h1

P L D 2001 SC 233

WASIM SAJJAD AND OTHERS

V/S

FEDERATION OF PAKISTAN THROUGH SECRETARY
CABINET DIVISION AND OTHERS


Per Irshad Hassan Khan, C.J.

(a) Constitution of Pakistan (1973), Article s 184, 91, 188 & 175
r/w Provisional Constitution Order (1 of 1999)—Preamble

The above petitions under Article 188 of the Constitution of the Islamic Republic of Pakistan, 1973 read with Order XXVI, Rule 1 of the Supreme Court Rules, 1980, seek review of judgment dated 12th May, 2000 rendered in Constitutional Petitions Nos. 62/99, 63/99, 53/99, 57/99, 3/2000, 66/99 and 64/99.

Mr. Wasim Sajjad has sought review of the judgment dated 12th May, 2000, inter alia, on the propositions: (1) validation given to the Military take-over applying the principle of State necessity; (2) the power to amend the Constitution conferred on the Chief Executive; and (3) the 3-years time period granted to the present Government. Elucidating the above pleas, Mr. Wasim Sajjad, learned Senior ASC, appearing in support of C.R.P. No. 208 of 2000, formulated the following points:—

The circumstances in Begum Nusrat Bhutto v. Chief of the Army Staff and Federation of Pakistan (PLD 1977 SC 657) were totally different from the circumstances existing on 12th October, 1999 and that the precedent of Begum Nusrat Bhutto has been wrongly invoked in this case.

Begum Nusrat Bhutto’s case (supra) had been disapproved in subsequent two judgments of this Court i.e. Sh. Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 504) and Mehmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426). The former judgment was referred to by this Court in the judgment under review but the latter was not and that it was not a case where disapproval in subsequent judgments could be treated as obiter dicta as indicated in the impugned judgment.

The judgment in Begum Nusrat Bhutto (supra) was also impliedly repealed by the Constitution under Article 270-A.

Under no principle of jurisprudence or of “necessity” could the “power to amend the Constitution” be conferred on one person; and

The period of three years granted for return to Constitutional rule is the result of an obvious mistake and this period be curtailed to the minimum period as laid down in the Constitution and either the Assemblies be restored or elections be ordered to be held. [p. 261, 262]
The precise plea was that this Court had taken judicial notice of certain facts to justify Military intervention on grounds of State necessity and welfare of the people as highlighted in the case of Begum Nusrat Bhutto (PLD 1977 SC 657) but such facts were wholly non-existent in the case in hand, in that, everything was normal and all the institutions were performing their duties in accordance with the Constitution. According to the learned counsel the Law of Necessity was a dead doctrine and was wrongly invoked in the case of Nusrat Bhutto. Since the judgment was delivered in 1977, this Court observed in Sh. Liaquat Hussain’s case that the Law of Necessity cannot be invoked if its effect is to violate any provision of the Constitution. Nevertheless, even the factors outlined above were not present on 12-10-1999 to re-invoke the Law of Necessity. There is thus, an error apparent on the face of the record in the extension of Begum Nusrat Bhutto’s case to the situation as it existed on 12th October, 1999.

The plea raised by Mr. Wasim Sajjad as to non-application of the ‘law of necessity’ was also substantially raised at the time of hearing of the Constitution Petitions by Ch. Muhammad Farooq, learned Sr. ASC, Mr. Khalid Anwar, learned Sr. ASC, Mr. S.M. Zafar, learned amicus curiae vide paragraphs Nos. 16, 20, 21, 30, 33, 47, 48, 119, 140, 160-162 respectively but the same was repelled by this Court after thorough consideration of all the questions raised before it vide paragraph 253 of the judgment under review, which reads thus:

We see no force in the submission of Mr. Khalid Anwar that the ‘doctrine of necessity’ has since been buried long ago by the British Courts, there was no justification for its resurrection as done in Special Reference No. 1 of 1955 (supra) and in the case of Begum Nusrat Bhutto (supra). Suffice it to say that the precedents from foreign jurisdiction, though entitled to reverence and respect but are not ipso facto applicable to the facts and circumstances prevailing on 12th October, 1999. In such matters of extra-Constitutional nature, in order to save and maintain the integrity, sovereignty and stability of the country and having regard to the welfare of the people which is of paramount consideration for the Judiciary, while interpreting the impugned legislative instruments we have to make every attempt to save “what institutional values remained to be saved” with a view to maintaining and upholding the independence of Judiciary which in turn would protect the State fabric and guarantee Human/Fundamental Rights. We are also not inclined to agree with M/s. Anwar and Farooq that the ‘doctrine of necessity’ was rejected in the case of Liaquat Hussain (supra). As a matter of fact this question was not directly in issue. It was only obliquely referred to in the context of establishment of Military Courts in terms of Article 245(1) of the Constitution. It was not a case where the vires of any extra-Constitutional measure resulting in the change of the Government’s structure were involved. Be that as it may, one of us (Irshad Hasan Khan, J. as he then was) (now the Chief Justice), specifically took the view that the prerequisites for the application of ‘doctrine of necessity’ were not satisfied in upholding the establisment of Military Courts in the purported exercise of power under Article 245(1) of the Constitution even for a limited period. It was also observed that the prerequisites of the ‘doctrine of necessity’ have been laid down in the cases of Mustafa Ibrahim as well as Begum Nusrat Bhutto (supra). For facility of reference the following passages from the case of Liaquat Hussain (supra) may be reproduced as under:—

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

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

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

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

(b) no other remedy to apply;

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

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

“In the instant case, the Courts are functioning and the question of backlog and expeditious disposal of terrorists’ case can be remedied by taking effective measures, in the light of the guidelines provided by this Court in the short order as well as the recommendations in the concluding paragraphs of this note. The Courts are functioning properly and administering justice according to the Constitution and the law.”

