Short Order of the Supreme Court

By AMICUS

In its short order dated 31 July 2009, the Supreme Court of Pakistan has declared unconstitutional, ultra-vires of the Constitution and consequently illegal and of no legal effect, inter alia, the following:

1. The Proclamation of Emergency issued by General Pervez Musharraf as the Chief of Army Staff on November 3, 2007. (1)

2. The Provisional Constitution Order No. 1 of 2007, issued by him on the same date in his said capacity.

3. 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 aforementioned Proclamation of Emergency and the Provisional Constitution Order No. 1 of 2007.

4. The Provisional Constitution (Amendment) Order of 2007, issued by him likewise on November 15, 2007.

5. The Constitution (Amendment) Order of 2007, being the President’s Order No. 5 of 2007, issued on November 20, 2007.

6. The Constitution (Second Amendment) Order of 2007, being the President’s Order No. 6 of 2007, issued on December 14, 2007.

7. The Islamabad High Court (Establishment) Order of 2007, being the President’s Order No. 7 of 2007, issued on December 14, 2007.

8. The High Court Judges (Pensionary Benefits) Order of 2007, being the President’s Order No. 8 of 2007, issued on December 14, 2007.

9. The Supreme Court Judges (Pensionary Benefits) Order of 2007, being the President’s Order No. 9 of 2007, issued on December 14, 2007.

As a consequence thereof, inter alia:

1. 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 have been deemed never to have ceased to be such Judges, irrespective of any notification issued regarding their reappointment or restoration. (Emphasis added)

2. The office of the Chief Justice of Pakistan has been declared not to have fallen vacant on November 3, 2007 and the appointment of Mr. Abdul Hameed Dogar as the Chief Justice of Pakistan has been declared unconstitutional, void ab initio and of no legal effect; provided that subject to whatever is contained hereafter, the said unconstitutional appointment of Mr. Dogar as the Chief Justice of Pakistan is not to 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.

3. Since Mr. Dogar was never a constitutional Chief justice of Pakistan, therefore, all appointments of the Judges of the Supreme Court of Pakistan, of the Chief Justices of the High Courts and of the Judges of the High Courts made in consultation with him during the period that he, unconstitutionally, held the said office from November 3, 2007 to March 22, 2009 (both days inclusive) have been declared to be unconstitutional, void ab initio and of no legal effect and such appointees have ceased to hold the said offices forthwith.

4. The Judges of the Supreme Court of Pakistan, if any, the Chief Justices of the High Courts, if any, and the Judges of any of the High Courts, if any, who stood appointed to the said offices prior to November 3, 2007 but who made oath or took oath of their respective offices in disobedience to the order passed by a seven-member Bench of the Supreme Court of Pakistan on November 3, 2007 in CMA No. 2869 of 2007 in Constitution Petition No. 73 of 2007 are to be proceeded against under Article 209 of the Constitution; provided that nothing hereinabove is to affect those Judges who though had been appointed as Judges / Chief Justices of any of the High Courts between November 3, 2007 and March 22, 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.

5. Any judgment delivered or order made or any decrees passed by any Bench of the Supreme Court or any of the High Courts which comprised of or which included the afore-described Judges, whose appointments have been declared void ab initio, are to be protected on the principle laid down in Malik Asad Ali’s Case (PLD 1998 SC 161).

6. The Islamabad High Court has ceased to exist forthwith.

7. The Ordinances promulgated by the President or a Governor of a Province before November 3, 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 November 3, 2007 and December 15, 2007 (both days inclusive) which were also likewise given permanence through the same instrument have stood shorn of their purported permanence. However, steps may be taken to place the said ordinances before the Parliament or the respective Provincial Assemblies in accordance with law. For this purpose, the period of 120 days and 90 days mentioned respectively in the Article 89 and Article 128 of the Constitution is to be deemed to commence from the day the Supreme Court made the short order i.e., 31 July 2009.

8. The number of Judges of the Supreme Court is to remain sixteen plus the Chief Justice.

9. 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 is to be added commanding that no such Judge shall, hereinafter, offer any support in whatever manner to any unconstitutional 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.

The short order of the Supreme Court dated 31 July 2009 is yet another landmark in the constitutional and political history of Pakistan.

Although it was expected that the Supreme Court would declare the Proclamation of Emergency and the Provisional Constitution Order No. 1 of 2007 promulgated by General Pervez Musharraf as the Chief of Army Staff on November 3, 2007, and other related orders as unconstitutional, the Short Order, simultaneously while resolving some tricky issues, has raised new ones.

In the first place it is a cardinal principle of natural justice that no person should be a judge in his own cause. In the present case Chief Justice Iftikhar Mohammad Chaudhry presided over a 14-member Bench of the Supreme Court that violated this principle.

However, this unique situation developed because the de facto Supreme Court before the present order was issued, was split between the PCO and non-PCO Judges and, therefore, it became inevitable that the petitions be heard by the Judges who had stakes in the outcome of the case.

