PLD 2008 Supreme Court 178
Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan, Muhammad Qaim Jan Khan, Muhammad Moosa K. Leghari, Ch. Ejaz Yousaf, Muhammad Akhtar Shabbir and Zia Perwez, JJ
TIKA IQBAL MUHAMMAD KHAN and others---Petitioners
General PERVEZ MUSHARAF and others---Respondents
Constitutional Petitions Nos.87 and 88 of 2007, decided on 23rd November, 2007.
Dates of hearing: 19th, 20th, 21st, 22nd and 23rd November, 2007.
ABDUL HAMEED DOGAR, C.J.---The petitioners, by means of these Constitutional Petitions under Article 184(3) of the Constitution, have called in question the validity of the Proclamation of Emergency of the 3rd day of November 2007, the Provisional Constitution Order No. 1 2007 and the Oath of Office (Judges) Order 2007. They have also sought a direction that the deposed Judges of the superior Courts and the Fundamental Rights be restored, the general elections to the National Assembly and the Provincial Assemblies be held within the period as provided by the Constitution, the detenues held under preventive detention laws be released forthwith and restrictions on the media be withdrawn.
2. On 3rd November 2007 General Pervez Musharraf, Chief of Army Staff proclaimed emergency throughout Pakistan in the circumstances set out in the Proclamation itself. The same is reproduced below in extenso: -
PROCLAMATION OF EMERGENCY
Whereas there is visible ascendancy in the activities of extremists and incidents of terrorist attacks, including suicide bombings, IED explosions, rocket firing and bomb explosions and the banding together of some militant groups have taken such activities to an unprecedented level of violent intensity posing a grave threat to the life and property of the citizens of Pakistan; Whereas there has also been a spate of attacks on State infrastructure and on law enforcement agencies;
Whereas some members of the judiciary are working at cross purposes with the executive and legislature in the fight against terrorism and extremism thereby weakening the Government and the nation's resolve and diluting the efficacy of its actions to control this menace;
Whereas there has been increasing interference by some members of the judiciary in government policy, adversely affecting economic growth, in particular;
Whereas constant interference in executive functions, including but not limited to the control of terrorist activity, economic policy, price controls, downsizing of corporations and urban planning, has weakened the writ of the government; the police force has been completely demoralized and is fast losing its efficacy to fight terrorism and Intelligence Agencies have been thwarted in their activities and prevented from pursuing terrorists;
Whereas some hard core militants, extremists, terrorists and suicide bombers, who were arrested and being investigated were ordered to be released. The persons so released have subsequently been involved in heinous terrorist activities, resulting in loss of human life and property. Militants across the country have, thus, been encouraged while law enforcement agencies subdued;
Whereas some judges by overstepping the limits of judicial authority have taken over the executive and legislative functions;
Whereas the Government is committed to the independence of the judiciary and the rule of law and holds the superior judiciary in high esteem, it is nonetheless of paramount importance that the honourable Judges confine the scope of their activity to the judicial function and not assume charge of administrations;
Whereas an important constitutional institution, the Supreme Judicial Council, has been made entirely irrelevant and non est by a recent order and judges have, thus, made themselves immune from, inquiry into their conduct and put themselves beyond accountability.
Whereas the humiliating treatment meted to government officials by some members of the judiciary on a routine basis during court proceedings has demoralized the civil bureaucracy and senior government functionaries, to avoid being harassed, prefer inaction;
Whereas the law and order situation in the country as well as the economy have been adversely affected and trichotomy of powers eroded;
Whereas a situation has thus arisen where the government of the country cannot be carried on in accordance with the Constitution and as the Constitution provides no solution for this situation, there is no way out except through emergent and extraordinary measures;
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, I, General Pervez Musharraf, Chief of the Army Staff, proclaim emergency throughout Pakistan.
I hereby order and proclaim that the Constitution of the Islamic Republic of Pakistan shall remain in abeyance.
This Proclamation shall come into force at once.
3. In pursuance of the above Proclamation of Emergency, the Chief of Army Staff promulgated the following Provisional Constitution Order No. 1 of 2007: -
PROVISIONAL CONSTITUION ORDER NO. 1 OF 2007
In pursuance of the Proclamation of the 3rd day of November, 2007, and in exercise of all powers enabling him in that behalf, the Chief of Army Staff, under the Proclamation of Emergency of the 3rd day of November, 2007, is pleased to make and promulgate the following Order:
1. (1) This Order may be called the Provisional Constitution Order No 1 of 2007.
(2) It extends to the whole of Pakistan.
(3) It shall come into force at once.
2. (1) Notwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, Pakistan shall, subject to this Order and any other Order made by the President, be governed, as nearly as may be, in accordance with the Constitution:
Provided that the President may, from time to time, by Order amend the Constitution, as is deemed expedient:
Provided further that the Fundamental Rights under Articles 9, 10, 15,16,17,19 and 25 shall remain suspended.
(2) Notwithstanding anything contained in the Proclamation of the 3rd day of November; 2007, or this Order or any other law for the time being in force, all provisions of the Constitution of the Islamic Republic of Pakistan embodying Islamic injunctions including Articles 2, 2A, 31, 203A to 203J, 227 to 231 and 260(3)(a) and (b) shall continue to be in force.
(3) Subject to clause (1) above and the Oath of Office (Judges) Order, 2007, all courts in existence immediately before the commencement of this Order shall continue to function and to exercise their respective powers and jurisdiction:
Provided that the Supreme Court or a High Court and any other court shall not have the power to make any order against the President or the Prime Minister or any person exercising powers or jurisdiction under their authority.
(4) All persons who immediately before the commencement of this Order were in office as judges of the Supreme Court, the Federal Shariat Court or a High Court, shall be governed by and be subject to the Oath of Office (Judges) Order, 2007, and such further Orders as the President may pass.
(5) Subject to clause (1) above, the Majlis-i-Shoora (Parliament) and the Provincial Assemblies shall continue to function.
(6) All persons who, immediately before the commencement of this Order, were holding any service, post or office in connection with the affairs of the Federation or of a Province, including an All Pakistan Service, service in the Armed Forces and any other service declared to be a Service of Pakistan by or under Act of Majlis-i-Shoora (Parliament) or of a Provincial Assembly, or Chief Election Commissioner or Auditor General, shall continue in the said service on the same terms and conditions and shall enjoy the same privileges, if any, unless these are changed under Orders of the President.
3. (1) No court, including the Supreme Court, the Federal Shariat-Court, and the High Courts, and any Tribunal or other authority, shall call or permit to be called in question this Order, the Proclamation of Emergency of the 3rd day of November, 2007, the Oath of Office (Judges) Order, 2007, or any Order made in pursuance thereof.
(2) No judgment, decree, writ, order or process whatsoever shall be made or issued by any court or Tribunal against the President or the Prime Minister or any authority designated by the President.
4. (1) Notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the President, all laws other than the Constitution, all Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan, whether made by the President or the Governor of a Province., shall continue in force until altered, or repealed by the President or any authority designated by him.
5. (1) An Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution.
(2) The provisions of clause (1) shall also apply to an Ordinance issued by the President or by a Governor which was in force ' immediately before the commencement of the Proclamation of Emergency of the 3rd day of November, 2007.
4. Simultaneously, the President issued the Oath of Office (Judges) Order 2007 to the following effect:---
THE OATH OF OFFICE (JUDGES) ORDER, 2007
Whereas in pursuance of the Proclamation of Emergency of the 3rd day or November, 2007, and the Provisional Constitution Order No. 1 of 2007, the Constitution of the Islamic Republic of Pakistan has been held in abeyance;
Whereas Pakistan is to be governed, as nearly as may be, in accordance with the Constitution and the President has, and shall be deemed always to have had, the power to amend the Constitution;
Whereas all courts in existence immediately before the commencement of this Order will continue to function and to exercise their respective powers and jurisdiction, subject to the Proclamation of Emergency and the Provisional Constitution Order No. 1 of 2007;
And whereas to enable the judges of the Superior Courts to discharge their functions, it is necessary that they take Oath of their office,
Now, Therefore, in pursuance of the aforesaid Proclamation and the Provisional Constitution Order No.1 of 2007, and in exercise of all other powers enabling him in that behalf, the President is pleased to make and promulgate the following order:--
1. Short title and commencement.--(1) This Order may be called the Oath of Office (Judges) Order, 2007.
It shall come into force at once.
2. Interpretation.--In this order, "Superior Court" means the Supreme Court of Pakistan, the Federal Shariat Court or a High Court and "Judge" includes Chief Justice.
3. Oath of Judges.--(1) A person holding office immediately before this. Order as a Judge of the Supreme Court, the Federal Shariat Court or a High Court shall cease to hold that office with immediate effect:
Provided that a person who is given, and does make, Oath in the form set out in the Schedule, before the expiration of such time from such commencement as the President may determine or within such further time as may be allowed by the President shall be deemed to continue to hold the office of a Judge of the Supreme Court, the Federal Shariat Court or a High Court, as the case may be.
(2) A Judge of a Superior Court appointed after the commencement of this Order shall, before entering upon office, make Oath in the form set out in the Schedule.
(3) A person referred to in clauses (1) and (2) who has made oath as required by these clauses shall be bound by the provisions of this Order, the Proclamation of Emergency of the 3rd day of November, 2007, the Provisional Constitution Order No.1 of 2007, and, notwithstanding any judgment of any court, shall not call in question or permit to be called in question the validity of any of the provisions thereof.
(4) A Judge of the Supreme Court or Federal Shariat Court shall make oath before the President or a person nominated by him and a judge of the High Court shall make oath before the Governor or a person nominated by him.
5. On 15th November 2007, by the Provisional Constitution (Amendment) Order, 2007 the Chief of Army Staff authorized the President to revoke the Proclamation of Emergency of the 3rd day of November, 2007 on such day as he may deem fit.
6. On 20th of November 2007, by the Constitution (Amendment) Order, 2007 (President's Order No. 5 of 2007) following amendments were made in the Constitution of 1973:---
Amendment of Article 175 of the Constitution:--
In the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, in Article 175, in clause (1), after the word "Province" the words "and a High Court for the Islamabad Capital Territory" shall be inserted.
Explanation.--The words "Nigh Court" wherever occurring in the Constitution shall include" the High Court for Islamabad Capital Territory.
Amendment of Article 186A of the Constitution:
In the Constitution, Article 186A shall be renumbered as clause (1) thereof and in clause (1) renumbered as aforesaid, after the word "High Court" occurring at the end the words "or withdraw any case, appeal or other proceedings pending before a High Court to it and dispose of the same" shall be added.
Amendment of Article 198 of the Constitution:
In the Constitution, in Article 198, after clause (1), the following new clause shall be inserted, namely:--
"(1A) The High Court for Islamabad Capital Territory shall have its Principal seat at Islamabad.
Amendment of Article 218 of the Constitution:--
In the Constitution, in Article 218, in clause (2), in sub-clause (b), for the word "Four" the word "Five" shall be substituted and after the word "Province" the words "Islamabad Capital Territory" shall be inserted.
Addition of Article 270AAA to the Constitution.-
In the Constitution, after Article 270AA, the following new Article shall be added, namely:-
"270AAA. Validation and affirmation of laws etc.--(1) The Proclamation of Emergency of 3rd November, 2007, all President's Orders, Ordinances, Chief of Army Staff Orders, including the Provisional Constitution Order No.1 of 2007, the Oath of Office (Judges) Order, 2007, the amendments made in the constitution through the Constitution (Amendment) Order, 2007 and all other laws made between the 3rd day of November, 2007 and the date on which the Proclamation of Emergency of the 3rd Day of November, 2007, is revoked (both days inclusive), are accordingly affirmed, adopted and declared to have .been validly made by the competent authority and notwithstanding anything contained in the Constitution shall not be called in question in any court or forum on any ground whatsoever.
(2) All orders made, proceedings taken, appointments made, including secondments and deputations, and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, on or after the 3rd day of November, 2007 in exercise of the powers derived from any Proclamation, Provisional Constitution Order No. 1 of 2007, President's Orders, Ordinances, enactments, including amendments in the Constitution, notifications, rules, orders, bye-laws, or in execution of or in compliance with any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding anything contained in the Constitution or any judgment of any court, be deemed to be and always to have been validly made, taken or done and shall not be called in, question in any court or forum on any ground whatsoever.
(3) All proclamations, President's Orders, Ordinances, Chief of Army Staff Orders, laws, regulations, enactments, including amendments in the Constitution, notifications, rules, orders or bye-laws in force immediately before the date on which the Proclamation of Emergency of the 3rd day of November, 2007 is revoked, shall continue in force until altered, repealed or amended by the competent authority.
Explanation. - In this clause, "competent authority" means,-
(a) in respect of President's Orders, Ordinances, Chief of Army Staff Orders and enactments, including amendments in the Constitution, the appropriate Legislature; and
(b) in respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law.
(4) No prosecution or any other legal proceedings, including but not limited to suits, constitutional petitions or complaints, shall, notwithstanding anything contained in the Constitution or any other law for the time being in force, lie in any court, forum or authority against any person or authority on account of or in respect of issuance 'of the legal instruments referred to in clause (1) and on account of or in respect of any action taken by the Chief of Army Staff, the President or any other in exercise or purported exercise of the powers referred to in clause (2).
(5) For purpose of clauses (1), (2) and (4) all orders made, proceeding taken, appointments made, including secondments and deputation, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken in good faith and for the purpose intended to be served thereby.
Amendment of Article 270B of the Constitution:--
In the Constitution; in Article 270B after the word "Assemblies" occurring for the second time, the comma, words and figure ", and the General Elections 2008 to the National Assembly and Provincial Assemblies" shall be inserted.
Amendment of Article 270C of the Constitution:--
In the Constitution, in Article 270C after the brackets, figures and word "(1 of 2000) the words, brackets, figure and comma "or the Oath of Office (Judges) Order, 2007" shall be inserted and for the words "that Order" the words "the said Orders" shall be substituted.
7. Mr. Irfan Qadir, ASC, the learned counsel for the petitioner (in Constitutional Petition No.87 of 2007) contended as under:--
(a) Under Article 245 of the Constitution, the Armed Forces may be required to act, in aid of civil power but they have no power to impose emergency in the country. The present Proclamation of Emergency is tantamount to superseding relevant constitutional functionaries. In fact, the Armed Forces have taken over the civil administration of the country. In Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504) it is laid down that under the 1973 Constitution the Armed Forces can only be called in aid of the civil power and have a limited role to play. There is nothing in the Constitution which makes the Armed Forces supreme authority. Under the present circumstances, the Constitution could not be held in abeyance on any ground including the law of State necessity.
(b) The Provisional Constitution Order No.1 of 2007 is an extra constitutional measure and is violative of the Constitution, particularly Articles 4, 8, 9, 10, 15, 16, 17, 19, 25, 47, 48, 90, 91, 209, 243, 244 and 245 thereof.
(c) The military takeover in October 1999 was validated by this Court in Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) under the principle of State necessity on account of widespread corruption, collapse of economy and one-man rule. After the 13th Amendment to the Constitution, the Prime Minister had become all powerful. Thus, a situation had arisen in which it had become impossible to run the country in accordance with the Constitution. The emergency in Zafar Ali Shah's case continued for three years. However, in the present case it is of temporary nature as general elections to the National Assembly and the Provincial Assemblies have been announced to be held on time.
(d) While validating the extra-constitutional measures this Court, in Zafar Ali Shah's case desired that the rule laid down therein was limited to the controversies involved therein and the Court did not want that it should be followed subsequently. It was a judgment in personam and not in rem.
(e) Assuming that the judgment in Zafar Ali Shah's case applies to the facts and circumstances of the present case and the law of necessity can be invoked, it can be done only if this Court comes to the conclusion that the welfare of the people necessitated the taking of extra-constitutional measures.
(f) In no other country emergency is imposed whatever the situation of law and order and terrorism may be. Even the United States did not impose emergency despite the tragic incident of 9/11.
(g) The letter of 3rd November 2007 of the Prime Minister showing concern over the security situation prevailing in the country was addressed to the President and not to the Chief of Army Staff.
(h) As to the ground of erosion of trichotomy of powers mentioned in the Proclamation of Emergency, the same suggests that for saving a limb the very life has been taken as the whole of the Constitution has been suspended. The Provisional Constitution Order does not serve to preserve the trichotomy of powers.
(j) Although the Constitution has been held in abeyance, yet unbridled powers, including the power to amend the Constitution have been given to the President. The action of 3rd November 2007 raises a further question whether the constitutional machinery was not sufficient to handle the situation.
(k) It is a well settled proposition that the fundamental rights cannot be suspended. Therefore, the action taken against lawyers' community, the media and the press is liable to be struck down as being unconstitutional.
8. Barrister Zafar Ullah Khan, ASC in Constitutional Petition No. 88/2007 made the following submissions:--
(a) Notwithstanding the ouster of jurisdiction of the Courts by the provisions of the Provisional Constitution Order No. 1 of 2007, this Court would continue to exercise power of judicial review where the action or order is found to be mala fide, without jurisdiction and coram non judice. There can be no impediment for the Courts to do justice. The judges of superior Courts are the judges of their own jurisdiction who are quite competent to determine the limits and the extent of the ouster clauses contained in statutes.
(b) The situation prevailing on 3rd November 2007 was not akin to the one which existed at the time of Army takeover on 12th October 1999. The respondent No.2 had assumed the office of the President of the Islamic Republic of Pakistan under the Constitution by virtue of the 17th Amendment. Therefore, he could neither act in his own interest nor in breach of the oath of office. The President to Hold another Office Act, 2004, is an Act of Parliament which stands on a pedestal lower than a constitutional provision. The respondent No. 2 is just a ceremonial Chief of Army Staff but without the powers which he enjoyed in 1999. In his capacity as President, he is bound by the oath of that office. The Chief of Army Staff cannot delegate power to the President either to issue the Oath of Office (Judges) Order, 2007 or to amend the Constitution. Here it seems that the Chief of Army Staff is above the President, which is a ' paradoxical situation.
(c) Nowhere in the world is the Constitution held in abeyance, though Fundamental Rights can be suspended.
(d) The present dispensation is contradiction in terms. Through the Proclamation of Emergency and the Provisional Constitution Order the Constitution has been held in abeyance and the Fundamental Rights have been suspended. However, it is provided in the Provisional Constitution Order that notwithstanding the abeyance of the provisions of the Constitution, Pakistan shall be governed, as nearly as may be, in accordance with the Constitution.
(e) Under Article 89 of the Constitution an Ordinance promulgated by the President ceases to have effect after the expiry of four months unless it is disapproved by the Assembly or is withdrawn by the President earlier. However, an Ordinance in force on 3rd November, 2007 or issued by the President in pursuance of the Provisional Constitution Order No. 1 of 2007 is in the nature .of a permanent statute, which is not required to be laid before the Parliament. Such a power of the President is alien to the Constitution.
(f) The grounds for the military takeover in October 1999 were the collapse of economy, humiliation of the institution of judiciary etc. This time, by taking a different position, the respondent No.2 says that the economy of the country is flourishing, huge foreign investments are coming in Pakistan, refineries are being established, mega projects such as Gwadar Port etc. are going on. On 12th October, 1999, the respondent was the Chief of Army Staff and became the Chief Executive. After taking oath as the President of Pakistan under the Constitution, he is holding only a titular position of Chief of Army Staff. The oath that he took as a member of the Armed Forces is different from the oath he has taken as the President of Pakistan. He cannot take orders from the Chief of Army Staff.
(g) The Proclamation of Emergency and the Provisional Constitution Order 2007 are ultra vires and mala fide. The Parliament (National Assembly and Senate), the Provincial Assemblies, the Federal and the Provincial Governments are still functioning under the Constitution, whereas the same had been dissolved/dismissed in October 1999. If the respondent No.2 wanted to act according to the Constitution, the proper course for him was to approach the Parliament for additional powers to him through an amendment of the Constitution. Instead, he took shelter under the umbrella of the office of Chief of Army Staff for taking extra-constitutional steps.
(h) The actions of the respondent No.2 such as the Proclamation of Emergency and the Provisional Constitution Order neither show loyalty to the State nor obedience to the Constitution and the law as required by Article 5 of the Constitution.
(i) Under the Constitution, one institution cannot encroach upon the powers or functions of any other institution. In the present case, the measures provided by the Constitution have not been adopted to deal with the situation. In order to combat terrorism, Armed Forces should have been called in aid of the civil power.
For other matters the legislature should have played its role. If emergency was to be proclaimed, it could have been done by the National Assembly/President under Article 232 of the Constitution and not by the Chief of Army Staff.
(j) In the present circumstances, emergency could not be proclaimed throughout Pakistan. If cities like Karachi, Sargodha or Islamabad and certain parts of N.-W.F.P. were stricken by terrorist activities, emergency could be proclaimed for those areas alone and the Constitution should not have been suspended by just one stroke- of pen. The action is illegal, without jurisdiction and quoram non judice. In the case of Muhammad Umar Khan v. Crown (PLD 1953 Lahore 528) local martial law imposed in Lahore City was upheld.
(k) Things have been done hurriedly and a lot of problems have been created. The President was required to apply his mind to determine whether in view of the given facts and circumstances emergency ought to have been proclaimed. In the instant case, the Prime Minister addressed a letter to the President on 3rd November 2007 and the Proclamation of Emergency was issued by the Chief of Army Staff the same day. The situation was similar to the emergency imposed in 1973 when within four hours of signing of the 1973 Constitution, the then Prime Minister pulled a paper (emergency order) from his pocket and placed the same before the President, who signed it.
9. Syed Sharifuddin Pirzada, Sr. ASC appearing on behalf of the President of Pakistan/Chief of Army Staff stated that in a similar situation the action of the Armed. Forces both in July 1977 as well as October 1999 was validated by this Court on the touchstone of State necessity, and later by the Parliament; the present emergency was temporary in character; the Government had announced the holding of general elections; whole of the country was already in a grip of terrorism, extremism and suicide attacks as a result whereof the image of Pakistan was being tarnished across the globe; Government's efforts to contain terrorism on the civil side bore no fruit; due to increased interference by some of the former Judges of the superior Courts, particularly, the former Chief Justice of Pakistan it had become impossible to run the affairs of the country in accordance with the provisions of the Constitution and resort to extra-constitutional measures had become imperative and last but not the least, indirectly not only the Constitution provided for emergencies but it also recognized emergencies in martial law times which was apparent from the provisions of Article 280 of the Constitution. The learned counsel closed his arguments with the prayer that the facts and circumstances of the case warranted the passing of an order analogous to paragraphs 6 to 18 (except the direction regarding holding of election within three years) of the Short Order passed in Zafar Ali Shah's case so as to validate the actions of 3rd November 2007 accordingly.
10. Malik Muhammad Qayyum, learned Attorney General for Pakistan appeared on Court notice and made lengthy submissions. The points covered by him, succinctly stated, are that the Proclamation of Emergency of 3rd November 2007, the Provisional Constitution Order No.1 of 2007, as amended and the Oath of Office (Judges) Order; 2007 are extra-constitutional measures taken by the Chief of Army Staff/President of Pakistan in the larger interest of the state necessity and for the welfare of the people and to save the country from chaos and anarchy after having been satisfied that the state institutions were not working within the parameters of the Constitution and that the acts of terrorism had increased beyond the control of the Government; in contrast to the previous two occasions this time minimum deviation from the Constitution was made inasmuch as both the executive and legislative branches of the government continued to function as before and only inevitable action vis-a-vis judiciary was taken; and finally the taking of oath by the Judges under the Provisional Constitution Order No.1 of 2007 and the Oath of Judges (Office) Order, 2007 would not preclude the Judges from doing justice as held by this Court in Zafar Ali Shah's case.
