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Petitioner: Lawyers Foundation for Justice VS Respondent: Federation of Pakistan, etc
Court Name: Lahore High Court Judge(s): Shahid Waheed, Atir Mahmood, Shahid Jamil Khan Title: Lawyers Foundation for Justice vs Federation of Pakistan, etc Case No.: Writ Petition No.196881/2018 Date of Judgment:2018-08-31 Reported As: 2018 [M] C.L.R. 1605, PLD 2019 Lahore 43, 2018 LHC 1856 Result: Petition dismissed
Judgment SHAHID WAHEED, J:- As all the five constitutional petitions, to wit, Writ Petition No.196881 of 2018, Writ Petition No.208646 of 2018, Writ Petition No.228253 of 2018, Writ Petition No.230166 of 2018 and Writ Petition No. 229885 of 2018 raise common issue for decision before this Court, they were heard and decided concomitantly through a short order dated 31 August, 2018 which reads as under:- ?For the reasons to be record ed later, we declare that after promulgation of the Constitution (Eighteenth Amendment) Act, 2010, the National Accountability Ordinance, 1999 still exits and is in force and consequently this petition along with connected petitions is dismissed.? 2. Here are the reasons for the above short order . 3. The seminal question that hinges for consideration of this Court is as to whether the National Accountability Ordinance, 1999 made in pursuance of the Provisional Constitution Order No.1 of 1999 after promulgation of the Constitution (Eighteenth Amendment) Act, 2010, has ceased to be a law and is non-existent, non-est and a dead letter . The argument propounded in these petitions is that on 4 October , 1999 two instruments were made and enforced. The first was the Proclamation of Emergency through which the Constitution of the Islamic Republic of Pakistan, 1973 was held in abeyance, whereas the second was the Provisional Constitution Order No.1 of 1999 which was subsequently amended by the Provisional Constitution (Amendment) Order 9 of 1999 declaring that an Ordinance promulgated by the President and by the Governor of the province would not be subject to the limitation as to its duration prescribed in the Constitution of the Islamic Republic of Pakistan, 1973. In pursuance of above stated instruments, the President promulgated the National Accountability Ordinance, 1999 which continued in force till the Constitution (Eighteenth Amendment) Act, 2010. However, after enforcement of the Constitution (Eighteenth Amendment) Act, 2010 amending the Constitution of the Islamic Republic of Pakistan, 1973 comprehensively and by virtue of its Article 270-AA, the National Accountability Ordinance, 1999 lost the protection of the Provisional Constitution Order No.1 of 1999 as amended by the Provisional Constitution Orderst th
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No.9 of 1999 and thus by automatic operation of law came under limitation period of 120 days as provided in Article 89 of the Constitution of the Islamic Republic of Pakistan, 1973. Since the National Accountability Ordinance, 1999 was not laid before the appropriate legislature within the prescribed period of limitation, it had become dead from 18 August, 2010. The bedrock of the above arguments is the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case of "Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others" (PLD 2009 Supreme Court 879). 4. To appreciate the points that have been canvassed before us, it will be essential to narrate briefly the relevant historical background of the constitutional legislation, jurisprudence developed thereon and accountability law. We will begin the chronology from 12 October , 1999 when General Pervez Musharraf, the then Chief of Army Staff by taking extra constitutional measure seized power and suspended the governme nt on the ground of politicizing army , destabilizing it and trying to create the dissension within its rank. On 14 October , 1999 Proclamation of Emergency effective from 12 October , 1999 was issued. According to this Proclamation, the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution") was held in abeyance; the President of Pakistan was allowed to continue in office; the National Assembly , the Provincial Assemblies and Senate stood suspended; the Chairman and Deputy Chairman of the Senate; the Speaker and the Deputy Speaker of the National Assembly and the Provincial Assemblies stood suspended; the Prime Minister , the Federal Ministe rs, Ministers, Ministers of State, Advisors to the Prime Minister , Parliamentary Secretaries, the Provincial Advisors to the Chief Ministers were ceased to hold offices and whole of the Pakistan came under the control of the Armed Forces of Pakistan. The Chief of Army Staff on 14 October , 1999 also issued Provisional