PCO 311ILLEGAL UNCONSTITUTIONAL SUPREME COURT OF PAKISTAN
TEXT OF JUDGEMENT DATED JULY 31, 2009
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
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 &
Syed Shehryar, Advocates
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For responde nt 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. Muhammad Yousaf Leghari, A.G.Sindh.
Raja Abdul Ghafoor, AOR.
For respondent Nos.3 & 4. Nemo.
Respondent No.5. Not represented.
Dates of hearing: 20th to 24th and 27th to 31st July, 2009.
JUDGEMENT
IFTIKHAR MUHAMMAD CHAUDHRY, CJ.- 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 Tika Iqbal Khan (PLD
2008 SC 178) a smaller bench of the Supreme Court is perincuriam
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
Tika Iqbal Khan (supra) as he himself was the real
beneficiary of the said Judgement 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
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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 malafide”.
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 Zaffar Ahmad Khan Sherwani and Justice Abdul Rashid 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 de-jure Chief Justice of Pakistan are/were unconstitutional, invalid and without any legal consequence;
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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 Tika 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, corum-nonjudice,
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 judgement
delivered in case of Tikka Iqbal Muhammad Khan versus 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
5 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.
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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 deep-rooted 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, Sikandar 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. Sikandar 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 Zia-ul-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,
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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
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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
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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 Zia-ul-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 in tact. 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
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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 judgement. Be
that as it may, Justice Abdul Hameed Dogar, as then he was called,
alongwith 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
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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 judgement is/was, ex-facie, per incuriam, corum-nonjudice
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
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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
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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 selfacquired 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 alongwith 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
14 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, corumnon-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
15
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 TIKA 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 TIKA 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.
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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 likewise
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 Presidents 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 unconstitutional,
ultra-vires of the Constitution and consequently being illegal and of no legal e.
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 afore17 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 un-constitutional; void ab initio and of no legal effect;
Provided that subject to whatever is contained hereinafter, the said unconstitutional 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 18 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 unconstitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith;
Provided that the Judges so unconstitutionally
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 likewise,
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 dis-obedience 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 19 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 20 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;
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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 15.12.2008 (both days inclusive) which were also, like-wise given permanence through the same instrument and which legislative measures alongwith the said Provisional Constitution Order had been validated by the aforementioned judgment delivered in TIKA IQBAL MUHAMAD KHAN’S CASE, stand shorn of their purported permanence on account of our afore-mentioned declarations. Since on account of the said
22 judgment in TIKA 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, 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, 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
23 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 un-constitutional 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 Rashid Kalwar and of Mr. Justice Zafar Kalwar Khan Sherwani as Additional Judges of the High Court of Sindh are declared to be un-constitutional 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 24 February, 2008 and would continue to jealously guard the principle of tricotomy 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
25
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.
CHIEF JUSTICE
JUDGE JUDGE JUDGE
JUDGE JUDGE JUDGE
JUDGE JUDGE JUDGE
JUDGE JUDGE JUDGE
JUDGE
Islamabad,
July 31, 2009.
APPROVED FOR REPORTING
(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
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 &
Syed Shehryar, Advocates
2
For responde nt 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. Muhammad Yousaf Leghari, A.G.Sindh.
Raja Abdul Ghafoor, AOR.
For respondent Nos.3 & 4. Nemo.
Respondent No.5. Not represented.
Dates of hearing: 20th to 24th and 27th to 31st July, 2009.
JUDGEMENT
IFTIKHAR MUHAMMAD CHAUDHRY, CJ.- 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 Tika Iqbal Khan (PLD
2008 SC 178) a smaller bench of the Supreme Court is perincuriam
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
Tika Iqbal Khan (supra) as he himself was the real
beneficiary of the said Judgement 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
3
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 malafide”.
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 Zaffar Ahmad Khan Sherwani and Justice Abdul Rashid 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 de-jure Chief Justice of Pakistan are/were unconstitutional, invalid and without any legal consequence;
4
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 Tika 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, corum-nonjudice,
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 judgement
delivered in case of Tikka Iqbal Muhammad Khan versus 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
5 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.
6
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 deep-rooted 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, Sikandar 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. Sikandar 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 Zia-ul-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,
7
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
8
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
9
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 Zia-ul-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 in tact. 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
10
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 judgement. Be
that as it may, Justice Abdul Hameed Dogar, as then he was called,
alongwith 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
11
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 judgement is/was, ex-facie, per incuriam, corum-nonjudice
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
12
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
13
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 selfacquired 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 alongwith 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
14 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, corumnon-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
15
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 TIKA 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 TIKA 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.
16
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 likewise
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 Presidents 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 unconstitutional,
ultra-vires of the Constitution and consequently being illegal and of no legal e.