11. In rebuttal, Mr. Irfan Qadir, ASC, learned counsel for the petitioner (in Constitutional Petition No.87 of 2007) made the following submissions:--
(a) Issue of extra-constitutional steps has been conceded by the respondents' side. It is also admitted that this is not a martial law, the present emergency is a temporary measure and it will be lifted very soon. Though jurisdiction of the superior Courts is ousted under the Provisional Constitution Order but in view of the case law, both Syed Sharifuddin Pirzada, learned Sr. ASC and Malik Muhammad Qayyum, learned Attorney General for Pakistan conceded that jurisdiction of the superior Courts had not been completely ousted. As for the doctrines of salus populi est supema lex and the state necessity, the correct legal position is that the Courts in Pakistan have validated extra-constitutional measures under the above doctrines, which are even otherwise recognized all over the world.
(b) The case boils down to one single question whether the Constitution provided any solution qua the facts and circumstances necessitating extra-constitutional measures. The answer to the above question is in the affirmative, in that, as far as the acts of terrorism are concerned, the Constitution provides a remedy in the form of action contemplated under Article 232 read with Article 245 of the Constitution. The Armed Forces can always be called in aid of the civil power to fight terrorism. The plea that the Provincial Government of NWFP was not willing to call the Armed Forces is not tenable, in that, the President could have done so or at the most limited emergency could have been imposed in the relevant areas and not throughout Pakistan. There is hardly any reason for such a drastic measure. Furthermore, emergency should have nexus with the object, which is sought to be achieved.
(c) In the sphere of trichotomy of powers, if one organ of the State is impinging upon the domain of another, it is the Parliament which can take notice of it. In the present case, however, the Parliament has passed a resolution endorsing the Proclamation of Emergency.
(d) The main reason given in the Proclamation of Emergency is that the Government of the country was not being run in accordance with the Constitution. It may be noted that the Government has also the power to legislate under Article 233 of the Constitution and the law so made is deemed to have been repealed on the expiry of the Proclamation of Emergency but such repeal does not revive anything not in force or existing at the time at which the repeal takes place. It is well settled that if a law provides that a certain thing should be done in a certain way, it has to be done in that way alone or not at all. The doctrine of past and closed transaction is also attracted in such situations.
(e) The oath of the office of President requires the incumbent, inter alia, to bear true faith and allegiance to Pakistan, which means that the President must take steps, including extra-constitutional measures in the best interests of Pakistan, whereas the oath of the members of the Armed Forces binds them to preserve and protect the Constitution. Of course, the President can take extra-constitutional measures in the interest of the State necessity and for the welfare of the people.
12. We have heard the learned counsel for the parties as well as the learned Attorney General for Pakistan at great length and have carefully considered the controversies involved in these petitions.
13. In their concise statement, the respondents raised preliminary objection as to the maintainability of these petitions on the ground that the original jurisdiction of this Court under Article 184(3) of the Constitution was explicitly barred. It was stated therein that Article 3 of the Provisional Constitution Order No. 1 of 2007 provided that no Court including the Supreme Court, the Federal Shariat Court and the High Courts and any Tribunal or other authority was empowered to call or permit to be called in question the Proclamation of Emergency of 3rd November 2007, the Provisional Constitution Order No.1 of 2007 and the Oath of Office (Judges) Order, 2007 or any order made in pursuance thereof. A further plea was taken that since the Fundamental Rights contained in Articles 9, 10, 15, 16, 17, 19 & 25 of the Constitution had been suspended, therefore, the same were no more enforceable by this Court under Article 184(3). However, at the hearing of the petitions both Syed Sharifuddin Pirzada, Sr. ASC as well as Malik Muhammad Qayyum, learned Attorney General for Pakistan candidly conceded that in view of the law laid down in Begum Nusrat Bhutto's case (PLD 1977 SC 657) and Zafar Ali Shah's case (PLD 2000 SC 869), this Court would continue to exercise the power of judicial review to judge the validity of the Proclamation of Emergency and the other Orders issued by the President/Chief of Army Staff despite the non obstante clauses contained in the Provisional Constitution Order No. 1 of 2007. We have ourselves considered the question of ouster of jurisdiction of this Court. A somewhat similar objection was dealt with in the case of Zafar Ali Shah (supra) in which the following observations were made:---
"220. It seems quite clear that the Army takeover of 12th October 1999 was extra-constitutional. The superior Courts of Pakistan have laid down that they retain the power of judicial review despite the ouster of jurisdiction which came either from within the Constitution, or by virtue of Martial Law Orders or by legislation. Even non obstante clauses in these cases had failed to prevent such objectives of the incumbent administrations.
Thus visualized, the purported ouster in the Proclamation and the PCO 1 of 1999 of the jurisdiction of the superior courts is an exercise in futility and the power of judicial review remains intact. Both under Islamic doctrines as well as under its constitutional/juridical personality, the superior courts would continue to exercise this power."
The relevant portion from the Short Order Zafar Ali Shah's case is reproduced below: -
"Notwithstanding anything contained in the Proclamation of Emergency of the Fourteenth day of October 1999, the Provisional Constitution Order No. 1 of 1999, as amended and the Oath of Office (Judges) Order No. 1 of 2000, all of which purportedly restrained this Court from calling in question or permitting to call in question the validity of any of the provisions thereof, this Court, in the exercise of its inherent powers of judicial review has the right to examine the validity of the aforesaid instruments. Additionally, submission of the Federation in response to the Court's notice concerning its own legitimacy also suggests that this Court has an inherent authority, arising from the submission of both the parties to its jurisdiction, notwithstanding the preliminary objection raised in the written statement as to the maintainability of the above petitions. In the exercise of its right to interpret the law, this Court has to decide the precise nature of the ouster clause in the above instruments and the extent to which the jurisdiction of the Courts has been ousted, in conformity with the well-established principles that the provisions seeking to oust the jurisdiction of the superior courts are to be construed strictly with a pronounced leaning against ouster. The Constitutional Petitions filed by the petitioners under Article 184(3) of the Constitution are, therefore, maintainable."
14. We would like to reaffirm the view taken by this Court in the aforesaid case of Zafar Ali Shah. This Court is competent to examine the vires of the Proclamation of Emergency of 3rd November 2007, the Provisional Constitution Order No. 1 of 2007 and the Oath of Office (Judges) Order, 2007 until these measures are protected by making an amendment in the Constitution. These petitions are, therefore, held maintainable under Article 184(3) of the Constitution.
15. The Proclamation of Emergency is essentially founded on two main grounds, viz., the security situation prevalent in the country and the erosion of trichotomy of powers in consequence of increased interference in the Government policies by some former Judges of the superior Courts, particularly the former Chief Justice of Pakistan, which adversely affected the economic growth and the law and order situation in the country. By letter of 3rd November, 2007, on the subject of "national security situation", the Prime Minister apprised the President of Pakistan as to the magnitude of extremism, militancy and terrorism, which were going on in the country and the widespread perception of overstepping the limits of judicial authority and taking over of executive functions. Along with the letter, the Prime Minister enclosed details of law and order incidents during the period from April to October 2007 posing grave threat to internal security of the country. For proper understanding of the situation prevailing on 3rd November 2007, it is advantageous to reproduce the letter of the Prime Minister in toto:-
"SUBJECT: NATIONAL SECURITY SITUATION
I am writing to you to share my thoughts on the current national security situation and the risks that it represents for the future of Pakistan.
2. The Government has made serious and sincere efforts to revive the economy, maintain law and order and to curb extremism and terrorism in the country. In the last few months, however, militancy, extremism and terrorist activities have been in ascendance, particularly in some districts of NWFP where the writ of the government is being eroded and on-State militants are apparently gaining control. There have been a number of bomb blasts and suicide attacks in other parts of the country including the recent suicide attack on a political rally in Karachi on 18th October, 2007. During the last ten months, 1322 precious lives have been lost and 3183 persons have been injured. Details of such incidents between April - October, 2007 are enclosed. The executive measures taken against extremist elements to contain militancy and terrorist activities have, on a number of occasions, been called into question by some members of the judiciary making effective action impossible.
3. There has been increasing interference by some members of the judiciary in government policy, adversely affecting economic growth, in particular. The corner stone of the economic policies of the government is privatization, liberalization and deregulation which create economic growth and investment. Both local and foreign investment has been negatively affected.
4. It cannot be disputed that the legality of executive measures is open to judicial scrutiny. The wisdom or necessity of a policy or a measure is an executive function and not open to judicial review, however, in the recent past, some members of the judiciary have, nevertheless, departed from these norms. While we all are committed to the independency of the judiciary and the rule of law and hold the superior judiciary in high esteem, it is nonetheless of paramount importance that the Honourable Judges confine the scope of their activity to the judicial function. While judges must adjudicate they must neither legislate nor assume the charge of administration.
5. Most importantly, constant interference in executive functions, including but not limited to the control of terrorist activity, economic policy, price controls, downsizing of corporations and urban planning, has weakened the writ of the government. This has increased the incidents of terrorist attacks thereby posing grave threat to the life and property of the citizens of Pakistan and negatively impacting the economy.
Wide-ranging suo motu actions of the courts negate the fundamentals of an adversarial system of justice. The police force has been completely demoralized and is fast losing its efficacy to fight terrorism. Intelligence Agencies have been thwarted in their activities and prevented from pursuing terrorists.
6. A large number of hard core militants, extremists, terrorists and suicide bombers, who were arrested and being investigated have been released. The persons so released are reported to be involved in heinous terrorist activities, resulting in loss of human life and property. Militants across the country have, thus, been encouraged while law enforcement agencies subdued.
7. There is a widespread perception of overstepping the limits of judicial authority and taking over of executive functions. Privatization is at a standstill while domestic and foreign investors are being compelled to reconsider investment plans thus adversely affecting the economy.
8. On the other hand, an important constitutional institution, the Supreme Judicial Council, has been made entirely irrelevant by a recent order. Detailed reasons for this order are still awaited despite a lapse of three months. Judges have, thus, made themselves immune from inquiry into their conduct and are now beyond accountability.
9. The law and order condition in the country as well as the economy have been adversely affected and trichotomy of powers eroded. A situation has thus arisen where the routine and smooth functioning of government machinery is becoming increasingly difficult and causing grave concern among ordinary citizens about their security. As evident from the attached list, there has been an unusual increase in security related incidents highlighting the gravity of the situation.
10. Mr. President, the contents of this letter reflect my views and public opinion about the current scenario. For any State to function, all the three pillars of State must act in harmony in the best national interest. Pakistan is a country that achieved independence after immense sacrifices and has tremendous potential to develop. Prosper and be recognized among the comity of nations as a country with an exciting future.
DETAILS OF LAW AND ORDER INCIDENTS REPORTED FROM 1ST APRIL TO 30TH APRIL, 2007
1st April 2007
2nd April, 2007
9 persons killed and 11 injured in clash between tribal lashkars in Bara.
3rd April, 2007
An employee of WAPDA killed in land-mine explosion in Sibi
4th April, 2007
1 person killed in mine blast near Sui.
7 Army officials and a civilian were injured due to exchange of fire between militants and LEAs in South Waziristan.
5th April, 2007
45 foreigners and 7 locals killed and four LEAs and four civilians were injured during clash between militants and LEAs in South Waziristan.
One person killed in land mine explosion in Sui.
6th April, 2007
28 persons killed, 24 injured during sectarian clashes in Kurram Agency.
7th April, 2007
1 killed and 3 injured in IED (Improvised Explosive Device) explosion at Landi Kotal.
8 killed during sectarian clash in Kurram Agency.
8th April, 2007
Death toll rises to 38 persons killed and nearly 90 injured in a sectarian clash at Kurram Agency.
2 LEAs officials injured in IED explosion at Tank
9th April, 2007
Death toll rises to 45/46 persons in Kurram Agency.
10th April 2007
3 persons injured in mine explosion at Sui.
4 LEAs personnel killed and two injured in mine explosion in Sibi.
4 personnel killed and 2 injured when a landmine hit a vehicle at Kohlu.
11th April 2007
12th April 2007
1 woman killed in sectarian violence in Kurram Agency.
13th April 2007
1 killed in IED explosion at Bannu.
3 LEAs officials killed in mine blast near Kohlu.
14th April 2007
15th April 2007
15th April 2007
16th April 2007
2 persons killed and 5 injured in a bomb explosion in Peshawar.
In a separate incident one police official was killed.
17th April 2007
2 WAPDA officials shot and injured at Quetta
18th April 2007
19th April 2007
1 official injured in an explosion in Sibi.
20th April 2007
1 person killed and one injured in mine explosion in Dera Bugti.
21st April 2007
22nd April 2007
3 persons killed in IED explosion in Mastung.
11 persons injured in violent protest of militants in Bara.
23rd April 2007
4 killed and 10 injured in militants LEAs clash at Bara.
3 children killed when a hand grenade was lobbed at a house at Mastung.
24th April 2007
2 persons injured in an explosion took place in main bazaar at Upper Dir.
25th April 2007
2 persons killed in sectarian violence in D. I. Khan.
26th April 2007
27th. April 2007
28th April 2007
27 persons reported killed and 39 injured in a suicide bombing in Charsadda.
29th April 2007
3.0th April 2007
1 person killed in Dera Murad Jamali and 1 injured in Sui in mine explosions.
DETAILS OF LAW AND ORDER INCIDENTS FROM 1ST MAY TO 31ST MAY, 2007
1st May 2007
2nd May 2007
One FC official shot and killed by unknown culprits in Orakzai Agency.
3rd May 2007
Two persons injured in IED explosion in Quetta
4th May 2007
Seven Army officials injured in a grenade attack on their vehicle in North Waziristan.
One Government official killed in an attack in Miranshah.
5th May 2007
Three persons killed and one injured in two separate incidents of sectarian violence in Layyah and D.I. Khan.
One FC official injured in an attack by unknown miscreants in Dera Bugti.
6th May 2007
Five LEA personnel including two officers injured in a rocket attack in Kohlu.
Ammunition Depot of Police LinesKohat destroyed in a powerful explosion.
PPPP Leader Qamar Abbas killed along with his companion in an attack in Peshawar.
7th May 2007
Two FC officials injured in a landmine explosion in Dera Bugti.
8th May 2007
Eight oil tankers destroyed in an explosion in Khyber Agency
9th May 2007
Two Police officials killed in an attack by unidentified miscreants in Karachi.
10th May 2007
Two IED explosions took place in Sui and Khuzdar and a rocket attack on F
C post in Dera Bugti with one person injured in Sui.
11th May 2007
12th May 2007
27 persons initially reported killed and 140 injured during CJP's visit to Karachi.
13th May 2007
Death toll in the Karachi violence reported as having risen to 38.
14th May 2007
Two dead bodies with gunshot wounds recovered from Karachi.
Two LEA officials injured in incidents of violence in Karachi.
Two persons killed and 15 including 4 LEA officials injured in grenade attacks in Tank.
15th May 2007
26 persons killed and 24 injured in a suicide attack in a restaurant in Peshawar.
16th May 2007
Seven persons killed and 18 including 4 LEA officials injured in a grenade attack/exchange of fire in Tank.
Three persons killed and 10 injured in operation in Jungle Pir Alizai Afghan refugee camp in Chaman.
17th May 2007
One FC official killed in an attack on FC post in Zhob.
Three FC officials injured in a landmine explosion in Kohlu.
18th May 2007.
One person injured in IED explosion in Quetta.
19th May 2007
Nine Government officials abducted in North Waziristan.
Eight persons injured in sectarian violence in Kashmore.
20th May 2007
Five persons killed and one FC official injured in a clash between two militant groups in Bara.
Four persons injured in a landmine explosion in Bajaur Agency.
21st May 2007
Two FC officials injured in grenade/rocket attack in Tank.
22nd May 2007
Four militagts killed in a LEA operation in North Waziristan.
23rd May 2007
Two persons killed and two injured in an explosion near GEO TV office in Hub.
Four persons including an LEA official abducted in Bannu.
24th May 2007
25th May 2007
26th May 2007
Two Army officials killed and seven injured in a remote controlled bomb explosion in Tank.
Two Government doctors kidnapped in Lakki Marwat.
3 dead bodies found in Karachi.
27th May 2007
One person died and one injured in an IED explosion in Quetta.
28th May 2007
Three LEA officials killed and, three injured in attack in Tank.
Four miscreants killed and four including three Police officials killed in a clash in Bannu.
29th May 2007
One person killed and five injured in IED explosion in Peshawar.
Four persons killed in a clash between Bugti tribesmen and LEAs in Dera Allahyar.
30th May 2007
Four killed and six including three LEA officials injured in a clash between tribesmen and LEAs in Jaffarabad.
31st May 2007
13 persons killed and two injured in an attack on the house of the Political Agent, Khyber Agency.
11 persons killed and two injured in an attack on the house of SDO, C&W Deptt. in Tank.
DETAILS OF LAW AND ORDER INCIDENTS FROM 1ST JUNE TO 30TH JUNE, 2007
1st June 2007
Assistant Manager, ZTBL, Serai Naurang got injured as a result of an IED explosion in his car on Bannu, DI Khan Road, Bannu.
A bomb exploded in the car of a Mobile Credit Officer, ADB in front of Agriculture University, injuring him and damaging the vehicle in Bannu.
2nd June 2007
5 persons including the Tehsildar, a local journalist and a Levies official killed in IED explosion in Bajaur Agency.
Two persons including one Sunni Tehrik worker killed in Karachi
Marri miscreants fired 2 rockets on FC post injuring one FC personnel in Kahan.
3rd June 2007
4th June 2007
5th June 2007
Unidentified culprits shot dead Syed Mehdi Hussain (Director, Information Department, NWFP) in Jhanda Bazaar area in Peshawar
6th June 2007
Unidentified motor-cyclists shot dead Aftab Farooqi (clerk, Education Department) in Basti Ustrana area in DI Khan
7th June 2007
Miscreants fired two rockets towards the city causing injuries to seven persons in Bannu.
9th June 2007
An explosion took place in front of Juma Khan Hotel Main RCD highway/Hub, killing three persons and injuring six others in Lasbella.
10th June 2007
Unidentified persons shot/killed four persons and injured five other during marriage function of any army officer in Mianwali.
11th June 2007
Miscreants fired three rockets which landed near a hotel, resulting in injuries to five persons in Shikarpur.
12th June 2007
13th June 2007
Motorcyclist shot and killed Wasif Aziz (President, Muttahida Tulaba Mohaz/active worker of IJT, Karachi).
Miscreants lobbed hand grenade near a shop at Sariab Road resulted into injuries to four persons including two policemen in Quetta
Unidentified assailants shot and injured Rana Javed Iqbal (DSP Security, CCPO) at Killi Shabo, Quetta.
Miscreants hurled hand grenade at Golimar Chowk, which exploded causing injuries , to five persons including two PCs.
14th June 2007
Miscreants opened fire on a vehicle on Zargoon Road Quetta which resulting into killing of 9 and injuring 4 persons. The dead persons include 7 soldiers, 1 police constable.
15th June 2007
An IED explosion took place in a CD shop at Badaber area, Peshawar which resulted into injuring of two persons.
One Nawab Khan fired/killed Police Constable Zubair Khan
16th June 2007
An explosion took place in an internet Cage on Kohat Road, Peshawar near Speen Jumat, injuring two persons.
17th June 2007
18th June 2007
A remote controlled explosive device went off near Levies vehile at Barkalay Khur which resulted into injuries to three persons including two Levies personnel in Bajaur Agency.
19th June 2007
Miscreants lobbed a hand grenade on Police post in areas PS Urmar in Peshawar which resulted into injuries to two persons including a police constable.
On 18th June, miscreants exploded a remote controlled bomb near official vehicle of Political Agent, injuring three officials in Bajaur Agency.
A jet place dropped two bombs on suspected Mujahideen Training Camp at Saliri located in Tehsil Datta Khel in N.W. Agency. Resultantly, 17 persons were killed and ten injured.
20th June 2007
On June 19, one police constable and a watchman of a nearby market sustained injuries when unknown culprits hurled a hand grenade at Police check-post Shamshatu, in Peshawar.
21st June 2007
Three persons were killed when their tractor ran over an anti tank mine near an FC check post in Khapyanga area in Lower Kurram Agency.
One Abdul Munan lobbed a hand-grenade towards a religious congregation being held at Tableeghi Markaz on Bannu Miranshah Road, in Bannu killing one and injuring 20 persons.
Three sunnis were killed in a bomb blast, at village Khapyanga/Alizai, Khurram Agency.
22nd June 2007
Two motorcyclists lobbed a hand grenade in a barber shop which resulted into killing of one person and injuries to four others in Quetta.
An IED explosion took place in Ganji Mandi, which resulted in injuries to one person in Chaman.
One Shakir Muhammad hurled a hand grenade at Tableeghi Markaz which exploded, killing two persons including culprit and injured 19 others in Bannu.
Beheaded body of an Afghan refugee was recovered in Bajaur Agency.
23rd June 2007
Detonation of remote control IED targeting a vehicle conveying FC men, resulted in death of three and injuries to two officials in Mirali.
24th June 2007
On 23 June, six persons were killed and three injured as a result of armed clashes between militant groups.
25th June 2007
Police recovered dead body of Ghulam Rasool (ASI) near Jamrao canal and Syed Ghulab Shah (ASI) near Delipota Mainer, in Mirpur Khas/Naushero Feroze.
26 June 2007
Two persons killed and four injured in an armed clash between militants in Tirah.
Two shot dead in an attack in Quetta.
27 June 2007
An IED explosion near Ghulam Jan Phatak resulted into killing of one child and injuries to another two in Parachanar.
28th June 2007
29th June 2007
Culprits slaughtered one Tamash Khan (Afghan Refugee) and left a chit with the dead body declaring him a US Spy in Mohmand Agency.
One person got injured due to explosion of anti-personnel mine in Bajaur Agency.
An explosion occurred in parked oil tanker near gasoline pump at Landikoktal which engulfed nearby 14 oil tankers completely destroying all of them.
30th June 2007
DETAILS OF LAW AND ORDER INCIDENTS FROM 1ST JULY TO 31ST JULY, 2007
1st July 2007
Two Afghan refugees killed when an explosive device was detonated in Peshawar.
In a separate incident, three persons were injured when an explosion took place in a parked bus in Peshawar.
Two persons killed in exchange of heavy fire between two groups in Khyber Agency.
2nd July 2007
3rd July 2007
Nine persons including one Rangers official killed 136 injured in Lal Masjid incident-in Islamabad
Four FC officials injured in mine-blast in Dera Bugti
An activist of MQM-H killed in Karachi.
4th July 2007
Eight persons including six LEA officials killed and 12 including eight LEA officials injured in a suicide attack in North Waziristan.
5th July 2007
Four Police officials killed and two injured when their police mobile was fired upon by unknown culprits in Peshawar.
Three locals killed and SSP Swat and his driver sustained injuries in a bomb blast in Mingora.
One police official killed after being attacked by miscreants in Swat.
6th July 2007
Four Army personnel killed in a remote controlled explosion in Malakand Agency.
One Police official killed and five others including two Police officials injured when an IED fitted bicycle exploded in Jaffarabad.
7th July 2007
Unknown culprits fired anti-aircraft shell on VVIP airplane.
Three Police officials including a DSP injured when their mobile was fired upon in Swat.
Two locals and four kidnappers were killed and four persons were injured in an attempt to kidnap an Army Captain in Nurth Waziristan
8th July 2007
An Army officer killed and two Rangers personnel injured in Lal Masjid operation in Islamabad.
Three Chinese businessmen killed and one injured in Peshawar.
One levies official killed and seven injured as a result of remote controlled explosion in Bajaur Agency:
Four Levies personnel kidnapped in Bajaur Agency.
9th July 2007
One Police official killed land three injured in an ambush in Bannu.
10th July 2007
68 persons initially reported killed and 32 injured in the Lal Masjid incident in Islamabad.
10 persons injured in two IED explosions in Lower Dir.
Five persons injured in IED explosion in Bajaur
11th July 2007
An army jawan killed in a grenade attack in Kohat.
12th July 2007
Four persons including three police officials killed in a car explosion in Swat.
Three Government officials killed and three persons including two government officials killed in a suicide attack in Miranshah.