Constitution Order No.1 of 1999 ("PCO No.1 of 1999") wherein it was inter-alia provided that notwithstanding the abeyance of the provisions of the Constitution and subject to that Order and any other Orders made by the Chief Executive: (a) Pakistan would be governed, as nearly as may be, in accordance with the Constitution;and, (b) all laws other than the Constitution would continue in force until altered, amended or repealed by the Chief Executive or any authority designated by him. Subsequently , on 15 November , 1999 the Provisional Constitution (Amendment) Order No.9 of 1999 ("PCO No.9 of 1999") was promulgated through which Article No.5-A was inserted in the PCO No.1 of 1999. The effect of the amendment was that the Ordinance promulgated by the President or by the Governor of the Province would not be subject to the limitation as to its duration prescribed in the Constitution. This effect was also applied to the Ordinance issued by the President or by the Governor which was in force immediately before the commencement of the Proclamation of Emergency dated the 14 October , 1999. In pursuance of the aforesaid Proclamation and PCO No.1 of 1999 as well as PCO No.9 of 1999 the President of the Islamic Republic of Pakistan on 11 November , 1999 promulgated National Accountability Bureau Ordinance No.XVIII of 1999. The word "Bureau" stood omitted from the title of the said Ordinance by virtue of Ordinance No.CXXXIII of 2002 dated 23 November , 2002. Now the title of the Ordinance is "The National Accountability Ordinance, 1999 ("the NAO, 1999"). The object of the NAO,1999 was/is to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse/abuse of power , misappropriation of property , taking of kickbacks, commissions and for matters connected and ancillary or incidental thereto. 5. The army take-over, Proclamation of Emergency, PCO No.1 of 1999 along with other Orders were challenged before the Hon'ble Supreme Court of Pakistan in the case of "Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others" (PLD 2000 Supreme Court 869). Vide judgment dated 12 May, 2000 the action of 12 October, 1999 was held valid on the basis of doctrine of State necessity and the principle of salus populi est suprema lex and General Pervez Musharraf was held entitled to perform all acts, or legislative measures, which were in accordance with or could have been made under the Constitution including the power to amend it and to perform all such measures as would establish or lead to the establishment of his declared objectives. As to the power to amend the Constitution, it was held that the constitutional amendments could be resorted to, for a period of three years with effect from 12 October, 1999, only if the Constitution failed to provide a solution for the attainment of his declared objectives, but no amendment would be made in the salient feature of the Constitution, that is, the independence of judiciary, federalism, parliamentaryth th th th th th th th rd th th th
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form of Government blended with Islamic Provisions. Review of Zafar Ali Shah's case (supra) was sought but it was dismissed vide judgment dated 7 February, 2001 reported as "Wasim Sajjad and others v. Federation of Pakistan through Secretary, Cabinet Division and others" (PLD 2001 Supreme Court 233). 6. Pursuant to the judgment of Zafar Ali Shah' s case, firstly , the PCO No.1 of 1999 was amended through Provisional Constitution (Amendment) Order, 2000 (Chief Executive's Order No.10 of 2000) dated 14.11.2000, so as to provide that the words "Prime Minister" and the words "Chief Minister," wherever occurring, would be deemed to be substituted by the words "Chief Executive of the Islamic Republic of Pakistan" and "Governor" respectively; and, secondly, on 20 June, 2001 the President's Succession Order, 2001 (Chief Executive's Order No.III of 2011) was promulgated and in pursuance whereof General Pervez Musharraf became President of the country. Later on, by means of Chief Executive's Order No.XII of 2002 dated 30 April, 2002 General Pervez Musharraf held referendum asking for a vote on his continuation in the office of President for next five years. He was returned with more than 99% of the polled votes. 