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Petitioner: PAKISTAN LAWYERS FORUM VS Respondent: FEDERATION OF PAKISTAN and others
Court Name: Lahore High Court Judge(s): Muhammad Saeed Akhtar Title: PAKISTAN LAWYERS FORUM vs FEDERATION OF PAKISTAN and others Case No.: Writ Petition No,15300 of 2002 Date of Judgment:2002-11-04 Reported As: PLD 2003 Lahore 371 Result: Petition dismissed
JUDGMENT
JUDGMENT The petitioner, a body of lawyers, is registered under the Societies Registration Act, XXI of 18160. Through this Constitutional petition the petitioner seeks the implemenation of the judgment of the Hon'ble Supreme Court passed in Zafar Ali Shah's case (PLD 2000 SC.869) and assails the Legal Framework Order, 2002 (Chief Executive's Order No.24 of 2002). The following prayer was made:-- (a) That the Military Government has, on account of the farcical rigged Referendum dated 30-4 -2002, on account of its manifest conduct violative of the judgment of the Supreme Court in Zafar Ali Shah's case has disqualified itself from holding free, fair and impartial elections, in the light of the said judgment of the Supreme Court of Pakistan and power needs to be immediately transferred to 'noncontroversial personalities like Fakharuddin G. Ebrahim, Ajmal Mian and Zafar Hussain Mirza after receiving consent of all the contesting parties, so that elections be held on time. (b) That Mr.Justice (Retd.) Irshad Hassan Khan, be declared to be incapable of organizing, conducting the elections honestly, justly, fairly and in accordance with law, because of his obvious tilt and bias in favour of the Military Government. (c) That all public functionaries from scale 22 downwards be permanently warned and restrained from interfering with the process of elections which must be held on 10th October, 2002 and be not postponed for any reason whatever. (d) That the Legal Framework Order, 2002 issued by the respondent No,2 on 21-8-2002, being diametrically opposed to the judgment of the Supreme Court in Zafar Ali Shah (supra), be declared to be beyond the limits imposed by the said judgment and, therefore, be struck down. (e) The consequential relief which arises out of above facts is that the General President be declared to have violated the condition of not harling over the power to the civilians within the time
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frame and deadline of three years be declared to have lost validity and . Legitimacy granted to him by the Supreme Court of Pakistan and his regime now is extra-Constitutional and all actions being taken by them are void, inconsistent with the provisions of the Constitution of Pakistan, 1973, ultra vires, without jurisdiction, mala tide and he be directed by this learned Court in exercise of its judicial power to hand over the reins of the Government to non-controversial persons acceptable to all the political parties through common consent. (f) It is also prayed that since the General President has become a common criminal, a usurper and subverted of the Constitution of the Islamic Republic of Pakistan, 1973, falls squarely within the mischief of Article 6 and needs to be tried convicted and sentenced for the said offence. The earlier part of the prayer items (a), (b) and (c) were not pressed by the learned counsel for the petitioner. Stress was led on items (d), (e) and (0 of the prayer and elaborate arguments were addressed. Learned counsel contended that Article 187 of the Constitution of Islamic Republic of Pakistan, 1973 empowers the High Court to enforce the orders or decrees of the Hon'ble Supreme Court. Learned counsel submitted that the respondent No,2 was given 3 years period to implement the judgment of. The Supreme Court in Zafar Ali Shah's case by holding the elections to the National Assembly, Provincial Assemblies and the Senate of Pakistan and hand back the power to the civilians. The extra-Constitutional measure was validated on the basis of doctrine of State necessity. He urged that after expiry of 3 years period allowed to the Chief Executive with effect from the date of army takeover i,e, 12th October, 1999 the regime of respondent No,2 has become unconstitutional. The Constitution of Islamic Republic of Pakistan, 1973 was the supreme law of the land. Emphasis was laid on paras. 4, 5, 6, 6(i), 6(ii), 6(iii), 13, 16 and 17 in particular of the Short Order passed by Hon'ble Supreme Court. The above said paras, of the short order are reproduced:-- 4. That the 1973 Constitution still remains the supreme law of the land subject to the condition that certain parts thereof have been held in abeyance on account of State necessity. 