Nine FC Scouts injured when 20-22 rockets were fired on Bajaur Scouts HQs in Bajaur.
13th July 2007
Three police officials and two suicide attackers killed when an explosive fitted car was searched.
Three Government officials killed and three injured in a suicide attack while a dead body was recovered in North Waziristan.
14th July 2007
24 LEA personnel killed and 26 injured in a suicide attack in North Waziristan.
15th July 2007
30 persons including 17 Police officials and one FC person killed and 52 injured in a suicide attack in DI Khan.
15 LEA personnel including 4 civil employees killed and 47 injured in suicide attacks in Swat.
One FC personnel killed and five injured when fired upon by miscreants in Turbat.
16th July 2007
17th July 2007
Three LEA personnel killed and three injured in suicide attack in North Waziristan
18th July 2007
17 LEA personnel killed and 18 injured in incidents of firing and explosion in Miranshah.
17 persons killed and 72 injured in suicide attack in Islamabad.
19th July 2007 18 persons killed and 32 injured in a suicide attack in a mosque in Kohat.
7 persons killed and 26 injured in a suicide attack on Police Training College in Hangu.
29 killed, 30 injured in a suicide attack on Chinese engineers in Hub.
20th July 2007
Two persons including one LEA person killed and five injured in a suicide attack in Miranshah.
21st July 2007
Four persons including two LEA personnel injured in mortar fire in Swat.
22nd July 2007
Nine LEA personnel injured in two incidents of IED explosions in North Waziristan.
23rd July 2007
Seven LEA personnel injured in separate incidents of firing and explosions by miscreants in North Waziristan
24th July 2007
Two LEA officials kidnapped and later killed in Bajaur Agency.
Two LEA personnel killed and eight injured in armed attack in North Waziristan.
A Police official killed by unidentified miscreants in Lower Dir.
Abdullah Mahsud killed in an LEA operation Zhob.
25th July 2007
Eight persons killed and 41 including seven Police officials injured in a rocket attack on Bannu city by unknown assailants.
26th July 2007
11 persons including 8 police officials injured in IED explosion
27th July 2007
14 persons including 7 Police officials died and 55 injured in a suicide attack in Islamabad.
Mr. Raziq Bugti, spokesman for Government of Balochistan killed in a tiring incident in Quetta.
Three FC officials injured when their vehicle was hit by a remote controlled explosive device in Bajaur Agency.
28th July 2007
Unknown motorcyclists hurled a hand-grenade into a house, which exploded killing daughter of one Habbar (settler) at Khuzdar.
An anti personnel mine planted on Single Road went off killing one Sunni and injuring two other at Kurram Agency.
Unidentified miscreants carried out small arms firing on police killing one police constable at Kohat.
29th July 2007
Two motorcylists were injured in a landmine explosion at Killi Wadera at Kohlu.
Four unidentified culprits shot/killed Police Constable on duty and fled away at Kohat.
30th July 2007
Unknown culprits fired two missiles on Tochi Scouts Fort, injuring four army sepoys at North Waziristan.
An IED exploded near Thall picket causing injuries to seven para-military soldiers. 3 personnel of Tochi Scouts were martyred in an IED explosion in Tehsil Miranshah at North Waziristan.
31st July 2007
Assailants targeted FC vehicle with a remote-control bomb resultantly 06 fix personnel sustained injuries at Tank.
04 FC personnel were kidnapped/taken by unidentified miscreants Later 01 abductee was killed at Bannu.
Unidentified miscreants attacked a police mobile vehicle with a remote controlled explosive device causing injuries to 04 policemen including a Sub-Inspector at Swat.
DETAILS OF LAW AND ORDER INCIDENTS FROM 1ST AUGUST TO 31ST AUGUST, 2007
1st August 2007
A remote control bomb exploded near a police mobile. Resultantly, four police officials including SHO were injured and vehicle was damaged at Swat.
2nd August 2007
1 killed and 5 injured in suicide attack at Swat.
Suicide bomber and an ASI were killed while a constable sustained injuries in Police Training School, Sargodha.
5 police officials suffer injuries in an IED explosion at Gujranwala
3rd August 2007
4th August 2007
A suicide bombe rams his car into taxi stand at Parachinar, claiming 09 lives and injuring 40 others.
4 para-military soldiers martyred in NWA
5th August 2007
6th August 2007
An IED went off when a PAF bus (carrying staff) in Peshawar was passing near it. 3 personnel were injured.
7th August 2007
Miscreants killed 1' and injured another FC official at Kohat.
8th August 2007
1 soldier was martyred due to an IED explosion near Banda post/Miranshah.
9th August 2007
10th August 2007
16 FC personnel unaccounted for in South Waziristan.
Assailants attacked convoy of Pak Army while it was on its way from Miranshah to Gharlamai/Datta Khel. 5 soldiers sustained injuries.
11th August 2007
Miscreants fired on police patrolling party on Hangu-Thall road. 3 police personnel were killed while 2 civilians were injured.
An IED exploded injuring a sepoy. 2 civilians were killed and 4 other wounded.
Militants opened fire on Gora Qabristan FC check post, injuring Lance Naik of Thall Scouts in NW.
12th August 2007
13th August 2007
Unidentified culprits lobbed a hand grenade on police patrolling party causing injuries to 3 persons including 2 police officials in Quetta.
A bomb blast in vehicle near Kalam. killing/injuring several persons.
14th August 2007
4 injured in two 1ED explosions at DG Khan
Beheaded body of a captive FC soldier recovered near SWS fort/Jandola, FR Tank
3 Thall Scouts sustained injuries at Gora Qabristan post.
15th August 2007
Small arms firing on LEAs kill 2 personnel at Sui.
16th August 2007
2 LEAs personnel killed in mine explosion at SWA.
A joint convoy of Pak army and Thall Scouts was targeted by miscreants with an IED. 2 para-military soldiers were martyred and 1 injured in NWA
17th August 2007
Assailants ambush security forces in different parts of South Waziristan/12 soldiers martyred.
18th August 2007
1 policeman killed, 4 injured in grenade attack at Bannu. Unidentified miscreants lobbed hand grenade at police post in Mandan area and escaped. I police constable was killed while four other got injured.
19th August 2007
Assailants martyr 2 LEAs personnel in North Waziristan
20th August 2007
3 LEAs personnel killed and 17 injured in suicide attack at Thall.
21st August 2007
22nd August 2007
5 persons injured in grenade attacks on houses/shop of 3 settlers in Quetta.
3 Frontier Constabulary personnel lay down their lives at Bannu.
Army helicopter (MI-17) targeted by miscreants at South Waziristan/ 1 solider martyred in cross fire.
23rd August 2007
1 miscreant killed, 3 FC troops injured at Hangu.
11 persons injured in an IED explosion in a shop at Quetta.
19 injured in two grenade attacks at Quetta.
Unknown armed militants (200/250) attacked FC Fort at Navi Dhand 3 FC personnel sustained injuries at Hangu.
24th August 2007
2 persons injured in IED explosion at Bajaur Agency.
Suicide attack on a military convoy claims lives of 5 LEAs personnel/injures 29 at Mirali/North Waziristan.
25th August 2007
3 LEAs persons injured due to firing of miscreants at Sibi.
Lt. Col. Shahid, Subedar Younus Afridi and Sepoy Jehanzeb of Bajaur Scouts while coming from Tehsil compound to Scouts Fort, Laddah went missing in SWA.
26th August 2007
4 policemen killed, 2 injured in suicide attack at Swat.
1 soldier was martyred and 3 others sustained injuries in NWA
27th August 2007
28th August 2007
2 persons injured in mine explosion at Kohlu.
29th August 2007
2 persons injured in rocket attack at Peshawar.
1 person killed another injured in mine explosions at Dera Bugti and Bagh.
30th August 2007
31st August 2007
3 persons including 2 policemen injured in IED explosion at Charsada.
2 FC personnel killed, 6 injured in miscreants attack at Malakand Agency.
1 person killed, a constable injured in IED explosion at Malakand Agency.
211 army/FC personnel surrender to Taliban/militants without putting up a fight in South Waziristan.
DETAILS OF LAW AND ORDER INCIDENTS FROM 1ST SEPTEMBER TO 30TH SEPTEMBER, 2007
1st Sep 2007
5 persons including 3 FC personnel killed, 6 injured in suicide attack at Bajaur Agency.
1 FC person killed, 4 injured in mine blast at Sui.
A bridge collapsed near Sher Shah, Karachi resulting in death of five persons.
2nd Sep 2007
10 personnel of Mohmand Rifles go missing at Tehsil Safi, Mohmand Agency.
3rd Sep 2007
4th Sep 2007
Unidentified miscreants detonated an IED near a police post which resulted into injuries to a police constable in Dir.
2 bomb explosions at Rawalpindi claim 25 lives.
5th Sep 2007
Miscreants kill 3 persons including 2 FC men at Quetta.
6th Sep 2007
7th Sep 2007
48 shops damaged in IED explosion at Swat.
A bomb explosion in Karachi injures 10 persons.
8th Sep 2007
24 persons injured in IED explosion at Peshawar.
2 persons at LEAS killed, 3 injured in firing by miscreants at Kohistan.
Car bomb explosion at Peshawar leaves 12 persons injured.
Unidentified assailants fired three rockets on Sar Lara post of Bajaur Levies, Tehsil Khar. Two sepoys sustained injuries.
9th Sep 2007
Four army soldiers martyred in an ambush by militants at Kohistan.
10th Sep 2007
Armed culprits gun down a lawyer and injure an Inspector Rangers at Karachi.
Subversive activities of Taliban/ militants continued in Waziristan and Malakand Agencies/13 soldiers injured, one martyred.
11th Sep 2007
18 persons killed while 20 injured in suicide attack at Bannu.
Suicide attack claims 17 lives/ leaves 12 injured at D.I. Khan.
Skirmishes continue between LEAs and Taliban in tribal area/02 Shawal Rifles jawans kidnapped from NWA.
12th Sep 2007
Miscreants attack a post/kidnap 12 persons of LEAs at Bannu.
Two LEAs personnel injured in an ambush by. Taliban while 12 others go missing/feared abducted at Bannu.
A police sub-inspector mercilessly shot/killed in Swat.
Unknown culprits targeted Thall Scouts/Pak. Army convoy with and IED injuring 2 sepoy.
13 Sep 2007
15 persons killed, 30 injured in explosion at Tarbela.
7 persons killed, 7 injured by miscreants firing on a bus at Karachi.
3 civilians killed in a landmine explosion at Sui/Dera Bugti.
Military operation continues in Makeen, SW. Agency/militants suffers heavy losses/10 Scouts also martyred.
14th Sep 2007
15th Sep 2007
2 persons killed, 2 injured in IED explosion at Bajaur Agency.
16th Sep 2007
1 killed in mine explosion at Dear Bugti.
17th Sep 2007
Miscreants kill 2 FC personnel near Sibi.
20 soldiers massacred by militants in Tehsil Shawal, N.W. Agency.
18th Sep 2007
19th Sep 2007
7 FC personnel kidnapped by miscreants at Hangu.
6 FC personnel injured in mine blast at Dera Bugti.
20th Sep 2007
21st Sep 2007
22nd Sep 2007
2 killed and 9 injured in attacks on LEAs in Bajaur Agency.
Supporters of Maulana Fazalullah ransack a police post at Swat, killing a PC and interning 02 others.
23rd Sep 2007
24th Sep 2007
25th Sep 2007
3 persons injured in mine explosion at Bajaur Agency.
IED explosions at Tank and Thal (2 killed, one injured).
26th Sep 2007
27th Sep 2007
SP along with two security guards shot dead at Quetta.
28th Sep 2007
A soldier martyred and 13 others injured in an attack on army convoy at Tan.
29th Sep 2007
53 persons injured during protests at Islamabad.
30th Sep 2007
DETAILS OF LAW AND ORDER INCIDENTS REPORTED FROM 1ST OCTOBER TO 28TH OCTOBER, 2007
1st Oct 2007
15 persons killed and 31 injured in suicide bombing at Bannu.
02 persons killed and 10 injured in IED explosion at Kurram Agency
2nd Oct 2007
06 LEAs officials injured in attack on FC camp at Malakand
03 LEAs personnel killed and 02 injured in attack at Hangu
32 FC personnel kidnapped by armed Taliban from a picket in Bannu
Militants fired rockets and mortar shells on Goosh picket of security forces from village Spalga at Miranshah. Security forces retaliated, killing 01 girl and injuring 02 boys as a shell landed in a house.
3rd Oct 2007
02 FC personnel killed and 04 injured in miscreants attack at NWA.
02 Army personnel martyred in a rocket attack at Dandi Kach post NWA
11 persons killed and 08 injured in IED explosion at NWA
02 policemen killed and 02 injured in attack on police post at Kotki/Hangu.
4th Oct 2007
13 tribesmen killed in an IED explosion at Touda Cheena Bridge, NWA.
SHO PS Ghazni Khel killed by unidentified miscreants' at Lakki Marwat
5th Oct 2007
02 persons were injured due to IED explosion in Dinari Pat areas, at Sui.
6th Oct 2007
02 persons were killed by unidentified culprits by opening fire on a vehicle near Tablighi Markaz at Hangu.
1 JCO and 19 officials of security forces were martyred in a unknown miscreants attack on a convoy at The Datta & Miranshah, NWA
7th Oct 2007
07 soldiers killed in an attack on Pak Army convoy in NWA by assailants and injuring several others.
8th Oct 2007
01 FC personnel injured in a mine explosion in Kahan areas at Kohlu.
45 personnel of LEAs were martyred and 51 sustained injuries whereas 33 jawans were reportedly unaccounted for, in Khushali Tori Khel in NWA.
9th Oct 2007
10th Oct 2007
Ex-Naib Nazim Kohlu killed by unknown motorcyclists at Quetta.
22 persons were injured due to a local made bomb blast at King Video Centre, Nishtarabad, Peshawar.
03 police officials sustained serious injuries when assailants exploded remote-control bomb near police van at Building Chowk, Kohat.
Gunship helicopter bombed Tehsil Mirali areas, killed 30/35 assailants including foreigners and 20 civilians injured at NWA
01 army officer and a soldier killed while 04 sustained injuries in an IED explosion by unknown assailants at NWA.
11th Oct 2007
01 person injured in IED attack on CD shop in Karak.
01 levies man killed and 01 miscreant arrested in injured condition in cross-fire with miscreants at Malakand.
Dead body of personnel of security forces was retrieved from battle zone while 02 missing jawans reached Mirali Fort safely. Number of martyred security personnel has risen to 58 while 03 jawans are still missing at NWA.
A Naib Subedar injured and partial damage to Levies picket, Inayat Killi/The Khar by miscreants at Bajaur Agency:
12th Oct 2007
Unknown culprits blew up tractor-water tanker of OGDCL with remote-control IED near Pirkoh, injuring a boy at Dera Bugti.
13th Oct 2007
06 captives beheaded by masked Taliban in open ground in front of several spectators in Mohmand Agency.
14th Oct 2007
15th Oct 2007
Beheaded body of a Constable Zartalah of Mohmand Rifles was (kidnapped on 07) found in Pir Killi, The Miranshah by Political Administration
16th Oct 2007
17th Oct 2007
18th Oct 2007
02 bomb blasts on Mohtarma Benazir Bhutto's rally: 143 dead and about 350 injured in Karachi.
19th Oct 2007
01 FC constable and 02 passersby sustained injuries when explosive material fitted with a bicycle went off near IB Zonal Office at D.I. Khan,
An IED explosion took place in a car which resulted into injuries to one and caused damage to the vehicle at Peshawar
20th Oct 2007
Three masked motorcyclist stopped a vehicle carrying passengers at Tehsil Khar dismounted one Malik Akhunzada, opened fire on him who succumbed to injuries, at Bajaur Agency.
Unknown masked men gunned down Maulvi Gul Sher (Agency Councillor) near Billot Khowar at Bajaur Agency.
05 persons killed and 26 got injured in an IED explosion at Dera Bugti.
21st Oct 2007
01 culprit killed and 02 injured due to IED during its planting at Karak.
Child injured in mine explosion at Bajaur Agency.
22nd Oct 2007
Unknown assailants attacked FC Thal picket at Esha-Razmak road The Miranshah and killed FC official of Mohmand rifle at NWA.
Said Muhammad (Head Constable) shot dead by unknown miscreants at Gulshan Chowk, Mingora Swat.
23rd Oct 2007
Unknown armed men injured a police constable by opening fire on police mobile at Gujrat (Mardan).
01 army solider martyred and 02 sustained injuries due to an IED exploded at Norak/Tehsil Mirali while Pak army/FC convoy was on its way from Bannu to Miranshah. The convoy was again targeted with an IED near Chashma Pull/Miranshah, resultantly conductor sustained injuries.
02 Iranian guards/sepoys and 02 injured by unknown persons attack on Iranian border post Nobandian, at Gawadar.
Unidentified miscreants targeted a military truck at Chadara near village Thanda which resulted into injuries to 05 personnel at Malakand Agency.
24th Oct 2007
A tractor trolly carrying farmers ran over a landmine at Talli Matt/Tehsil Sui, causing injuries to seven persons Dera Bugti.
Explosive material planted by culprits near Population Planning & Welfare centre at Doggar went office, injuring 02 persons at Buner.
05 FC personnel sustained injuries when an IED planted by unknown miscreants went off at Chakdarra at Lower Dir.
01 Khasadar was injured when unknown Taliban of Jani Khel Wazir opened fire on Khasadar check post.
A Pak army convoy was hit by an IED at Boya/Datta Khel, resultantly 02 soldiers martyred and 03 sustained injuries.
01 person was killed and his motor-cycle was destroyed when it hit a mine in areas Saghari at Sui.
25th Oct 2007
18 persons including some FC personnel were killed while 34 others, 24 of them FC personnel sustained injuries in a powerful explosion in a FC truck carrying ammunition near Police Line Mingora, Swat.
A woman got injured due to detonation of a toy bomb in Killi Almas at Quetta.
26th Oct 2007
01 miscreant and a civilian were killed while 03 miscreants got injured in exchange of intense firing between LEAs and miscreants at Fizaghat heights and Imam Dehri areas after firing on an army helicopter at Swat.
Shaheen Force of Maulana Fazal Ullah Kidnapped 03 FC personnel at Bareem Chowk at Matta. They also kidnapped a police official qt Choprial, beheaded
4 persons out of whom 01 was retired army official while the other 03 civilians were killed on the charges of spying
27th Oct 2007
Miscreants abducted 03 police personnel along with 03 SMGs from Tor Pul Check Post /PS Thall at Hangu.
01 Muhammad Qareeb displayed head of beheaded security personnel and warned that all spies would be treated in same manner at Swat.
02 Jawans of Pak Army were injured when miscreants attacked PTCL post of. Miranshah, NWA.
02 women got injured due to detonation of anti-personnel mine in front of their residence in Tehsil Mohmand at Bajaur Agency.
Miscreants beheaded 05 policemen including ASI Irshad and burnt the house of Jamal Nasir at Swat.
Unidentified armed culprits kidnapped
03 police officials along with their official weapons from Torpull Check Post, Thall at Kohat.
28th Oct 2007
As a result of firing by personnel of an army convoy on its way from Bannu to Miranshah at Mandi Pakahel area to keep away suicide bombers a civilian was killed.
Relatives of slaughtered LEAs personnel received 5dead bodies of their relatives. 02 civilians also died due to bullet injures.
Unknown miscreants detonated explosive material at village Laghari injuring 03 family members.
At Kabal Bazar (Swat) miscreants kidnapped 02 FC personnel.
16. The circumstances leading to the Proclamation of Emergency and the other Orders issued pursuant thereto are also explained in the speech of the President of Pakistan/Chief of Army Staff delivered to the nation on 3rd November 2007. The same is also reproduced below:---
Dear Pakistani brothers and sisters,
Assalam o Alaikum!
Today as I address you, Pakistan is at the brink of a very dangerous situation. It is facing an internal crisis and whatever is happening now has a direct link with the internal situation. During such moments, for the nations, a time comes when difficult decisions have to be taken. For Pakistan too, we will have to take certain important and painful decisions. And if we do not take timely actions, then God forbid it could have an impact on Pakistan's sovereignty.
Before speaking something else I would like to promise one thing to the nation that whatever I will do and the decision that I have taken is on the basis of "Pakistan First", and this will always remain my guiding principle "Pakistan First".
By rising above personal considerations and personal interests, Pakistan First: And I have similar hopes that the nation too will work on similar lines.
My dear brothers and sisters!
In the past few months, the situation in Pakistan has been changing swiftly and I would like to talk about it very frankly. The first thing is that extremism and terrorism are at their peaks. At this time, suicide bombings are happening all over the country. Whatever happened in Karachi, followed by the incidents in Rawalpindi, Sargodha, their intensity has increased all over the country.
Extremists are roaming freely in the country, and are not afraid of the law enforcing agencies. They are very confident. In the Frontier Province, a lot was already going on and we have been dealing with it. Its impact has also reached settled areas and now we will also have to tackle with the situation in the southern districts. But it is .a sad matter that in Islamabad, the heart of Pakistan, the capital of Pakistan, extremism has spread causing anguish among the people. These extremists are taking the writ of the State in their hands and want to run their own government. And the biggest thing is that they have an obscurantist view about their religion Islam, that they wish to forcefully impose on moderate people. In my view, it is a direct challenge on Pakistan's sovereignty. This is a very critical situation pertaining to extremism and terrorism.
Now on the other hand the system of governance today stands paralyzed. All senior functionaries of the government have to frequent the courts, they are being sentenced, they are subjected to humiliation in the courts, which they do not want to give a decision. Around 100 suo motu cases are being processed in the Supreme Court and I have been told that there are thousands of applications. And all these suo motu cases are concerned with government departments. So now the system of governance stands paralyzed.
Let's look at the law enforcing agencies, these are demoralized, particularly in Islamabad. They are hopeless and have no courage as their officers are being punished and they have to visit the courts regularly. Their officers, including two IGs have been convicted. This has demoralized the force, with low morale, they do not want to do anything and just want to sit idle.
Apart from that, let's take a look at the democratic system Hurdles are being created in it. In 1999, when our government came into power, I prepared a three-phased strategy to transition to take the country towards democracy. As in 1999, the country was a defaulted State, the system of government was shattered and no government was completing its term. It was a sham democracy. In 2002, under the same strategy, I had total control, and I ran the affairs of the government. In stage two that was from 2002 to 2007. It was a democratic system, with an elected national assembly, senate, provincial assemblies, local governments, a system of elected governments as part of a democracy. During this period I oversaw the affairs of the State. But the government functioned on its own and I remained the President and Army Chief. There were some problems, but we created a record, where the Senate, National assembly, local governments, provincial assemblies completed their term.
Now we are in the final stage of this transition. Now I had hope that after the assemblies, that are completing their term by November 15, there would be a Presidential election, and whoever the candidates for this post, followed by the general election and an elected government, whoever wins, as part of political reconciliation, a new phase of full democracy moves ahead. This transition to complete democracy was intentionally introduced and we wanted to implement it, but in my view, and I am saddened to note that some elements are creating obstacles in this process and are not allowing it. Now since the time has come and in next three months we were about to complete this third phase, hurdles are being created.
I think that it is by design, for personal and political gains and for the detriment of Pakistan, a chaos is being created. All these things that I have mentioned, terrorism, extremism,' paralysis, demoralized law enforcement agencies, interference in the democratic system, have unfortunately had an impact on the economic situation of the country and there has been a change in our move forward towards prosperity and now God forbid there are indications that it might show some downturn, though it has not yet done so, provided we are able to stop it in time.
