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Petitioner: PAKISTAN LAWYERS FORUM VS Respondent: General PARVEZ MUSHARRAF and 3 others
Court Name: Lahore High Court Judge(s): Mian Saqib Nisar, Chaudhry Ijaz Ahmed Title: PAKISTAN LAWYERS FORUM vs General PARVEZ MUSHARRAF and 3 others Case No.: Intra-Court Appeal No,335 in Writ Petition No,6019 of 2001 Date of Judgment:2001-05-03 Reported As: 2001 YLR 1 Result: Appeal dismissed
Judgment ORDER ' The appellant has filed Writ Petition No,6019 of 2001 with the following prayer:--- "Most humbly and respectfully the present petitioners submit and pray that God Almighty has entrusted the learned Judges of this august Court with sagacity and wisdom to act in the luminous tradition of the Muslims of the early days of the Holy Prophet of Islam and to act in the light of the facts and circumstances narrated in the paras. Above and the principle that 'welfare of the people is the supreme law' be applied and the respondent No,1 be directed to wrap up his 'good governance' and to mind the job for which he was trained and is being paid from the public exchequer. (b) That this learned Court be pleased to declare that the General has failed as a self-appointed leader of the masses and after the expiry of 18 months his dictatorship has given nothing to this country except increased poverty, disappointment, depression, shame and excruciating sense of loss of national self-respect which is increasing with every passing day. (c) That the General has no valid excuse to continue to stay and to add to the misery of the people of this country because he has not taken even a small step after long period of 1-1/2 years towards the achievement of his "agenda" on account of his inherent incapability, lack of technical know- how and inexperience in civilian affairs. (d) That this learned Court be pleased to declare that it is in the interest of national integrity that the General is required to roll back his extra-Constitutional rule, retire to the barracks, withdraw PCO-1 and proclamation of emergency and eventually the Parliament shall stand restored, the Government of Pakistan will be put in place and the General shall submit himself to the Constitutional institutions of a democratic Pakistan."
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' The learned Single Judge dismissed the writ petition vide impugned order dated 18-4-2001, hence the present appeal. 2. The learned counsel of the appellant submits that learned Single Judge, was erred in law to dismiss the writ petition. He further submits that impugned order is not in accordance with the law laid down by the Honourable Supreme Court in Syed Zafar Ali Shah's case (PLD 2000 SC 869). The Hon'ble Supreme Court has laid down principle in the aforesaid case that superior Courts have ample power of judicial review qua the action taken by the present regime. He heavily relied upon following passage of the aforesaid judgment supra of the Honourable Supreme Court in Syed Zafar Ali Shah's case: "6(vi) That the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Armed Forces, if challenged, in the light of the principles underlying the law of State necessity as stated above. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any legislative instrument enacted by the Chief Executive and/or any order issued by the Chief Executive or by any person or authority acting on his behalf." (vii) That the Courts are not merely to determine whether there exists any nexus between the orders made, proceedings taken and acts done by the Chief Executive or by any authority or person acting on his behalf, and his declared objectives as spelt out from his speeches, dated 13th and 17th October, 1999, on the touchstone of State necessity but such orders made, proceedings taken and acts done including the legislative measures, shall also be subject to judicial review by the superior Courts," "National Assembly is the highest representative body, which reflects the will and aspirations of the people of Pakistan. Similar is the status of a Provincial Assembly in a Province, Senate, being a symbol of unity of the federating units has its own utility for the country as a whole. It is, therefore, of utmost importance that the impugned suspension of the above, democratic institutions is examined with great care and caution, otherwise it would adversely affect the democratic processes in the country, which may cause instability, impair the economic growth and resultantly prove detrimental to the general well-being of the people." ' The learned counsel of the appellant on the basis of the aforesaid paragraphs of the Honourable Supreme Court submits that Honourable Supreme Court has validated action of the respondent with aforesaid conditions. Since the action of the respondent is in derogation of the aforesaid condition precedent prescribed by the Honourable Supreme Court in the said judgment, therefore, High Court under