5. That the superior Courts continue to function under the Constitution. The mere fact that the Judges of the superior Courts have taken a new oath under the Oath of Office (Judges) Order No,1 of 2000, does not in any manner derogate from this position, as the Courts had been originally established under the 1973 Constitution, and have continued in their functions in spite of the Proclamation of Emergency and P.C.O. No,1 of 1999 and other legislative instruments issued by the Chief Executive from time to time That the previous proclamation of Emergency of 28th May, 1998 was issued under Article 232(1) of the Constitution whereas the present Emergency. Of 14th October, 1999 was proclaimed by way of an extra Constitutional step as a follow up of the Army take-over which also stands validated notwithstanding the continuance of the previous Emergency which still holds the field. 6(i) The General Pervez Musharraf, Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff through Proclamation of Emergency, dated the- 14th October, 1999, followed by P.C.0.1 of 1999, whereby he has been described as Chief Executive, leaving validly assumed power by means of an extra-Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures as enumerated hereinafter, namely:-- (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; (c) All acts required to be done for the ordinary orderly running of the State; and (d) All such measures as would establish or lead to the establishment of the declared objectives of the Chief Executive. 6(ii) That Constitutional Amendments by the. Chief Executive can be restored to only if the Constitution fails to provide a solution for attainment of his declared objectives by virtue of clause
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(6), sub-clause (i) (a) (ibid) is controlled by sub-clauses (b), (c) and (d) in the same clause. 6(iii) That no amendment shall be made in the salient features of the Constitution i,e, independence of judiciary, Federalism, Parliamentary Form of Government blended with Islamic provisions. 13. This is not a case where old legal order has been completely suppressed or destroyed, but merely a case of Constitutional deviation for a transitional period so as to enable the Chief Executive to achieve his declared objectives. 16. That having regard to all the relevant factors involved in the case including the one detailed in paragraphs 14 and 15 above three years period is allowed to the Chief Executive with effect from the date of the Army take-over i,e, 12th October, 1999 for achieving his declared objectives. 17. That the Chief Executive shall appoint a date, not later than 90 days before the expiry of the aforesaid period of three years, for holding of a general election to the National Assembly and the Provincial Assemblies and the Senate of Pakistan. Learned counsel read the observations of Hon'ble Supreme Court in the case of Waseem Sajjad v. Federation of Pakistan (PLD 2001 SC 233 at page 289) which are as under:- "....The validation and legitimacy accorded to the present Government is conditional and inter- linked with the holding of general elections to the National Assembly and the Provincial Assemblies and the Senate of Pakistan within the time frame laid down by this Court leading to restoration of the democratic institutions...." He also referred to the statement of Syed Sharifuddin Firzada made in response to the Court's query which is as follows:-- "Q. Will you give us perhaps "Yes' or "No" answer as to whether you will accept the three years 'deadline'? "Ans. Yes". "Q. Will you hand back powers to civilians within three years? "Ans. Yes. Obviously, this is the Supreme Court judgment which has to be accepted." "....However, Syed Sharifuddin Pirzada the learned Senior Advocate Supreme Court appearing on behalf of the Federation. Has reaffirmed the positive assurance made by the Chief Executive in respect of holding of general elections within the time-frame laid down by this Court leading to restoration of the democratic institutions." "Irrespective of the causes for military intervention its prolonged involvement in the civil affairs will not only politicize it but would also effect its professionalism in defending the borders of Pakistan. Such a course can never be countenanced by this Court..." Learned counsel relied upon Laski's theory stated in the case of Miss Asima Jilani v. The Government of the Punjab and another (PLD 1972 SC 139 at page 173) as follows:- "On the other hand, Laski's thesis appears to me to be that the control of the armed forces of the State is an essential element of the sovereignty of the State and that the armed forces are under the command of the State. Once the State loses that command it becomes ineffective and must either then change the law or abdicate." It was urged that the armed forces must remain under the command of the State by returning to civil rule. The very existence of the State is in jeopardy. On no principle of necessity could power of judiciary vested in the superior Courts under 1973 Constitution be taken away and that it was inherent in the nature of judicial power that the Constitution is regarded as the supreme law and any law or act contrary to it infringing its provisions is to be struck down by the Court. Learned counsel relied upon various excerpts from the judgments of the Hon'ble Supreme Court in the cases of Zafar Ali Shah (supra) and Waseem Sajjad (supra). The deadline fixed by the Supreme Court was not adhered to by the Chief Executive. The gist of the arguments of Mr. A.K.Dogar is that the process of election to the National Assembly, Provincial Assemblies and to the Senate of