“A perusal of the above-quoted passages shows that in the circumstances of the case and having regard to the provisions of the Constitution and in view of the situation then prevailing , doctrine of necessity was not attracted and that in this view of the matter Ordinance under which the Military Courts were set up, being a sub-constitutional legislation could not be saved and was, therefore, declared ultra vies the Constitution. Contrary to the above case, the Court is here faced with an extra-Constitutional situation and all the elements described by this Court in the aforesaid case viz., inevitable necessity, exceptional circumstances, no other remedy to apply, measure taken must be proportionate to the necessity and it must be of temporary character, limited to the duration of exceptional circumstances, are present, inasmuch as, the Constitution provided no solution to meet the extraordinary situation prevailing on 12th October, 1999. As such, the above case is no hurdle.”

Nothing has been overlooked by this Court nor it has failed to consider any important aspect of the matter, therefore, the above plea is not sufficient to sustain the review petition.

Further elaborating his appoint, Mr. Wasim Sajjad submitted that it is a matter of faith with the people of Pakistan that Supreme Sovereign is Almighty Allah and the Constitution and other laws are made by the representatives fo the people under delegated authority wherein the concept of necessity has no place whatsoever and in any case is contrary to Article 2A of the Constitution, which is now a substantive part thereof and can never be suspended nor is there a finding by this Court to the contrary, therefore, there is an error apparent on the face of the record, inasmuch as, Article 2A has not been considered at all.

Regarding the plea that the doctrine of necessity is contrary to Article 2A of the Constitution, which is now a substantive part thereof and can never be suspended, it will be enough to observe that this plea was taken by Ch. Muhammad Farooq, learned Sr. ASC vide paragraph 30 of the judgment under review. Neither Mr. Khalid Anwar, learned Sr. ASC nor any other learned counsel for the petitioners took this point during the course of hearing of the original petitions. However, it was the case of the Federal Government that the revolutionary political change was not in derogation to the Objectives Resolution as ultimately the method of governance would be through chosen representatives of the people. In this context we would like to refer to paragraph 276 of the judgment under review, which reads as under:

Mr. S.M. Zafar, after drawing a distinction between a coup d’etat and a revolution submitted that the change on 12th October, 1999, does not claim to be based on the principle of revolutionary legality, hence the principle of Dosso’s case is not relevant and Kelsen’s is not applicable to the facts and circumstances of the present case. The logical conclusion in view theeof is that the new regime, if it is not a revolutionary regime, cannot claim to be the law giving source and its legislative power are to be spelt out by the Courts.

The case of the Goverment on the other hand is that once it is found that the pervailing situation did warrant an aburpt change and there was nol remedy available under the prevailing Legal Order, the persons responsible for the change are fully competent to bring about such change in law, including the Constitution, which intends to corrrect the flawed Old Legal Order for preservation of the state as well as welfare of the people as held in Begum Nusrat Bhutto’s case (supra). The learned Attorney-General further submitted that revolutionary political change is not in derogation of the Objectives Resolution under Article 2-A of the Constitution. As ultimately the methode of governancce shall be through chosen representatives of the people.”

The above proposition put forth on behalf of the Federation was not contested by the petitioner’s learned counsel in rebuttal, which means that the same was conceded by him, therefore, the same cannot be allowed to be re-argued in these proceedings.

In order to reinforce his point, Mr. Wasim Sajjad took exception to the speech of the Chief Executive dated 17th October, 1999, in which he had outlined his economic priorities and listed economic recovery as one of the main items of his seven-point agenda to contend that unfortunately, in the last nine months, there are no signs of economic recovery and, in fact, in certain respects the economic and financial situation today is worse than it was on 12th October, 1999 and that in any case, the performance of the economy is not and cannot be a valid factor for the removal of an elected Government or for invoking the law of necessity.

As to the above pleas we suffice by observing that by taking the above stance, the petitioners are trying to re-agitate the same issues through this review petition, which is beyond the scope of review. Moreover, they raise factual controversies, which amounts to re-arguing the same cause, which is also not permissible under the law. Additionally, this Court never held that the collapse of economy was the only ground for intervention of the Armed Forces. As a matter of fact, the material relied upon and remarks made by this Court were in response to the assertions made by the petitioners in their original petitions as observed in the Short Order dated 7th February, 2001. [p. 267, 268] F, G & H

With reference to paragraph 243 of the judgment, the learned counsel submitted that in a parlimentary system, the principle of joint ministerial responsibility is applied to the Cabinet, inasmuch as every minister, whether he agrees to a particular decision of the Cabinet or not, must own such decision. However, this principle cannot be extended to the members of the Parliament, as the function of the Parliament is not merely to remove the Government but also to legislate and carry out accountability of the Government through parliamentary committees in accordance with the procedure, where questions are asked and adjournment motions introduced. Besides, the accountability by Courts is also an on-going exercise. [p. 268] I & J