Article 199 of the Constitution has jurisdiction to entertain the Constitutional petition and analyses this situation whether the actions of the present regime are in accordance with the aforesaid judgment of the Honourable Supreme Court or not. This fact was not considered by the learned Single Judge in the impugned order. He further submits that if all the acts done by the present regime are found invalid and do not stand the test of the principle of State necessity. Consequently, result would be that the military take over was even though held valid by the Supreme Court its continuity cannot be sustainable in the eyes of law. He further submits that heavy duty is cast upon the Courts to determine whether there exists any nexus between the acts of the present regime and declared objectives on the touchstone of necessity. He further submits that involvement of Army in civil affairs runs a great risk of politicizing which would not be in national interest. He further highlighted that the historical Constitutional background qua abrogating Constitution of the country since 1958 by the military personnel and consequently by this act of the military personnel, the country would run in losses in each sphere of life. He further submits that Civilian Rule in the Country must be restored within shortest possible time as is held by the Honourable Supreme Court in Syed Zafar Ali Shah's case. He further submits that present regime failed to achieve object as is borne out from the speeches of the Chief Executive dated 13th
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and 17th October, 1999. He further submits that law of necessity and the principle of welfare demand that Chief Executive should hand over the charge of the affairs of the country to the Civilians who are the real sovereign of the country. He further submits that matter pertains to public importance but this fact was not considered by the learned Single Judge in the impugned order. He further submits that economy of country is - moving in reverse direction on account of the inaction of present regime as highlighted by appellant in ground (ii) of the contents of the writ petition. He further submits that the Country is suffering lot on account of slow decision making policy by the present regime as is highlighted by the appellant in ground (iii) of the writ petition; that excessive increase in public expenditure and Civil Secretariat has gone up by Rs,14 million for the last one year as is evident from ground (iv) of writ petition of the appellant. He further read the contents of grounds of writ petition from grounds (v) to (xxvi) of writ petition filed by appellant which consist of following headings:- (I) lacking of technical in economy and foreign affair. (II) Favouritism in favour of Army Officers; (III) Slow decision making policies; (IV) Excessive increase in public expenditure and Punjab Civil Secretariat expenses gone up by Rs, 14 billion for last one year; (V) Lack of Technical know-how in Economic and Foreign Affairs; (VI) Favoritism in favour of army officers; (VII) No control on bureaucracy and Monitoring Teams are useless and mere burden; (VIII) Flight of capital and human resources; (IX) No foreign investment; (X) Political uncertainty has caused economic instability. (XI) One-sided accountability no accountability of Army and Judiciary. (XII) Grievance of smaller provinces have increased; (XIII) Devolution Plan unacceptable to small provinces; (XIV) Rise in price of kitchen items and IMF loan have added to poverty; (XV) Internationally country is more isolated than ever before. (XVI) Trade deficit 60% higher than the last fiscal year; (XVII) Rising unemployment; (XVIII) Law and order situation worse; (XX) Generals enjoying perks and privileges "General of Pakistan richest in the world" says American weekly. (XXI) Press Not Free. (XXII) Foreign Exchange Reserves Lowest Below 1.1 Billion. (XXIII) Taxation base decreased number of taxpayers less' than before. (XXIV) Increase in oil imports 63%. (XXV)Present economic policies considered simple murder by economists and industry leaders (Annexure AF-B). (XXVI) Nawaz Deal Mockery of process of accountability Generals credibility all time low. (XXVII) Welfare lies Dead in the Grave. ' Learned counsel of the appellant further submits that all the aforesaid grounds taken by the appellant in the writ petition as well as in I.C.A. Are supported by news items appeared in the different Daily newspapers and articles of eminent jurist/technocrats in their field, published in various newspapers. The Honourable Supreme Court has given validation to the action of the respondent in Syed Zafar Ali Shah's case by placing reliance on the news item or articles written by different technocrats coupled with the speeches of the respondent No,1, dated 13th and 17th