I can also see that all investors that were coming to Pakistan, and I can see with great pain that it all is moving down, and now they have stopped whatever the investment that was coming to Pakistan and they are now seeing what is happening in Pakistan, whether it will continue to move forward in a stable manner or we stop investing our money here and invest it somewhere else. I fear that our efforts of the past seven years do not get wasted as during this period, the economic condition of the people witnessed a great change. There was infrastructure development, roads, airports, railway mobile telephones, land lines, rural communication, building and construction, there is a construction boom all over the country. Hundreds of new industries are being set up, irrigation system, new dams, canals, brick lining of water courses, all levels of education and primary and secondary level of health care and all these areas that signified a growing and prosperous Pakistan. But I fear that all this may not go in waste. And I feel very strongly about it as I have been involved with the entire process and all these development projects and cannot bear to see all this go down.
Overall due to all these reasons, the entire nation is a victim of uncertainty and I am getting telephone calls from all over, from within the country and abroad, who want to know what is happening and some even question my decision making ability and ask that why I am not taking some decision. I have been listening to all these pleadings and have been witnessing whatever has been going on with a state of disbelief. I had hope that the judiciary and the government institutions will be able to tackle these issues. That maybe, they are able to deal with the situation and the situation improves.
But it could not happen, and the situation continues to go from bad to worse and Pakistan is fast moving towards a negative side. And I would also like to say that the media. I would say some channels did not play their role in averting this downslide, this negativism, negative thinking, negative projection, and rather enhanced this atmosphere of uncertainty.
I also feel very sorry for that, just because that it is the same media that in 1999 was only the PTV and there was no independence. It is the same media that got independence from me, from my government, as I believed that media should be independent as I believe that it was the way forward in civilized societies. I have said several times to go towards positivism and stop negativism.
The media must be independent, but it should come with responsibility and I am sad to point that some channels did show such tendency. I would like to ask from the nation, why is that? For me, it is judicial activism and it's clash with the other two pillars. And a clash with the other two pillars that are legislative and executive pillars, and interference in their affairs. Because of this, both the law enforcement institutions, as there writ is being challenged, and the government's functions are paralyzed in all spheres, in all manners.
This is the basic issue and began from March 9 when a reference against the Chief Justice, on recommendation of the Prime-Minister, was sent to the Supreme Judicial Council. This was a fully constitutional and according to all legal requirements. There was nothing personal in it. There were serious allegations and I took a constitutional step. Now let's leave it aside. But the situation that developed later turned worse. There was breakdown of law and order, and some political elements joined their force, that further deteriorated the situation. I would not like to go in its details. All I would like to say is that if a mistake was committed by an official of the law enforcement agency, it does not mean that as a result the entire country is destabilized. The other thing is that this reference, following serious complaints, was referred to Supreme Judicial Council, and whatever transpired, its judgment, whether I agree with it or not, because in my view that the reference with serious allegations was not examined and a verdict was given. This decision was fully accepted by me in complete good faith as it was a. decision by the Supreme Court and I accepted it, and showed an attitude of reconciliation, so that the differences disappear while rising above self interest and to work for Pakistan's stability and 'in the country's favour. However, unfortunately, the issue could not resolve, despite best and sincere efforts. This was reference and the judicial issue.
Then in Islamabad, we saw that the Lal Masjid issue cropped up, where extremists challenged the writ of the government in the heart of Pakistan, in capital city of Pakistan, and caused great embarrassment for the country, all over the world, and only I know how much bad name we earned. That we despite being such a big power could not protect our capital where they had created a state within a state. Our image, our standing, our stature suffered a great deal. These people resorted to whatever they could do. They martyred police personnel, they held them hostage, they set on fire shops, they abducted Chinese, our great friends, held them hostage and beat them up. This caused great embarrassment to me and I had to personally apologize to the Chinese leadership that we are ashamed that despite you being our such great friends this has happened to you. And then they set on fire the Ministry of Environment and the vehicles. What should we have done? We were humiliated for several months and the people kept on saying that we were not taking any action. And we were not taking any action because we wanted to protect lives and not take lives. Therefore, when as a last resort we took action, and I again commend all law enforcing agencies, that they took action and brought to an end all this humiliation and embarrassment. Many of these were martyred and I pray for them. May Allah send them to the heavens as they undertook this mission for this nation and this country and not for their own sake and laid down their lives.
After that unfortunately there was the decision of Supreme Court. And now the situation is that 61 of the terrorists that were declared black, meaning they were confirmed terrorists, were released, and they are all roaming around freely. No one knows that the Rawalpindi blast, or the Karachi or Sargodha blast were their doings. They are now at large and no one knows what action they will continue to do and keep on causing severe damage to us.
Then those madaris that were involved in extremism were also ordered to be opened. We in the government want to open up madaris. It is the government's plan to establish model madaris, meeting all standards, for the most poor children, provide them boarding and lodging. There is no such thing that there is someone in the government who is against the madaris. They need to be taken to the best places and get best education and best places to live. The government is working on a comprehensive plan to provide such facilities. The courts ordered opening of those places that were shut down and now it is being said that the security system will remain the same as it was before and some of these people will look after the security of the mosque. Now there is no need for any security in any mosque and we do not know whether these security people will once again take rifles and enter the mosque and we end up from where we started. And now all those elements who were first challenging the government, now there relatives are challenging the government, and the law enforcement agencies are being blamed for whatever action they are taking against extremists. They are also openly showing solidarity with extremists all over the country, while sitting in Islamabad. Now this is the other situation that we are facing.
Now coming to the Presidential elections in the past one month. During this a procedure was adopted fully according to the law .and the constitution. The election commission gave a schedule under a time frame. The Chief Election Commissioner examined the nomination papers and these were accepted and then some references were filed, particularly against me that were taken up in the Supreme Court for consideration. Now there is no problem in it, It is a legal process. But then a seven-member bench was set up, later it was made into a nine-member bench, later to eleven-member bench. The case was thus being prolonged, no decision was being taken and there was a situation of uncertainty. In the presidential election, I am grateful to the assemblies for electing me by giving me 57 per cent votes in the national assembly, senate and the four provincial assemblies, but the case still lingered on. Unofficial result was announced, but the decision came that there should be no notification. Now the case is continuing, without any decision. Now one personality said that he has to attend the marriage ceremony of his daughter so the dates were further extended and the nation that was in a state of hopelessness and uncertainty continued.
The Prime Minister too noticed the situation and wrote to me that the government's functioning in such circumstances was very difficult. My brothers and sisters, what is happening in Pakistan? What is happening to us? What is happening to this country? In which direction are we moving?
This country lives in my heart, in my blood and in my soul. I cannot see it goes down. Therefore a time for action has come. I reviewed the entire situation. How to stop this downslide. In my view, these three pillars of state; judiciary, executive and legislative all need to work in harmony so that we can have good governance and can fight extremism and terrorism with full force. This is the way to bring back the derailed government back on its tracks, before we completely run aground.
After reviewing this situation and after discussing it with all military, government, political and private, friends expatriate Pakistanis, I took a decision and this decision is basically part of the third phase of transition to democracy that I have already mentioned. This phase has to complete Inshallah. The hurdles in the way to democracy have to be removed. And what is, and has been my decision, of completing this third phase, will Inshallah be completed.
To do this I have declared emergency. I have issued a Provisional Constitution Order that was on the television and you might have seen it. In this respect there will be no change in the government, Prime Minister, Governors, Chief Ministers, all will continue to function, all assemblies - Senate, National Assembly, Provincial Assemblies - will continue to function as they are working now and this process will continue. I have taken this decision. For me this was the easiest way to put Pakistan back on the tracks and the progress on the economic developmental aspects continues unabated, and the last transition phase to democracy is completed.
Now taking advantage of this opportunity I would like to speak in English. I have spoken in Urdu to my countrymen, I would like to take this opportunity to speak to the world in general, but particularly to our friends in the West, United States, European Union and the Commonwealth.
I would ask you to kindly understand the criticality of the environment inside Pakistan and around Pakistan. Pakistan is on the verge of destabilization. If not arrested in time now, without loosing any further time, or delaying the issue. The saddest part of everything that saddens me the most, that after all we have achieved in the past seven years, I see in front of my eyes, Pakistan's upsurge taking a downward trend. I personally, with all my conviction and with all the facts available to me consider that inaction at this moment is suicide for Pakistan. And 'I cannot allow this country to commit suicide.
Therefore I had to take this action in order to preserve the democratic transition that I initiated eight years back. I would like to repeat that what I have already said in Urdu that I started with a three-staged transition. The first stage from 1999 to 20.02 where I remained in control, the second stage from 2002 to 2007, five years of democratic rule, all assemblies functioning, local government functioning, I only oversaw it as the Chief of the Army Staff and the President combined. And now I was launching the third phase that was to be completed in a few months, with complete democracy, return to civil rule, myself being only a civilian President, if elected.
It is this third stage that is being subverted today and it is this third stage which I want to complete with all my conviction. And if we don't take action, I don't think we are going into this third stage, I don't know what chaos and confusion may follow-So, therefore, I request you all to bear with us.
To the critics and idealists against this action, I would like to say, Please do not expect or demand your level of democracy which you learned over a number of centuries we are also trying to learn and we are doing well - Please give us time. Please also do not demand and expect your level of civil rights, human rights, civil liberties, which you learned over the centuries. We are trying to learn and we are doing very well also. Please give us time.
It would at this time venture to read out an excerpt of President Abraham Lincoln especially to all my listeners in United States. As an idealist, Abraham Lincoln had one consuming passion during the time of supreme crisis and this was to preserve the Union because the Union was in danger. Towards that end; he broke laws, he violated the Constitution, he usurped arbitrary power he trembled individual liberties. His jurisdiction was necessity and explaining his sweeping violation of constitutional limits, he wrote letter in 1864 and I quote "My oath to preserve the constitution imposed on me, the duty of preserving by every indispensable means that government, that nation of which the constitution was the organic law. Was it possible to lose the nation and yet preserve the Constitution.
By general law, life and limb must be protected. Yet often a limb must be amputated to save a life but a life is never wisely given to save a limb. I felt that measures otherwise unconstitutional might become lawful, by becoming indispensable to the preservation of the constitution through the preservation of the nation. Right or wrong, I assume this ground and now avow it."
We are also learning democracy. We are going through a difficult stage. It is the nation which is important and for me and every Pakistani, Pakistan comes first and any one else's considerations come after that. I look at this from this point of view. So, whatever I do is for Pakistan and whatever anyone else thinks, comes after Pakistan with all my sincerity whatever I am doing is in the interest of Pakistan and therefore, I am doing it with full conviction and my full heart and soul and mind in it.
My dear brothers and sisters
I hope that you all will understand the criticality of this serious situation. In my view at this stage, whatever I did, there was no other option. I will have no hesitation If I have to render my life for this country. I know how to face the challenges. I never surrender. I always resist and will fight back. Not for me, but for this country and for the people of this nation, for their welfare and prosperity. If you stand by me, I have no doubt that if you keep on supporting with me, Inshallah Ta' Allah we will take Pakistan forward on the same path of growth, prosperity and will put it back on tracks. I have no doubt that the nation wants to progress, wants to move forward. The people have concern about the prices of everyday commodities, unemployment and poverty. The people are sick of the state of uncertainty in the name of democracy. The people are sick of these extremists and terrorists who every other day are killing Muslims in the name of Islam. The people are sick of all this.
I want to say to all my brothers and sisters that we will together, fight it and will take Pakistan forward. May Allah help you and Pakistan.
Pakistan Paindabad always."
17. We have gone through the material brought on record by the learned counsel for the respondent No. 2 as well as by the learned Attorney General for Pakistan. Both Mr. Irfan Qadir, ASC as well as Mr. Zafar Ullah Khan, ASC did not dispute the alarming security/law and order situation prevalent in the country which was borne out from the details of incidents of terrorism given by the Prime Minister of Pakistan in his letter of 3rd November 2007, as also explained by the President/Chief of Army Staff in his speech of the same day. Both ti.° learned counsel for the petitioners conceded in plain terms that the country was in a grip of terrorism, extremism and militancy and the state institutions had been rendered non-functional and ineffective on account of the conduct of some of the former Judges, particularly the former Chief Justice of Pakistan as a result of which a state of uncertainty had overtaken the government machinery. However, they did not agree with the modus operandi adopted by the Government to tackle the situation and they were of the view that the constitutional means should have been adopted to meet the situation. When questioned what remedy did the Constitution provide to meet such an extreme situation, Barrister Zafar Ullah Khan stated that the Government ought to have placed the matter before the Parliament for an appropriate action. According to him, for the purpose of handling law and order situation and upsurge of terrorism, the President could have proclaimed emergency under Article 232 of the Constitution in the areas affected by terrorist activities, but not throughout Pakistan. According to Mr. Irfan Qadir, the Armed Forces could have been called in aid of the civil power. The learned counsel for the petitioners insisted that situations of 12th October 1999 was different from 3rd November 2007 inasmuch as the military takeover of October 1999 was welcomed by the people of Pakistan, which was not the position of the case in hand.
18. In response to the above stance of the petitioners, the learned Attorney General stated that there was a lack of harmony and cohesion among various institutions of the state and none of them was in a position to provide a solution to the situation faced by the country on or before 3rd November 2007. Therefore, in order to save the country from chaos and anarchy, minimum deviation from the Constitution was made in the larger interests of the State necessity and for the welfare of the people under the principle of salus populi est suprema lex. The learned Attorney General for Pakistan submitted that National Assembly, being the highest democratically elected institution, had also endorsed and approved all the extra-constitutional measures of 3rd November 2007. The resolution passed by the National Assembly reads as under:--
"This House is of the considered view that the serious circumstances were prevailing in the country. The terrorist incidents were in the rising trend. There was lack of harmony among the various organs of the State. This was leading to weakening of the writ of the government and its resolve in the war against terrorism. The demoralization and paralysis of the bureaucracy had been caused.
Out of this there are adverse effects on law and order situation in the country and economic growth, necessitated emergent and extraordinary action. Therefore, this House endorses and affirms the Proclamation of Emergency and Provisional Constitutional Order of 3rd November 2007."
The above resolution of the National Assembly meets the argument of the petitioners that the government ought to have approached the Parliament for an appropriate action under the Constitution. The action of the respondent No.2 was welcomed by the National Assembly whose members were elected representatives of the people. Here too, the people have spoken, though indirectly, i.e. through their representatives.
19. The learned counsel for the respondent No. 2 rightly contended that the country as a whole was in a grip of terrorism, extremism and suicide attacks. Incidents of terrorism had also taken place in Sargodha, Islamabad, the Province of Balochistan and many other parts of the country. It would suffice to recount only some of such acts of terrorism,
On 5th April 2007 45 foreigners and 7 locals were killed and four LEAs and four civilians were injured during clashes between militants and LEAs in South Waziristan;
On 28th April 2007, 27 persons were killed and 39 injured in a suicide bombing in Charsadda;
On 5th May 2007, three persons were killed and one injured in two separate incidents of sectarian violence in Layyah and D.I. Khan;
On 9th May 2007 two police officials killed in an attack by unidentified miscreants in Karachi;
On 10th May two IED explosions took place in Sui and Khuzdar and a rocket attack on FC post in Dera Bugti with one person injured in Sui;
On 15th May 2007, 276 persons were killed and 24 injured in a suicide attack in a restaurant in Peshawar;
On 3rd July nine persons including one Rangers' official were killed and 136 injured in Lal Masjid incident in Islamabad;
On 7th July 2007 unknown culprits fired anti-aircraft shells on a VVIP airplane; three police officials including a DSP injured when their mobile was fired upon in Swat; two locals and four kidnappers were killed and four persons were injured in an attempt to kidnap an Army Captain in North Waziristan;
On 8th July 2007 three Chinese businessmen were killed and one injured in Peshawar; one Levies official was killed and seven injured as a result of remote controlled explosion in Bajaur Agency; Four-Levies personnel kidnapped in Bajaur Agency;
On 10th July 2007, 68 persons were initially reported to have died and 32 injured in the Lal Masjid incident in Islamabad.
About two to three attempts were made on the lives of President and the Prime Minister.
The wave of terrorism reached its climax on 18th October 2007 when in the two bomb blasts on the rally of a former Prime Minister of Pakistan, who had returned to Pakistan after an exile of 7-8 years, about 150 people were killed and 350 seriously injured. The incident posed serious threat to the national security and also lowered the image of Pakistan before the international community. About the said holocaust, The Newsweek of 29th October 2007 carried the headline - "The Most Dangerous Nation in the World isn't Iraq. It's Pakistan". We have read with great pain the following comments made in the above news story:--
"Today no other country on earth is arguably more dangerous than Pakistan. It has everything Osama bin Laden could ask for: political instability, a trusted network of radical Islamists, an abundance of angry young anti-Western recruits, secluded training areas, access to state-of-the-art electronic technology, regular air service to the West and security services that don't always do what they're supposed to do. (Unlike in Iraq or Afghanistan, there also aren't thousands of American troops hunting down would-be terrorists.) Then there's the country's large and growing nuclear program. "If you were to look around the world for where. Al Qaeda is going to find its bomb, it's right in their backyard," says Bruce Riedel, the former senior director for South Asia on the National Security Council.
The conventional story about Pakistan has been that it is an unstable nuclear power, with distant tribal areas in terrorist hands. What is new, and more frightening, is the extent to which Taliban and Al Qaeda elements have now turned much of the country, including some cities, into a base that gives jihadists. more room to maneouver, both in Pakistan and beyond."
The Pakistani nation needs to rise above all prejudices and stand together against the menace of terrorism as well as the misleading propaganda aimed at harming the vital interests of Pakistan at the international level. The sovereignty, integrity and solidarity of the nation need to be preserved and protected internally as well as externally. The unabated gruesome terrorist activities worsened the security as also the law and order situation in the country, which called for zero tolerance approach. It is also clear from the letter of the Prime Minister that the Government's efforts to combat terrorism on the civil side unfortunately bore no fruit. It was an extraordinary situation that called for taking such measures, which were not provided by the Constitution.
20. The other set of reasons and circumstances given in the Proclamation of Emergency relates to the trichotomy of powers enshrined in the Constitution of Pakistan, which was eroded as a result of actions taken and orders passed in some cases by some of the former Judges of the Supreme Court and the High Courts, particularly the former Chief Justice of Pakistan. The learned counsel for the respondent No.2 as well as the learned Attorney General for Pakistan repeatedly submitted that the Government held the superior judiciary in the highest esteem and believed in its independence. They, however, stated that the Supreme Judicial Council was virtually rendered ineffective and redundant. Pakistan was the first country in Asia, apart from Malaysia, which made a provision in its Constitution for accountability of the Judges of the superior courts by their own peers. Article 209 of the Constitution provides an exclusive forum called Supreme Judicial Council of Pakistan comprising the Chief Justice of Pakistan, two most Senior Judges of-the Supreme Court and two most Senior Chief Justices of High Court. In case of a Reference against a member of the Council, the next senior most Judge of the Supreme Court, or next Senior Chief Justice of another High Court, as the case may, is to act as a member of the Council in his place. On 9th March 2007 the President made a Reference under Article 209 of the Constitution to the Supreme Judicial Council against the former Chief Justice of Pakistan. In the course of the proceedings of the Reference, some objections were raised before the Council. Subsequently, a petition was filed by the former Chief Justice of Pakistan invoking the original jurisdiction of this Court under Article 184(3) of the Constitution against the Reference despite the clear bar of jurisdiction of courts contained in Article 211. The hearing of the petition of the former Chief Justice of Pakistan continued for nearly two months. Unfortunately, very unpleasant and uncharitable observations were made by some former Judges of the Supreme Court and authors of the petition in the course of the hearing, which tended to bring the Supreme Judicial Council into disrespect and disrepute among the masses. Such a conduct on the part of some former Judges was incompatible with their office. Here, we may cite, with advantage, a passage from the book titled "Justice at Cross Roads" by V.R. Krishna Iyer, a former Judge of the Supreme Court of India and a scholar of great repute, which reads thus:--
The bench is a hallowed seat and judges must observe a gracious port and presence without making derisive comments and digs at lawyers and litigants who could as well retort and humble the bench in public. Offensive observations, even regarding other judges and judgments, are not uncommon with little-minded judges. Comic performance cannot be fobbed off on a submissive Bar, David Pannick cites some British instances which may have Indian parallels:
"Judicial humour can turn into judicial scorn. The eighteenth century Scottish judge, Lord Braxfield, was a disgrace to the age'. He took pleasure in `tauntingly repelling the last despairing claims of a wretched culprit, and sending him to Botany Bay or the fallows with an insulting jest'. Robert Louis Stevenson based Lord Hermiston upon Braxfield. In court, Hermiston `took his ease and jested, unbending in that solemn place with some of the freedom of the tavern, and the rag of man (the defendant) was hunted gallowsward with jeers'. Braxfield and his contemporaries have a special place in the annals of judicial misbehaviour. They were `cynically indifferent to the proprieties of the Bench to an extent which now may well seem incredible. Uncouth in appearance, profane in speech, frequently harsh and contemptuous in the discharge of their judicial functions, addicted to the wildest eccentricities, and exhibiting at all times are decided penchant for deep potation and the course and boisterous jocularity of the tavern...', they lacked all judicial qualities." (David Pannick-Judges-Oxford University Press, 1988 Edn., p.83)
"Some judges do not care to listen or are too loquacious and by frequent interruptions make coherent argument impossible. Performance and discipline are components of judicial decorum."
21. On 20th July 2007, through a Short Order the Presidential Reference was set aside by majority and the former Chief Justice was reinstated. Thus, the exclusive jurisdiction, power and authority of a high level constitutional forum meant for the accountability of Judges of the superior courts were eroded. The Supreme Judicial Council was not only paralyzed but also politicized in disregard of the provisions of Article 209 read with Article 211 of the Constitution. At this stage, it would be pertinent to refer to a judgment in the case of Muhammad Ikram Chaudhry v. Federation of Pakistan (PLD 1998 SC 103), where this Court had held as under:-
"11. A perusal of the above clause (clause 5 of Article 209) indicates that on an information received from the Council or from any other source, the President is of the opinion that a Judge of the Supreme Court or of a High Court may be incapable of properly performing the duties of his office by reason of physical or mental incapacity or may have been guilty of misconduct, he shall direct the Council to inquire into the matter. The above clause does not admit filing of a Constitutional petition for a direction to the Supreme Judicial Council or to the President to initiate proceedings of a judicial misconduct against a Judge of a superior Court by a practising lawyer or any other citizen of Pakistan. The wisdom seems to be that in order to keep the Judges free from being pressurized through frivolous Constitutional petitions or other legal proceedings for filing of a Reference, the framers of the Constitution provided above mechanism. This Court or a High Court cannot take upon itself the exercise to record even a tentative finding that a particular Judge has committed misconduct warranting filing of a Reference against him under Article 209 of the Constitution as it will be contrary to the language and spirit of the said Article."
In the above case, it is clearly laid down that direction cannot be issued to the Supreme Judicial Council to initiate proceedings of judicial misconduct against any Judge of a superior court at the instance of a lawyer or a citizen. The above judgment in clear terms prohibits the Supreme Court as also a High Court to take upon themselves the exercise to record even tentative finding that a particular Judge has committed misconduct warranting filing of a Reference against him under Article 209 of the Constitution. On the same analogy, no direction could be issued to the Supreme Judicial Council to stay its hands off the Reference filed against the former Chief Justice of Pakistan, what to speak of quashing the Reference altogether. During the course of arguments, the learned Attorney General stated at the bar that a former Judge of the Supreme Court, in connivance with a Banking Judge for whom, in turn, he managed to get his tenure extended, purchased property worth more than Rs.20,000,000 for a petty consideration of Rs.4,000,000. The Government very much wanted to file a Reference against him before the Supreme Judicial Council, but retrained from doing so in view of the treatment meted out to the Reference filed against the former Chief Justice of Pakistan.