Art. 270A

Referring to the conferment of power to armed the Constitution, the learned counsel submitted that the power of amendment is the supreme/sovereign power, which can be exercised only under the Constitution, and cannot be conferred on any individual. He submitted that since the power to amend the Constitution is not available to this Court, it cannot confer the same on any one else. He submitted that even Parliament does not possess such power as the amendment procedure and the quantum of votes required for amendment are stipulated in the Constitution itself. The learned counsel further submitted that despite one and a half years of the present Government, the Constitution has not been amended and the Government is functioning smoothly, therefore, there is no need to confer such power on the Chief Executive. He submitted that the judgment in Begum Nusrat Bhutto’s case was impliedly repealed by Article 270A of the Constitutio, inasmuch as, the Parliament retrospectively validated all Martial Law Orders/Regulations. [p. 269]

Syed Sharifuddin Pirzada, learned Senior ASC, representing the Federation gave a brief outline of the points he intended to dilate upon, as below:

Scope of review;

Similarity in the circumstances of (i) in Begum Nusrat Bhutto’s case and (ii) in this cause, in that, the then scenario dated 12-10-1999 was more serious in nature.

Relevance or otherwise of Hafeez Pasha’s report (Vol. II, pages 604 et seq.)

The import/effect of the dicta in Sh. Liaquat Hussain (supra) and Mahmood Khan Achakzai (supra) with reference to Begum Nusrat Bhutto’s case.

The nature and extent of responsibility of the Cabinet to the Parliament.

Conferment of the power to amend the Constitution on one man, as alleged by the petitioners.

The departure of Nawaz Sharif.

The time schedule for restoration of democracy.

Syed Sharifuddin Pirzada contended that in the garb of review petitions an attempt has been made by the petitioners to re-argue the matter. He submitted that the parameters of review have been fully dealt with by this Court in many a cases. He referred to the following passage from the case of Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another (PLD 1997 SC 865 at. P. 867):

“Review proceedings cannot partake re-hearing of a decided case. Therefore, if the Court has taken a conscious and deliberate decision on a point of law or fact while disposing of a petition or an appeal, review of such judgment or order cannot be obtained on the grounds that the Court took an erroneous view or that another view on reconsideration is possible. Review also cannot be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced. A ground not urged or raised at the hearing of petition or appeal cannot be allowed to be raised in review proceedings. Only such errors in the judgment/order would justify review, which are self-evident, found floating on the surface, are discoverable without much deliberations, and have a material bearing on the final result of the case.”

and submitted that all the ingredients which are summarised in the above passage were duly met.

Mr. Wasim Sajjad, learned Senior ASC, in rebuttal, referred to the cases of Mian Rafiq Saigol v. Bank of Credit and Commerce International (Overseas) Ltd. (PLD 1997 SC 865); Federation of Pakistan v. Muhammad Tariq Pirzada (1999 SCMR 2189) and Abdul Ghaffar-Abdul Rehman v. Asghar Ali reported as (PLD 1998 SC 363) to contend that a review petition is competent if there is an obvious error on the face of record or there is something floating on the surface or review is warranted in the interest of justice. He quoted the following paragraph from the judgment in Abdul Ghaffar-Abdul Rehman (supra):

We may now refer to the judgments relied upon by the learned counsel for the parties. Mr. S. Sharifuddin Pirzada has referred to the following cases:

Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi and others (PLD 1962 SC 335).

Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another (PLD 1995 SC 701).

Suba through Legal Heirs v. Fatima Bibi through Legal Heirs and others (1996 SCMR 158).

Mian Rafiq Saiqol and another v. Bank of Credit and Commerce International (Overseas) Limited and another (PLD 1997 SC 865).

Unreported order in Civil Review Petition No. 1-K of 1989 (Begum Asfar Saeed and others v. Ch. Abdul Aziz) rendered by this Court on 10-3-1991.” [p. 285, 286]

We have heard the learned counsel for the parties and have also considered the material placed on record. Some of the questions raised on behalf of the petitioners have been dealt with in the preceding paragraphs. As to the remaining pleas raised on behalf of the petitioners vide paragraphs 8, 9, 13 to 19 and 22 we would suffice by observing that the same were thoroughly dealt with in our short Order dated 7th February, 2001, which reads thus:
SHORT ORDER

“The above petitions under Article 188 of the Constitution of the Islamic Republic of Pakistan, 1973 read with Order XXVI, Rule 1 of the Supreme Court Rules, 1980, seek review of judgment dated 12th May, 2000 rendered in Constitutional Petitions No. 62/99, 63/99, 53/99, 57/99, 3/2000, 66/99 and 64/99.”

When the Chief Executive issued Oath of Office (Judges) Order, 2000 (Order No. 1 of 2000), it was specifically stated therein that Pakistan is to be governed, as nearly as may be, in accordance with the Constitution and the Chief Executive has and shall be deemed always to have had, the power to amend the Constitution.”

