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PCO Judges Case and Analysis

PREFACE TO THE THIRD EDITION

In 2002, in the preface to the first edition of the book, I had predicted that “…..sooner, or later public spirited individuals in Pakistan,….will succeed in challenging the ouster clause….” in the Constitution of Pakistan.

 

This prediction came to pass in 2009, in the historic judgment of the Supreme Court in the PCO Judges case. The Sindh High Court Bar Association and a public spirited advocate, Mr. Nadeem Ahmed, successfully challenged the appointment of Judges of the Supreme Court and the High Courts of Pakistan, between the 3rd of November, 2007 and the 22nd of March, 2008, without prior consultation of the de jure Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry, in Constitutional Petitions Nos. 9 and 8 of 2009 respectively.

 

In so doing, the Petitioners challenged the validation of ex-facie unconstitutional rule in Pakistan by President General Pervez Musharraf, for the second time, between 3rd of November, 2007 and 15th of December, 2007.

 

The legacy of the Maulvi Tamizuddin case has spawned over thirty seven (37) years of military rule in Pakistan. The Supreme Court, in   its   seminal    judgment   dated    30th of September, 2009,  laid to rest the doctrine of necessity and foreclosed the possibility of validation of extra constitutional regimes in the future. In its ruling the Supreme Court declared that :

 

“the doctrine of necessity and the maxim “salus populi est suprema lex”……. have no application to an unconstitutional and illegal assumption of power by an authority not mentioned in the Constitution,…including but not limited to a purported…. Proclamation of Martial Law, Proclamation of Emergency, Provisional Constitution Order, Oath Order, Amendments of the Constitution…etc. issued in pursuance thereof, notwithstanding any judgment of any Court, including the Supreme Court.”

 

The doctrine of necessity, in the context of validation of extra constitutional regimes by the Courts and/or subsequent ratification by Parliament is today a dead letter.

 

The Supreme Court also held that the purported amendments to the Constitution and the insertion therein of Article 270AAA, the new ouster clause, with one stroke of the pen of unauthorized individual, vide President’s Orders Nos. 5 and 6 of 2007, were void ab initio and of no legal effect.

 

The Supreme Court “……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….” And held that “….The amendment of the Constitution is the exclusive domain of the Majlis-e-Shoora (Parliament) in terms of Articles 238 and 239 of the Constitution and this Court only claims…..the right to interpret the Constitution…..even if that particular provision is a provision seeking to oust the jurisdiction of this Court.”

 

The Court was of the view that attempts by military usurpers to abrogate, and/or hold, in abeyance, the Constitution, or make amendments therein, itself tantamount to subversion, are acts of high treason, under Article 6 of the Constitution; and observed that Article 237 of the Constitution only provides for indemnification of the acts of any person in connection with maintenance or restoration of order in any area of 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).”

 

The Court also relied on its earlier judgment in the Al-Jehad Trust case of 1996, wherein the Court had to deal with ‘an irreconcilable conflict’ between an original Article of the Constitution, namely Article 209, and new Article 203C. The new Article, which provided for the appointment of a sitting Chief Justice of a High Court or a Judge thereof, in the Federal Shariat Court, without  his consent, was inserted by the Chief Martial Law Administrator and later validated by the parliament. The Court was left with no option but to give effect to Article 209, that guaranteed security of tenure and Independence of Judiciary, and ignore Article 203C, which was violative thereof.

 

In the PCO Judges case the Court held that “….likewise it is not possible to reconcile the provisions validating, affirming and adopting amendments (such as purported Article 270AAA), made by an authority not competent to do so under the Constitution…..”.  According to the Court “…..Articles 6 and 237 were framed in the back drop of successive abrogation(s) of the Constitution and imposition of Martial Laws..…”. And in the context of Oaths made by Judges of the Superior Courts in the past, under the PCO, the Court in an apologetic vein, acknowledged that “…..Enough is enough.  There has to be an end to it somewhere.”

 

The Supreme Court emphatically held that “….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.”

 

This landmark ruling is a lesson in Constitutional History. In terms of jurisprudence of the Basic Law, the Supreme Court of Pakistan has enunciated a new constitutional axis, between Articles 238 and 239 and Article 6 read with Article 237 of the Constitution, for its protection and preservation.

 

The main purpose of publishing a pocket edition of the book is to provide the Bench and the Bar and interested persons with a handy ready reference to the Constitution of Pakistan, 1973.

 

The book contains the entire text of the Constitution as amended to date. The footnotes in the third edition also refer to the amendments that President Pervez Musharraf purported to make in the body of the Basic Law.  After the General Elections of the 18th of February, 2008, the impugned amendments were not validated by the Majlis-e-Shoora (Parliament) and, as stated hereinabove, were held to be void ab initio and of no legal effect by the Supreme Court.

 

I would like to thank Ms Tanaz Minwalla for designing the cover of the book. Finally I would also like to commend the services of my Assistant, Mr. Azhar Shahzad for single handedly shouldering the responsibility for preparing the manuscript of and publishing the pocket edition of the book.

Karachi

February, 2010                                                                                                                                                      ZAIN SHEIKH

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