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PLD 2000 SC 869
Zafar Ali Shah vs General Pervez Musharraf
Zafar Ali Shah vs General Pervez Musharraf
As the constitutional setup was held in abeyance and the assemblies dissolved, Nawaz Sharif, along with several others filed a case to question the legality of the coup. The apex court had declared it valid and Zafar Shah, the lawyer of Nawaz Sharif filed a review petition on 15th November asking the court to declare the coup illegal, restore the writ of the government and declare the dissolving of the National and Provincial Assemblies as void. During this period, it was becoming clear that the emergency declared in 12th October 1999 would be declared void and process of the Martial Law would not be smooth. The Legal counsel of the now Chief Executive Musharraf advised him to declare a PCO where the Constitutional administrative writ would be functional and within it the order, declare that no decision of the Chief Executive nor the order could be challenged in court. This would look to provide some semblance of arguments to the lawyers who would defend a dictator rather than the Constitution itself. Musharraf did exactly that and asked the judges to take a new oath to this order however many judges including the constituted bench refused to take the oath declaring the order as an attack on the independence of Judiciary. The 15th Chief Justice of Pakistan, Justice Saeed Uzz Zaman Siddique would be most notable among them. He cited that a new oath under the PCO would be a betrayal of his oath under the Constitution of 1973 since the PCO deals a fatal blow to separation of powers and to the independence of Judiciary. His bravery would result in house arrest of him and his family and would lead to the removal of him and all the judges who refused such an oath.
Seeing the non-cooperation of Judiciary in the matter, The Chief Executive declared new judges who took the oath and would now sit on the bench of this all important case. It must be added here that the Constitution of 1973 had seen its defenders who stood as walls against the dictator and while it may not have stopped the advance of the military tanks, it most certainly sent a message that the days were the Constitution was just a piece of paper were long gone and where one stood, others may stand as well and this was faced by the regime repeatedly. The case would now be decided by judges who had taken the PCO oath. A major question that was placed was whether the PCO affected the power of Judiciary and Judicial review in any possible manner and whether the extra-constitutional step taken by the courts was in any way valid. Zafar shah went as far as to pray that the court declare all order given under ‘Doctrine of Necessity’ as unconstitutional in order to block any ‘future adventurisms’ both by civilian or military dictators to remove judges.
The court held that no form of oath administered to the judges of the superior courts could restrict the judicial power and derogate from the legal position that the courts, as final arbiters in any constitutional controversy, retain their power and jurisdiction to say as to what a particular provision of the constitution or the law means or does not mean even if that particular provision is one seeking to oust such jurisdiction of the court. Any attempt to control or circumscribe the judicial power of the superior courts with a view to denying them the right to decide the validity and the quantum of the legislative power of the new regime, would be an exercise in futility. Superior courts follow the code of conduct prescribed for the judges and inherently owe allegiance to the state of Pakistan, which requires the Supreme Court to decide the issue of validity if the new regime under which judges are being asked to take new oath in as much as such allegiance cannot be taken away. The PCO 1999 purports to suspend the Constitution on the one hand and, on the other, it says that the country will be governed in accordance with the provisions of the Constitution 1973 as nearly as possible. What emerges from this is that the Fundamental Rights are left intact except those which had been suspended. The Army takeover was indeed an extra-constitutional step and the superior courts of Pakistan retain the power of Judicial review despite the ouster of jurisdiction which came either from within the Constitution, or by virtue of the Martial Law Orders or by legislation. Even non obstante clauses in these cases would fail to prevent such objectives of the incumbent administrations. The courts described Judicial power as a power where the courts can strike down any law on the touchstone of the constitution and such a power cannot be taken away nor its relationship to jurisdiction and it is inherent in the nature of Judicial power that the constitution is regarded as the supreme law and law or act contrary to its provisions is to be struck down by the court and as such is the duty and function of the superior court. The courts stated that the ‘Objectives Resolution’ recognizes the ‘Islamic Doctrine of sovereignty’ that the sovereignty belonged neither to the ruler nor to the rules but to Allah almighty alone and the God granted authority is to be exercised by the representatives chosen by the people alone. The Resolution and the Doctrine envisages the independence of judiciary is to be fully secured and it is the fundamental principle of jurisprudence that the courts must always endeavor to expand their jurisdiction so that the rights of the people are guarded against the arbitrary violations by the executive. The orders of the Chief Executive are subject to the jurisdiction of the Constitutional courts of the country.
Unfortunately the courts looked to validate the coup reasoning that the situation that had arose on 12th October 1999 had no constitutional solution thus the intervention was an inevitable step which stands validated as the doctrine of necessity and its principles embodied in the landmark case of Nusrat Bhutto case and the doctrine itself is recognized in Islam and supported by jurists and superior courts as a means to fill the political vacuum. Sadly the courts then went on to deal fatal blows to the Constitution of 1973 by stating that the constitutional setup was in place and only some portion of it was held in abeyance. The court argued that the constitutional order was still in place and was not removed from one legal order to the next and since it was not a case of constitutional replacement but of deviation, then it cannot be counted as treason. The court then went on to give the Chief Executive three years to stabilize the country through combating corruption and bringing back of wealth in foreign banks and revive the economy of the country and post this, hold the elections. Despite the arguments by the counsels, the courts looked to even provide the powers to amend the constitution to the Chief Executive in line with the powers allotted to the legislative.