22. Judicial accountability is a cardinal principle of the system of administration of justice and is essential to its successful working. A pertinent discussion on the subject is found in the book titled "Justice at Cross Roads" by V.R. Krishna Iyer, referred to above. Relevant excerpts are reproduced below:--
"The Indian experience with regard to the Executive, Judicative' and Legislative instrumentalities over four decades has been one of exploitation darkening into misgiving, misgiving deepening into despair and despair exploding as adventurist violence. The categorical imperative for stability in democracy is, therefore, to see that every instrumentality is functionally kept on course and any deviance or misconduct, abuse or aberration, corruption or delinquency is duly monitored and disciplinary measures taken promptly to make unprofitable for the delinquents to depart from the code of conduct and to make it possible for people, social activists, professional leaderships and other duly appointed agencies to enforce punitive therapeutics when robed culprits violate moral - legal norms.
Less than impeachment, the Great Parchment does not provide as a punitive measure. There are misdemeanours and felonious temptations and vices, rudeness, vulgarities and arrogant misdirection of power which may call for milder therapeutics and punishment after due enquiry by impartial authority. In this area, our constitutional jurisprudence leaves a vacuum. We need an urgent graded measure for systemic correction and suitable mechanism because accusations are no longer exceptions and judges must suffer criticism and complaints against them cannot be condemned or go uninvestigated and, if true, unpunished. Judicial imperialism, impertinence and absurd or irresponsible behaviourism are a menace to the Justice Process and must, if the turpitude is truly proved, suffer sentence.
The judge is the symbol of justice itself and, therefore, we cannot have a dissection of private life and judicial life of the `brethren'; both must become the sublime office. The pleasures and pains of millionaires, the temptations and vices of the higher classes, the aberrations and abuses of persons in power are taboo or forbidden fruit for the judges. Winston Churchill decades back, told the Commons that judges are required to conform to standards of "life and conduct far more severe and restricted than that of ordinary people". Indeed, their constitutional obligation to do justice without fear or favour, affection or illwill, is a high moral command and exacting demand on their conscience. If "you are what you were" you have to keep up a certain manner of conduct which puts you in a category beyond the politicians and members of the bureaucracy. Judges, like Caesar's wife, must be above suspicion. They must be patient, maintain poise, the gentle and impartial and decline to be provoked and never lapse into venal behaviour or class conscience uppishness.
"Even judicial independence, almost important value of our system, cannot forbid bringing to book those guilty of judicial misbehaviour. Judge Power is a critical factor of the highest importance in our constitutional order. For that very reason, the law must keep them away from lawless, immoral, unethical and unbecoming conduct. Some cowardly judges and opportunist brethren obligingly bend their judgments when political heavy-weights and tycoons with clout happen to be parties. Some leading members of the Supreme Court bar wrote, not long ago, a complaint to a Chief Justice referring to holiday hearings and nocturnal proceedings where influential persons figured as parties. Even the Bhopal Gas catastrophe litigation and later settlement with judicial imprimatur have come in for short criticism, bordering on the, needle of suspicion being pointed at five judges. This case is not merely an event but a portend, and the contempt ''barricade not with standing, may remain a polemical issue where the judges may not emerged with flying colours."
"Some judges think that disciplinary over their peers may be left to the Chief Justices. Unfortunately, there are many instances where complaints have come against Chief Justices and judges themselves, in private, admit the Chief's to be over-bearing or dubious. More than that, Chief Justices have their own prejudices and many High Courts (is the Supreme Court an exception, I wonder), are not free from factions and the domineering moods of judicial heavyweights. Even their lordly special philosophy is distances away from the ideology of the Socialist Secular Republic of India. It widely known that Chief Justices even of the Supreme Court have abetted are arranged hearing of bail petitions V.I. Ps. on holidays and after nightfall. A senior-most Judge of the Supreme Court, who later became the Chief Justice, and another senior-most Judge of the Supreme Court, who also became a Chief Justice later, did hear criminal matters on an abnormal day or at an abnormal hour making a special exception the accused tycoons. This resulted in some dissatisfaction at the Bar. Indeed, if we draw the line of objectionable conduct with socialistic sensitivity the discrimination in favour of influential petitioners makes the conduct of the Judges vanal. It is also reliably rumoured, perhaps, that a Chief Justice of Punjab and Haryana High Court was not consulted in the appointment of a Judge to the High Court, and likewise a Judge of the Supreme Court was appointed even though the Chief Justice of that time had not consented to his appointments. Other instances can be discovered, without much research, about deviances by Chief Justices themselves. Therefore, to make a class distinction between Chief Justices and puisne Judges on the assumption that Chief Justices are superior beings does not hold good. On the contrary, some Chief Justices are susceptible to Executive pressure and blandishments but it is not fare to divulge that here. For the sake of the extension of age of retirement, for perquisites which are not extended to other Civil Servants and so on, Judges have been passing resolution and getting their points accepted by Governments. Here is a case of Judges as a class, showing anxiety to secure Executive favours -- not becoming conduct for those who have to sit in judgment over the benefactors.
"Legal sanctions against judicial delinquency are a necessity if the globorama of robed souls robbing the Bench of its great integrity and impressive good behaviour is to be arrested. But the escalating misconduct of Judges has often gone unpunished because the law of judicial accountability is still in its infancy. Barring the extreme measure of impeachment the law is silent, so much so, world-wide one might well say that, with marginal exceptions, accountability of the judiciary to the country is the vanishing point of jurisprudence. This void, unless competently covered by well thought-out legislation, may militate against the democratic creditability of the high institution which is so central to human justice. While Judicial Independence is a valiant check against executive legislative tyranny, absent judicial accountability, independence, may important a forensic despotism. The subject is delicate, the remedy, unless carefully adjusted, may aggravate the malady. Crude nostrums may prove iatrogenic and so experiences in various democratic countries must be garnered to win the principles and processes whereby the best system of checks can be evolved. Justice has a global dimension in our age of human rights and the twin components of Independence and Accountability also are matters of universal concern."
"Judge's Power is vast and strong in the keeping of those who are fearless and flawless surrogates of Public Justice. But the Judiciary as a fiduciary must pay a price they must be clean in public and private life, on the bench and off the bench and the worthy to be watchdogs, not lapdogs, sentinels, not sycophants."
"The Justice System is our, only stable asset, as yet not corrupt. Let us preserve it. Public Justice is too serious a business to be left to the Justices alone. We need a national debate on this theme."
23. The learned Attorney General for Pakistan contended that thousands of applications, all raising individual grievances were entertained and processed. For processing of such applications the former Chief Justice of Pakistan established a Human Rights Cell in the Court's Registry and engaged a large number of staff. The actions taken by the former Chief Justice of Pakistan were got covered in the media. This opened a floodgate of applications leading, on the one hand, to an arbitrary pick and choose of the cases, and on the other, to a naked interference in the other branches of the government in the name of judicial activism conveniently ignoring and defying the principle of judicial restraint. This exercise, according to the learned Attorney General was undertaken in the purported exercise of power and jurisdiction vested in this Court under Article 184(3) of the Constitution.
24. The right of access to justice and the exercise of jurisdiction and power by this Court under Article 184(3) of the Constitution have formed subject matter of discussion in different judgments. It may be instructive to have a' glimpse at how the Court looked at it on different occasions. In Government of Balochistan v. Azizullah Memon (PLD 1993 SC 341), the Supreme Court elaborated the `right of access to justice' in the following words: -
"The right of `access to justice to all' is a well-recognized inviolable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine of `due process of law'. The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. This conclusion finds support from the observation of Willoughby in Constitution of United States, Second Edition, Vol. II at page 1709 where the term `due process of law' has been summarized as follows:--
"(1) He shall have due notice of proceedings, which affect his rights.
(2) He shall be given reasonable opportunity to defend.
(3) That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and
(4) That it is a Court of competent jurisdiction.
It therefore follows that in terms of Article 9 of the Constitution, a person is entitled to have an impartial Court and Tribunal. Unless an impartial and independent Court is established the right to have a fair trial according to law cannot be achieved. Therefore justice can only be done if there is an independent judiciary which should be separate from executive and not at its mercy or dependent on it."
"The right of access to justice is internationally well-recognized human right and is now being implemented and executed by granting relief under the Constitutional provisions. Article 10 of Universal Declaration of Human Rights and Article 14 of the United Nations Convention on Criminal Political Rights recognize the right of fair trial by an independent and impartial Tribunal established by law. The right of equal access to ordinary Tribunals and Courts is recognized in other countries also."
"The right of access to justice does not only mean that the law may provide remedies for the violation of rights, but it also means that every citizen should have equal opportunity and right to approach the Courts without any. discrimination. It also envisages that normally the Courts established by law shall be open for all citizens alike. Where the jurisdiction of the ordinary Courts established under the ordinary law is excluded or barred and certain class of cases or class of persons or inhabitants of an area are not allowed to approach such Courts and are to be tried or rights adjudicated by special Courts, then a fair, rational and reasonable classification must be made which have nexus with the object of the legislation. Even in such cases where special Tribunals are constituted, arbitrary powers cannot be conferred on executive for appointing persons on the Tribunal providing procedure or imposing any sentence of conviction. Such special Tribunals and Courts must follow the ordinary rules of justice, equality and good conscience."
25. According to the learned Attorney General, the former Chief Justice of Pakistan disregarded the principle bf `due process' in pursuit of judicial activism. M.N. Rao, an Indian research scholar and a former Judge of a High Court, in his Article titled "Public Interest Litigation and Judicial Activism" has discussed the issues concerning judicial activism. Relevant portion from the article is reproduced below:--
"Judicial creativity may yield good results if it is the result of principled activism but if it is propelled by partisanship, it may result in catastrophic consequences generating conflicts which may result in social change. In 1857 when the American Supreme Court headed by Chief Justice Taney ruled in Dred Scott v. Sandford that negros were not equal to whites and the rights guaranteed under the Constitution were not available to them, the decision had accelerated the civil war between the Northern and Southern States ultimately resulting in the abolition of slavery and strengthening of the Union.
A common criticism we hear about judicial activism is that in the name of interpreting the provisions of the Constitution and legislative enactments, the judiciary often rewrites them without explicitly stating so and in this process, some of the personal opinions of the judges metamorphose into legal principles and constitutional values. One other facet of this line of criticism is that in the name of judicial activism, the theory of separation of powers is overthrown and the judiciary is undermining the authority of the legislature and the executive by encroaching upon the spheres reserved for them. Critics openly assert that the Constitution provides for checks and balances in order to pre-empt concentration of power by any branch not confided in it by the Constitution.
Every judge must play an active role in the discharge of his duties as adjudicator of disputes. His role as an interpreter of law and dispenser of justice according to law should not be allowed to be diminished either because of the perceived notions of the other two wings of the State the legislature and the executive or any section of the public. But this cannot be termed judicial activism.
The role of the Judge in interpreting law has been graphically described thus.--"Judges must be sometimes cautious and sometimes bold. Judges must respect both the traditions of the past and the convenience of the present. Judges must reconcile liberty and authority; the whole and its parts.
Where the public opinion asserts itself against the decisions of the judiciary, the question immediately surfaces as to the legitimacy of the judiciary since it lacks popular mandate. That is the reason why judiciary was cautioned by eminent legal philosophers to exercise great restraint while declaring the actions of the legislature unconstitutional. Judicial veto must not be exercised except in cases that "leave no room for reasonable doubt". Very eminent Judges like Holmess, Brandeis and Frankfurter always adhered to the theory of reasonable doubt believing firmly that what will appear to be unconstitutional to one person may reasonably be not so to another and that the Constitution unfolds a wide range of choices and the legislature therefore should not be presumed to be bound by any particular choice and whatever choice is rational, the court must uphold as constitutional."
26. Justice Fazal Karim, a former Judge of the Supreme Court of Pakistan, in his treatise on "Judicial Review of Public Actions", First, Edition 2006, has thrown light on `judicial activism' and `judicial restraint' in a scholarly way. Relevant portion from page 478 of the book [Volume 1] is reproduced below for facility of reference:-
"There have also been phases of `judicial activism' in the sense of aggressiveness. Aggressiveness may imply exceeding of limits and cases which exemplify that sense are not wanting. Two of the cases are from Great Britain and relate to the `judicial activism' of Lord Denning. In one, Re Racal Communications Ltd, the Court of Appeal, presided over by Lord Denning MR, entertained an appeal and reversed the trial judges in a case in which the statute provided for no appeal; in so doing, Lord Denning was of the view that the provision excluding an appeal "is not a bar to the appeal to this court. There are many cases now which show that if a judge 'misconstrues a statute by giving himself jurisdiction when he has none or by refusing jurisdiction when he has it, then he makes an error which goes to the jurisdiction: and there is an appeal to this court, no matter how wide the words which seem to exclude it..." The Court of Appeal was, of course, reversed by the House of Lords. In the other, Duport Steels v. Sirs, the Court of Appeal did not follow a decision, directly in point, of the House of Lords. In reversing the Court of Appeal, Lord Diplock said:
"It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to the public interest."
And Lord Scarman started his discussion with the observation that the case raised "some profound questions as to the proper relationship in our society between the Courts, the government and the Parliament"' and went on to say:
"My basic criticism of all three judgments in the Court of Appeal is that in their desire to do justice the court failed to do justice according to law... Within these limits, which cannot be said in a free society possessing elective legislative institutions to be narrow or constrained, judges, as the remarkable judicial career of Lord Denning MR himself shows, have genuine creative role. Great judges are in their different ways judicial activists. But the Constitution's separation of powers, or more accurately functions, must be observed if judicial independence is not to be put at risk. For, if people and Parliament come to think that the judicial power into be confined by nothing other than the judge's sense of what is right (or, as Selden put it, by the length of the Chancellor's foot), confidence in the judicial system will be replaced by fear of it becoming uncertain and arbitrary in its application. Society will then be ready for Parliament to cut the power of the judges. Their power to do justice will become more restricted by law than it need be, or is today."
"In Pakistan, examples of this kind of `judicial activism' are a 1997 case, in which a three-Judges Bench of the Supreme Court, in a judicial review petition under Article 184(3) of the Constitution, thought it proper to suspend the operation of a duly enacted constitutional Amendment viz. 14th Amendment and a 1999 case in which the Supreme Court went so far as to extend the fundamental rights guaranteed by the Constitution of Pakistan to the Northern Areas which admittedly are not part of the territory of Pakistan and to which the Constitution of Pakistan and the jurisdiction of the Supreme Court itself do not extend.
"We have seen that a Constitution is drafted "with an eye to the future"; it is "intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs"; it must therefore be capable of growth and development at the hands of the Judges, who are to interpret it, and that is possible only if a constitutional instrument is treated as sui generic "so that there is room for interpreting it `with less rigidity and greater generosity'." This means that the interpretation of a constitutional provision must be approached with an open mind, for the meaning of the words "is not fixed once and for all time. They usually change owing to the lapse of time, the change in social conditions and the changed needs and views of society'. If this is `judicial activism' so be it. For, by so interpreting the Constitution, the Judges are doing what they are supposed to do; they are merely performing their ordinary day to day judicial function. They are making law through interpretation, their "very own field of creative endeavor".
There is here no usurpation; no exceeding of constitutional limits. No Judge worthy of his name will knowingly exceed his judicial authority. If in performing the judicial function, the Judges depart from a precedent or an accepted practice or meaning of a provision, they do so because "it appears right to do so ..."; they are "deciding the law applicable to the changed times and conditions.
`Judicial self-restraint' is a self-imposed discipline which, we conceive, means that despite opportunities and temptations to indulge his personal views and ideas, the Judge exercise self-restraint to remain within the limits of his judicial authority consistently with the doctrine of separation of powers, It does not mean `judicial timidity' which implies that the Judges become so supine as to fear treading on the executive's or the legislature's toes; nor are its "overtones of servility" appropriate to describe it.
"It emerges therefore that neither of the expressions - Judicial activism and Judicial restraint - is the best expression to use, if only because both are likely to be misunderstood. What is necessary is to understand the true nature of the judicial function, particularly in the interpretation of a written constitution. Like Aharon Barak (quoted above), we would therefore avoid, what we may call, esoteric distinction between `judicial activism' and `judicial restraint'. A true Judge knows the limits of his judicial function and if remaining within those limits he interprets the law and that involves departing from precedent or otherwise bringing about a change, then what he does need not fit into either of those philosophic theories. The true judicial attitude has, if we may say with great respect, been described nowhere better than by Chief Justice John Marshall in a speech made in answer to a tribute from the Bar. He said:
"... if he might be permitted to claim for himself and his associates any part of the kind things they had said, it would be this, that they had never sought to enlarge the judicial power beyond its proper bounds, nor feared to carry it to the fullest extent that duly required."
27. The distinction between a judicial and a legislative act came under examination in B.Z. Kaikaus v. President 'of Pakistan (PLD 1980 SC 160). Relevant portion from the judgment at page 181 of the report is reproduced below:-
"Basu in his commentary on the Constitution of India (4th Edition) (Vol. 2) at page 331 states that "the distinction between a judicial and a legislative act is well-defined. The one determines what the law is, and what rights the parties have with reference to transactions already had the other prescribes what the law shall be in future cases arising under it" " A judicial enquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future, and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power." "To declare what the law is or has been is a judicial power ; to declare what the law shall be is legislative." "It is not for the Judges to alter the law, even through they have reasons to doubt the wisdom or justice of any provision or to find that the Legislature has made a mistake or was even deceived. The same Jurist in his commentary under Article 122 states that a writ would not lie against a legislature to prevent it from passing a Bill on the ground that the Bill, if passed, would contravene some Fundamental Right". "The Court would have jurisdiction to declare the Act void after it is passed and a proper proceeding is brought by a person who is affected by the Act. Similar view is expressed by A.K. Brohi in his "Fundamental Law of Pakistan" at pages 160/333 and 469. He states with reference to 1956 Constitution that "Article 4 also prohibits the State from enacting any law, "which takes away or abridges rights conferred by this part", and declares that "any law in contravention of this clause shall, to the extent of such contravention, be void". Despite the fact that the Constitution contains an express prohibition directed against the legislative organs thereby preventing them from making any law which takes away or abridges the rights conferred by this Part, there is no known method whereby the Legislature can be prevented from enacting laws, which are inconsistent with the fundamental rights guaranteed under the Constitution. No mandamus can lie to compel the Legislature to do or refrain from doing any act. Besides when the Bill is introduced in the House it does not become an Act of the Legislature until it has actually been taken through the various stages of law-making and has received the assent of the Governor, if it is a Provincial law, and of the President, if it is a Federal law. It is thus only the completed Act of the Legislature which can be prohibited, and when the Act is actually passed it is no use prohibiting it as it can be declared void by Courts. Thus it is not the mere projected adventure by the Legislative Assembly which is calculated to result in the consummation of a law which purports to take away fundamental rights of the citizens that can be prohibited by courts. Every Bill that is moved in the State Legislature can be opposed by any one of its members, and even if its principle is accepted it can be amended and drastically modified. It would thus be worse than useless for any Court, assuming it had the jurisdiction to issue mandamus to legislative bodies, to interfere with legislative process when the Act of the Legislature is not complete. If the Act, as "finally emerges is in conflict with the fundamental rights, it would ipso facto be void and can be declared as such by our Courts." See also Narainder Chand v. U.T.H.P. (AIR 1971 SC 2399) it was observed that "no Court can issue a mandate to a legislature to enact a particular law. Similarly no Court can direct a subordinate legislative body to enact or not to enact."
28. In the above context, it may also be advantageous to refer to the book titled "Treatise on Constitutional Law, Substance and Procedure", by Ronald D. Rotunda & John E. Nowak, Second Edition 1992, Volume 1, Chapter 2, section 2.13, which reads as under:--
"The doctrines related to advisory opinions, mootness, collusiveness, ripeness, prematurity and abstractness, standing, and other such rules of self-restraint are all functions of the general and basic judicial duty to avoid decisions of constitutional questions. This duty, in turn, draws support from Chief Justice Marshall's rationale of judicial review as a reluctant power exercised only because the Court must decide cases brought before it in conformity with the Constitution.
There are also more pragmatic considerations for this policy of self restraint. Judicial review is inconsistent with pure majority rule, and, because of the conflict between the judiciary and the democratic system, may result in popular disapproval of court action. The policy of a strict necessity in disposing of constitutional issues is a useful device which helps assure that judicial review does not take place gratuitously."
29. The learned Attorney General referred to Article 184(3) of the Constitution which conferred original jurisdiction on the Supreme Court. This provision was introduced for the first time in the 1973 Constitution and was not there in the late Constitutions of 1956 and 1962. It lays down that without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article. Therefore, the said provision does not apply to individual grievances. In the case of Manzoor Elahi v. Federation of Pakistan (PLD 1975 SC 66 at pp. 144 & 145) wherein this Court held as under:--
"We may now proceed to consider whether this is a fit case for being dealt with by this Court under the special jurisdiction conferred on it by clause (3) of Article 184 of the Constitution. This clause provides that "without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article.
It will be noticed that although the power conferred on the Supreme Court is co-terminus with that enjoyed by the High Courts under Article 199 of the Constitution, yet it has been made subject to two limitations, namely:
(a) that the case must involve a question of public importance and
(b) that the question must be with reference to the enforcement of any of the fundamental rights, guaranteed by the Constitution.
The Supreme Court can act only if both these elements are present. However, even then it may stay its hands if it finds that sufficient justification has not been shown for not invoking the concurrent, and wider, jurisdiction of the High Court concerned, it being an established principle of the exercise of judicial power that ordinarily, in matters concurrent jurisdiction, the lowest Court or tribunal must be approached in the first instance.
Now, what is meant by a question of public importance. The term "public" is invariably employed in contradistinction to the terms private or individual, and connotes, as an adjective, something pertaining to, or belonging to, the people; relating to a nation, state, or community. In other words, it refers .to something which is to be shared or participated in or enjoyed by the public at large, and is not limited or restricted to any particular class of the community. As observed by the Judicial Committee of the Privy Council in Hamabai Framjee Petit. V. Secretary of State for India-in-Council (1) while construing the words "public purpose" such a phrase, "whatever else it may mean must include a purpose, that is an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned". This definition appears to me to be equally applicable to the phrase "public importance."
The learned Attorney-General is clearly right in saying that a case does not involve a question of public importance merely because it concerns the arrest and detention of an important person like a Member of Parliament. In order to acquire public importance, the case must obviously raise a question which is of interest to, or affects, the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who is the subject-matter of the case, may be of no particular consequence."
30. In Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), this Court held that in the exercise of jurisdiction under Article 184(3) the Court can exercise its power to issue the writ when element of "public importance" is involved and that exercise of powers by it under Article 184(3) is not dependent only at the instance of the "aggrieved party" in the context of adversary proceedings. It was further observed that -
"While construing Article 184(3), the interpretative approach should not be ceremonious observance of the rules or usages of interpretation, but regard should be had to the object and the purpose for which this Article is enacted," i.e. this interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate, the entire Constitution, namely, the Objectives Resolution (Article 2A), the Fundamental Rights and the Directive Principles of State Policy so as to achieve democracy, tolerance, equality and social justice according to Islam."
31. In Noor Jehan v. Federation of Pakistan (1997 SCMR 160), this Court quoted with approval the observations made in Wasey Zafar v. Government of Pakistan (PLD 1994 SC 621), which read as under: -
"A perusal of the above quoted provision of the Constitution indicates that without prejudice to the provisions of Article 199, the Supreme Court has been conferred with the power to entertain a petition under the above provision directly if the following two conditions are fulfilled: -
(i) The case involves a question of public importance;. and
(ii) The question so involved pertains to the enforcement of any of the Fundamental Rights contained in Chapter 1 of Part II of the Constitution.
It may further be noticed that if the above two conditions are met, the above provision of the Constitution confers power on the Supreme Court to make an order of the nature mentioned in above Article 199 of the Constitution. It may be pertinent to point out that the scope of Article 199, which confers jurisdiction on the High Courts, is much wider than the jurisdiction conferred on the Supreme Court under the above quoted 'provision of the Constitution inasmuch as a High Court not only can enforce a Fundamental Right under clause (2) of the above Article, but can also pass an appropriate order in the matters covered by sub-clauses (a) and (b) of clause (1) of Article 199 of the Constitution."