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October, 1999. In support of his contention, he relied upon various passages of the judgment of the Honourable Supreme Court in Syed Zafar Ali Shah's case (PLD 000 SC 869). The relevant passage relied by the learned counsel of the appellant reproduced hereunder:- "The learned Attorney-General has placed on record an article by Kamran Khan of News Intelligence Unit, published in the daily "The News" dated 14-10-1999, titled "Ambitious Ziauddin Butt steered Nawaz to political disaster." "Clearly in view of the reasons given in the short order coupled with the circumstances and observations stated in this judgment, intervention by the Armed Forces warrants validation on the basis of the doctrine of State necessity and the principle of salus populi suprema lex." "On behalf of the Federation, voluminous record spreading over dozens of paper books has been filed in support of the allegation of corruption and corrupt practices by the former Prime Minister as well as other members of his government. We would suffice by giving few instances in that behalf. ' Reference may first be made to a press clipping published in Daily 'Dawn', dated 24th October, 1999 under the Heading "Rs,211 billion non-performing Rs,145 billion defaulted." "TRANSCRIPT OF BBC TELEVISION'S DOCUMENTARY ON CORRUPTION IN PAKISTAN" "Daily "The News" in its publication, dated 21st March, 2000 has reported the above debate." "It is a sad state of affairs that no conceivable steps were initiated to curb the systematic corruption because of lack of transparent accountability during the tenure of the previous Government. The material placed before us indicates that the former Government had shown little interest in eradicating corruption from the society." "The observations made herein and in the Short Order are not intended to condemn, bloc the politicians and parliamentarians as a class. Undoubtedly, there are good honest and upright as well as corrupt people in every Proup of persons." "In order to voluminous record wherein specific instances of misdeclaration of assets have been given. We have examined the relevant record only for the purposes of the present controversy and find that sufficient material exists showing prima facie, that a large number of politicians indulged in misdeclaration of assets, which factor has a bearing on the issue in hand. We may clarify that misdeclaration of assets or any discrepancy as to declaration of assets before the Wealth Tax Authorities qua the Election Commission may not by itself be a ground for intervention of the Armed Forces on 12th October, 1999 but this aspect of the matter when viewed in the overall context and-with particular reference to the alleged massive corruption and corrupt practice becomes a relevant factor." "After hearing the learned counsel for the parties and going through the record, we have gathered that the combined effect of the overall policies and methodology adopted by the former Government was the total collapse of the country's economy inasmuch as G.D.P. Growth during the past three years had hardly kept pace with the growth of population and Pakistan has a debt burden Which equals the country's entire national income." "The learned Attorney-General relied on an interview of Mr. Khalid Anwar, former Law Minister, given to the media, published in Daily Khabrain dated 25-3-2000 wherein he observed: "Nawaz Sharif, had been exercising the powers like a Mughal Emperor." "On the question of well-being, the learned Attorney-General stated that the well-being of the people is a reflection of the combined effect of sovereignty, integrity and solidarity and there can be no well-being without either of sovereignty, integrity, solidarity and prosperity." "After careful analysis of the above material, we are of the view that it is never safe to confer unfettered powers on a person who is holding the reins of the affairs of the country as is embedded in the saying, power corrupts and absolute power corrupts absolutely"
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"DOCTRINE OF NECESSITY" "The fact remains that this Court is of the considered view that intervention by the Armed Forces on 12th October, 1999 was an imperative and inevitable necessity in view of the exceptional circumstances prevailing at that time and, therefore, there is no valid justification for not validating the extra-Constitutional measure of th- Armed Forces on the technical distinction between 'doctrine of necessity' and the 'doctrine of State necessity'." ' It is for the Superior Courts alone to decide whether any given peculin and extraordinary circumstances warrant the application of the above doctrine or not." "It is Government of the people, by the people and for the people; and not by the Army rule for an indefinite period." 6(I) That 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 PCO-1 of 1999, whereby fie has been described as Chief Executive, having 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." 