7. At the fag end of three years granted in Zafar Ali Shah' s case, General Pervez Musharraf made number of amendments in the Constitution through: (i) the Legal Framework Order (Chief Executive' s Order No.24 of 2002) dated 21 August, 2002; (ii) the Legal Framework (Amendment) Order 2002 (Chief Executive' s Order No.29 of 2002) dated 9 October , 2002; and (iii) the Legal Framework (Second Amendment) Order 2002 (Chief Executive' s Order 32 of 2002) dated 26 October , 2002. One of the effects of the amendments made through the Legal Framework Orders was that the NAO, 1999 was not only continued in force but also made part of the Sixth Schedule to the Constitution, consequently it could not be altered, repealed or amended expressly or impliedly without the prior sanction of the President accorded after consultation with the Prime Minister; and, that this protection was for a limited period of six years. The amendments made in the Constitution through the Legal Framework Order , 2002 were challenged before the Hon'ble Supreme Cour t of Pakistan by means of a Constitutional Petition filed by the Watan Party . This petition was dismissed vide judgment dated 7th October , 2002 reported as "Watan Party through Punjab President Ladies Wing Tasneem Shaukat Khan v. Chief Executive President of Pakistan, and another" (PLD 2003 Supreme Court 74) on the ground that the petitioner had no locus standi to file the same. Since the elected Parliament was in immediate sight, it was held in that judgment that Parliament and not the Supreme Court was the appropriate forum to consider all these amendments with the observations that procedure to amend the Constitution as enshrined in Article 239, Part XI remained unaltered and the Parliament retained same power to amend the Constitution as it did before the promulgation of the Legal Framework Order . 8. On 10 October , 2002 complying with the direction given in Zafar Ali Shah' s case, elections to the National Assembly and the Provincial Assemblies were held. Vide Notification dated 15 November , 2002 certain Articles of the Constitution were revived and on 16 November , 2002 General Pervez Musha rraf took oath of the office of President and members of the National Assembly were also sworn in. Subsequently , through Notification dated 20 November , 2002 remaining Articles of the Constitution were revived. The Members of the Senate took oath on 23 November , 2002 whereas the Chief Ministers of the Provinces were sworn in on 12 March, 2003. 9. The provisions of the Legal Framework Order through which amendments were made in the Constitution were one of the contentious issue before the new Members of the Parliament and resultantly as per observations made in the Watan Party' s case they undertook exercise to review the same which ultimately culminated on 31 December , 2003 when the Constitution (Seventeenth Amendment) Act, 2003 was promulgated. By virtue of Article 9 of the Constitution (Seventeenth Amendment) Act, 2003 the constitutional status given to the NAO, 1999 was withdrawn and the same stood omitted from the Sixth Schedule to the Constitution. The Parliament also granted validation and affirmation to laws made between 12 October , 1999 and 31 December , 2003 (that is date on which the Constitution (Seventeenth Amendment) Act, 2003 came into force). In this context Article 270-AA of the Constitution was also amended and substituted with the following: 270AA. Validation and Affirmation of laws etc....(1) The Proclamation of Emergency of the fourteenth day of October, 1999, all President's Orders, Ordinances, Chief Executive's Orders including the Provisional Constitution Order No.1 of 1999, the Oath of Office (Judges) Order, 2000 (No.1 of 2000), Chief Executive's Order No.12 ofth th th st th th th th th th rd th st th st
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2002, the amendments made in the Constitution through the Legal Framework Order, 2002 (Chief Executive's Order No.24 of 2002), the Legal Framework (Amendment) Order, 2002 (Chief Executive's Order No.29 of 2002), the legal Framework (Second Amendment) Order 2002 (Chief Executive's Order No.32 of 2002) and all other Laws made between the 12 day of October, One thousand nine hundred and ninety nine and the date on which this article comes into force (both days inclusive), having been duly made or accordingly affirmed, adopted and declared to have been validly made by 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, between the twelfth day of October, one thousand nine hundred and ninety-nine, and the date on which this Article comes into force (both days inclusive), in exercise of the powers derived from any Proclamation, President's Orders, Ordinances, Chief Executive's Orders, enactments, including amendments in the Constitution, notifications, rules, orders, bye-laws, or in execution of or in compliance with any order made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding 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 Executive's Orders, laws, regulations, enactments, including amendments in the Constitution, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes into force 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 Executive's 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 suit, prosecution or other legal proceedings, including writ petitions, shall lie in any Court or forum against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in Clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers. (5) For the purposes of Clauses (1), (2) and (4), all orders made, proceedings taken , appointments made, including secondments and deputations, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby . 