SC demolishes Musharrafs unconstitutional edifice
Saturday, August 01, 2009
ISLAMABAD: The Supreme Court, in its landmark verdict, on Friday declared the actions taken on November 3, 2007, by former military dictator General (R) Pervez Musharraf as unconstitutional and invalid.
The apex court declared all judges of the superior courts who took oath by showing personal loyalty to the former military dictator on November 3, 2007, in violation of the order of the seven-member bench of the apex court as illegal and the court ordered them to stop function forthwith.
In a coincidence showers blessed the people as Chief Justice Iftikhar Muhammad Chaudhry started reading out the landmark verdict, bringing down the high temperature and humidity in the jam-packed courtroom No 1, declaring all the acts taken on November 3, 2007, as void, illegal and unconstitutional.
The larger bench took at least four hours to write down the draft of the verdict and finally it was announced at 8.15pm in courtroom, packed with large number of lawyers and media personnel both local and foreign.
A 14-member larger bench headed by Chief Justice Iftikhar Muhammad Chaudhry heard the constitutional petition, challenging the appointment of judges of the superior judiciary who took oath under the PCO and the steps taken on November 3, 2007.
The court declared Justice Abdul Hameed Dogar as the chief justice of Pakistan as un-constitutional, void ab initio and of no legal effect. Since Justice Abdul Hameed Dogar was never a constitutional chief justice of Pakistan, therefore, all appointments of judges of the Supreme Court, the chief justices of the high courts and the judges of the high courts made, in consultation with him, during the period that he, un-constitutionally, held the said office from 3.11.2007 to 22.3.2009 (both days inclusive) are hereby declared to be un-constitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith, says the order.
The chief justice, in his short order, stated that making judges of the superior judiciary non-functional by the former military dictator by imposing martial law and promulgation of the Provisional Constitution Order (PCO) on November 3, 2007, was illegal and unconstitutional after violating Article 279 of the constitution.
The order further said that the chief justice of Pakistan, the judges of the Supreme Court, chief justice of a high court and the judges of the high courts who were declared to have ceased to hold their respective offices in pursuance of the afore-mentioned alleged judgments or any other such judgment and on account of the instruments mentioned in para 21 above, shall be deemed never to have ceased to be such judges, irrespective of any notification issued regarding their reappointment or restoration.
It declared that the office of the chief justice of Pakistan never fell vacant on November 3, 2007, and as a consequence thereof it is further declared that the appointment of Justice Abdul Hameed Dogar as the chief justice of Pakistan was un-constitutional; void ab initio and of no legal effect;
Provided that subject to whatever is contained hereinafter, the said un-constitutional appointment of Justice Abdul Hameed Dogar as chief justice of Pakistan shall not affect the validity of any administrative or financial acts performed by him or of any oath made before him in the ordinary course of the affairs of the said office, the order said.
The court further ruled that the judges so un-constitutionally appointed to the Supreme Court while holding the offices as judges of any of the high courts shall rever back as judges of the respective high courts subject to their age of superannuation and likewise, the judges of the high courts, who were district and sessions judges before their un-constitutional elevation to the high courts shall revert back as district and sessions judge subject to limitation of superannuation.
The Court ruled that the judges of the Supreme Court of Pakistan, if any, the chief justices of the high courts, if any, and the judges of any of the high courts, if any, who stood appointed to the said offices prior to November 3, 2007, but who made oath or took oath of their respective offices in disobedience to the order passed by the seven-member bench of the Supreme Court of Pakistan on 3.11.2007 in CMA No 2869 of 2007 in Constitution Petition No73 of 2007 shall be proceeded against under Article 209 of the Constitution.
The court ruled that the secretary of the Law Division of the Government of Pakistan shall take steps in the matter accordingly.
Any judgments delivered or orders made or any decrees passed by any bench of the Supreme Court or any bench of the high courts which comprised of or which included the afore-described judges whose appointments had been declared void ab initio, are protected on the principle laid down in Malik Asad Alis Case (PLD 1998 SC 161), the court ruled.