6(vi) "That the Superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Armed Forces, if challenged, in the light of the principles underlying the law of State necessity as stated above. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be Exercised as heretofore, notwithstanding anything to the contrary contained in any legislative instrument enacted by the Chief Executive and/or any order issued by the Chief Executive or by any person or authority acting on his behalf." 6(vii) That the Courts are not merely to determine whether there exists any nexus between the orders made, proceedings taken and acts done by the Chief Executive or by any authority or person acting on his behalf, and his declared objectives as spelt out from his speeches, dated 13th and 17th October, 1999, on the touchstone of State necessity but such orders made, proceedings taken and acts done including the legislative measures, shall also be subject to judicial review by the superior Courts." ' He summed up his argument that the present regime had failed to achieve the objects highlighted by the Chief Executive in his speeches of 13th and 17th October, 1999. The Honourable Supreme Court has granted conditional validation. Respondents did not improve the conditions better than the 12th October, 1999 and in fact conditions qua each and every sphere of the life is worst than 12th October, 1999 and this Court has ample jurisdiction to analyses the prevailing situation in the country and shall take judicial notice of the events subsequent to the judgment of the Honourable Supreme Court in Syed Zafar Ali Shah's case. ' We have considered the contentions of learned counsel for the appellant and perused the record. It is better and appropriated to reproduce Constitutional history and ease-law on the subject since the creation of Country to resolve the present controversy between the parties:- "Pakistan came into existence on the map of world on 14-8-1947 under the Independence Act, 1947. Pakistan was to be 'governed by the provisions of Government of India Act, 1935 as adopted by the Pakistan Provisional Constitution Order, 1947 until a Constitution was framed by the competent body which also formulated the function of the Federal Legislature. The competent body i.e, Constituent Assembly failed to frame Constitution even after the lapse of seven years and was guilty of acting as if it was permanent Legislature. The then Governor-General Mr. Ghulam Muhammad dismissed the Constituent Assembly on 24-10-1954 on the reason that it had become unrepresentative character. Moulvi Tameez-ud-D in Khan being aggrieved, by the aforesaid action of the Governor-General filed a petition under section 223-A of the Government of India Act, 1935 before the Chief Court of Sindh with the prayer for issuance of writs of mandamus and co warranto. The Federation of Pakistan raised preliminary objection on the ground that section 223-A under
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which the issuance of writ was prayed for was not enacted properly for want of assent of the Governor-General. The Chief Court Sindh rejected the preliminary objection of the Federation of Pakistan on the ground that the Assembly functioned as Constituent Assembly and not a Federal Legislature, therefore, assent was not given and writ petition was accepted. The Federation of Pakistan being aggrieved filed appeal before the Federal Court. The Federal Court reversed the findings on this point and the Chief Court held that Constituent Assembly while enacting section 223-A exercised power under section 8(1) within the meaning of section 6(1) of the Indian Independent Act was Legislature of the dominion and as such legislation under section 6(3) of the Act requires assent of the Governor-General which was lacking and the judgment of Chief Sindh Court was set aside by the Federal Court reported as Federation of Pakistan and others v. Moulvi Tamiz-ud-Din (PLD 1955 FC 240)." ' The aforesaid decision of the Federal Court had far-reaching consequences as number of enactments were promulgated by the Constituent Assembly since 1950 which had not received the assent of the Governor-General. Due to this reason Governor-General promulgated Emergency Powers Ordinance, 1955 to validate to these enactments which had been enacted since 1950. The validity of the Ordinance fell for consideration in Yousaf Patel's case before the Federal Court reported as (PLD 1955 FC 38). The Federal Court had that validation amounted to legislation and the Constituent Assembly alone was competent to legislation on Constitutional matters and by its dissolution, the powers held by it could not be transferred to the Governor-General. The Governor- General could only either accord or refuse his assent to the enactments passed by Constituent Assembly, Ordinance was thus found to be invalid is so far as a conferred validity on the laws of the Constitutional character rendered invalid on account of