Notwithstanding what has been said above, the Supreme Court ought to have appointed some constitutional experts respected for their integrity as amices curiae to assist the Court in deciding about some very serious and controversial constitutional issues. This would have silenced the detractors who allege that the present order is ‘person specific’ ‘biased’ and ’self-contradictory’.

The Supreme Court also showed unnecessary haste in deciding the case. The hearings took place from 20th to 24th and from 27th to 31st July 2009 before the Short Order, which itself is pretty long, was announced.

After making a brief survey of military interventions and their nature in Pakistan, the Supreme Court has held General Pervez Musharraf responsible for unconstitutionally removing 61 Judges of the Superior Judiciary, including the Chief Justice of Pakistan and the Chief Justices of three Provinces.

They “either did not take or given the oath.” The Supreme Court has rightly observed: “. . . his [Musharraf's] November 2007 action was a singular in nature, in that the onslaught was on judiciary alone. All other institutions were intact.”

Although Musharraf was not the first to subvert the Constitution (and maybe not the last), his action of November 3, 2007 was qualitatively different from earlier instances. There was no crisis-like situation similar to October 7, 1958, March 25, 1969, July 5, 1977 or even October 12, 1999 when the people - the ultimate sovereign - were fed up with the existing government or political uncertainty and were prepared to welcome some savior from the Pakistan Armed Forces.

Here the situation was the other way round. The people were yearning for a change; there was a loud clamor for Musharraf’s resignation.

There is not an iota of doubt that Musharraf’s intentions in imposing the so-called ‘emergency’, which in reality was ‘martial law’, were self-serving and malafide to the core.

Even if for argument’s sake it is believed that the reasons given in the Proclamation of Emergency were present, it was not the business of the Chief of Army Staff to put the Constitution into abeyance. There are provisions in the Constitution to address emergencies. The fact that the Constitution was revived by Musharraf once the targeted Judges were removed amply demonstrates that the reasons given in the Proclamation of Emergency were humbug.

Notwithstanding what was stated in the Proclamation of Emergency, Musharraf was prompted by his desire to prevent the 11- member Bench of the Supreme Court - which was hearing Petition No. 73 of 2007 filed by Mr. Justice (retd) Wajihuddin Ahmed and others - from disqualifying him as a presidential candidate.

The Supreme Court has observed:

“It is, however, quite heartening that, for the first time in the history of our beloved country, the chosen representatives 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 Musharraf (Retd.)”

Neither the Parliament has validated Musharraf’s unconstitutional acts of November 3, 2007, nor has it indemnified him for subversion of the Constitution. Since Article 270 AAA was never a valid part of the Constitution, Musharraf does not enjoy immunity from Article 6 of the Constitution which says:

“6.High treason.

(1) Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.

(2) Any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason.

(3) [5] [Majlis-e-Shoora (Parliament)] shall by law provide for the punishment of persons found guilty of high treason.” (2)

In the past the Supreme Court had validated the martial law imposed on July 5, 1977 in the Nusrat Bhutto Case and the martial law imposed on October 12, 1999 in the Zafar Ali Shah Case on the ground of state necessity. Subsequently the Parliament granted indemnity to General Mohammad Zia-ul Haq and General Pervez Musharraf under the Eighth and Seventeenth Amendments respectively and validated their unconstitutional acts retrospectively.

Although, the sanctity of the Constitution demands that Musharraf be prosecuted for committing high treason, it’s not that easy. Any trial of Musharraf would not remain confined to his person.

Perusal of the recital of the PCO, on bare reading reveals;

(“AND WHEREAS the situation has been reviewed in meetings with the Prime Minister, Governors of all four Provinces, and with Chairman Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice-Chief of Army Staff and Corps Commanders of the Pakistan Army;

NOW, THEREFORE, in pursuance of the deliberations and decisions of the said meetings…..”) (3)

Those who aided or abetted him in subverting the Constitution would be dragged in. The civilian-democratic set up in Pakistan is not strong enough to charge a number of Corps Commanders for high treason as warranted by Article (2) and confront the might of the armed forces.

Therefore, before any trial of Musharraf is planned, a positive nod from the GHQ is required. Still the question would remain: how to isolate him?

Besides, since the day Mr. Musharraf stepped down, with full pomp, protocol and ceremonies, one year has passed. It is generally perceived since then that, his stepping down preceded an agreement that he will not be persecuted or prosecuted. He and his tenure both are History.

Among the political forces, the PML (N) is enthusiastic to initiate proceeding against Musharraf under Article 6. The PPP is reluctant, whereas the PML (Q) and the MQM are out-rightly against any such action. A saner course would be to revive the idea of a Truth and Reconciliation Commission which was floated by Prime Minister Yousuf Raza Gilani at the time he assumed the office.

“

* Negotiations with “all those people who will lay down arms and adopt the path of peace.”
* Repeal of the Frontier Crime Regulations of 1901 that are still applicable to FATA.
* Repeal of Industrial Relations Order 2002 that imposes curbs on trade union activities.
* Revival of student unions.
* Formation of a Truth and Reconciliation Commission to promote national reconciliation, particularly in Balochistan where excesses have been committed.” (4)

The PPP has assumed the position, (ironically rightly so), that this can only be done through a constitutional amendment, which it has made a component of its proposed ‘constitutional package’.

