices. Article VI of the Code of Conduct signed by every Judge of the superior Courts also enjoins upon them to avoid as far as possible any litigation on their behalf or on behalf of others. Therefore, in keeping with the high tradition of their office and their exalted image in the public eye, the Judges of superior Courts can only express their disapproval, resentment or reservations’ on an issue either in their judgment or order if the opportunity so arises……..”

147. Coming to the invalidity of the order dated 6th November, 2007 passed in Wajihuddin Ahmed’s case, it is noteworthy that the order of 3rd November, 2007 was passed in an entirely different setting. The application was presented before the Bench on 2nd November, 2007, but it was directed to be filed in office, to be taken up on the next date of hearing, viz. 5th November, 2007. Since the apprehensions expressed in the application came true and Proclamation of Emergency was issued, in view of the urgency of the situation so presented by the circumstances of the case, it was taken up by a Bench of 7 available Judges in the evening of 3rd November, 2007 and the order was passed thereon, as prayed earlier. It was not something, which was cooked up in the meantime. The filing of application was an already existing fact to the notice of all parties, including the learned Attorney General for Pakistan. No other option was left with the Court except to pass an interlocutory restraint order, which was within the power and jurisdiction of the Court. In any case, it was not a final order and the matter was ordered to be put up before the Full Court on 5th November, 2007. However, the situation on 6th November, 2007 was entirely different. The unconstitutional acts of 3rd November, 2007 having already been taken by General Pervez Musharraf, if it were a regular and bona fide proceedings, notice would have been issued to the petitioner to say the least, and order passed after providing him an opportunity of hearing because no such pressing urgency existed on 6th November, 2007, as it existed on 3rd November, 2007. But the point was that if the order of 6th November, 2007 was not passed, the purpose either of General Pervez Musharraf or of Abdul Hameed Dogar, J, and other Judges would not have been served.

148. Now, two orders are before us. One was passed on 3rd November, 2007 by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, i.e. by the Judges appointed under the Constitution, and the other of 6th November, 2007 passed by Abdul Hameed Dogar, J, and other Judges. The former order was passed to preserve, protect and defend the Constitution and the law. The latter was passed in the discharge of duties in accordance with Proclamation of Emergency of 3rd day of November, 2007, PCO No. 1 of 2007 and the law. The one had constitutional and moral authority and power behind it. The other had the gun at its backing. The Judges in the former case were bound to abide by the code of conduct issued by the Supreme Judicial Council. The Judges in the latter case were bound to abide by the provisions of Proclamation of Emergency and the PCO, though cosmetically also by the same Code of Conduct. There is no manner of doubt left that the order dated 6th November, 2007 was passed to lend support to the unconstitutional and illegal acts of General Pervez Musharraf of 3rd November, 2007 and onward. By all recognized principles, the order dated 6th November, 2007 was collusive and mala fide having been rendered by Abdul Hameed Dogar, J, and other Judges, who were holding office in violation of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case. Therefore, the order dated 6th November, 2007 is declared to be unconstitutional, illegal and void ab initio.

149. While considering the question of validity of the aforesaid order dated 6th November, 2007, we also discovered a grave error when we examined the record and proceedings. It appeared that Constitution Petition No. 73 of 2007 along with another petition viz. Criminal Original Petition No. 51 of 2007 filed by Wajihuddin Ahmed were taken up on 19th November, 2007 by a subsequently constituted ten-member Bench, this time too, headed by Abdul Hameed Dogar J, and were supposedly dismissed the same day on merits as reported in PLD 2008 SC 13 (Wajihuddin Ahmed v. Chief Election Commissioner, Islamabad & others) and (Wajihuddin Ahmed v.Justice (R.) Qazi Muhammad Farooq, Chief Election Commissioner, Islamabad and others). The relevant portions from the order are reproduced as follows: -

“4. When the petition was taken up for hearing today i.e. 19-11-2007, Mr. M.S Khattak, learned Advocate -on-Record for the petitioner presented before the Full Court two applications dated 10-11-2007 and 19-11-2007, wherein, prima facie, derogatory and contemptuous language was used. Soon after the learned Advocate-on-Record had started addressing the arguments in support of the applications he realized that he was running a risk of being proceeded against. He, therefore, tendered unconditional apology in writing as well as orally for submission of both the applications and withdrew the same with permission of this Court. He further stated that he had no instructions to argue Constitutional Petition No.73 of 2007 and Criminal Original Petition No.51 of 2007. He was repeatedly asked to argue the same but he showed his inability to perform his legal duty which he owed to the Court as laid down in the cases of Messrs Pearl Builders (Pvt.) Ltd. v. Ardsher Cowasjee and others (PLD 2003 SC 946), Dr. Saleem Javed and others v. Mst. Fauzia Nasim and others (2003 SCMR 965) and Habib-Al-Wahab Alkhairi and others v. Commissioner, Rawalpindi Division and

others (PLD 1992 SC 587).