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Pakistan was to be completed within 90 days before the expiry of 3 years and the power was to be handed over to the chosen representatives of the people of Pakistan before the deadline fixed by the Hon'ble Supreme Court which expired on 12th October, 2002. Learned counsel argued that the Constitution of Islamic Republic of Pakistan, 1973 stand revived and it cannot be made subservient to the Proclamation of Emergency and Provisional Constitution Order. The respondent No12 must immediately hand over the power to the chosen representatives. The oldest person should administer the oath to them. 2. Conversely the learned Deputy Attorney-General submitted that a notice under section 27-A, C.P.C. Was issued to the Attorney-General of Pakistan and he is appearing on instructions from learned Attorney-General. The case has not been admitted to regular hearing. A notice issued to Attorney-General under C.P.C., is not a notice to the Federation of Pakistan. He relied upon the case of Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others v. Aftab Ahmad Khan Sherpao and others (PLD 1992 SC 723). Learned Dy.A.- G.Stated that he was here only to assist the Court as directed vide order dated 23-8-2002. Learned Dy.A.-G.Raised a preliminary objection that respondent No,2 is the President of Pakistan by virtue of Chief Executive's Order 3 of 2001, promulgated on 20-6-2001 and immunity is provided in Article 248 of the Constitution of Islamic Republic of Pakistan, 1973. This Constitutional petition against the President was not Maintainable and the name of the President should be struck off from array of respondents. The learned Dy.A.-G.Urged that the judgments of the Hon'ble Supreme Court in Zafar Ali Shah's case (supra) and Waseem Sajjad's case (supra) stand complied with in toto. The elections to the National Assembly and Provincial Assemblies have been held and the elections to the Senate of Pakistan are scheduled for 12th of November, 2002. He relied upon para. 17 of the short order in Zatai Ali Shah's case which reads:- "That the Chief Executive shall appoint a date not later than 90 days before the expiry of the aforesaid period of three years, for holding of a general election to the National Assembly and the Provincial Assemblies and the Senate of Pakistan." 3. I have given my anxious thought to the arguments of both the learned counsel. The points raised by the learned counsel for the petitioner relate to the interpretation of the judgment of the Hon'ble Supreme Court. I would not like to dwell upon them lest I should trespass on the jurisdiction of the Hon'ble Supreme Court of Pakistan. I agree with the learned Deputy Attorney-General that under para 7 of the short order passed by the Supreme Court, the Chief Executive was to appoint a date, not later than 90 days before the expiry of the period of 3 years for holding a general election to the National Assembly, the Provincial Assemblies and the Senate of Pakistan. In fact the elections to the National Assembly and Provincial Assemblies have been held and the elections to the Senate are scheduled for 12th November, 2002 which is no too far away. To me there appears to be no infringement of the judgment of the Hon'ble Supreme Court. The learned counsel is losing sight of the statement of Mr. Sharifuddin Pirzada in answering the question put to him by the Hon'ble Supreme Court of Pakistan which is reproduced as under:-- "Ans. Time-frame, you see, it is a Supreme Court decision which we accept in its right spirit. It is a balanced judgment. They have given this time-frame according to their own judgment. And, as I said we will try our level best to meet this time-frame, and if there occurs any fluctuation then we will see it afterwards. With our best efforts we will certainly meet the time-frame since this is the decision of the Supreme Court." The Supreme Court also observed:-- "So, the date is to be appointed not later than 90 days before the expiry of aforesaid period of three years. Now this was accepted by General Musharraf in Press Conference on 25-5-2000 at Islamabad when the Short Order was already announced."
