h1

P L D 2000 SC 869

SYED ZAFAR ALI SHAH AND OTHERS

V/S

GENERAL PERVEZ. MUSHARRAF,
CHIEF EXECUTIVE OF PAKISTAN AND OTHERS

Frame (4)
(a) Constitution of Pakistan (1973), Arts. 91(4) & 184(3)

—Preamble—Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999—Constitution of Pakistan 91973), Arts. 184(3) & 91(4), (5)—Extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan—Suspension of Assemblies and the Senate through extra-constitutional measures by the Chief of Army Staff—Factors– Validity—Doctrine of State necessity—Applicability—Role of public representatives—Principles of joint and ministerial responsibility in Parliamentary system—Rest of the members of representatives bodies cannot be absolved of their responsibility if, despite wrongdoings by the cabinet, they remained silent spectators—Suspension of the Assemblies and the Senate through extra-constitutional measures taken by the Chief of Army Staff, warrants validation on the ground of State necessity and State survival. [p. 1152] Z

(b) Provisional Constitution Order (1 of 1999)—

—Preamble—Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999—Constitution of Pakistan (1973), Arts. 184(3) & 63(2)— Extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan—Factors—Validity—Ridiculing the Judiciary and tapping of telephones of Judges of superior Courts—Debates of parliament of the relevant period clearly demonstrated that integrity and independence of the judiciary of Pakistan were challenged by the Members of Parliament which had the effect of defaming and bringing the Judges into ridicule and disparaging remarks against the Judiciary crossed all limits and no Reference was made to the Chief Election Commissioner for their disqualification as Members of the Parliament under Art. 63(2) of the Constitution of Pakistan (1973)—Such acts of tapping the telephones of Judges of the superior Courts and maligning the judiciary were most detestable, immoral, illegal and unconstitutional. [p. 1168] BB

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

(c) Provisional Constitution Order (1 of 1999)—

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

The term “Chief Executive” means President where there is a Presidential form of Government and Prime Minister in a Parliamentary form of Government. The Constitution of 1973 envisages Parliamentary form of Government where the Prime Minister acts as the Chief Executive of the country. By means of the proclamation of Emergency as also the PCO 1 of 1999, the Constitution has only been held in abeyance and the country is to be run as nearly as may be in accordance with the Constitution, therefore, General Pervez Musharraf, while taking over the affairs of the country, assumed to himself the title of “Chief Executive”. Since practically, he is performing the functions of the Prime Minister, he holds the position of Chief Executive in the scheme of the Constitution. [p. 1208] MM

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

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

—Preamble—Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999—Constitution of Pakistan 91973), Art. 184(3)—Extra- constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan—Nature—Coup d’etat or revolution—Coup d’etat and revolution are interchangeable in the context of step of taking over the affairs of Pakistan by the Armed Forces and nothing substantial would turn on considering it from one angle or another.

In coup d’etat as well in revolution, power changes from one man to another from one clique to another depending upon the facts and circumstances of each case. Coup d’etat is generally undertaken to achieve a particular objective motivated by various considerations. [p. 1210] NN

In the context of the present case the terms coup d’etat and revolution are interchangeable and nothing substantial would turn on considering it from one angle or another. [p. 1210] OO

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

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

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

If the Parliament cannot alter the basic features of the Constitution, power to amend the Constitution cannot be conferred on the Chief Executive of the measure larger than that which could be exercised by the Parliament. Clearly, unbridled powers to amend the Constitution cannot be given to the Chief Executive even during the transitional period even on the touchstone of ‘State necessity’. The Constitution of Pakistan is the supreme law of the land and its basic features i.e. independence of Judiciary, federalism and parliamentary form of Government blended with Islamic Provisions cannot be altered even by the Parliament. Resultantly, the power of the Chief Executive to amend the Constitution is strictly circumscribed by the limitations laid down by the Supreme Court. [p. 1211] PP

