Dogar Court upholding Nov. 3, 2007 martial law - short order (Tika Iqbal Muhammad Khan v. Pervez Musharraf)

PLD 2008 Supreme Court 6

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan, Muhammad Qaim Jan Khan, Muhammad Moosa K. Leghari, Ch. Ejaz Yousaf, Muhammad Akhtar Shabbir and Zia Perwez, JJ

C.P. No.87 of 2007

TIKA IQBAL MUHAMMAD KHAN---Petitioner

Versus

GENERAL PERVEZ MUSHARAF and 2 others---Respondents

C.P. No.88 of 2007

WATTAN PARTY through Chairman and another---Petitioner

Versus

FEDERATION OF PAKISTAN through Cabinet Secretariat, Islamabad and 3 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.


ORDER

The above Constitution 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 Advocate Supreme Court for the petitioner in Constitutional Petition No.87 of 2007 and Barrister Zafarullah Khan in Constitutional Petition No.88 of 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 or 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 up 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 -

(i) 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;

(ii) 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 suprema lex, 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-9/S Order accordingly.