It was further ruled that since the Constitution (Amendment) Order, 2007, being the presidents Order No 5 of 2007 and the Islamabad High Court (Establishment) Order being presidents Order No 7 of 2007, establishing the Islamabad High Court for the Federal Capital Territory, have been declared un-constitutional and of no legal effect; therefore, the said Islamabad High Court shall cease to exist forthwith.
The court ruled that all judicial matters, pending before the said high court before the passing of this order, shall revert/stand transferred to the courts which had jurisdiction in the said matters before the promulgation of afore-mentioned presidents Order No 5 of 2007 and presidents Order No 7 of 2007 promulgated on 14th December, 2007.
The judges of the said court shall, as a consequence thereof, cease to be judges except such judges or the chief justice of the said court, who, prior to their appointments in the Islamabad High Court, were judges of some other high courts, shall revert to the court of which they were originally the judges, subject to their age of superannuation, says the order.
The officers and employees of the said court shall also cease to hold their respective appointments and shall become part of the Federal Government Surplus Pool for their further appointments.
The court ruled that establishment of a high court or a federal court for the Federal Capital Territory might be a desirable act, but it is unfortunate that such a step was taken in an un-constitutional and a highly objectionable manner.
The court ruled: The ordinances promulgated by the president or a governor of a province before November 3, 2007, which were given permanence by the Provisional Constitution Order No 1 of 2007 as also the ordinances issued by the president or a governor between 3.11.2007 and 15.12.2008 (both days inclusive), which were also, likewise, given permanence through the same instrument and which legislative measures along with the said Provisional Constitution Order had been validated by the afore-mentioned judgment delivered in Tika Iqbal case, stand short of their purported permanence on account of our aforementioned declarations;
Since on account of the judgment in Tika Iqbal case purporting to be a judgment of this court, the presumption that the said ordinances were valid laws not requiring approval of parliament or the respective provincial assemblies in terms of Articles 89 or 128 of the Constitution, and since it is today that this Court has attributed invalidity to the said legislative instruments, therefore, the period of 120 days and 90 days mentioned respectively in the said Article 89 and the said Article 128 of the Constitution, would be deemed to commence to run from today and steps may be taken to place the said Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law;
Since the Constitution, through its Article 176, authorises only the Parliament to determine the number of judges of the Supreme Court of Pakistan and since Parliament had so done through the Supreme Court (Number of Judges) Act XXXIII of 1997; therefore, the increase in the strength of the judges through the Finance Act of 2008, which was not passed by Parliament but was passed only by the National Assembly would be deemed to be valid only for financial purposes and not for the purposes of Article 176 of the Constitution.
The court declared that the number of judges of the Supreme Court for purposes of the Article 176 shall continue to remain 16.
The court ruled that in the Code of Conduct prescribed for the judges of the superior courts, in terms of Article 209(8) of the Constitution, a new clause shall be added, commanding that no such judge shall, hereinafter, offer any support in whatever manner to any un-constitutional functionary who acquires power; otherwise, than through the modes envisaged by the Constitution and that any violation of the said clause would be deemed to be misconduct in terms of the said Article 209 of the Constitution.
In view of our findings above regarding Justice Abdul Hameed Dogar not being a constitutional and a valid consultee, the notification dated 26.8.2008 and the notification dated 15.9.2008 extending the term of office of Justice Abdur Rashid Kalwar and of Justice Zafar Kalwar Khan Sherwani as additional judges of the High Court of Sindh are declared to be un-constitutional and of no legal effect.
The court ruled that it acknowledges and respects the mandate given by the sovereign authority i.e. electorate to the democratically elected government on February 18, 2008, and would continue to jealously guard the principle of tricotomy of powers enshrined in the Constitution, which is the essence of the rule of law.
We would like to reiterate that to defend, protect and uphold the Constitution is the sacred function of the Supreme Court. The Constitution in its preamble, inter alia, mandates that there shall be democratic governance in the country, wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed, the court ruled.
The court expressed the hope that the current democratic dispensation, comprising of the president, prime minister and Parliament shall equally uphold these values and the mandate of their oaths.
Earlier, Attorney General Sardar Latif Khosa submitted before the court that the verdict should be such that it does not harm the system; thereupon, the CJ queried him about the system and that the president, premier, Parliament and provincial assemblies are the only constituents of the system.
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