5. Be that as it may, we find that the impugned order dated 29-9-2007, was passed by the Chief Election Commissioner of Pakistan in the light of the well-reasoned judgments of this Court in the cases of Qazi Hussain Ahmed v. General Pervez Musharraf (PLD 2002 SC 857) (by a 9 Member Bench) and Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719) (by a 5-Member Bench). In the case of Qazi Hussain Ahmed (supra), it was held as under:-

“It was also urged that under Article 62 of the Constitution, which contains qualifications for being elected as a member of the National Assembly, which are also the qualifications for election to the office of the President, cannot be read into Article 41 (2) of the Constitution. The said Article only provides that the President must be a person qualified to be elected as Member of the National Assembly. The disqualifications listed in Article 63 cannot be read into Article 41 (2) in view of the judgment of this Court in Aftab Shaban Mirani v. President of Pakistan (1998 SCMR 1863) which upheld the judgment of the Lahore High Court in the case reported as Muhammad Rafiq Tarrar v. Justice Mukhtar Ahmad Junejo (PLD 1998 Lahore 414). The same view was also expressed in Muhammad Shahbaz Sharif v. Muhammad Iltaf Hussain (PLD 1995 Lahore 541).”

In Pakistan Lawyers Forum (supra), it was laid down that:-

“69. The provisions of Article 63 (1) (d) have been made applicable to the continuation in office of the President after 31 December, 2004 by virtue of the proviso to clause (7) of Article 41, which was inserted by the 17th Amendment.

70. Any other clause or paragraph of Article 63 of the course does not apply, to the President since it is settled law that the President is only required to be qualified to be a member of Parliament (as Provided by the Article 62) and is consequently not hit by the disqualifications contained in Article 63 of the Constitution. The argument of the petitioners that the President is subject to all the disqualifications contained in Article 63 of the Constitution ignores the settled law on this point as discussed and upheld most recently in the Qazi Hussain Ahmed’s case.

71. The argument that the COAS could not have assumed the office of the President because of the definition of the “Service of Pakistan” in Article 260 and the disqualifications in respect of such persons contained in Article 63 is untenable as these have no application to the President.

72. The argument that on account of the oath made by him as a member of the Armed Forces under Article 244 read with the Third Schedule to the Constitution disqualified the COAS from being the President is misconceived. It overlooks the fact that clauses (7) and (8) of Article 41 carry non obstante clauses and these are to have effect notwithstanding anything contained in the Constitution. Clauses (7) and (8) of Article 41, therefore, override Article 244 and the oath in the Third Schedule like they override Articles 43 and 260 of the Constitution.

73. Since Article 63 (1) (d) has now been made specifically applicable to the continuance in office by the President after 31st December, 2004 through the proviso, it is, therefore, clear that the President would be disqualified from continuing in office qua President if he was to hold an office of profit in the service of Pakistan, except an office declared by law not to disqualify its holder’. All that has happened in the instant case is that by virtue of Another Office Act, parliament has declared that the office of the COAS is an office, which does not disqualify its holder. The President is, .therefore, not barred by the proviso to clause (7) of Article 41 from continuing in office as both the Chief of Army Staff (COAS) and the President because the position of COAS has been declared by law not to disqualify its holder as expressly contemplated by Article 63(1)(d).”

In our opinion, the President General Pervez Musharraf, the respondent No.3 was qualified for and did not suffer from any disqualification, under the Constitution or/and the law, for presidential election, 2007. The view taken by the Chief Election Commissioner is unexceptionable.

6. As to the question of maintainability of this petition, it would suffice to follow the majority judgment of this Court in the recent case of Jamat-e-Islami v. Federation of Pakistan (Constitutional Petition No.59 of 2007, decided on 28-9-2007) (PLD 2008 SC 30) wherein it was held that “the questions involved in the matter of election of the President did not relate to any of the fundamental rights guaranteed in Part-II, Chapter I of the Constitution (Articles 8 to 28). Therefore, the petitions under Article 184(3) of the Constitution were not maintainable.”

Even otherwise, in view of clause (6) of Article 41 of the Constitution, the validity of the election of the President cannot be called in question by or before any Court.

7. For the foregoing reasons, Constitutional Petition No.73 of 2007 and Criminal Original Petition No.51 of 20007 are hereby dismissed. Consequently, the interim stay order dated 5-10-2007 of withholding the issuance of final notification of the result of election of the returned candidate to the office of the President is hereby vacated. The Chief Election Commissioner of Pakistan and Federal Government are directed to take all the necessary steps by 1st December, 2007, for final announcement of the result of the presidential election and issuance of public notification in accordance with the Constitution and the law. As already undertaken in writing on 18-9-2007 before this Court by Syed Sharifuddin Pirzada, learned Senior Advocate Supreme Court for ‘the respondent No.3 and Malik Muhammad Qayyum, learned Attorney General for Pakistan, the President General Pervez Musharraf shall relinquish the office of the Chief of Army Staff before taking oath of office of President of Islamic Republic of Pakistan, for the second term.” (Emphasis supplied) 150.

The record, however, showed that the same day the same Bench had already dismissed the above mentioned two petitions for want of instructions. Therefore, the petitions ought to have been consigned to record but, seemingly, the Bench later preferred to frame anew the abovenoted order, surprisingly without making any reference to, rather ignoring its own earlier order so passed.

2 comments

  1. […] PCO Judges Case (Part 1) […]


  2. […] PCO Judges Case (Part 1) 30th of September, 2009 Detailed Judgment of the Supreme Court in Writ Nos. 9 and 8 of 2008 against Proclamation of Emergency and Provisional Constitution Order, dated 30th of September, 2009 […]



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