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P L D 2000 SC 869

SYED ZAFAR ALI SHAH AND OTHERS

V/S

GENERAL PERVEZ. MUSHARRAF,
CHIEF EXECUTIVE OF PAKISTAN AND OTHERS

Frame (3)

(a) Constitution of Pakistan (1973), Art. 58(2)(b)—

[Since repealed]—Dissolution of National Assembly—Balance governing the powers of the President and the Prime Minister—Never safe to confer unfettered powers on a person who was holding the reins of the affairs of the country as “power corpus and absolute corrupts absolutely” —Situation could have been avoided if checks and balances governing the powers of the President and the Prime Minister had been in the field by means of Art. 58(2)(b) of the Constitution of Pakistan (1973), [p. 1168] AA

(b) Constitution of Pakistan (1973), Art. 232

—Proclamation of Emergency—State of emergency–interpretation–State of emergency includes “regimes of exception” i.e. regimes which have overthrown and not merely suspended the previous constitutional order and have assumed legislative and executive powers analogous to those under a formal state of emergency—Government to take steps to ensure that the Fundamental Rights of citizens are not affected and derogation must be proportionate to the emergency, while adopting constitutional as well as extra-constitutional means—Effort to be made to minimize emergencies and to induce the authorities concerned to respect the Fundamental Rights. [p. 1199] HH

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

“1. On 12th October, 1999 a situation arose for which the Constitution provided no solution and the intervention by the Armed Forces through an extra-Constitutional measure became inevitable, which is hereby validated on the basis of the doctrine of State necessity and the principle of salus populi est suprema lex as embodied in Begum Nusrat Bhutto’s case. The doctrine of necessity is recognised not only in Islam and other religions of the world but also accepted by the eminent international jurists including Hugo Grotius, Chitty and de Smith and some superior Courts from foreign jurisdiction to fill a political caecum 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-Constitution 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 Sate 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 abeyance o 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 the Chairman, Joint Chiefs of Staff Committee and the Chief of the Army Staff through Proclamation of Emergency dated the 14th October, 1999, followed by PCO 1 OF 1999, whereby he had been described as Chief Executive, having validly assumed power by means of an extra-Constitutional step, in the interest of the State and for the welfare of the people, was entitled to perfrom all such acts and promulgate all legislative measures as enumerated hereinafter, namely:—

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

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

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

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

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

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

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

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

(vi) That the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Armed Forces, if challenged, in the light of the principles underlying the law of State necessity as stated above. Their powers under Article 199 of the Constitution, thus, remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any legislative instrument enacted by the Chief Executive and/or any order issued by the Chief Executive or by any person or authority acting on his behalf.

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

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

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

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

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

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

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

12. That this order will not affect the trials conducted and convictions recorded including proceedings for accountability pursuant to various orders made and Orders/laws promulgated by the Chief Executive or any person exercising powers or jurisdiction under his authority and the pending trial/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 & 19 of the Constitution. Even MQM also resorted to a similar Constitution Petition bearing No. 53 of 1996 seeking the same relief. However, for reasons best known to the petitioners in both the petitions, the same were not pursued any further.

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

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

18. That this Court has jurisdiction to review/re-examine the continuation of the Proclamation of Emergency dated 12th October, 1999 at any stage if the circumstances so warrant as held by this Court in the case of Sardar Farooq Ahmed Khan Leghari v. Federation of Pakistan PLD 1999 SC 57.” [pp. 1219, 1220, 1222] QQ & BBB

(c) State necessity, doctrine of—

—Doctrine of State necessity is recognised not only in Islam and other religions of the world but also accepted by the eminent international jurists to fill a political vacuum and bride the gap. [pp. 1219, 1220, 1222] QQ & BBB

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