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

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

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

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

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

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

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

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

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

(iv) That Fundamental Rights provided in Part II, Chapter 1 of the Constitution shall continue to hold the field but the State will be authorized to make any law or take any executive action in deviation of Articles 15, 16, 17, 18, 19 &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 Ordinance 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 sated 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 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. [p. 1220] QQ

(f) Provisional Constitution Order (1 0f 1999)

—Preamble—Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999—Oath of Office (Judges) Order (1 of 2000), preamble— Constitution of Pakistan (973), Arts. 209 & 184(3)—Extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan —Validity—Supreme Court Judicial Council–Judges of the Supreme Court and High Courts cannot be removed without resorting to the procedure prescribed in Art. 209 of the Constitution—Cases of the Judges who ceased to be Judges of the Supreme Court and High Courts by virtue of Oath of Office (Judges) Order, 2000, however, was hit by the doctrine of past and closed transaction and could not be re-opened. [pp. 1211, 1212] RR & SS

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

—Preamble—Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999—Oath of Office (Judges) Order (1 of 2000), Preamble— Constitution of Pakistan (1973), Preamble, Arts. 209 & 184(3)—Past and closed transaction, doctrine of—Applicability—Cases of former Chief Justice and judges of Supreme Court who had not taken oath under the Oath of Office (Judges) Order, 2000 and those Judges of the Lahore High Court, High Court of Sindh and Peshawar High Court, who were not given oath, could not be reopened being hit by the doctrine of past and closed transaction. [pp. 1219, 1220, 1222] QQ & BBB

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

The practical effect of the above observation is that the action of the Chief Executive in this behalf has been validated. It is a well-settled principle that in such situations the Court may refuse relief in respect of a particular decision, but go on to determine the general question of law or interpretation that the case raises. Clearly, the Judges of the Superior Judiciary enjoy constitutional guarantee against arbitrary removal. They can be removed only by following the procedure laid down in Article 209 of the Constitution by filing an appropriate reference before the Supreme Judicial Council and not otherwise. The validity of the action of the Chief Executive was open to question on the touchstone of Article 209 of the Constitution. But none of the Judges took any remedial steps and accepted pension as also the right to practise law and thereby acquiesced in the action. Furthermore, the appropriate course of action for supreme Court in these proceedings would be to declare the law to avoid the recurrence in future, but not to upset earlier actions or decisions taken in this behalf by the Chief Executive, these being past and closed transactions. The Courts can refuse relief in individual cases even though the action is flawed, depending upon the facts and circumstances of each case. The action of Chief Executive in the context given above has not encroached on the judicial power or impaired it in the process. However, the observations made herein as to the declaration of law under Article 209 of the Constitution would not entitle the relevant authorities or Supreme Court to reopen the cases of the above Judges which have become final. [p. 1211] RR

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. [pp. 1212, 1219, 1220, 1222] SS, QQ & BBB

(h) Constitution of Pakistan (1973), Arts. 209 & 184(3)

—Provisional Constitution Order (1 0f 1999), Preamble—Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999—Oath of Office (Judges) Order (1 of 2000), Preamble—Constitution of Pakistan (1973), Preamble and Arts. 184(3) & 209—Accountability, process of— Government shall accelerate the process of accountability in a coherent and transparent manner justly, fairly, equitably and in accordance with law— Judges of superior Courts were subject to accountability only, in accordance with the methodology laid down in Art. 209 of the Constitution of Pakistan (1973). [pp. 1219, 1220, 1222] QQ & BBB

(i) Constitution of Pakistan (1973) Arts. 243 & 184(3)

—Command of Armed Forces—Removal of Chief of the Army Staff and Chairman, Joint Chiefs of Army Staff Committee—Procedure—Chief of the Army Staff and Chairman, Joint Chiefs of Army Staff Committee being a holder of constitutional post, his arbitrary removal in violation of the principle of audi alteram partem was ab initio void and of no legal effect. [pp. 1219, 1220, 1222] QQ & BBB

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