32. In Zulfiqar Mehdi v. Pakistan International Airlines Corporation (1998 SCMR 793) this Court dilated upon the term "public importance" used in Article 184(3) and held that issues arising in a case cannot be considered to be questions of public importance if the decision of those issues affected only the rights of an individual or a group of individuals. At pages 799 & 800 of the report, it was stated as under: -
"8. In order, to confer jurisdiction on this Court to entertain a petition under 184(3) of the Constitution, it is necessary that two jurisdictional requirements must be established. Firstly, that the question raised in the petition is a question of public importance and secondly, it relates to the enforcement of a fundamental right guaranteed under Chapter 1, Part II of the Constitution (see Wasey Zafar v. Government of Pakistan PLD 1994 SC 621; and Shahida Zaheer Abbasi v. President of Pakistan PLD 1996 SC 632). The expression 'public importance' was interpreted in the case of Manzoor Elahi v. Federation of Pakistan (PLD1975 SC 66) as follows:-
"Now, what is meant by a question of public importance. The term 'public' is invariably employed in contradistinction to the terms private or individual, and connotes, as an adjective,, something pertaining to, or belonging to the people; relating to a nation, State or community. In other words, it refers to something which is to be shared or participated in or enjoyed by the public at large, and is not limited or restricted to any particular class of the community. As observed by the Judicial Committee of the Privy Council in Hamabai Framjee Petit v. Secretary for India-in-Council (ILR 39 Boma 279) while construing the words 'public purpose' such a phrase, 'whatever else it may mean must include a purpose, that is an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals is directly and vitally concerned'. This definition appears to me to be equally applicable to the phrase 'public importance'.
The learned Attorney-General is clearly right in saying that a case does not involve a question of public importance merely because it concerns the arrest and detention of an important person like a Member of Parliament. In order to acquire public importance, the case must, obviously raise a question which is of interest to, or affects the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who is the subject-matter of the case may be of no particular consequence.
Seen in this light, there can be little doubt as to the public importance of the questions arising in this case. I think I will not be far wrong in saying that it is not often that a single case raises so many questions of public 'importance touching the liberty of the citizen. In all systems of law which cherish individual freedom and liberty, and which provide Constitutional safeguards and guarantees in this behalf, any invasion of such freedom in circumstances which raise serious questions regarding the effectiveness and availability of those safeguards, must be regarded as a matter of great public importance. "
9. The above observations of Anwar-ul-Haq, J. (as his Lordship then was) in Manzoor Elahi's case were quoted with approval in Ms. Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416).
10. In Shahida Zaheer Abbasi v. President of Pakistan (PLD 1996 SC 632), one of us (Justice Saiduzzaman Siddiqui), after examining the scope of the observations of this Court in Manzoor Elahi and Ms. Benazir Bhutto's cases held as follows:--
"From above quoted passages, it is quite clear that whether a particular case involved the element of 'public importance' is a question which is to be determined by this Court with reference to the facts and circumstances of each case. There is no hard and fast rule that an individual grievance can never be treated as a matter involving question of public importance. Similarly it cannot be said that a case brought by a large number of people should always be considered as a case of 'public importance' because a large body of persons is interested in the case. The public importance of a case is determined as observed by this Court in Manzoor Elahi's case (supra), by decision on questions affecting the legal rights and liberties of the people at large, even though the individual who may have brought the matter before the Court is of no significance. Similarly, it was observed in Ms. Benazir Bhutto's case (supra), that public importance should be viewed with reference to freedom and liberties guaranteed under Constitution, their protection and invasion of these rights in a manner which raises a serious question regarding their enforcement irrespective of the fact whether such infraction of right, freedom or liberty is alleged by an individual or a group of individuals."
33. In WAPDA v. Saadullah Khan (1999 SCMR 319), it was held as under:-
"Article 175(1) of the Constitution provides that there shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established under or by any law. Clause (2) of this Article, however, ordains that no Court shall exercise jurisdiction unless it is conferred upon it by or under any law. Article 187 of the Constitution empowers Supreme Court to pass any judgment and decree in a case before it which, in the circumstances of the case, it deems fit, which power is controlled by clause (2) of Article 175, which is indicative of the express command of the Constitution that jurisdiction conferred on this Court by or under any statute has been saved."
34. In Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583), this Court held that the mere fact that a question of arrest or detention of an important person was involved, that by itself was not enough to invoke clause (3) of Article 184. Relevant portion from the judgment at pages 595 - 597 is reproduced below:---
17. Articles 199 and. 184(3) regulate the jurisdiction of the Superior Courts and do not oust it. Perusal of clause (3) of Article 184 unequivocally postulates that two conditions are precedent for invoking said clause. Firstly; the petition must clearly demonstrate that the grievance relates to violation of fundamental rights. Secondly, the violation is of nature of public importance, which has been interpreted to mean, any invasion of individual freedom, liberty, fundamental rights, indu4ing effectiveness and safeguard for their implementation. Therefore, having regard to the connotation of the words "public importance", the facts and circumstances of each case would have to be scrutinized on its own merits.
18. With the assistance of learned counsel for the parties, we have surveyed the relevant case-law. In Manzoor Elahi's case, (PLD 1975 SC 66), Benazir Bhutto's case (PLD 1988 SC 416), Mian Muhammad Nawaz Sharif's case (PLD 1993 SC 473), Wasey Zafar's case (PLD 1994 SC 621), I.A. Sharwani's case (1991 SCMR 1041) and the Employees of Pakistan Law Commission's v. Ministry of Works (1994 SCMR 1548), questions of general public importance, which affected the people at large, were involved. In Asad Ali's case (PLD 1998 SC 161), the Supreme Court entertained petition directly for the reason that the issue affected the judicial system of the country. The finding and conclusion of the Supreme. Court in Syed Zulfiqar Mehdi v. Pakistan International Airlines Corporation (1998 SCMR 793) have never been deviated from. It is advantageous to quote the relevant observation occurring at page 801 of the report, which reads as under:--
"The issues arising in a ease cannot be considered as a question of public importance, if the decision of the issues affects only the rights of an individual or a group of individuals. The issue in order to assume the character of public importance must be such that its decision affects the rights and liberties of people at large. The adjective 'public' necessarily implies a thing belonging to people at large, the nation, the State or, a community as a whole. Therefore, if a controversy is raised in which only a particular group of people is interested and the body of the people as a whole or the entire community has no. interest, it cannot be treated as a case of public importance. "
19. Same view has recently been taken in Watan Party's case (PLD 2003 SC 74). It was a 5 - member Bench judgment to which one of us (Nazim Hussain Siddiqui, now Chief Justice) was a party, wherein reliance was placed on Manzoor Elahi's case and the above view was endorsed. For facility of reference, the relevant observations in the latter case are reproduced below:
"Now, what is meant by a question of public importance. The term 'public' is invariably employed in contradistinction to the terms private or individual, and connotes, as an adjective, something pertaining to, or belonging to the people, relating to a nation, State or community..."
Although the Supreme Court thereafter in a number of cases, such as Amanullah Khan v. Chairman, Medical Research Council (1995 SCMR 202) and Mrs. Shahida Zahir Abbasi v. President of Pakistan (PLD 1996 SC 632) has taken a different view, yet the cases under Article 184(3) have been brought within the parameters of the observations referred to above.
20. Learned Attorney General took us through Article 32 of the Constitution of India, which is pari materia with Article 184(3) of the Constitution of Pakistan. It is noted that the words 'question of public importance are not used in Article 32 of the Constitution of India. The Constitutions of 1956 and 1962 also did not have these words. There is a conscious departure and the words 'question of public importance' in Article 184(3) have been used with a purpose. The parameters of the jurisdiction under Article 184(3) are, that the petition must raise a question of public importance. In India, where there is no such requirement, the Supreme Court of India, has held that if the scope of Article 32 of the Indian Constitution were to be enlarged, it would immensely increase the dockets of the Court. Such jurisdiction remains with the High Court.
21. Under Article 199 wider powers have been conferred upon High Court than, Supreme Court and these powers cover more areas than a mere enforcement of 'Fundamental Rights. It is significant to note that under Article 184(3), Supreme Court only interferes in cases of violation of Fundamental Rights, which are of public importance, whereas, no such-condition is provided under Article 199. Mere fact that a question of arrest or detention of an important person is involved, this by itself is not enough to invoke clause (3) of Article 184. What is essential is that the question so raised must relate to the interest of whole body of the people or an entire community. To put it in other words, the case must be such, which raises a question affecting the legal rights or liabilities of the public or the community at large, irrespective of the fact that who raised such question."
35. In Pakistan Muslim League (N) v. Federation of Pakistan (PLD 2007 SC 642) the discussion on the question of exercise of jurisdiction under Article 184(3) of the Constitution was summed up at page 667 as under:-
"20. After having discussed the law laid down in the above mentioned cases the judicial consensus seems to be as follows:--
(i) That while interpreting Article 184(3) of the Constitution the interpretative approach should not be ceremonious observance the rules or usages of the 'interpretation but regard should be had to the object and purpose for which this Article is enacted i.e. the interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution namely the Objectives Resolution (Article 2-A), 'the fundamental rights and the directive principles of State policy so as to achieve democracy, tolerance, equity and social justice according to Islam.
(ii) That the exercise of powers of Supreme Court under Article 184(3) is not dependent only at the instance of the "aggrieved party in the context of adversary proceedings. Traditional rule of locus standi can be dispensed with and procedure available in public interest litigation can be made use of, if it is brought to the Court by a person acting bona fide.
(iii) That the provisions of Article 184(3), provide abundant scope for the enforcement of the Fundamental Rights of an individual or a group or class of persons in the event of their infraction and it would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class actions from case to case.
(iv) That under Article 184(3) there is no requirement that only an aggrieved party can press into service this provision. Supreme Court can entertain a petition under Article 184(3) at the behest of any person.
(v) That the Article 184(3) is remedial in character, and is conditioned by three prerequisites, namely----
There is a question of public importance.
Such a question involves enforcement of fundamental right, and
The fundamental right sought to be enforced is conferred by Chapter 1, Part II of the Constitution.
(vi) That it is not every question of public importance which can be entertained by this Court; but such question should relate to the enforcement of Fundamental Rights.
(vii) That even the disputed questions of facts which do not require voluminous evidence can be looked into where Fundamental Right has been breached. However, in case where intricate disputed question of facts involving voluminous evidence are involved the Court will desist from entering into such controversies.
(viii) That the language of Article 184(3) does not admit of the interpretation that provisions of Article 199 stood incorporated in Article 184(3) of the Constitution. Therefore, this Court while dealing with a case under Article 184(3) of the Constitution is neither bound by the procedural trappings of Article 199 ibid, nor by the limitations mentioned in that Article for exercise of power by the High Court in a case."
36. A survey of case law makes it abundantly clear that the power and jurisdiction under Article 184(3) of the Constitution cannot be invoked for redress of individual grievances. Unfortunately, the former Chief Justice of Pakistan paid no heed to the judicial precepts. He spared no department, whether judicial, executive or legislative. He took over the functions of superintendence over the subordinate courts, which was the exclusive domain of the High Courts under Article 203 of the Constitution. He would entertain cases making grievances in matters pending before the High Courts as well as the subordinate courts or which ought to be dealt with by a District & Sessions Judge. The learned Attorney General submitted that on several occasions, during the hearing of suo motu applications it was pointed out off and on by many counsel that power and jurisdiction under Article 184(3) of the Constitution could not be exercised in those matters, but unfortunately, the former Chief Justice would brush aside such submissions by making awful observations and remarks. According to the learned Attorney General, as a result of the above, the former Chief Justice of Pakistan interfered with and interrupted the working of each and every department/office of the government and, created a situation in which the other branches of the government were not allowed to perform their functions and duties in accordance with the provisions of the Constitution and the law. This was a situation of chaos and anarchy for which the Constitution provided no solution and the Chief of Army Staff was constrained to take extra-constitutional steps in the larger interest of the state necessity and for the welfare of the people.
37. Pakistan has a parliamentary system and the Constitution is based on the principle of trichotomy of powers whereunder all the three organs of the state, namely, the legislative, executive and the judiciary are required to perform their functions and exercise their powers within their allotted sphere. Theory of trichotomy of power is the foundation of s the constitutional scheme. Each organ of the State is equally important and each has definite role to play. None is permitted to intrude into the domain of the other. Illuminating discussion on the subject is found in State v. Zia-ur-Rehman (PLD 1973 S.C. 49). Relevant observations from pages 69 and 70 are reproduced below:--
"It may well be asked at this stage as to what is meant by "jurisdiction"? How does it differ from "judicial power"? Apart from setting up the organs the Constitution may well provide for a great many other things, such as, the subjects in respect of which that power may be exercised and the manner of the exercise of that power. Thus it may provide that the Courts set up will exercise revisional or appellate powers or only act as a Court of a cessation or only decide Constitutional issues. It may demarcate the territories in which a particular Court shall function and over which its Writs shall run. It may specify the persons in respect of whom the judicial power to hear and determine will be exercisable. These are all matters which are commonly comprised in what is called the jurisdiction of the Court. It expresses the concept of the particular res or subject matter over which the judicial power is to be exercised and the manner of its exercise. Jurisdiction is, therefore, a right to adjudicate concerning a particular subject-matter in a given case as also the authority to exercise in a particular manner the judicial power vested in the Court.
In exercising this power, the judiciary claims no supremacy over other organs of the Government but acts only as the administrator of the public will. Even when it declares a legislative measure unconstitutional and void, it does not do so, because, the judicial power is superior in degree or dignity to the legislative power; but because the Constitution has vested it with the power to declare what the law is in the cases which come before it. It thus merely enforces the Constitution as a paramount law whenever a legislative enactment comes into conflict with it because it is its duty to see that the Constitution prevails. It is only when the Legislature fails to keep within its own Constitutional limits, the judiciary steps in to enforce compliance with the Constitution. This is no doubt a delicate task as pointed out in the case of Fazlul Quader Chowdhury v. Shah Nawaz, which has to be performed with great circumspection but it has nevertheless to be performed as a sacred Constitutional duty when other State functionaries disregard the limitations imposed upon them or claim to exercise power which the people have been careful to withhold from them."
38. The theory of separation of powers, particularly the domain of the judiciary was examined in some detail in Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445). The principle of separation of powers is a fundamental principle of the constitutional system, which means that the governmental powers are divided among the three departments of government; viz., the legislative, executive and the judiciary and that each of them is separate from the other. For an understanding of the principle, following excerpts from the American Jurisprudence, Second Edition Volume 16A (1998) are reproduced below:--
"246……..The Principle of separation of the powers of government operates in a broad manner to confine legislative powers to the legislature, executive powers to the executive department, and those which are judicial in character to, the judiciary. The Constriction's central mechanism of separation of powers depends largely upon a common understanding' of what activities are appropriate to legislatures, to executives, and to courts, and this separation of powers doctrine requires the court to leave intact the respective roles and regions of independence of the coordinate branches of government……………..
The true meaning of the general doctrine of the separation of powers seems to be that the whole power of one department should not be exercised by the same hands which possess the whole power of either of the other departments. Thus,. it is generally recognized that constitutional restraints are overstepped where one department of government attempts to exercise powers exclusively delegated to another; and that officers of any branch of the government may not usurp or exercise the powers of either of the others."
247……….The principle of the separation of the powers of government is fundamental to the very existence of constitutional government as established in the Untied States. The division of governmental powers into executive, legislative; and judicial represents probably the most important principle of government declaring and guaranteeing the liabilities of the people
268…………It is not the function of the judiciary to entertain private litigation which challenges the legality, the wisdom, or the propriety of conduct of the executive, who is acting within his constitutional powers. In other words, so long as a public governing body acts within the limits of its legal powers and jurisdiction, the exercise of its judgment and discretion is not subject to review or control by the courts at the instance of citizens, taxpayers, or other interested persons, in the absence of a statute authorizing such review or control. However, a court order directing a local government body to levy its own taxes is a judicial act within the power of a Federal Court. While the lack of authority in the judiciary to restrain a lawful exercise of power by another department of government, where a wrong motive or purpose has impelled the exertion of the power, may render abuses temporarily effectual, the remedy lies not in the abuse by the judicial authority of its function, but in the people, upon whom reliance must be placed for the correction of such abuses."
39. In a very recent judgment titled Divisional Manager v. Chander Dass passed in Appeal (Civil) No. 5732 of 2007 the Supreme Court of India cautioned the judiciary in the exercise of its powers and jurisdiction and desired that it should confine itself to its proper sphere. Paragraphs 38 to 41 of the judgment are reproduced below for a ready reference: -
"38. The moral of this story is that. if the judiciary does not exercise restraint and overstretches its limits there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the powers, or even the independence, of the judiciary (in fact the mere threat may do, as the above example demonstrates). The judiciary should, therefore, confine itself to its proper sphere, realizing that in a democracy many matters and controversies are best resolved in non-judicial setting.
39. We hasten to add that it is not our opinion that judges should never be activist. Sometimes judicial activism is a useful adjunct to democracy such as in the School Segregation and Human Rights decisions of the U.S. Supreme Court vide Brown v. Board of Education 347 U.S. 483 (1954), Miranda vs. Arizona 384 U.S. 436, Roe v. Wade 410 U.S. 113, etc. or the decisions of our own Supreme Court which expanded the scope of Articles 14 and 21 of the Constitution. This, however, should be resorted to only in exceptional circumstances when the situation forcefully demands it in the interest of the nation or the poorer and weaker sections of society but always keeping in mind that ordinarily the task of legislation or administrative decisions is for the legislature and the executive and not the judiciary.
40. In Dennis vs. United States (United States Supreme Court Reports 95 Law Ed. Oct. 1950 Term U.S. 340-341) Mr. Justice Frankfurter observed: Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore, most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures.
41. In view of the above discussion we are clearly of the view that both the High Court and First Appellate Court acted beyond their jurisdiction in directing creation of posts of tractor driver to accommodate the respondents."
40. On 3rd November 2007 the Prime Minister addressed a letter to the President of Pakistan who was also the Chief of Army Staff apprising him of the grave situation prevailing in the country on account of terrorism, extremism, militancy as well as the erosion of trichotomy of power resulting in a state of chaos and anarchy. The Chief of Army Staff reviewed the situation in his meetings with the Prime Minister, Governors of all the Provinces, Chairman Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice Chief of Army Staff and the Corps Commanders of the Pakistan Army, and in pursuance of the deliberations and decisions of these meetings decided to proclaim emergency throughout the country by way of exercise of power extra to the Constitution. The emergency if proclaimed under the Constitution, the President could not have dealt with the above situation. Therefore, the Chief of Army Staff justifiably decided to take extra-constitutional step by means of the Proclamation of Emergency as in the past the constitutional deviations by the Chief of Army Staff/Armed Forces 'were validated by the Parliament in similar circumstances.
41. It was submitted by the learned counsel for the respondent No. 2 as well as the learned Attorney General for Pakistan that the Proclamation of Emergency of 3rd November 2007, Provisional Constitution Order No. 1 of 2007 and the Oath of Office (Judges) Order, 2007 were not sub-constitutional but extra-constitutional measures. The learned counsel for the respondent No. 2 rightly stated that if the actions of 3rd November 2007 were not taken, there would have been chaos and anarchy in the country. The impugned actions were taken by the Chief of Army Staff in the larger interests of the State and for the welfare of the people in consonance with the maxim salus populi est supema lex. The maxim has been discussed in Hastings Law Journal [USA, April 1994 issue] as under:--
Salus Populi had many sources and expressions. The most w abstract forms emanated from civil-law writers like Emmerich de Vattel, who based the legitimacy of all society and government on its ability to promote the general happiness of mankind. [FN91] American versions most often took the shape of Chancellor Kent's declaration that private interest must be made subservient to the general interest of the community. Kent used this rationale to uphold governmental regulations of unwholesome trades, slaughter houses, gunpowder, cemeteries, and the like. As Justice Holmes accurately noted later, this 1092 doctrine was the foundation for the state police power. [FN92] Indeed, the salus populi maxim is most often encountered in appellate cases justifying state regulations that restrict private rights in the common interest."
42. The principle of salus populi est supema lex is described in American Jurisprudence, Second Edition (1998) Volume 16A, Section 322, p. 259 in the following words: -
"Another principle involved in the police power is expressed by the well known maxim "salus populi est supremo lex" (the welfare of the people is the highest law). "Solus populi est supremo lex" is the maxim most popularly applied to the police power. It stands for the proposition that legislation in response to the demands of strong or preponderant opinion is necessary to the public welfare and is a proper exercise of the police power. This maxim is the foundation principle of all civil government and for ages it has been a ruling principle of jurisprudence. It is the polestar, of police power legislation. All private rights enjoyed by individuals as members of the public are subject to the paramount right of the state to modify them to conserve the public welfare under this maxim."
At section 323 ibid is discussed the law of necessity as under:--
"The police power has been described as the law of necessity and as being coextensive with the necessities of the case and the safeguards of public interest. In a general way the police power extends to all the great public needs, and may be put forth in aid of what is sanctioned by usage or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare. And governments may undertake to do more than the Constitution requires. Thus, for example, imposition of a requirement that all automobile drivers have mandatory insurance coverage is within the state's police power. This general doctrine furnishes the key to what is included within the boundaries of police power not that a police regulation, to be legitimate, must be an absolute essential to the public welfare, but that the exigency to be met must so concern such welfare as reasonably to suggest a necessity for the legislative remedy. It is not essential that a present necessity should exist before the legislature moves under the police power; it may act to prevent apprehended dangers as well as to control those already existing.
While an emergency does not create power, increase a granted power, or remove or diminish the restrictions imposed upon a power granted or reserved, an emergency may furnish the occasion for the exercise of police measures. Thus, a limit in time in order to tide over a passing trouble may justify a law that could not be upheld as a permanent change. It must be borne in mind, however, that an emergency does not automatically lift all constitutional restraints, and that a law that depends upon the existence of an emergency to uphold it may cease to operate if the emergency ceases, even though it was valid when passed."
43. The maxim salus populi est supema lex and the principle of State necessity were dilated upon by the Federal Court (predecessor of this Court) in Re: Reference by H.E. the Governor-General (PLD 1955 FC 435). At pages 478 to 480 of the report, the Court observed as under:--
"The point that arises, and I am not aware if it has ever arisen before in this acute form, is whether in an emergency of the character described in the Reference there is any law by which the Head of the State may, when the Legislature is not in existence, temporarily assume to himself legislative powers with a view to preventing the State and society from dissolution. In seeking an answer to this question resort must necessarily be had to analogies and first principles because the law books and reported precedents furnished no direct answer to the precise question which today confronts the judiciary of Pakistan. The Governor-General claims in the Proclamation that he has acted in the performance of a duty which devolves on him as Head of the State to prevent the State from disruption and the preliminary question that has to be considered is whether when we speak of rights and duties in the matter of preservation of States or their creation, foundation and dissolution, we are still in the field of law or in a region out of bounds to lawyers and courts. Having anxiously reflected over this problem I have come to the conclusion that the situation presented by the Reference is governed by rules which are part of the common law of all civilized States and which every written Constitution of a civilized people takes for granted. This branch of the law is, in the worlds of Lord Mansfield, the law of civil or State necessity.