This Court, however, did not concede that claim through the judgment under review. The Court observed that the Chief Executive/Armed Forces have no power to amend the salient features of the Constitution relating to independence of judiciary, federalism and parliamentary form of Government blended with Islamic provisions. It also stated in unequivocal terms that prolonged involvement of the Army in civil affairs runs a grave risk of politicising it, which would not be in the national interest, therefore, civilian rule in the country must be restored within the shortest possible time after achieving the declared objectives which necessitated the Military Take-over, as spelt out in the speeches of the Chief Executive dated 13th and 17th October, 1999. The Court emphasised that the legitimacy conferred on the present Regime, on the touchstone of the doctrine of State necessity/State survival, does not imply abdication of the power of judicial review in the transient suspension of the previous legal order. It also held 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/State survival. The result is that notwithstanding the purported ouster of jurisdiction of all the Courts in Pakistan to challenge any action, order or law promulgated by the Chief Executive, the Supreme Court has ruled that every action of the Chief Executive/Armed Forces is open to judicial review through appropriate writs/petitions in line with the principles laid down in the judgment under reivew. Similarly, the Fundamental Rights were also held to be intact and justiciable.”

We have clearly stated in paragraph No. 270 of the judgment sought to be reviewed that the action of 12th October, 1999 being what it is, qualifies for validation on the ground of State necessity/survival. It is for the representatives of the people to see to it that everything is in order and no body can raise his little finger when their actions are in line with the fundamentals of the Constitution. No rule except that by the representatives of the people within the contemplation of the Constitution and the law has the support of the Superior Judiciary. 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 record.”

Having regard to all the relevant factors involved in the case three years’ period has been allowed to the Chief Executive with effect from the date of the Army take-over i.e. 12th October, 1999 for achieving his declared objectives and to appoint a date, not later than 90 days before the expiry of the aforesaid period of three years, for holding of general elections to the National Assembly and the Provincial Assemblies and the Senate of Pakistan. We have stated in paragraph No. 267 of the judgment under review that though initially the status of the present Government was de facto, but in view of the validation it has attained the status of a de jure Government. The validation and legitimacy accorded to the present Government is conditional and inter-linked with the holding of general elections to the National Assembly and the Provincial Assemblies and the Senate of Pakistan within the time frame laid down by this Court leading to restoration of the democratic institutions.” [p. 287, 288, 289] K

“There is no glaring omission or patent mistake floating on the surface in the judgment under review. Nothing has been overlooked by the Court nor it has failed to consider any aspect of the attending matters. The situation prevailing on or before 12th October, 1999 and for which the Constitution provided no solution and the Armed Forces had to intervene to save the State from further chaos, maintenance of peace and order, economic stability, justice, good governance and to safeguard the integrity and sovereignty of the country dictated by the highest considerations of State necessity and welfare of the people.”

“The petitioners cannot be permitted to re-argue the case and seek reversal of conclusions earlier reached by this Court after full application of mind deliberatively and consciously in the judgment sought to be reviewed.”

“The argument advanced on behalf of the petitioners is that none the alleged grievances against the removed Government, including the charges of corruption and lack of good governance, was such which could not have been redressed within the four corners of the Constitution because laws and machinery to redress such a grievance was already in existence and, if as alleged, the Government of the day did not take appropriate steps it was open to this court to direct the taking of specific steps it was open to this Court to direct the taking of specific steps in exercise of powers under Article 184(3) of the Constitution read with Article 187 thereof, therefore the observation of this Court that Law of Necessity could validly be invoked to suspend the Constitution as it had no answer to the situation that had arisen, needs to be reviewed.”

The above plea was also raised by Ch. Muhammad Farooq, learned Sr. ASC, Mr. Khalid Anwar, learned Sr. ASC, Mr. S.M. Zafar, learned amicus curiae and Mr. Haleem Pirzada, President, Supreme Court Bar Association vide paragraphs 18, 34, 139, 164 and 172 respectively of the judgment under review and repelled after due consideration. The petitioners, therefore, cannot be allowed to re-argue the same in these proceedings. In this connection, reference to paragraph No. 271 of the judgment under review is relevant, which reads thus: [p. 289, 290] L

The rampant corruption was only a cumulative reason for the validation of the military action of 12th October, 1999, which resulted into the suspension of Assemblies and removal of the Government as succinctly explained in paragraph No. 234 of the judgment under review, which reads thus:

Although we are dealing with a case of intervention by the Armed Forces, yet it would be advantageous to allude to the ground of corruption, which came up for consideration in the cases of Kh. Ahmed Tariq Rahim (PLD 1992 SC 646), Mian Muhammad Nawaz Sharif (PLD 1993 SC 473) and Benazir Bhutto (PLD 1998 SC 388) (supra). In the first case, it was observed by Shafiur Rehman, J. that corruption may not have been independently sufficient to warrant such an action, but it can be invoked, referred to and made use of along with other more relevant grounds, which are by themselves sufficient to justify the action taken. In Mian Muhammad Nawaz Sharif’s case (supra), it was observed that ‘if the corruption, nepotism and favouritism are of such a large scale that they have resulted in the breakdown of the Constitutional machinery completely, it may have nexus with the above provision’. In the third case of Benazir Bhutto, this Court took notice of enormous corruption and treated it as an independent ground on the basis of which an Assembly could be dissolved (Underlining is by way of emphasis). Once corruption pervades in the body politic and official circles, then the entire Government/administration becomes completely crippled and paralyzed. Recounting the instances of alleged corruption the Federation had pointed out. [p. 290, 291] M