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 afore17 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 un-constitutional; void ab initio and of no legal effect;
Provided that subject to whatever is contained hereinafter, the said unconstitutional 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 18 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 unconstitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith;
Provided that the Judges so unconstitutionally
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 likewise,
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 dis-obedience 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 19 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 20 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;
21
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 15.12.2008 (both days inclusive) which were also, like-wise given permanence through the same instrument and which legislative measures alongwith the said Provisional Constitution Order had been validated by the aforementioned judgment delivered in TIKA IQBAL MUHAMAD KHAN’S CASE, stand shorn of their purported permanence on account of our afore-mentioned declarations. Since on account of the said
22 judgment in TIKA 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, 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, 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
23 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 un-constitutional 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 Rashid Kalwar and of Mr. Justice Zafar Kalwar Khan Sherwani as Additional Judges of the High Court of Sindh are declared to be un-constitutional 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 24 February, 2008 and would continue to jealously guard the principle of tricotomy 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
25
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.
CHIEF JUSTICE
JUDGE JUDGE JUDGE
JUDGE JUDGE JUDGE
JUDGE JUDGE JUDGE
JUDGE JUDGE JUDGE
JUDGE
Islamabad,
July 31, 2009.
APPROVED FOR REPORTING
http://www.supremecourt.gov.pk/web/page.asp?id=109
1 comment:
Critics of the decision hold position that PCO Judges are still working and non PCO judges have been sacked, packed and sent home. The name of these judges who took oath under the constitution are as under:-
#) Mr. Justice Pervez Ali Chawla
#) Mr. Justice Habib Ullah Shakir
#) Mr. Justice Nazir Ahmed Ghazi
#) Mr. Justice Abdul Sattar Goraya
#) Mr. Justice Syed Ihtasham Qadir Shah
#) Justice Ms. Jamila Jahanoor Aslam
#) Mr. Justice Mahmood Akhtar Khan
#) Mr. Justice Jamshed Rahmat Ullah
#) Mr. Justice Pervez Inayat Malik
#) Mr. Justice Arshad Mahmood
#) Mr. Justice Irfan Qadir
#) Mr. Justice Syed Zulfiqar Ali Bukhari
#) Mr. Justice Ch. Naeem Masood
#) Mr. Justice Anwar-ul-Haq Pannu
#) Mr. Justice Muhammad Shafqat Khan Abbasi
#) Mr. Justice Imtiaz Rasheed Siddiqui
#) Mr. Justice Bin Yamin
#) Mr. Justice Khalid Ali Z. Qazi
#) Mr. Justice Salman Ansari
#) Mr. Justice Abdul Rehman Farooq Pirzada
#) Mr. Justice Abdul Rasheed Klwar
#) Mr. Justice Zafar Ahmed Khan Sherwani
#) Mr. Justice Syed Mehmood Alam Rizvi
#) Justice Ms. Soofia Latif
#) Mr. Justice Maqbool Ahmed Awan
#) Mr. Justice Safdar Ahi Bhutto
#) Mr. Justice Moharram G. Baloch
#) Mr. Justice Malik Muhammad Aqil
#) Mr. Justice Syed Shafaqat Ali Shah Masoomi
#) Mr. Justice Muhammad Iqbal Mahar
#) Mr. Justice Khadim Hussain M. Sheikh
#) Mr. Justice Muhammad Ismail Bhutto
#) Mr. Justice Arshad Siraj Memon
#) Mr. Justice Aamir Raza Naqvi
#) Mr. Justice Muhammad Karim Khan Agha
#) Mr. Justice Salman Talibuddin
#) Mr. Justice Shaji Rehman Khan
#) Mr. Justice Ghulam Mohayuddin Malik
#) Mr. Justice Ziauddin Khattak
#) Mr. Justice Syed Mussaddiq Hussain Gilani
#) Mr. Justice Syed Yahya Zahid Gilani
#) Mr. Justice Muhammad Alam Khan
#) Mr. Justice Mazhar Hussain Minhas
#) Mr. Justice Muhammad Ashraf Bhatti
#) Mr. Justice Rana Zahid Mehmood
#) Mr. Justice Kazim Ali Malik
#) Mr. Justice Hafiz Tariq Nasim
#) Mr. Justice Khalil Ahmad
#) Mr. Justice MA Zafar
#) Mr. Justice Malik Saeed Ejaz
#) Mr. Justice Syed Shaheen Masud Rizvi
#) Mr. Justice Ali Akbar Qureshi
#) Mr. Justice Muhammad Ahsan Bhoon.
The aforesaid 53 judges have never ever taken oath under the PCO. They have been ousted and this aspect of the decision has been declared to be a fight between post November 3 PCO judges and post October 12 PCO judges which has resulted in ouster of judges who took oath only under the Constitution of Pakistan and never ever under the PCO.
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