The order of the superior court was a fatal blow to the Constitution of 1973. The courts declared themselves the guardians of the constitutional setup and the Constitution of 1973 was that constitutional setup yet they allowed the very document they had declared to be under their protection to be held at gun point in the hands of a dictator. The order was clearly not from a guardian but from one who simply wishes to secure their own power and the order repeatedly highlighted that since they were secure, the constitutional setup was not damaged and the Constitution of 1973 was still in effect however it is to be stated that the Constitution cannot be in full effect unless all its provisions are in effect save for that where the Constitution itself has allowed. Nowhere did the Constitution of mention any power to be held by the army to declare the Constitution as abrogated or to hold even a single Article in abeyance. The courts could not allow for such a step and by doing so the Constitution was held in the hands of a dictator once more. A constitution requires growth through the legal process and this process was once again impeded by an institution that had violated its oath and only added to the chaos in the country. However within these words there existed a message that the Constitution 1973, held hostage, was still combating as the courts declared themselves different to the courts of 1962, 1971 and 1977. They openly declared that the orders of the Chief Executive could be challenged in courts and if the dictator wished to get power through Constitutional setup then he must respect the constitutional setup and only follow the executive pattern allotted within the Constitution and the legislative pattern allotted within the Constitution and he cannot amend the Constitution like it was its plaything and the courts declared that the Chief Executive could not sit on the throne like a king nor could he go around breaking the democratic nature of the country by holding basic democracy like elections nor could be take away the Fundamental Rights of the people which meant that they could not ban parties and hold independent individual elections. The framework of the Constitution would remain the same and new elections would be held in 3 years. This was something the country had not seen and while many were disgusted at the order and called it a surrender by the courts, however what many ignored is that the entire case was a display of how strong the Constitution of 1973 had become and what dictators previously could do so easily, was becoming extremely difficult and complicated. The courts may have surrendered the government to the dictator but not before a display was shown that the Constitution was growing in power and influence. If we match this with the Martial Law of 1962, 1970 and 1977, we would witness that in all those Martial Laws the courts could not defend the Constitutions at all and neither could they defend themselves. The Military could trample through without a single impediment and they could make changes and amendments within the framework to their hearts desire. In 1958, General Ayub simply abrogated the 1956 Constitution and in 1970, General Yahya did the same with the 1962 Constitution. General Zia, mangled the Constitution of 1973 and made it its own plaything however General Musharraf was not able to do any of those in 1999. He could not abrogate the Constitution of 1973 nor could he completely hold it in abeyance. He could not even rule for a long period of time and declare no party elections. He could not set aside the Fundamental Rights like all three of his predecessors could and this was the first General that immediately needed a strong legal team to find legal solutions for his coup. It was a clear indication that the Constitution of 1973 was far stronger and the refusal of judges to take the oath on PCO and even the new judges to declare that the framework of the Constitution would remain the same and the courts could review the decision of the Chief Executive, was evidence of this fact.
I have stated it before that a constitution gains power from the people and the institutions, and it gains strength from its implementation and evolutional growth. The Constitution of 1973 has seen as such even in its short and painful time, it had grown and it had supporters and defenders. This fact would become abundantly clear to General Musharraf as the years of his regime would roll by. For now the military takeover was validated and with it the Chief Executive declared his accountability drive which was to target many political leaders and would see the arrest and later exile of Nawaz Sharif.
As the military slowly griped the country, it became more abundantly clear to the military that this grip would be very difficult to hold and each and every inch of influence would have to be fought for. The two major questions that the new Chief Executive had was how to continue the take over and how to amend and implement a constitutional setup which would allow for him to rule like his predecessors. The biggest problem was the durability of the courts and the constitutional setup and it would be this continuous struggle that would cumulate to the events of 2007-08. The 13th amendment had largely removed the powers that the president had and to bring them back required amending the 1973 Constitution which required the presence of the assembly. The Chief Executive utilized the Constitutional setup for a referendum to declare a referendum on 30th April 2002 on whether he should continue as the executive or not. As it is with most, if not all the dictators in all the places of the world, the result was 98% in favor of him continuing his rule. However the problem was still the court order that had ordered the Chief Executive to hold elections 3 years but the Chief Executive could not amend the Constitution of 1973 like it was its plaything nor take away the parliamentary system nor break down the federal nature of the Constitution. In 2001 the Supreme Court in the case of Wasim Sajjad and Others vs Federation of Pakistan PLD 2001 SC 233 declared that Pakistan must have democracy and any obstacles in respect of achieving that goal must be overcome. The court reaffirmed by way of emphasis that the validation and legitimacy accorded to the present government is conditional, interlinked and intertwined with the holding of general elections to the National Assembly and the Provincial Assemblies and the Senate of Pakistan within the timeframe laid down by the Supreme Court leading to the restoration of democracy. This chained the Chief Executive to hold the elections and made his legitimacy conditional which was unlike the previous Martial Laws. His legal team worked day and night to come up with the solution to this problem and their solution was the Legal Frameworks Ordinance 2002 which was to make great amendments within the Constitution of 1973 and secure his power.