We have gone through the material placed by the Federation on the above issue. While this Court has already lamented over the decision of the former Prime Minister freezing foreign currency accounts in the case reported as Federation of Pakistan v. Shaukat Ali Mian (PLD 1999 SC 1026), the fact remains that this step of the deposed Prime Minister shattered the confidence of the overseas Pakistanis, who had deposited their savings in Pakistan in preference to banks abroad for the benefit of the nation. After hearing the learned counsel for the parties and going through the record, we have gathered that the combined effect of the overall policies and methodology adopted by the former government was the total collapse of the country’s ecomony inasmuch as GDP growing during the past threee years had hardly kept pace with the growth of population and Pakistan has a debt burden which equals the country’s entire national income. We also take judicial notice of the fact that the trade imbalance was persistent and due to defective economic policies and lack of economic discipline by the previous regime, the industrial sector had suffered a great setback.”

“Additionally, this Court never held that the collapse of economy was the only ground for the intervention of Armed Forces. As a matter of fact, the material relied upon and remarks made by this Court were in response to the assertions made by the petitioners in their original petitions.” [p. 293] N

“After validating the action of 12th October, 1999 on the touchstone of ‘doctrine of necessity’ we thoroughly considered the question as to whether the Chief Executive should be given the power to amend the Constitution and if so to what extent? Mr. Khalid Anwar vide paragraph 281 of the judgment under review, ‘emphasised that in case the army action is condoned/validated this Court must succinctly state whether the Chief Executive has the power to amend the Constitution and if so, subject to what limitations. He emphasised that in the first instance power to amend the Constitution should not be conceded to the Chief Executive and Begum Nusrat Bhutto’s case (supra) should be re-visited. In case this Court follows the dictum of Begum Bhutto’s case (supra), the power to amend the Constitution by the Chief Executive must be stated with particularity and the fields which are not to be touched should be specifically stated.’ After thorough consideration, we observed as follows:

‘……..We are of the considered view that if the Parliament cannot alter the basic features of the Constitution, as held by this Court in Achakzai’s case (supra), power to amend the Constitution cannot be conferred on the Chief Executive of the measure larger than that which could be exercised by the Parliament. Clearly, unbridled powers to amend the Constitution cannot be given to the Chief Executive even during the transitional period even onthe touchstone of ‘State necessity’. We have stated in unambiguous terms in the Short Order that the Constitution of Pakistan is the supreme law of the land and its basic features i.e. independence of Judiciary, federalism and parliamentary form of Government blended with Islamic Provisions cannot be altered even by the Parliament. Resultantly, the power of the Chief Executive to amend the Constitution is strictly circumscribed by the limitations laid down in the Short Order vide sub-paragraphs (i) to (vii) of paragraph 6.’

“In view of the above categorical stand taken by Mr. Khalid Anwar, this Court laid down the limitations on the power to amend the Constitution as stated above, therefore, learned counsel for the petitioners cannot be allowed to set up a totally new case in these proceedings.

“Put differently, the petitioners cannot be allowed to re-agitate the points in review petitions, which were earlier raised, duly considered and repelled by this Court before it proceeded to validate the Military Action and allow the Chief Executive to amend the Constitution subject to stated limitations/conditions for the ordinary orderly running of affairs of the State during the transitory period to advance or promote the good of the people, clearly holding that the 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.” [p. 294, 295] Q

There is no error apparent on the face of the record warranting review; the petitioners cannot be allowed under the law to re-agitate and reargue the same points which have already been heard and decided by this Court; some factual controversies have been raised at the Bar which cannot be permitted to be raised under the law; certain fresh material has been filed with the review petitions which existed even prior to the filing of the original petitions and no reason has been advanced as to why the same was not produced with the latter or during the course of hearing of the same, therefore, such material cannot be considered by this Court unless strong reasons are mentioned for its non-production at the relevant time which are lacking. In any event, fresh documents have no bearing on the conclusion already recorded in the judgment under review leading to validation of action dated 12-10-1999.” [p. 297, 298] R

We may reiterate by way of emphasis that a bare perusal of the judgment under review shows that adequate answers have been given in relation to all the questions raised by the learned counsel for the petitioners in our well-considered findings contained in paragraphs 203 to 286 of the judgment under review. For facility of reference a summary of the above paragraphs as also reproduction of some of them in extenso makes the following reading:

SUMMARY FINDINGS

Independence of Judiciary
and power of judicial review

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

The learned counsel appearing for the parties as well as learned amicus curiae were all one on the point that the legislative instrument promulgated by the Chief Executive are subject to scrutiny by this Court for determination of the present controversy. However, Mr. Aziz A. Munshi expressed his reservations about the maintainability of the petitions and pleaded ouster of jurisdiction of this Court by means of the Proclamation of Emergency as also the PCO 1 of 1999. [p. 298, 299] S

It was the unanimous stand, endorsed by the Court, that no form of oath taken by or administered to the Judges of the superior Courts can restrict the judicial power and derogate from the legal position that the Courts, as final arbiters in any Constitutional controversy, retain their power and jurisdiction to say as to what a particular provision of the Constitution or the law means or does not mean even if that particular provision is one seeking to oust jurisdiction of the Court. [p. 299] T

The Objectives Resolution (Article 2A) and Declaration of Quaid-I-Azam about democratic set-up and social justice envisage independence of judiciary.