The law of natural necessity is a par to the statute, law of our country, but the law of civil or State necessity is as much a part of the unwritten law as the law of military necessity, instances of which are adjudged cases and authorities on this part of the case Mr. Diplock has addressed us an eager and anxious argument claiming for the Governor-General, as representative of the King or as Head of the State, certain powers which entitle him in the interest of the State temporarily to act outside the limits of the written Constitution. He has realized in this connection on the maxim cited by the Bracton at folios 93-E and 247-A of his Treatise, "DE LEGIBUS ET CONSUETUDINIBUS ANGLIAE" (Of the laws and. Customs of England), "ID QUOD ALIAS NON EST LICETOM, NECESSITAS LISCETOM FACIT" ( that which otherwise is not lawful, necessity makes lawful), and the maxims salus pouli suprema lex (Safety of the people is the supreme law) and Salus republicae est suprema lex (Safety of the State is the supreme law) and certain authorities where one or more of these maxims or the principle underlying them was treated as part of the law. The best statement of the reason underlying the law of necessity is to be found in Cromwell's famous utterance. "If nothing should be done but what is according to law, the throat of the nation might be cut while we send for someone to make a law." Broom at p.1 of the 10th Edition of his legal maxims says that the phrase salus populi suprema lex is based on the implied agreement of every member of society that his own individual welfare shall, in cases of necessity, yield to that of the community, and that his property, liberty, and life shall under certain circumstances, be placed in jeopardy or even sacrificed for the public good. In re: An Arbitration between Shipton, Anderson & Co. and Harrison Brothers & Co. (1) Darling J. described the maxim salus populi suprema lex as not only a good maxim but essential law. In that case, by a contract in writing, W made in September, 1914, the owner of a specific parcel of wheat in a warehouse in Liverpool sold it upon the terms "payment cash within seven days against transfer order". Before delivery and before the property passed to the buyer the wheat was requisitioned by and delivered to His Majesty's Government under the powers of an Act passed before the date of the contract. It was held by the Court of the King's Bench Division that delivery of the wheat by the seller to the buyer having been rendered impossible by the lawful requisition of the Government, the seller was excused from the performance of the contract. The act of requisition was described both by Lord Reading C. J. and Lush J. as `an act of state'. Referring to that act Darling J. said:--
"It must be here presumed that the Crown acted legally, and there is no contention to the contrary. We are in a state of war; that is notorious. The subject-matter of this contract has been seized by State acting for the general good. Salus populi suprema lex is a good maxim and the enforcement of that essential law gives no right of action to whomsoever may be injured by it."
44. Syed Sharifuddin Pirzada, Sr. ASC contended that the Constitution made provision for emergency in Article 232. He also took us through the provisions of Article 280 of the Constitution to show that indirectly the Constitution recognized the emergency proclaimed during martial law. By notification No.45/1/71-P&C dated 23-11-1971, albeit in somewhat different circumstances, (viz. Pakistan threatened by external aggression) emergency was continued in pursuance of the Proclamation of 25th March 1969 read with the Provisional Constitution Order promulgated by the then President and Chief Martial Law Administrator. Under Article 280 of the Constitution said Proclamation of Emergency was deemed to have been issued under Article 232 of the Constitution. The 1973 Constitution was enacted on 14th August 1973 and as pointed out by the learned counsel for both sides, within four hours, an Order suspending fundamental rights was promulgated (Gazette of Pakistan dated 15th August 1973).
45. The principle of derogation or deviation, as the case may be, is accepted even in international charters on protection of human rights. An instance of the kind may be found in Article 15 .of the European Commission on Human Rights, which reads as under:--
1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
2. No derogation from Article 2, except in respect of, deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary-General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.
46. A very instructive and illuminating discussion on the need to have extra powers during emergency is found in Basu's Human Rights in Constitutional Law, Second Edition 2003. At page 537 of the book, the learned author has stated as under:--
"Two World Wars have established the lesson that even in an ultra democratic country, the Government would need extraordinary powers in order to be able to meet a threat against the State itself, by situations such as a war or external aggression or even internal rebellion, civil war or the like, which render it impossible for the normal Constitutional machinery to cope with the abnormal situation.
In a federal country, such extraordinary emergency situation would call for a greater concentration of powers in the federal or national authorities and a greater encroachment on the powers normally assigned to the State Governments.
Whatever be the form of Government, emergent situations are bound to arise in any country, owing to various factors like war, rebellion, natural disaster, economic or financial breakdown which call for immediate measures to be taken by the Government to safeguard the stability of the country or the safety of the citizens, which, in order to be adequate, must be different from or in addition to the normal system of administration.
But in a country having a democratic system of Government such abnormal situation presents a dilemma, because the assumption of any extraordinary powers by the Government must be in derogation of the civil and political rights normally ensured to the citizens by the democratic Constitution.
A satisfactory solution of the problem can therefore be had only if extraordinary powers are available to the Government to meet such emergencies with the least encroachment upon the rights and liberties of the citizens."
47. In Muhammad Umer Khan's case (PLD 1953 Lahore 528), martial law was proclaimed in the area of the Corporation of the city of Lahore on account of serious disturbances, involving loss of life and property during Ahmadi Movement. At pages 538 and 539 of the report it was held as under:--
"If riot, rebellion or insurrection outrun the ordinary sources of law and order and assume such proportions that civil authorities become powerless to deal with it, the State would naturally look to its armed forces for assistance. If the military take over in any such contingency and the general commanding the army completely ousts or subordinates civil authorities in the area, the law applied by him during the period of his occupation is martial law in sensu strictiore. During such period, all constitutional guarantees are suspended and the officer in chief command of the forces operating in the troubled area acquires for the time being supreme legislative, judicial and executive authority. In other words, he himself fixes the limits and definition of his own authority. He makes his own law, sets up his own courts and no civil authority, while he is in command, may call into question what he does. In this sense, therefore, martial law is not law at all but the will of the officer commanding the army. A commander who steps in to quell a rebellion inaugurates a reign of lawlessness and a civil authority, legislative or executive, which hands over the civil populace of a locality to the military, places the life, liberty and property of the people at the feet of the general who commands the army.
In some constitutions, as for instance, the French Constitution there is provision for the declaration of what is called "a state of siege". Then such a declaration is made, even fundamental rights are suspended and during this suspension any person is liable to arrest, imprisonment or execution at the will of a military tribunal consisting of a few officers. Martial law in this sense is completely foreign to British or the American Constitution. And in our own Constitution there is nothing enabling the military to step in and take over to the exclusion of civil power, though in living memory there have been four occasions when people groaned under or enjoyed the blessings of martial law.
In seeking to discover the source and reason of martial law, the best course to adopt is to find an answer to a few simple questions. In case of war or invasion do the military have a right to act suo motu? If so, do they have the same right where there is a riot, insurrection, revolt or rebellion which, if not suppressed immediately, may become a successful revolution? If the answer to both these questions be in the affirmative, a third question, and that is the most important question, immediately presents itself, namely, what are the powers of the military when called upon to act in any such contingency? Can they, for the purpose of suppressing the riot or rebellion, make their own Rules and Regulations, set up their own courts to enforce such Rules and Regulations and thus infringe the high of freedom of person and of enjoyment of property to which citizens are entitled under the ordinary law in peace time? If constitutional jurisprudence furnishes an answer to these questions, that is martial law sui generis.
Most constitutional writers affirm that where civil power is a deposed, suspended or paralysed by domestic disturbances, the military are entitled to step in to fill up the void but these writers are equally clear in their opinion that while so acting the legality or excusability of any action taken by the military will be judged by "necessity" and that such judgment will lie with the civil Courts ex post facto. Thus martial law is the law of military necessity, actual or presumed in good faith. Whether where the defence of necessity and good faith cannot be founded on civil law, e.g., right of private defence or the use of force to disperse unlawful assemblies and there is no indemnity bill, it will be recognized by civil Courts is an open question though observations occur in several cases clearly indicating that such necessity will be recognized as a good defence Phillips v. Eyre (supra); Tilonko v. Attorney-General of Natal (supra). If martial law is law and its limits" are prescribed by necessity, then
(1) Not only the Crown has the prerogative to proclaim martial law but without any such proclamation the military can take over where by war, insurrection, rebellion or tumult civil authority is y deposed', suspended or paralysed;
(2) all acts done by the military which are either justified by the civil law or were dictated by necessity and done in good faith will be protected, even if there be no bill of indemnity;
(3) while preventive action for the duration of the martial law will be valid, punitive action will generally be invalid;
(4) martial law will cease ipso facto with the cessation of the necessity for it; and
(5) sentences of confinement by military courts will expire with the expiry of the martial law."
48. In State v. Dosso (PLD 1958 SC 533) this Court relied on the theory of Hans Kalson and recognized the imposition of martial law in the country. In Asma Jilani v. Government of the Punjab (PLD 1972 SC 139) the doctrine of condonation was applied to the imposition of martial law. In consequence, though General Agha Muhammad Yahya Khan was declared a usurper, yet many of his acts, e.g., all past and closed transactions, all acts and legislative measures, which were in accordance with, or could have been made under the abrogated Constitution of 1962 or the previous legal order, all acts, which tended to advance or promote the good of the people, all acts required to be done for the ordinary orderly running of the State, etc., were condoned. Relevant discussion occurring at pages 204 to 207 of the report reads as under:--
"Some of the learned counsel appearing on the other side at first advocated that we should totally ignore this argument but Mr. Manzoor Qadir and Mr. Sharifuddin Pirzada frankly conceded that within certain limits validation can be given to certain acts of even a de facto usurper of power either on the ground of State necessity or implied authority. Mr. Anwar sought at one stage to disassociate himself with this view but when it was pointed out to him that the result would then be that even the Legal Framework Order (No. 2 of 1970) and the elections held thereunder would also become invalid, he too hesitated and thought that that might be going too far. Mr. Brohi on the other hand, is prepared to 'concede only this much that an usurper may be given the limited power of acting within the framework of the Constitution, but nothing beyond that.
This is a difficult question to decide and although I have for my guidance the example of our own Federal Court, which in Governor-General's Reference No. 1 of 1955 invoked the maxim of salus populi suprema lex to create some kind of an order out of chaos, I would like to proceed with great caution, for, I find it difficult to legitimize what I am convinced is illegitimate. I shall, therefore, first examine some other decisions which have been cited at the Bar before I begin to formulate my own views in the matter.
I have been referred to the decision of the Privy Council in the case of Madzimbamuto v. Lardner-Burke and another (0968) 3 A E R 561) where Lord Pearce in a very elaborate dissenting judgment accepted that acts done by those actually in control without lawful authority may be recognized as valid or acted upon by the Courts within certain limitations, on principles either of necessity or implied mandate, particularly where the enquiry is being made ex post facto, because, common sense dictates that every thing done during the intervening period, whether good or bad, cannot be treated in the same manner. In support of this proposition the noble lord refers also to a passage from Grotius' book on De Jure Belli et Pacis (Book 1, Ch. 4) where the following principle is enunciated:--
"Now while such a usurper is in possession, the acts of Government which he performs may have a binding force, arising not from a right possessed by him, for no such right exists, but from the fact that one to whom the sovereignty actually belongs, whether people, king, or senate, would prefer that measures promulgated by him should meanwhile have the force of law; in order to avoid the utter confusion which would result from the subversion of laws and suppression of the Courts."
There is no doubt that a usurper may do things both good, and bad; and he may have during the period of usurpation also made many Regulations or taken actions which would be valid if emanating from a lawful Government and which may well have, In the course of time, affected the enforcement of contracts, the celebration of marriages, the settlement of estates, the transfer of property and similar subjects. Are all these to be invalidated and the country landed once again into confusion?
Such a principle, it appears, has also been adopted in America In various cases which came up after the suppression of the rebellion of the Southern States and the American Courts too adopted the policy that where the acts done by the usurper were "necessary to peace and good order among citizens and had affected property or contractual rights they should not be invalidated", not because they were legal but because they would cause inconvenience to innocent persons and lead to further difficulties. Vide Texas v. White (1868) 7 Wallace 733, Horn v. Loekhurt (1873) 17 Wallace 850 and Baldy v. Hunter. (1897) 171 U S 388.
Lord Pearce himself indicated 3 limitations for the validation of such acts; namely:--
"(1) So far as they are directed to and reasonably required for ordinary orderly running of the State;
(2) So far as they do not impair the rights of citizens under the lawful Constitution; and
(3) So far as they are not intended to and do not in fact directly help the usurpation and do not run contrary to the policy of the lawful Sovereign."
The judgments of the Court of Appeal in Rhodesia in the same case and of .a Court in Uganda in the case of Uganda v. Commissioner of Prisons, Ex Parte Matovu (1966 E A L R - 514) have also been cited before us but I do not propose to deal with them, as they seem mainly to draw their inspiration from Hans Kelsen and the decision in Dosso's case. There is, however, another case from Nigeria where the military take over was not accepted as legitimate but condoned as a "manifestation of necessity" and not as "revolutionary breach of legal continuity". On this basis even the fundamental rights guaranteed by the pre-existing constitution were also maintained in the case of Lakamani and Ola v. Attorney General (West), Nigeria. (Unfortunately the full report of this decision is not available but it is referred to in S. A. de Smith's book on Constitutional and Administrative Law).
We have also in this connection been referred .to a case from Cyprus sub-nominee. The Attorney-General of the Republic v. Mustafa Ibrahim and others (1964 CLR 195) where the Supreme Constitutional Court of Cyprus also applied the doctrine of necessity to validate a certain legislation which was otherwise to consistent with certain Articles of the Cyprus Constitution on the ground that they would be justified "if it can be shown that it was enacted only in order to avoid consequences which could not otherwise be avoided, and which if they had followed, would have inflicted upon the people of Cyprus, whom the Executive and Legislative organs of the Republic are bound to protect, inevitable irreparable evil; and furthermore if it can be shown that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by the enactment in question, was not disproportionate to the evil avoided" This the Court thought was its duty to do in view of its "all important and responsible function of transmitting legal theory into living law; applied to the acts of daily life for the preservation of social order"
I too am of the opinion that recourse has to be taken to the doctrine of necessity where the ignoring of it would result in disastrous consequences to the body politic and upset the social order itself but I respectfully beg to disagree with the view that this is a doctrine for validating the illegal acts of usurpers. In my humble opinion, this doctrine can be invoked in aid only after the Court has come to the conclusion that the acts of the usurpers were illegal and illegitimate. It is only then that the question arises as to how many of his acts, legislative or other-wise, should be condoned or maintained, notwithstanding their illegality in the wider public interest. I would call this a principle of condonation and not legitimization.
Applying this test I would condone (1) all transactions which are past and closed, for, no useful purpose can be served by re-opening them, (2) all acts and legislative measures which are in accordance with, or could have been made under, the abrogated Constitution or the previous legal order, (3) all acts which tend to advance or promote the good of the people, (4) all acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment of in our case, the objectives mentioned in the Objectives Resolution of 1954. I would not, however, condone any act intended to Entrench the usurper more firmly in his power or to directly help him to run the country contrary to its legitimate objectives. I would not also condone anything which seriously impairs the rights of the citizens except in so far as they may be designed to advance the social welfare and national solidarity."
49. The issue of condonation/validation in the above context was also dealt with in Begum Nusrat Bhutto's case. Relevant portion from the judgment occurring at pages 708 to 710 reads as under: -
"It is clear, therefore, that the conclusion that the act of General Muhammad Yahya Khan amounted to a usurpation of power flows directly from the circumstances obtaining in that case, and is not to be regarded as a general proposition of law to the effect that whenever power is assumed in an extra-Constitutional manner by an authority not mentioned in the Constitution, then it must amount to usurpation in all events. It would obviously be a question for determination in the circumstances of the particular case before the Court as to whether the assumption of power amounts to usurpation or not.
It is also clear from the various judgments delivered in Asma Jillani's case that the question of condonation arose only on the view that the Army Commander-in Chief was a usurper. The learned Attorney General is, therefore, right in saying that in a case where extra-constitutional intervention is justified by necessity, then different considerations arise from those which would be relevant for judging the acts of a usurper.
It has also to be noticed that the concept of condonation, as expostulated in Asma Jillan's case, has relevance not only to the acts of a usurper, but also to a situation which arises when power has fallen from the hands of the usurper, and the Court is confronted with protecting the rights and obligations which may have accrued under the acts of the usurper, during the time he was in power. However, in the case of an authority, whose extra-Constitutional assumption of power is held valid by the Court on the doctrine of necessity, particularly when the authority concerned is still wielding State power, the concept of condonation will only have a negative effect and would not offer any solution for the continued administration of the country in accordance with the requirements of State necessity and welfare of the people. It follows, therefore, that once the assumption of power is held to be valid, then the legality of the actions taken by such an authority would have to be judged in the light of the principles pertaining to the law of necessity.
As already stated, the learned Attorney General submits that the doctrine of necessity is recognized by Islam. He has in this connection, the first place, drawn our attention to the Injunctions contained in Sura Al-Baqar and Sura Al Nahal, which are in almost identical terms and permit, if one is forced by necessity, without wilful disobedience, nor transgressing due limits, that which is forbidden, namely, dead meat and blood and the flesh of swine and any food over which the name of other than Allah has been invoked. He also refers to certain observations appearing in Islamic Jurisprudence and Rule of Necessity and need by Dr. Muslehuddin, 1975 Edition, (pp. 60-63), Islamic Surveys by Coulson (p. 144), and the Muslim Conduct of State by Hamidullah (p. 33). These writings lend support to the maxim that "Necessity makes prohibited things permissible."
Mr. Sharifuddin Pirzada has next drawn our attention to certain Articles in the Majelle in support of his proposition. Article 17 enjoins that "Hardship, causes the giving of facility; that is to say, difficulty becomes a cause of facility, and in times of embarrassment it becomes necessary that latitude should be shown." Article 21 says that "Necessities make forbidden things canonically harmless". Article 22 lays down that necessities are estimated according to their quantity, and Article 26 embodies the maxim salus populi suprema lex by saying that "To repel a public damage a private damage is preferred." He submits that although these maxims are directly relevant to cases of private necessity but the principle can certainly be extended to State necessity.
In support of his contention that the doctrine or law of necessity is recognized in most Western Systems of Jurisprudence, and has also been followed in Pakistan, the learned Attorney-General has referred us to Rex v. Stretton (1779) reported in Vol.21, Howell's State Trials; Attorney-General of Duchy of Lancaster v. Duke of Devenshire (1); the well-known case from Cyprus, The Attorney General of Republic v. Mustafa Ibrahim (2); the well-known case from Nigeria reported as E.O. Lakanmi and another v. Attorney-General, West Nigeria, Reference by H.E. The Governor-General (3) and of course observations appearing in the case of Asma Jillani.
He also relies upon the dissenting judgment delivered by Lord Pearce in the Rhodesian case, already referred to earlier in another contest, namely, Madzimbamuto v. Lardner Burke (0968) 3 All ER 561).
I find that in the Federal Court case, relied upon by the learned Attorney General, namely, Reference by H.E. Governor General, the implications of the law of necessity were discussed at some length by Muhammad Munir, C.J., and accordingly it will be useful to refer to it .in the first instance.
After referring to several authorities including some of those now mentioned by Mr. Sharifuddin Pirzada, his Lordship stated, particularly relying on the address of Lord Mansfield in the proceedings against George Stretton and others that "the principle clearly emerging from this address of Lord Mansfield is that subject to the condition of absoluteness, extremeness and imminence, an act which could otherwise be illegal becomes legal if it is done bona. fide under the stress of necessity, the necessity being referable to an intention to preserve the Constitution, the State or the society and to prevent it from dissolution, and affirms Chitty's statement that necessity knows no law, and the maxim cited by Bracton that necessity makes lawful which otherwise is not lawful." Having stated this principle, the learned Chief Justice, with whom the majority of the Judges agreed, proceeded to answer the questions referred to the Court by the Governor-General, and suggested certain arrangements for the setting up of a Constituent Convention, which he preferred to call Constituent Assembly, and for which there was otherwise no provision in the Government of India Act, which then served as the Constitution for Pakistan. The opinion recorded by the Federal Court in this case provides a striking example of the invocation of the law of necessity to validate certain extra-Constitutional measures dictated by the considerations of the welfare of the people and the avoidance of a legal vacuum owing to an earlier judgment of the Federal Court in Usif Patel v. Crown (PLD 1955 FC 387). The measures in question were validated and not sought to be condoned.
In the case from the Cyprus jurisdiction a more or less similar situation had arisen owing to the difficulty of the Turkish members of the Cyprus Parliament participating for the passing of a law regarding the functioning of the Supreme Court itself. In a very elaborate judgment, after surveying the concept of the doctrine or law of necessity as obtaining in different countries the Court came to the conclusion that the Cyprus Constitution should be deemed to include the doctrine of necessity in exceptional circumstances which is an implied exception to particular provisions of the Constitution, and this in order to ensure the very existence of the State. It was` further stated that the following pre-requisites must be satisfied before this doctrine can become applicable:-
(a) An imperative and inevitable necessity or exceptional circumstances;
(b) No other remedy to apply;
(c) The measure taken must be proportionate to the necessity; and
(d) It must be of a temporary character limited to the duration of the exceptional circumstances.
It was added that "A law thus enacted is subject to the control of this Court to decide whether the aforesaid pre-requisites are satisfied, that is, whether there exists such a necessity and whether the measures taken were necessary to meet it".
It seems to me that this summing up of the law of necessity by one of the learned Judges of the Cyprus Supreme Court embodies the true essence of the doctrine, and provides useful practical guidelines for its application."
The discussion on the subject of emergency, the circumstances and the need for its issuance in the context of Pakistan's jurisprudence may be closed with the remark that the Proclamation of Emergency of 3rd November 2007 cannot be seen in isolation, but has to be examined in the context of the historical process of the country.
50. It is clear from the material placed on record by the respondents and the circumstances of the present case that the situation which led to the issuance of Proclamation of Emergency and the two other Orders were quite similar to the one that prevailed in July 1977 and October 1999. In 1977 almost in an identical situation martial law was imposed and the Constitution held in abeyance. The action of the Chief of Army Staff was upheld by this Court in the case of Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1977 SC 657) on the touchstone of State necessity. The Chief Martial Law Administrator was possessed with the power to amend the Constitution. The Parliament validated all the actions and constitutional amendments of the Chief Martial Law Administrator through the Constitution (Eighth Amendment), Act, 1985 .including Article 58(2)(b) of the Constitution, which conferred power on the President to dissolve the National Assembly and to direct holding of fresh elections.
51. In Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426) this Court came to the conclusion that the constitutional amendments made during 1977-1985 were necessary to avoid martial law in future. From 1985 till 1999 elections to the Parliament and the Provincial Assemblies were held in Pakistan. But all the successive assemblies were dissolved by the President under Article 58(2)(b) of the Constitution. These dissolutions were challenged before the superior Courts, but all, except one, were upheld. Later, by means of the Constitution (Thirteenth Amendment) Act, 1997, Article 58(2)(b) was omitted. As a result thereof, things went out of control and ultimately the Proclamation of Emergency of 14th October 1999 was issued and the Armed Forces took over the administration of the country. The Army takeover was challenged before this Court in Zafar Ali Shah's case and the same was upheld. In pursuance of the above judgment, the country returned to civilian rule. In the said case this Court itself gave three years' time to the Armed Forces to restore law and order and to prepare the country for elections.
52. However, in the present case, soon after the imposition of emergency and the promulgation of the Provisional Constitution Order 2007, the Government announced the holding of election on schedule. The tug of war launched by the former Chief Justice of Pakistan and some other former Judges of the 'Supreme Court and the High Courts against the other branches of the Government made them non-functional and ineffective. Practically, the country had been driven to a state of lawlessness. The -situation that prevailed on 3rd November 2007 could also adversely affect the defence capability of the country. From this perspective, the present situation was even worse than the one that prevailed in October 1999, which was fully covered by the law laid down in Zafar Ali Shah's case at page 1169 of the judgment, where this Court held as under:--
"252. After perusing the voluminous record and after considering the submissions made by the parties, we are of the view that the machinery of the Government at the Centre and the Provinces had completely broken down and the Constitution had been rendered unworkable. A situation arose for which the Constitution provided no solution and the Armed Forces had to intervene to save the State from further chaos, for maintenance of peace and order, economic stability, justice and good governance and to safeguard integrity and sovereignty of the country dictated by highest considerations of State necessity and welfare of the people. The impugned action was spontaneously welcomed by all sections of the society."