the lacking of assent of the Governor- General. The aforesaid decision had effect of creating a serious Constitutional chaos in the Country as there was no competent Legislature to validate the law in question. The Governor-General filed a Reference before the Federal Court under section 213 of the Government of India Act, 1935 with the prayer seeking Federal Court opinion to overcome crises with which the Country was faced (PLD 1959 FC 435) which reveals the question referred by the Governor-General to the Federal Court inter alia as follows: "Is there any provisions in the Constitution or any Rule of law applicable to the situation of which the Governor-General can by any order or even otherwise declare that all orders made, decision taken and other cause done under these laws shall be valid and enforceable and these laws which cannot without danger to the Sate remove from the existing legal system shall be treated as a part of the law of the land until the question of validity which determined by the new Constituent function." ' Mr. Muhammad Munir the then Chief Justice has expressed his opinion in the following terms: "The powers and responsibilities of the Head of State in preserving the State and Society during an extraordinary emergency and preventing from disruption the Constitution and Government of the country are analogous to the powers which an Army Commander had during Martial Law. He also referred to the following opinion of Lord Mansfield in George Stration and others (1979) 21 Howells State trial 1045). " the only question for you to consider is this: Whether there was that necessity for the preservation of the Society and the habitants of the place as authorized private men To take possession of the Government; and to take possession of the Government to be sure it was necessary to do it immediately, "to amount to a justification, there must appear imminent danger to the Government and individuals; the mischief must be extreme, and such as would not admit a possibility of waiting for a legal remedy. That the safety of the Government must well- warrant the experiment.... The necessity will not justify going further than necessity obliges; for though compulsion takes away the
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criminality of the acts, which would otherwise be treason, yet it will not justify a man in acting farther than such necessity obliges him or continuing to act after the compulsion is removed." ' The Chief Justice then expressed his own opinion: subject to the condition of absoluteness, extremeness and imminence, an act which would otherwise be illegal becomes legal if it is done bona fide under the stress of necessity (it) affirms Chitty's statement that necessity knows no law and the maxim cited by Bracton that necessity makes lawful that which otherwise is not lawful. Since the address (of Mansfield) expressly refers to the right to a private person to act in necessity, in the case of Head of the State justification to act must a fortiori be clearer and more imperative." ' The Chief Justice further observes:--- "....The disaster that stared the Governor-General in the face, consequent on the illegal manner in which the Constituent Assembly exercised its legislative authority, is apparent from the results described in the Reference as having followed from this Court's decision in Mr. Tameez-ud-Din Khan's case and the subsequent case of Yousuf Patel. The Governor-General must, therefore, be held to have cited in order to avert an impending disaster and to prevent the State and Society from dissolution. His Proclamation of 16th April, 1955, declaring that the laws mentioned in the Schedule to the Emergency Powers Ordinance, 1955 shall be retrospectively enforceable is accordingly valid during the interim period, i.e, until the validity of these laws is decided upon by the new Constituent Assembly," ' In view of the opinion of the Federal Court Constituent Assembly was installed under the Constitutional Assembly Order, 1955. It passed the validity of laws Bills which was duly assented by Governor-General; thereafter the Constituent Assembly of Pakistan finally passed the Constitutional Bill. The first Constitution of Pakistan came into force on 23-3-1956. Mr. Ghulam Muhammad resigned from the office of Governor-General, and Major General Sikandar Mirza had succeeded office of Governor-General of Pakistan w.e.f, 7-10-1955 who became President of Republic of Pakistan who had abrogated Constitution of 1956 and dissolved the Legislative Assemblies and also dismissed the Federal and Provincial Governments and also abolished the political parties. He also proclaimed Martial Law throughout the country and appointed General Muhammad Ayub as Chief Martial Law Administrator. ' The proclamation contained inter alia following reasons for imposing proclamation:--- "....The Constitution is so…
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