The Judiciary is entrusted with the responsibility for enforcement of fundamental rights. [p. 299] V

Exclusive power/responsibility of the Judiciary to ensure the sustenance of system of separation of powers based on checks and balances. [p. 299] W
INTERVENTION
BY THE ARMED FORCES

Removal of COAS during his absence from country, appointment of Lt. Gen. Ziauddin, attempt to create dissension among the Armed Forces, criminal conspiracy hatched by the former Prime Minister and others. [p. 300, 301] Z

Intervention validated on the doctrine of State necessity and the principle salus populi supreme lex. [p. 301] AA

Allegations of corruption against the former Prime Minister and his colleagues, disappearance fo public faith in the integrity and honesty of the Government which eroded the Constitutional and moral authority of the former Government, a situation somewhat similar to the one prevalent in July, 1977. [p. 301] BB

Since the Government was being run contrary to be provisions of the Constitution, the Armed Forces were compelled to move in as a last resort to prevent any further destabilization. [p. 301] CC

Corruption, absence of good governance are recognized grounds for imposition of Martial Law. [p. 301] DD
DOCTRINE OF STATE NECESSITY

After persuing the voluminous record and after considering the submissions made by the parties, we are of the view that the machinery of the Government at the Centre and the Provinces had completely broken down and the Constitution had been rendered unworkable. A situation arose for which the Constitution provided no solution and the Armed Forces had to intervene to save the State from further chaos, for maintenance of peace and order, economic stability, justice and good governance and to safequard integrity and sovereignty of the country dictated by highest considerations of State necessity and welfare of the people. The impugned action was spontaneously welcomed by all sections of the society. [p. 307, 308] PP

Doctrine of State necessity examined in the light of Nusrat Bhutto’s and Liaqat Hussain’s cases. Here, the Court is faced with an extra-Constitutional situation and all the elements described by this Court viz. Inevitable necessity, exceptional circumstances, no other remedy to apply, measure taken must be proportionate to the necessity which must be of temporary character, limited to the duration of exceptional circumstances, are present inasmuch as the Constitution provided no solution to meet the extraordinary situation prevailing on 12th October, 1999. [p. 308] QQ

As to the plea raised by Mr. Khalid Anwar that the ‘doctrine of necessity’ is accepted as a defence in criminal prosecution and tortuous acts which concept is different from that of ‘State necessity’, suffice it to say that this Court in the case of Begum Nusrat Bhutto (supra) approved the ‘doctrine of State necessity’ and laid down the conditions precedent for invoking the same. Therefore, the distinction pointed out by Mr. Khalid Anwar regarding the concept of ‘doctrine of necessity’ and that of ‘State necessity’ is immaterial. The fact remains that this Court is of the considered view that intervention by the Armed Forces on 12th October, 1999 was an imperative and inevitable necessity in view of the exceptional circumstances prevailing at the time and, therefore, there is no valid justification for not validating the extra-Constitutional measure of the Armed Forces on the technical distinction between ‘doctrine of necessity’ and the ‘doctrine of State necessity’. [p. 308] RR
It will be seen that the ‘doctrine of necessity’ is not restricted to criminal prosecution alone. However, the invocation of the doctrine of State necessity depends upon the peculiar and extraordinary facts and circumstances of a particular situation. It is for the superior Courts alone to decide whether any peculiar and extraordinary circumstance warrant the application of the above doctrine or not. This dependence has a direct nexus with what preceded the action itself. The material available on record generally will be treated at par with the “necessity/State necessity/continuity of State” for the purpose of attaining the propositions justifying its own scope as also the future and expected couse of action leading to restoration of democracy. It was in this context that the arguments were addressed on behalf of the petitioners, except Mr. Shahid Orakzai, Syed Iqbal Haider and Mr. Habib-ul-Wahab-ul-Khairi to the effect that only the ex-Prime Minister was responsible for the present situation. However, what meets the eye is that all the Parliamentarians, the Chief Ministers of the Provinces and the Members of the Provincial Assemblies were not in a position to object to any action, which had the blessings of the former Prime Minister. [p. 315, 316] WW

DE FACTO DOCTRINE

Survey of the case-law on the subject. Initially the status of the present Government was de facto but in view of the validation, it has attained de jure status. [p. 316] XX

The validity od rhw Peoclamation dated 14th October, 1999 and other succeeding documents falling in the same category depends upon a tentative assessment of the situation to be made with a view to given effect to the attending circumstances. It is common ground between the petitioners, who have appeared in person, the learned counsel appearing on behalf of some of the petitioners, Syed Sharifuddin Pirzada, learned Sr. ASC, as well as the learned Attorney-General for Pakistan appearing on behalf of the Federation, Dr. Farooq Hasan, appearing on behalf of the Lahore High Court Bar Association as also Mr. S. M. Zafar, learned Sr. ASC appearing as amicus curiae, that the situation created and/or which preceded the Proclamation dated 12th October, 1999 is the basis for the extra-Constitutional measure. However, M/s. Shahid Orakzai and Syed Iqbal Haider were of the view that the Proclamation and the other instruments issued by the Chief Executive are in accordance with the Constitution. It is not necessary to deal with the latter contention of M/s. Orakzai and Syed Iqbal Haider, which is ex facie untenable. Mr. Khairi’s contention was that the Proclamation to the extent it impinges on the independence of Judiciary is not valid. We are also inclined to the same view. [p. 316] YY

It was argued that the Proclamation and the entire superstructure thereon is outside the contemplation of the Constitution.