53. As for the reinstatement of the former Judges of the Supreme Court and the High Courts who ceased to hold office under the Oath of Office (Judges) Order, 2007, we have already held in the Short Order that the learned Chief Justices and Judges of the superior courts, (Supreme Court of Pakistan, Federal Shariat Court and the High Courts), who were not given, or who did not make, oath under the aforesaid Order had ceased to hold their respective offices on 3rd November 2007 and their cases cannot be re-opened being hit by the doctrine of past and closed transaction. During the course of arguments, both the learned counsel for the petitioners repeatedly submitted that the Government ought to have adopted constitutional means to meet the situation that prevailed in the country on or before 3rd November 2007. However, they failed to point out any particular course that had been provided under the Constitution to meet a situation where any organ of the State, particularly when some former Judges of the superior Courts transgressed their constitutional limits and took upon themselves the execution of the functions of the executive or legislative branches of the government, thereby bringing the functioning of the Government to a standstill. The learned Attorney General for Pakistan vehemently contended that the treatment the Presidential Reference filed against the former Chief Justice of Pakistan received at the hands of the former Judges of the Supreme Court closed the door for the Government to resort to the constitutional remedies provided for the accountability of the Judges of the superior Courts. According to him, the practical effect of the order dated 20th July 2007 passed by a majority of 10 to 3 in Constitutional Petition No. 21/2007 was that the provisions of Article 209 of the Constitution were rendered nugatory and redundant. He further submitted that on the eve of hearings before the Supreme Judicial Council of Pakistan, lawyers-cum-political workers would enter the Supreme Court premises, raise slogans against the members of the Supreme Judicial Council and interrupt working of the Council as well as the Supreme Court Benches. The Court premises were practically turned into a ground exclusively meant for political processions and rallies, which badly impaired the sanctity of the Court. The learned Attorney General further stated that on the very first date of hearing of the Reference before the Supreme Judicial Council, the former Chief Justice did not sit in the vehicle made available to him at his official residence for travelling to the Supreme Court to attend the proceedings of the Council and insisted on walking on foot along with his family members. According to the learned Attorney General, it was an act unbecoming of a person who happened to be the Chief Justice of Pakistan and thus, the dignity and prestige of the highest judicial office of the country was disregarded. He submitted that the law enforcing personnel on duty requested the former Chief Justice time and again to use the vehicle provided to him for going to the Supreme Court, but he did not accede to their request. Hence, the behaviour of the former Chief Justice created an unpleasant scene. At the top of it, one of the former Judges took suo motu action of the matter and created an embarrassing situation for the administration a situation that was the creation of the former Chief Justice. The learned Attorney General lamented on the fact that the media, particularly some private T.V. channels, took the occasion as the high time of their business and never realized the sensitivity of the issue. Instead of confining to their true role of relaying information to the masses, they turned their talk shows into an exercise aimed at advocating a particular point of view.
54. The learned Attorney General also submitted that a politician-cum-lawyer, who was one of the counsel of the former Chief Justice of Pakistan, used all his political skills and expertise in turning the Reference into a political gambol. He used every occasion in the course of the proceedings of the Reference and later the Constitutional Petition filed by the former Chief Justice of Pakistan against the said Reference to gain political mileage. He organized political rallies for the former Chief Justice of Pakistan to address the bar associations throughout the width and breadth of the country. He became a personal driver of the former Chief Justice and also intended to ply a coaster for the other former Judges. Many former Judges of the High Courts would participate in those events all of which were calculated to destabilize the government machinery under a scheme. Every speaker on the stage presided over by the former Chief Justice would make a political speech and at the end the former Chief Justice would deliver speech on the `rule of law'. It was a mockery of the Constitution and the law.
55. The learned Attorney General for Pakistan next submitted that the former Chief Justice as well as the former Judges of the Supreme Court created an atmosphere of extreme uncertainty in the matter of hearing/decision of the case relating to the election of the President of Pakistan. In the first round, the matter was heard for a very long time and ultimately the petitions were found to be not maintainable by a majority of six to three. Thereafter the nomination papers of the 'incumbent President were accepted by the Chief Election Commissioner through a well reasoned order, which was upheld by this Court vide judgment dated 19th November 2007 passed in Constitutional Petition No.73 of 2007 and Criminal Original Petition No. 51 of 2007. At the scrutiny of the nomination papers for the election of the President, some mischief mongers attempted to interrupt the functioning of the Chief Election Commissioner of Pakistan and created a situation of law and order. The law enforcing agencies had to intervene to ensure that the aforesaid constitutional functionary of the State was not prevented from performing his constitutional functions. However, the former Chief Justice of Pakistan, in line with his past conduct, initiated suo motu action against the concerned public servants and compelled the Government to take instant arbitrary action against those officials without waiting for the result of the inquiry ordered by the Government into the matter. Rather he never allowed the Government to proceed with the aforesaid inquiry. According to the learned Attorney General, this was not the first time that the State functionaries were intimidated, frightened and put in an embarrassing situation by the former Chief Justice. The suo motu actions of the former Chief Justice had created an atmosphere in which no senior officer was willing and ready to be posted in the administration of Islamabad Capital Territory.
56. The learned Attorney General for Pakistan further submitted that after the acceptance of the nomination papers for the Presidential election, the matter was again brought before the Supreme Court in the second round. The hearing continued for nearly two months. During this period the election to the office of President took place and though the incumbent President secured the highest votes (about 98%), yet the former. Judges passed an order restraining the Chief Election Commissioner from issuing notification of the result of the election. The former Chief Justice of Pakistan kept changing the composition of the Bench, rather increased from time to time the number of the Judges on the Bench. Firstly, a Bench of 9 Judges was constituted. Later the number was raised to 11. The matter of election of the highest office of the country required urgent resolution in the supreme national interest. The 'situation was being closely monitored at the international level, particularly in view of the position taken by the Government of Pakistan in the war on terrorism. Summing up his arguments, the learned Attorney General submitted that the above uncertain state of affairs badly impaired the image of the country among the comity of nations, negatively impacted on the security as also the law and order situation in the country and adversely affected the economic growth.
57. We have given deep consideration to this aspect of the matter. The learned counsel for the petitioners have not been able to rebut the submissions made by the learned counsel for the respondent No. 2 as well as the learned Attorney General for Pakistan on the above issue. The facts and circumstances narrated by the learned Attorney General for Pakistan in the preceding paragraphs presented an alarming situation and unfortunately the concerned stakeholders in the judicial and the legal arena of the time never realized the implications of the situation to which the country had been driven. The State functionaries were pushed against wall and no way out was left for them. Thus, the action of 3rd November, 2007 had become inevitable, which had been taken by the respondent No. 2 to save the country from chaos and anarchy. Being a step taken in the interest of State necessity and for the welfare of the people, this Court through the Short Order dated, 23rd November 2007 validated the same.
58. On 15th December 2007, through the Revocation of Proclamation of Emergency Order, 2007, the emergency was revoked, the Provisional Constitution Order No. 1 of 2007 was repealed, the Constitution as amended by the Constitution (Amendment) Order, 2007 (P.O. No.5 of 2007) and the Constitution (Second Amendment) Order, 2007 (P.O. No. 6 of 2007) was revived and the Chief Justice of Pakistan and Judges of the Supreme Court, the Chief Justice and the Judges of the Federal Shariat Court and Chief Justice and the Judges of the High Courts holding office at the time of the revival of the Constitution took oath under the Constitution in the form set out in the Third Schedule to the Constitution. The Revocation Order also provided that the said revocation or repeal shall not revive anything not in force or existing at the time of the revocation or repeal or affect the previous operation of any law or anything done or purported to, or suffered to have been done under the Proclamation of Emergency, the Provisional Constitution Order and the Oath of Office (Judges) Order, 2007. The above revocation or repeal would also not affect any right, privilege, obligation or liability acquired, accrued or incurred under the Proclamation of Emergency, the Provisional Constitution Order and the Oath of Office (Judges) Order, 2007.
59. The issue of reinstatement of the Judges of the Superior Courts who were not given, or who had not made oath, under the Oath of Office (Judges) Order, 2000 was examined in depth in Syed Zafar Ali Shah's case. In the process, the Court took into consideration the position emerging after restoration of the Constitution. At Para 284 of the judgment, this Court held as under: -
"284. We, therefore, declare that the Judges of the Supreme Court and High Courts cannot be removed without resorting to the procedure prescribed in Article 209 of the Constitution, but the cases of Judges who ceased to be Judges of the Supreme Court and High Courts by virtue of Oath of Office (Judges) Order, 2000 (Order 1 of 2000) are hit by the doctrine of past and closed transaction and cannot be reopened."
60. The learned Attorney General for Pakistan rightly pointed out that the former Chief Justice of Pakistan, Justice Iftikhar Muhammad Chaudhry and the former senior puisne Judge of this Court, Justice Rana Bhagwandas were among the Judges of the superior Courts who had taken oath under the Oath of Office (Judges) Order, 2000 and were among the signatories to the judgment in Zafar Ali Shah's case whereby the Army takeover of 12th October 1999, dissolution of the National Assembly and the Provincial Assemblies, dismissal of the Federal and the Provincial Governments and the removal of the Judges of the superior Courts were validated and the Chief of Army Staff who was the then Chief Executive of the country was given powers, inter alia, to amend the Constitution. Alas, the former Chief Justice and the former Judges forgot even the very recent history and failed to read the writing on the wall.
61. The cases of the former Judges of the superior Courts who ceased to hold office by virtue of the Oath of Office (Judges) Order, 2007, are fully covered by the law laid down in Zafar Ali Shah's case and cannot be dealt with differently. Further, soon after the action of 3rd November 2007 the process for filling the vacancies was undertaken and consequently appointments were made in the Supreme Court as well as in the High Courts. The Constitution stands revived on and from 15th December 2007 and is in full force. The action in respect of the former Chief Justice and former Judges has attained finality and being a fait accompli the same is even otherwise not reversible. The present dispensation attracts the provisions of Article 264 of the Constitution, which, inter alia, says:--
"Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution, -
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operation of the law or anything duly done or suffered under the law;
We, therefore, reaffirm, uphold and validate the action taken by the respondent No.2 under the Oath of Office (Judges) Order, 2007 in the light of the law laid down in Zafar Ali Shah's case. Upon Proclamation of Emergency, the Provisional Constitution Order and the Oath of Office (Judges) Order of 2007, the former Chief Justice of Pakistan and other former Judges of superior Courts had ceased to hold office. Thereafter any order passed or function performed by them was void, coram non judice and of no legal effect or consequence.
62. On 14th December 2007, President's Order No. 8 of 2007 was issued, whereby a permanent Judge who had ceased to hold office of a Judge of High Court in terms of Article 3 of the Oath of Office (Judges Order, 2007 was held entitled to full pension and other retirement benefits admissible to a permanent Judge of a High Court and the provisions of clause (3) of Article 207 of the Constitution would apply to such a Judge. Likewise, President's Order No. 9 of 2007 of even date provided that a Judge of the Supreme Court who had ceased to hold office in pursuance of Article 3 of the Oath of Office (Judges) Order, 2007 would be entitled to full pension and other retirement benefits calculated on that basis. Thus, the former Judges would be at liberty to avail the pensionary benefits in terms of the aforesaid two Presidential Orders.
63. We gave some thought to the issue of suspension of Fundamental Rights under Articles 9, 10, 15, 16, 17, 19 and 25 of the Constitution under the Provisional Constitution Order No. 1 of 2007. During the course of arguments, on a Court query, the learned counsel for the respondent No. 2 as well as the learned Attorney General for Pakistan stated that as soon as the objects of the emergency were achieved and the situation returned to normalcy, the emergency would be lifted immediately. Considering the positive assurance given on behalf of the Government, no order was deemed to be called for on this aspect of the matter,
64. As to the 'alleged restrictions on the media, or the alleged detention of certain lawyers-cum-political workers, suffice it to observe that the matter involved individual grievances of the concerned T.V. channels and the alleged detenues, which could not be properly adjudicated upon in these proceedings. The owners of those T.V. channels, as also the alleged detenues were at liberty to seek remedy at the appropriate forums in accordance with law. However, all through the emergency, there were no restrictions on the print media and the viewpoint of the citizens got full coverage. The critics of the actions of 3rd November 2007 even got extra coverage, rather undue projection. During this period yellow journalism touched new heights and attempts to malign the institutions of the State were made, which was an unhealthy sign in this noble profession: It should be hoped that some thought would be given to this aspect of the matter at the appropriate level and an effort made to draw a line somewhere.
65. Now, we take up the other objection regarding duration of Ordinances in force at the time of, or during the Proclamation of Emergency and the Provisional Constitution Order. A similar point was considered earlier by the superior Courts in a number of cases. In Mrs. Keays Byrne v. M. Obaidullah Khan (PLD 1961 [W.P.] Lahore 256), a plea was taken that the West Pakistan Urban Rent Restriction Ordinance (IX of 1959), made by the President pursuant to Proclamation dated 21st March, 1957, under Article 193 of late Constitution of 1956, had ceased to have effect on the expiry of six months of the Proclamation. It was held as under: -
"The Rent Restriction Ordinance of 1959, although described as an Ordinance, cannot be said to be a temporary statute. It has been promulgated in pursuance of the Presidential Proclamation of the 7th day of October 1958. There is no indication in that it is to continue only for a limited period. While dealing with this Ordinance, we cannot allow ourselves to be influenced by the Articles of the late Constitution according to which Ordinance made under the provisions of that Constitution used to lapse after the expiry of the prescribed period. We are, therefore, of the opinion that the Rent Restriction Ordinance 1959 is a permanent statute and the question of its expiry does not arise at all. In view of the permanent character of the Rent Restriction Ordinance, we hold that the jurisdiction of the Civil Court for trying a suit for the ejectment of a tenant has been ousted and no Civil Court is entitled to pass a decree for the ejectment of a tenant after the enforcement of this Ordinance."
66. In the case of Badrul Haque Khan v. The Election Tribunal, Dacca (PLD 1963 SC 704), late Mr. Justice A.R. Cornelius, the former Chief Justice of Pakistan, speaking for the Court, took the view that the carrying over of laws as effective instruments from the period prior to the Revolution into the period of Martial law was effected by Article 4 of the Laws (Continuance in Force) Order, 1958, and it was clear that within the terms of that Article, the Representation of the People Act was one of the laws which continued to be existing law after the 7th October, 1958. This Court did not see that the law could be thought to have been deprived of its force by anything appearing in the Proclamation of Martial Law of the 7th October, 1958.
67. In Abu Farida Khan v. East Pakistan (PLD 1964 Dacca 473), the East Pakistan Public Safety Ordinance (LXVIII of 1958) was promulgated by the Governor of East Pakistan before the Constitution came into force on 8th June, 1962. The High Court took the view that it was not necessary to place the Ordinance for approval of the provincial legislature. The Ordinance had been continued as a valid law by virtue of Article 225 of the Constitution of 1962, whereunder all existing laws, subject to the Constitution, would continue in force until altered, repealed or amended by the 'appropriate legislature. There was no doubt in the mind of the High Court that the Ordinance was a valid law before Constitution came into force and since the Ordinance had not been excluded in Article 225, it continued to remain in force and its continuation was not dependent upon compliance with the provisions of Article 79 of the Constitution.
68. In Hashmat Ali v. Abdul Karim (PLD 1968 Lahore 188), the provisions of Article 225(1) of 1962 Constitution were considered with reference to the continuation of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958). It was held that the existing laws would continue until altered, repealed or amended by the appropriate legislature. It was further held that the word "until" was not used entirely to connote a duration. It really meant that existing laws were to continue so long as they were not altered, repealed or amended.
69. In the case of Sheikh Atta Muhammad v. Mian Muhammad Abdullah (PLD 1971 Lahore 210), the validity of the West Pakistan Urban Rent Restriction Ordinance, 1959, was challenged on the ground that the Provincial Assembly constituted under the 1962, Constitution had not accorded its approval to the Ordinance under Article 79(2), therefore, the same had ceased to operate after expiry of 42 days of the first meeting of the Provincial Assembly. It was held that the Ordinance in question, was promulgated during the period of Martial Law in Pakistan and that admittedly at that time there was no legislature. The conditions of promulgation of the Ordinance too were no doubt similar to those mentioned in Article 102 of the 1956 Constitution, but the legislation, for failure of its approval by the subsequent legislature, would not go out of the statute book because protection to it had been given by virtue of Article 225 of the 1962 Constitution. The Ordinance was an existing law at the time of promulgation of the 1962 Constitution and it had to continue in force until altered, repealed or amended by the appropriate legislature, i.e. the Legislative Assembly of West Pakistan. The approval of the legislature as provided in clause (2) of Article 79 of the 1962 Constitution would, therefore, be unnecessary and the Ordinance could not be considered to be invalid for non-approval by the Assembly.
70. In Malik Muzaffar Khan v. Government of the Punjab (1980 SCMR 121), the question of validity of the West Pakistan Tribunals of Inquiry Ordinance (II of 1969), was called in question on the ground that the same had lapsed automatically with the issuance of the Proclamation of Withdrawal of Martial Law- on 21st April, 1972. It was held by this Court that the Ordinance stood protected by the provisions of Articles 268(1) and 280 of the 1973 Constitution, and continued, without brake, to remain a valid law.
71. In our view, the Ordinances promulgated and legislative measures taken by the President, or as the case may be, by the Governor, which were in force at the time of, or during the period for which the Proclamation of Emergency of 3rd November, 2007 held the field, would continue to be in force by virtue of the Provisional Constitution Order, 2007, read with Article 270AAA(3) of the Constitution, until altered, repealed or amended by the appropriate legislature. There would be no question of expiry of these Ordinances in terms of Article 89(2), or as the case may be, under Article 128(2) of the Constitution.
72. Above are the reasons for the Short Order dated 23rd November, 2007 whereby these Constitutional Petitions were disposed of in the terms mentioned therein. For facility of reference, the Short Order is reproduced below:--
The above Constitutional Petitions are directed against the Proclamation of Emergency of the 3rd day of November 2007 and the Provisional Constitution Order No. 1 of 2007 issued by the Chief of Army Staff, as also the Oath of Office (Judges) Order, 2007 made and promulgated by the President of Pakistan.
2. We have heard Mr. Irfan Qadir, learned ASC for the petitioner in Constitutional Petition No.87/2007 and Barrister Zafarullah Khan in Constitutional Petition No.88/2007 as well as Syed Sharifuddin Pirzada, Senior Advocate Supreme Court and Malik Muhammad Qayyum, Attorney General for Pakistan on behalf of the respondents in both the petitions. We find that--
(i) in the recent past the whole of Pakistan. was afflicted with extremism, terrorism and suicide attacks using bombs, hand grenades, missiles, mines, including similar attacks on the armed forces and law enforcing agencies, which reached climax on 18th of October 2007 when in a similar attack on a public rally, at least 150 people were killed and more than 500 seriously injured. The extremists/terrorists resorted to abduction of foreigners, which badly impaired the image of Pakistan in the comity of nations, and adversely affected its economic growth. The situation in Islamabad and various places in N.-W.F.P., Balochistan and tribal areas was analogous to "a state within the state". Unfortunately, no effort by the government succeeded in curbing extremism, terrorism and suicide attacks. The Prime Minister apprised the President of the situation through his letter of the 3rd of November 2007;
(ii) the Constitution of Pakistan is based on the principle of trichotomy of powers. All the three organs of the State, namely, the legislature, the executive and the judiciary are required to perform their functions and exercise their powers within their specified sphere. Unfortunately, some members of the superior judiciary by way of judicial activism transgressed the constitutional limits and ignored the well-entrenched principle of judicial restraint. Thousands of applications involving individual grievances were being processed as suo motu cases ostensibly in the exercise of power under Article 184(3) of the Constitution, which provision is resorted to the enforcement of fundamental rights involving questions of law of general public importance. Instances of transgression of judicial authority at large scale may be found in the cases of determination of prices of fruits, vegetables and other edibles, suspension and transfers of government officials, frequent directions to enact particular laws, stoppage of various development projects, such as New Murree City, Islamabad Chalets, Lahore Canal Road and many more. They rendered the state machinery, particularly legislative and, executive branches of the government paralyzed and nugatory. They made ineffective the institution of the Supreme Judicial Council set tip under the Constitution for the accountability of the members of the superior judiciary;
(iii) the sum total of the circumstances led to a situation where the running of the government in accordance with the provisions of the Constitution became impossible for which the Constitution provided no remedy or satisfactory solution. There was a strong apprehension of disastrous consequences, that would have followed in case the action of the 3rd day of November 2007 was not taken by the Chief of Army Staff/President;
(iv) the situation which led to the issuance of Proclamation of Emergency of the 3rd day of November 2007 as well as the other two Orders, referred to above, was similar to the situation which prevailed in the country on the 5th of July 1977 and the 12th of October 1999 warranting the extra-constitutional steps, which had been validated by the Supreme Court of Pakistan in Begum Nusrat Bhutto v. Chief of the Army Staff (PLD 1977 SC 657) and Syed Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) in the interest of the State and for the welfare of the people, as also the fact that the Constitution was not abrogated, but merely held in abeyance;
Sufficient corroborative material .has been produced by the respondents, which justifies the taking of the extra-constitutional measures by the Chief of Army Staff and the President.
3. We, therefore, hold that -
(ii) the Constitution of the Islamic Republic of Pakistan, 1973 still remains to be the supreme law of the land albeit certain parts thereof have been held in abeyance in the larger interest of the country and the people of Pakistan;
(iii) the extra-constitutional steps of Proclamation of Emergency of the 3rd day of November, 2007, the Provisional Constitution Order No.1 of 2007, the Provisional Constitution (Amendment) Order, 2007, the Oath of Office (Judges) Order, 2007 and the President's Order No. 5 of 2007 are hereby declared to have been validly made by the Chief of Army Staff/President subject to the condition that the country shall be governed, as nearly as may be, in accordance with the Constitution. All acts and actions taken for the orderly running of the State and for the advancement and good of the people are also validated. In absence of the Parliament, General Pervez Musharraf, Chief of Army Staff/President, in pursuance of the Proclamation of Emergency of the 3rd day of November 2007 may, in the larger public interest and the safety, security and integrity of Pakistan, under the principle of salus populi supremo [ex, may perform -
(a) all acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;
(b) all acts which tend to advance or promote the good of the people; and
(c) all acts required to be done for the ordinary orderly running of the State.
4. We further hold and direct as under: -
(i) the old Legal Order has not been completely suppressed or destroyed, but it is a case of constitutional deviation for a limited transitional period;
(ii) constitutional amendments can be resorted to only if the Constitution fails to provide a solution for the attainment of the declared objectives of the Chief of Army Staff/President, but without affecting the salient features of the Constitution, i.e. independence of Judiciary, federalism, parliamentary form of Government blended with Islamic provisions;
(iii) the President, the Federal Government and the Election Commission of Pakistan shall ensure the holding of fair, free and transparent elections as required by the Constitution and the law;
(iv) the Superior Courts continue to have the power of judicial review, to judge the validity of any act or action of the Chief of Army Staff, or the President notwithstanding the ouster of their jurisdiction by the aforesaid extra-constitutional measures;
(v) the Chief Justices and Judges of the superior courts (Supreme Court of Pakistan, Federal Shariat Court and the High Courts) are subject to accountability only before the Supreme Judicial Council in accordance with the procedure laid down in Article 209 of the Constitution;
(vi) the learned Chief Justices and Judges of the superior courts, (Supreme Court of Pakistan, Federal Shariat Court and the High Courts), who have not been given, and who have not made, oath under the Oath of Office (Judges) Order, 2007 have ceased to hold their respective offices on the 3rd of November 2007. Their cases cannot be re-opened being hit by the doctrine of past and closed transaction; and
(vii) The Proclamation of Emergency of the 3rd day of November, 2007 shall be revoked by the President and/or the Chief of Army Staff at the earliest so that the period of constitutional deviation is brought to an end. However, this Court may, at any stage, re-examine the continuation of the Proclamation of Emergency if the circumstances so warrant.
5. The petitions are disposed of in the above terms."
M.B.A./T-2/S Order accordingly.