10. Upon analysis of different clauses of Article 270-AA provided by the Constitution (Seventeenth Amendment) Act, 2003 it will appear that Clause (1) dealt with the validation of the Proclamation of Emergency of 14 October, 1999 whereby whole of the Pakistan came under the control of the Armed Forces of Pakistan and all laws, whether of constitutional nature or of ordinary kind made between 12 October, 1999 and the date on which the said Article came into force. Clause (2) was confined to the validity conferred on actions taken in exercise of powers derived from the legal instruments and laws, not only those mentioned in Clause (1) but all laws and orders passed by any authority, during the period mentioned in Clause (1). Clause (3) made provisions for continuation of all laws which were in force immediately before the date on which the Article came into force. Clause (4) was indemnity clause for protection of authorities and persons for action taken during the relevant period. Clause (5) was deeming provision declaring all measures and actions taken as referred to in Clauses (1), (2) and (4) to have been made, taken or done in good faith. There was yet another important feature of Article 270-AA. Clause (1) of Article 270-AA proclaimed that the laws in question "are affirmed , adopted and declared to have been validly made by the competent authority and notwithstanding contained in the Constitution shall not be called in question in any Court or forum on any ground whatsoever". According to the case of "Miss Benazir Bhutto v. Federation of Pakistan and another" (PLD 1988 Supreme Court 416) the word "affirm", inter-alia means to ratify, whereas the word "adopt" means to make that one's own (property or act) which was not soth th th
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originally. And the word "declare" is defined "to make known, manifest or clear". Applying the said meaning of crucial words, the effect of Clause (1) of Article 270-AA was that the specified laws (including the NAO, 1999) were validated and although they were not enacted by any law-making authority known to the Constitution were adopted as though made by the appropriate legislature under the Constitution and were pronounced by the force of the constitutional provision to have been made by the competent law-making authority established by the Constitution. Thus, Article 270-AA was a constitutional device to confer validity upon the specified laws by the exercise of constituent power and to give them the status of competently enacted laws, to remove the blemish, as to their maker. This was necessary in order to overcome the unconstitutionality of the laws for lack of legislative power because under the Constitution legislative power vested in the organs institutionalized by the Constitution, and not in an authority outside the contemplation of the Constitution. The affirmation, adoption and declaration of validity conferred upon the laws mentioned in Clause (1) of Article 270-AA, both as to the lack of legislative authority as well as to the content of the laws, inasmuch as they were to be regarded as validly enacted laws, at par with other laws which were passed by the legislature constituted under the Constitution. 11. On a plain reading of Article 277-AA (3) it appears clear that all proclamations, President's Orders, Ordinances, Chief Executive's Orders, laws, enactments etc. which were in force immediately before the date on which this Article came into force were continued in force and the appropriate legislature was authorized to alter, repeal or amend the same. The object of this provision was to maintain continuity of the pre-existing laws after the Constitution (Seventeenth Amendment) Act, 2003 came into force till they were repealed, altered or amended by the competent authority. Without the aid of such provision there would have been utter confusion in the field of law. In this perspective Clause (3) of Article 270-AA posited the continuation of the NAO, 1999 until altered, repealed or amended by the competent authority . 