There is no cavil with the proposition advanced by Ch. Muhammad Farooq regarding the Constitutional position as also the role of the Army and the functions which the Armed Forces, the Prime Minister and Parliament/Assemblies perform under the Constitution. Be that as it may, admittedly the impugned action has not been taken under any Constitutional provision, but is the result of an extra-Constitutional measure and therefore reference to the above Constitutional provisions is of no consequence. The sole above Constitutional provisions is of no consequence. The sole question for consideration is whether the extra-Constitutional measure taken by the Armed Forces could be validated on any ground or not. Recognition of a situation of whatever magnitude does call for remedial measures to be considered/contemplated with a view to purging the situation on the ground. All that is required to be considered is that the action should have a nexus with the facts on the ground. Such consideration can be undertaken only by the superior Courts in the exercise of their powers under Article 199 and 184 of the Constitution. It is the duty of the superior Courts that they recognize the evil, suggest remedial measures therefor and lay down infrastructure for a journey leading to the restoration of the democratic processes/institutions as expeditiously as possible. If those responsible for achieving these objectives fall short of the measure within the contemplation of the law during their tenures respectively, then the remedy lies in identifying the facts on the ground and taking remedial measures to suppress the evil. The action of 12th October, 1999 being what it is, qualifies for validation on the ground of State necessity/survival. It is for the representatives of the people to see to it that everything is in order and no body can raise his little finger when their actions are in line with the fundamentals of the Constitution. No rule except that by the representatives of the people within the contemplation of the Constitution and the law has the support of the Superior Judiciary. 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 runs a grave risk of politicizing it, which would not be in national interest and that civilian rule in the country must be restored within the shortest possible time after achieving the declared objectives as reflected in the speeches of the Chief Executive dated 13th and 17th October, 1999, which necessitated the military take-over. [p. 316, 317] ZZ

The representatives of the people were accused of corruption and failed to establish good governance. The process of accountability carried out by the former governmetn was shady as it was directed against the political rivals. All institutions including judiciary were being systematically destroyed in pursuit of self-serving policies and the democratic institutions were not functioning in accordance with the Constitution.

Had the former Prime Minister been successful in his designs, there would have been chaos and anarchy rather a situation of civil was where some factions of the Armed Forces were fighting against others. [p. 318] AAA

IMPORT OF THE TERM
“CHIEF EXECUTIVE”

While running the affairs of the country, as nearly as may be, in accordance with the Constitution, General Musharraf is practically performing the functions of Prime Minister, he holds the position of Chief Executive in the scheme of the Constitution. [p. 318] CCC

The question arises whether the Chief Executive can be granted unfettered powers to amend the Constituton. Mr. Khalid Anwar emphasised that in case the Army action is condoned/validated this Court must succinctly state whether the Chief Executive has power to amend the Constitution and if so, subject to what limitations. He emphasized that in the first instance power to amend the Constitution should not be conceded to the Chief Executive and Begum Nusrat Bhutto’s case (supra) should be re-visited. In case this Court follows the dictum of Begum Bhutto’s case (supra), the power to amend the Constitution by the Chief Executive must be stated with particularity and the fields which are not to be touched should be specifically stated. Mr. S. Sharifuddin Pirzada argued that once the Army action through extra-Constitutional measure is validated, the Chief Executive should be given the power to amend the Constitution. Same view was expressed by the learned Attorney-General and Dr. Farooq Hassan. We are of the considered view that if the Parliament cannot alter the basic features of the Constitution, as hed by this Court in Achakzai’s case (supra), power to amend the Constitution cannot be conferred on the Chief Executive of the measure larger than that which could be exercised by the Parliament. Clearly, unbridled powers to amend the Constitution cannot be given to the Chief Executive even during the transitional period even on the touchstone of ‘State necessity’. We have stated in unambiguous terms in the Short Order that the Constitution of Pakistan is the supreme law of the land and its basic features i.e. independence of Judiciary, federalism and parliamentary form of Government blended with Islamic Provisions cannot be altered even by the Parliament. Resultantly the power of the Chief Executive to amend the Constitution is strictly circumscribed by the limitations laid down in the Short Order vide sub-paragraphs (i) to (vii) of paragraph 6.

We have held in the Short Order 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 reopened, being hit by the doctrine of past and closed transaction.