All the stake holders and actors should admit their faults and guilt, and pledge with sincerity before the people to uphold the supremacy of the Constitution in future.

The Short Order of the Supreme Court has also opened debate about the status of the National Reconciliation Ordinance and its future.

As a part of his power-sharing deal with the PPP Chairperson Benazir Bhutto, Musharraf had promulgated the notorious National Reconciliation Ordinance - a piece of legislation that defies the principles of natural justice and is contrary to the spirit of fundamental rights of the citizens, including the right of equality before law - on October 5, 2007.

According to Musharraf-Bhutto understanding, the Criminal Code of Procedure was amended to withdraw all cases filed against the PPP leader and other holders of public offices between January 1, 1986 and October 12, 1999 on the condition that a review board would determine if political reasons and victimization were involved in the pending cases or not.

The National Accountability Ordinance was also amended to overturn convictions in cases pertaining to the said period in which the accused had been tried in absentia and to halt investigations into pre-October 12, 1999 corruption charges. Obviously the prime beneficiaries of this nasty piece of legislation - the NRO - were Benazir Bhutto and Asif Ali Zardari.

After subverting the Constitution on November 3, 2007, Musharraf accorded protection to the NRO under Article 5 (1) (2) of the Provisional Constitution Order. The Short Order of the Supreme Court has given 120 days to the Parliament commencing from July 31, 2009 to pass the NRO otherwise it would lapse. The question is: will it make any difference?

The lapse of the NRO would allow the present or future government to reopen the cases if it likes against the holders of public offices between January 1, 1986 and October 12, 1999, but not Zardari.

For the present, President Zardari enjoys immunity under Article 248 (2) of the Constitution which says: “No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office” and Article 248 (3) which says: “No process for the arrest or imprisonment of the President or a governor shall issue from any court during his term of office.” Although Asif Ali Zardari is likely to be maligned politically, legally he is quite comfortable at present.

Another aspect of the Short Order that has come under the scrutiny of intelligentsia is the way the Supreme Court has categorized the PCO Judges into:

1. Those who were already the judges of the Superior Courts on November 3, 2007 and took fresh oath after the promulgation of the Provisional Constitution Order of 2007 and the Oath of Office (Judges) Order of 2007 on November 3, 2007.

2. Those who were inducted into the Superior Judiciary between November 3, 2007 and March 22, 2009.

Apparently it looks like travesty of justice that the PCO-Judges of the two categories have been dealt with in different manners. The Judges falling in the former category would have to face the proceedings under Article 209 of the Constitution in the Supreme Judicial Council, whereas the Judges in the latter category have been removed unceremoniously.

However, there is much sense in this categorization. The Judges who took fresh oath after the promulgation of the Provisional Constitution Order on November 3, 2007, have technically reverted back to pre-PCO position and under the Constitution they cannot be removed without recourse to Article 209 of the Constitution, whereas those who assumed the office of Judge under the Provisional Constitution Order had been inducted unconstitutionally and have no standing in law.

The question is what charges would be framed against the Judges whose cases have been sent or are to be sent to the Supreme Judicial Council.

In the Short Order the Supreme Court has referred to the Order passed by the seven-member Bench of the pre-PCO Supreme Court on November 3, 2007 in CMA No. 2869 of 2007 in the Constitution Petition No. 73 of 2007 under which, inter alia, “the Judges of this Court and that of the High Courts including the Chief Justice(s) were required not to take oath under the Provisional Constitution Order or any other extra- Constitutional step . . .”

Since the afore-mentioned Constitutional Petition had been before a larger bench of the Supreme Court, the propriety of the seven-member Bench’s Order is doubtful. Besides, the Supreme Court in its Short Order has stated:

“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 unconstitutional functionary who acquires power otherwise than through the modes envisaged by the Constitution and that any violation of the said clauses would be deemed to be misconduct in terms of the said Article 209 of the Constitution.”

First question is: can this be applied retrospectively? And second is: is this addition really required in the presence of Article 6 (2) of the Constitution?

It is unfortunate for Chief Justice Mohammad Iftikhar Chaudhry that he had taken oath under the Provisional Constitution Order issued by Musharraf in 1999. In fact, he was inducted in the Supreme Court after vacancies were created when Chief Justice Saeed-uz Zaman Siddiqi and Judges like Wajihuddin Ahmed and Nasir Aslam Zahid etc. refused to take oath under the PCO.

He was the member of the Full Bench of the Supreme Court that validated the Supra constitutional Act of the then General Pervez Musharraf.

The redemption for Chief Justice Iftikhar Mohammad Chaudhry is that subsequently the Parliament validated Musharraf’s unconstitutional acts under the Seventeenth Amendment to the Constitution with retrospective effects.

Let us hope he has a sense of remorse for what he had done.

Redemption for us the people is that; that at last we know in what shape our Constitution is at present, thanks to the Supreme Court Presided over by Chief Justice Iftikhar Mohammed Chaudhry. Alas there is no Article 270 AAA in the Constitution.