12. Needless to observe here that grafting of the Legal Framework Order , 2002, in the body of the Constitution, the Constitution (Seventeenth Amendment) Act, 2003, the vote of confidence and the notification of General Pervez Musharraf as Chief of Army Staff and President of Pakistan were also challenged before the Hon'ble Supreme Court of Pakistan but the petition was dismissed vide judgment dated 13 April, 2005 which is reported as "Pakistan Lawyer Forum and others v . Federation of Pakistan and others" (PLD 2005 Supreme Court 719 ). 13. On 3 November, 2007 Proclamation of Emergency, Provisional Constitution Order No.1 of 2007 and Oath Order of 2007 were promulgated. The first and second instruments were issued by the Chief of Army Staff whereas the third was issued by the President of Pakistan. The striking features of the said instruments were: (a) that the Constitution was held in abeyance and Pakistan made to be governed as nearly as may be, in accordance with the Constitution but subject to Provisional Constitution Order No.1 of 2007 and any other Order issued by the General Pervez Musharraf as President; (b) executive and legislature were continued; (c) Federal, Provincial Governments, that is, Prime Minister, Federal State Ministers, Chief Ministers and Provincial Ministers continued in office; (d) the Chairman/Deputy Chairman Senate and the Speaker/Deputy Speaker of National Assembly also continued in office; (e) the National Assembly and Provincial Assemblies continued and they were allowed to complete their term of five years. During the period w.e.f. 3rd November, 2007 to 15 December, 2007 General Pervez Musharraf, as President of Pakistan, purported to make amendments in the Constitution, inter- alia, protecting his own actions by insertion of Article 270-AAA in the Constitution. On 28 November, 2007 General Pervez Musharraf relinquished the office of Chief of Army Staff and on 15 December, 2007 by means of Revocation of Proclamation of Emergency Order , 2007 he revoked the emergency imposed on 3 November , 2007 and restored the Constitution as amended by him. The said instruments and amendments were challenged before the Hon'ble Supreme Court of Pakistan in the case of "Tikka Iqbal Muhammad Khan and others v. General Pervez Musharraf and others" (PLD 2008 Supreme Court 178). The said case was dismissed through judgment dated 23 November , 2007 and the above said three instruments and the amendments made in the Constitution were declared valid under the principle of salus populi suprema lex . 14. General Elections were held on 8 February 2008 and as consequence whereof, the National Assembly and the Provincial Assemblies came into existence and Governments at the Federal and Provincial levels were formed. In the wake of resolution passed by all the four Provincial Assemblies calling upon General Pervez Musharraf toth rd th th th rd rd th
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quit the office of President otherwise impeachment resolution would be moved against him, he resigned from the office of the President on 18 August, 2008 and elections for the office of the President were held on 6 September , 2008 wherein Mr . Asif Ali Zardari was returned as the successful candidate. 15. The Proclamation of Emergency , Provisional Constitution Order No.1 of 2007, Oath Order , 2007, amendments made in the Constitution through Lega l Framework Orders and the judgmen t rendered in the Tikka Iqbal Muhammad Khan's case came under consideration before the Hon'ble Supreme Court of Pakistan in the case of "Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary , Ministry of Law and Justice, Islamabad and others" (PLD 2009 Supreme Court 879). In this case, the Hon'ble Supreme Court of Pakistan declared the Proclamation of Emergenc y and Provisional Constitutional Order No.1 of 2007 unconstitutional, void, ab-initio; and, that Ordinances issued during the period w.e.f. 3 November , 2007 to 15 December , 2007 ceased to be permanent laws with the result that life of such Ordinances would be limited to the period specified under Articles 89 and 128 of the Constit ution, viz, four month and three moths respectively from the date of their promulgation. The discussion with regard to Ordinances made during the said period is available in paragraph 186,187 and 188 of the judgment and the same being relevant for determination of question, under discussion, is reproduced below: ?186.Proclamation of Emergency and PCO No.1 of 2007 having been declared unconstitutional and void ab initio and the validity purportedly conferred on all such Ordinances by means of Article 270-AAA and by the judgment in Tikka Iqbal Muhammad Khan's case also having been shorn, such Ordinances would cease to be permanent laws with the result…
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