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The delay in the transfer of power to the civilian Government in the making appears to be due to lack of majority in the Parliament by any single party and due to the lack of consensus on formation of the coalition Government. Even otherwise no positive action has been suggested against respondent No,2 by the Hon'ble Supreme Court in its judgment for his failure to implement the judgment within the time-frame given to him. Whether the respondent No,2 has committed treason or contempt of Court it is for the Supreme Court to judge and not for this Court. A direction with regard to time is generally considered as directory in nature and not mandatory. It is well- settled that if a period for doing an act or thing is fixed but its noncompliance is not visited with penalty or the consequences to flow and the act or thing is not done within that period, the delay will not defeat the action or performance of the duty. 4. Mr.A.K.Dogar launched a very strong attack against the Legal Framework Order, 2002. Learned counsel submitted that the Constitution is given by the people themselves and it is permanent. He referred to paragraphs in the preamble of the Constitution which are:-- "And whereas it is the will of people of Pakistan to establish an order.... Now, therefore, we, the people of Pakistan do hereby through our representatives in the National Assembly, adopt, enact and give ourselves, this Constitution." He emphasized that the validation of the army take-over on 12th October, 1999 was on the basis of doctrine of State necessity and the principle of salus populi suprema lex. The validation was conditional that the elections shall be held within the time-frame and the power handed back to the chosen representatives. The power to amend the Constitution conferred on the Chief Executive was only for a transitional period. He referred to para. 281 of the judgment in Zafar Ali Shah's case (supra) which is as follows:-- "The question arises whether the Chief Executive can be granted unfettered powers to amend the Constitution. Mr. Khalid Anwar emphasized that in case the Army action is condoned/validated this Court must succinctly state whether the Chief Executive' has power to amend the Constitution and if so, subject to what limitations. He emphasized that in the first instance power to amend the Constitution should not be conceded to the Chief Executive and Begum Nusrat Bhutto's case (supra) should be revisited. In case his Court follows the dictum of Begum Bhutto's case (supra) the power to amend the Constitution by the Chief Executive must be stated with particularity and the fields which are not to be touched should be specifically stated. Mr. S. Sharifuddin Pirzada argued that once the Army action through extra-Constitutional measure is validated, the Chief Executive should be given the power to amend the Constitution. Same view was expressed by the learned Attorney-General and Dr.Farooq Hassan. We are of the considered view that if the Parliament cannot alter the basic features of the Constitution, as held by this Court in Achalczai's case (supra) power to amend the Constitution cannot be conferred on the Chief Executive of the measure larger than that which could be exercised by the Parliament. Clearly, unbridled powers to amend the Constitution cannot be given to the Chief Executive even during the transitional period even on the touchstone of State necessity'. We have stated in unambiguous terms in the Short Order that the Constitution of Pakistan is the supreme law of the land and its basic features i,e, independence of judiciary, Federalism and Parliamentary form of Government blended with Islamic Provision cannot be altered even by the Parliament. Resultantly, the power of the Chief Executive to amend the Constitution is strictly circumscribed by the limitations laid down in the Short Order vide sub-paragraphs (i) to (vii) of paragraph 6." He further referred to para. 47 in Waseem Sajjad's case which is as under:- "We also hereby reaffirm by way of emphasis that the validation and legitimacy accorded to the present Government is conditional, inter-linked and intertwined with the holding of general elections to the National Assembly and the Provincial Assemblies and the Senate of Pakistan within the time-frame laid down by this Court leading to restoration of the democratic institutions."