The practical effect of the above observation is that the action of the Chief Executive in this behalf has been validated. It is a well-settled principle that in such situations the Court may refuse relief in respect of a particular decision, but go on to determine the general question of law or interpretation that the case raises. Clearly, the Judges of the Superior Judiciary enjoy Constitutional guarantee against arbitrary removal. They can be removed only by following the procedure laid down in Article 209 of the Constitution by filing an appropriate reference before the Supreme Judicial Council and not otherwise. The validity of the action of the Chief Executive was open to question on the touchstone of Article 209 of the Constitution. But none of the Judges took any remedial steps and accepted pension as also the right to practice law and thereby acquiesced in the action. Furthermore, the appropriate course of action for this Court in these proceedings would be to declare the law to avoid the recurrence in future, but not to upset earlier actions or decisions taken in this behalf by the Chief Executive, these being past and closed transactions. The principle is well-settled that the Courts can refuse relief in individual cases even though the action is flawed, depending upon the facts circumstances of each case. The action of Chief Executive in the context given above has not encroached on the judicial power or impaired it in the process. However, the observations made herein as to the declaration of law under Article 209 of the Constitution would not entitle the relevant authorities or this Court to reopen the cases of the above Judges which have become final. On the question of legislative power in relation to Court’s declaration of law, the matter stands concluded by the judgment of this Court in Muhammad Yusuf v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore and another (PLD 1968 SC 101) in the following terms:

“The judgment was delivered on the 2nd November 1964, and its consequence was that as from that dated all Courts subordinate to the Supreme Court and all executive and quasi-judicial authorities were obliged by virtue of the Constitution to apply the rule as laid down by the Supreme Court in cases coming up before them for decision. It did not have, and it cannot be contended that it had, the effect of altering the law as from the commencement of the Act so as to render void of its own force all relevant orders of the Settlement Authorities or of the High Court made in the light of the earlier interpretation which was that the exercise of the delegated power was subject to the provisions in Chapter VI of the Act.” [p. 320, 321] EEE

Towards the close of his arguments, Mr. Khalid Anwar Submitted that this Court should lay down a roadmap with a timetable for the return of Constitutional governannce. Mr. Haleem Pirzada, President, Supreme Court Bar Association submitted that 12 months’ time from now may be provided to the Arme dForces so that they do the cleansing and go back. During the course of his arguments, Mr. S. M. Zafar, amicus curiae stated that prolonged stay of the Armed Foces in the political arena would damage its professionalism, hence they should retreat to their Barracks as early as possible. On this issue, the learned Attorney-General made the following statement:

“That the Federation intends to restore true representative democracy in the country as early as possible. It is however not possible to give specific time frame for the above among others for the reasons that the authorities/Government require time for:

Revival of country’s economy, which stands ruined, as submitted before this Court;

(b) Completion of the process of accountability;

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

(d) The task of unavoidable electoral reforms including preparing of fresh electoral rolls;

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

We are not in favour of an Army rule in preference to a democratic rule. There were, however, evils of grave magnitude with the effect that the civilian governments could not continue to run the affairs of the country in the face of complete breakdown. The remedy to the said evil was the holding of fair and impartial elections by the Chief Election Commissioner at the earliest possible time, but the same could not be achieved till the electoral rolls are updated. Ordinarily, we would have allowed minimum time for holding of fresh elections as contemplated under the Constitution, but the learned Attorney-General made a statement at the Bar that as per report of the Chief Election Commissioner, updating of the electoral rolls could not be done before two year sand thereafter objections and delimitation process etc. were to be attended to Mr. Sartaj Aziz, Senator, and the M.Q.M. in their respective petitions Nos. 15 and 53 of 1996 had also taken the stand that in the absence fo proper and authentic electoral rolls, millions of people will be disenfranchised. This statement of the learned Attorney-General was not rebutted. This being so, there is no choice but to grant reasonable time to enable the Chief Executive to restore the democratic institutions to the rightful holders of the public representatives under the Constitution. [p. 322, 323] GGG

The country has a chequered political history ever since it attained its legal birth and freedom with the adoption of Government of India Act, 1935 as an interim Constitution along with the Indian Independence Act, 1947. Unfortunate as it is, after the demise of Quaid-e-Azam Muhammad Ali Jinnah, there has been a political vacuum in the country and mal-functioning of the institutions giving rise to military intervention in the civil affairs of the country time and again. Irrespective of the causes for military intervention, its prolonged involvement in the civil affairs will not only politicise it but would also affect its professionalism in defending the borders of Pakistan. Such a course can never be countenance by this Court. however, Syed Sharifuddin Pirzada, learned Senior ASC, appearing on behalf of the Federation has reaffirmed the positive assurance made by the Chief Executive in respect of holding of general elections within the timeframe laid down by this Court for restoration of democratic institutions.

We also hereby reaffirm by way of emphasis that the validation and legitimacy accorded to the present Government is conditional, inter-linked and intertwined with the holding of general elections to the National Assembly and the Provincial Assemblies and the State of Pakistan within the timeframe laid down by this Court leading to restoration of the democratic institutions.

Since the Chief Executive was claiming in the Oath of Office (Judges) Order, 2000 (Order No. 1 of 2000), legislative power to amend the Constitution, in the absence of appropriate representative institutions, it was the duty of this Court to place checks on it. After considering all the attending circumstances, limited powers of amendment were conferred as highlighted in the judgment under review and reaffirmed in the Short Order dated 7-2-2001.

The matter was heard for months together in which over twenty-five learned Advocates of this Court including learned senior Advocates and learned amicus curiae addressed the Court. the judgment under review was rendered after threadbare consideration of each and every aspect of the matter, the case law cited at the Bar as also the pleadings of the parties vide reasons assigned in paragraphs No. 221 to 287, which does not suffer form any error or flaw whatsoever warranting interference.

These are the detailed reasons for our Short Order dated 7th February, 2001. [p. 323, 324] HHH

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