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Learned counsel re-emphasised that the rule laid down by the Hon'ble Supreme Court in the Short Order passed in Zafar Ali Shah's case (supra) is that the 1973 Constitution still remains supreme law of the land and that the Constitutional amendments by the Chief Executive can be resorted to only if the Constitution fails to provide a solution for attainment of his declared objectives and further that the power to amend the Constitution by virtue of clause (6), sub-clause (1-a) is controlled by sub-clauses (b). (c) and (d) in the same clause. He referred to paras. 4, 5 and 6 of the Short Order in Zafar Ali shah's case (supra). Learned counsel argued that Legal Framework Order, 2002 Las become the supreme law of the land and not the 1973 Constitution. The Constitution of Islamic Republic of Pakistan, 1973 has been subjugated, suppressed and subordinated to the Legal Framework Order. The Legal Framework Order has an overriding effect on the Constitution of 1973. Learned counsel referred to paras. 3. 4 and 5 of the Legal Framework Order. He argued that power to promulgate any legislative measure stands extinguished by operation of the Supreme Court judgments in Zafar Ali Shah's case (supra) and Waseem Sajjad's case (supra). By incorporation of Articles 58(2)(b) and 152-A in the Constitution of Islamic Republic of Pakistan, the very structure of the Constitution has been altered. Learned counsel argued that in an Parliamentary form of Government the President is only a titular head and the executive power is exercised by the Prime Minster. The introduction of the said two Articles has empowered the President over and above the Prime Minister. Learned counsel argued that transfer of power to the Civilian Government will be under Legal Framework Order and not under the 1973 Constitution. The powers have been retained by the Chief Executive through un- Constitutional modes. N^ one can be elected as President in uniform. Referendum is not a Constitutional method for electing the President of Pakistan. Article 41 provides Constitutional mode for election of the President. Supreme Court had mandated the Chief Executive to restore the Constitution before I 2-10-2002 and not to grab the power from the President. Only the people of Pakistan can Make the de facto Government, a de jure Government by election or ratification. The Constitution of 1973 cannot be held in abeyance beyond the target date. The Constitution can never be held in abeyance and the phrase abeyance is inapplicable to the Constitution. It goes td the bosom of the law. Mr. Dogar further submitted that the judicial power was intact and this Court should strike down the Legal Framework Order on the touchstone of the Constitution. The amendments in the Constitution of 1973 made by the Legal Framework Order, 2002 appear to be permanent which are in direct conflict with the Supreme court judgments passed in Zafar Ali Shah'S case (supra) and Waseem Sajjad's case (supra). Learned counsel referred to Article 3(3) of the Legal Framework Order which states validity of any provision made, or order passed under clauses (1) and (2) shall not be called in question in any Court on any ground whatsoever. He also reffered to Article 4 which states that the Constitution of 1973 shall stand revived on such dale as the Chief Executive may by notification in the Official Gazette appoint a date or different dates may be so appointed in .Respect of different provisions. Article 5 of the Legal Framework Order makes the Order superior to the Constitution. Learned counsel submitted that the Constitution can be amended only in accordance with Article 239 of the Constitution. The power derived by the Chief Executive for the amendment of the Constitution from the judgment of the Supreme Court delivered in Zafar Ali Shah's case (supra) does not authorize him to make any permanent amendment in the Constitution after the transitional period. The Chief Executive was now in chains of the Constitution. Lastly the learned counsel submitted that so-called National Security Council to be constituted under Article 152-A is absolutely un-Constitutional body. The Chairman Joint Chiefs of Staff Committee and the Chief of Staff of Pakistan Army, Pakistan Navy and Pakistan Air Force are employees of the State and the servants of the State cannot be members of the National Security Council. The Preamble of Constitution has become part and parcel of Constitution under
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Article 2A and constitutionality of Legal Framework Order is to be determined on the touchstone of Article 2A. Conversely the learned Deputy Attorney-General submitted that the petitioner has no locus standi to challenge the Legal Framework Order as the petitioner is not an aggrieved person. He relied upon the judgment of Supreme Court passed in Watan Party v. The Chief Executive/President of Pakistan and another (Constitutional Petition No,36 of 2002). The President of Pakistan cannot be impleaded as respondent. Under paras. 6(i), (vi) and (vii) of the Short Order passed in Zafar Ali Shah's case, power of judicial review is not attracted to the present case. The amendment in the Constitution is a political question and review of the political question does not fall within the domain of judicial review. Power to amend the Constitution has been conferred upon the Chief Executive by the Hon'ble Supreme Court. The Parliament is at liberty to amend the Constitution as and when it chooses so. Reliance is placed on the case of Qazi Hussain Ahmad Ameer Jamaat-e- Islami Pakistan and others v. General Pervez Musharraf, Chief Executive and others (PLD 2002 SC 853) the learned Dy. A.-G. Submitted that the incorporation of Article 58(2)(b) in the Constitution by 8th Amendment was upheld by the Hon'ble Supreme Court in Mahmood Khan Achakzai v. Federation of Pakistan and others (PLD 1997 SC 426). Learned counsel referred to para. 51 of the…
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