Legal Frameworks Order 2002
On 24th August 2002 the Chief Executive General Musharraf issued an order called the Legal Frameworks Order 2002 which looked to reverse the changes made by the 13th amendment in the Constitution of 1973 and expand the powers of the Chief Executive General Musharraf and give his regime the legitimacy to rule. The LFO looked to revive the constitution of 1973 and bring forth the 10th October elections of 2002. With the election date drawing nearer, the LFO needed to be placed within the Constitution of 1973. The points of the order were as such
i) Every political party shall, subject to law, hold intra-party elections to elect its office-bearers and party leaders.
ii) Having received the democratic mandate to serve the nation as President of Pakistan for a period of five years, the Chief Executive on relinquishing the office of the C. E., shall assume the office of President of Pakistan forthwith and hold office for a term of five years under the Constitution, and Article 44 and other provisions of the Constitution shall apply accordingly.
iii) There shall be 342 seats of the members in the National Assembly, including seats reserved for women and non-Muslims.
iv) The seats in the National Assembly are allocated to each Province, the Federally Administered Tribal Areas and the Federal Capital as under:
- Balochistan: General 14, Women 3, Total 17
- N. W. F. P.: General 35, Women 8, Total 43
- Punjab: General 148, Women 35, Total 183
- Sindh: General 61, Women 14, Total 75
- F. A. T. A.: General 12, Women 0, Total 12
- Federal Capital: General 2, Women 0, Total 2
- Total: General 272, Women 60, Total 332
v) In addition to the number of seats referred to in clause (iv), there shall be, in the National Assembly, ten seats reserved for non-Muslims.
vi) Members to the seats reserved for non-Muslims shall be elected in accordance with law through proportional representation system of political parties' lists of candidates on the basis of total number of general seats won by each political party in the National Assembly. A political party securing less than five per centum of the total number of seats in the National Assembly shall not be entitled to any seat reserved for women or non-Muslims.
vii) If any question arises whether a member of the Parliament is disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, within 30 days, refer the question to the Chief Election Commissioner who shall give his decision thereon not later than three months from its receipt by the Chief Election Commissioner.
viii) If a member of a Parliamentary Party resigns from membership of his political party or joins another; or votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs concerning election of the Prime Minister or the Chief Minister; a vote of confidence or no-confidence; or a Money Bill, he may be declared in writing by the Head of the Parliamentary Party to have defected from the political party. The Head of the Parliamentary Party shall forward a copy of the declaration to the Presiding Officer, and a copy thereof to the member concerned.
ix) A member of a House shall be deemed to be a member of a Parliamentary Party if he having been elected as a candidate or nominee of a political party constituting the Parliamentary Party in the House or, having been elected otherwise than as a candidate or nominee of a political party, has become a member of such Parliamentary Party after such election by means of a declaration in writing.
x) With an addition of "a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary", the clause 58 is revived.
xi) Where a Bill is referred to the Mediation Committee, it shall, within 90 days, formulate an agreed Bill likely to be passed by both Houses of the Parliament and place the agreed Bill separately before each House. If both the Houses pass the Bill, it shall be presented to the President for assent.
xii) All decisions of the Mediation Committee shall be made by a majority of the total number of members of each House in the Committee.
xiii) The President may, in consultation with the Speaker of the National Assembly and Chairman of the Senate, make rules for conduct of business of the Mediation Committee.
xiv) With an insertion of a new article 152A, there shall be a National Security Council whose chairman shall be the President in order to serve as a forum for consultation on strategic matters pertaining to the sovereignty, integrity and security of the State, and the matters relating to democracy, governance and inter-provincial harmony. Other members of N. S. C. shall be the Prime Minister, the Chairman of the Senate, the Speaker of the National Assembly, the Leader of the Opposition in the National Assembly, the Chief Ministers of the Provinces, the Chairman Joint Chiefs of Staff Committee, and the Chiefs of Staff of the Pakistan Army, Pakistan Navy and Pakistan Air Force. Meetings of the National Security Council may be convened by the President either in his discretion, or on the advice of the Prime Minister, or when requested by any other of its members, within the time frame indicated by him.
xv) On dissolution of an Assembly under article 58-2 (b) or, on completion of its term, the President, in his discretion, or, as the case may be, the Governor, in his discretion but with the previous approval of the President, shall appoint a caretaker Cabinet. When a caretaker Cabinet is appointed, on dissolution of the National Assembly under Article 58 or a Provincial Assembly under Article 112, or on dissolution of any such Assembly on completion of its term, the Prime Minister or, as the case may be, the Chief Minister of the caretaker Cabinet shall not be eligible to contest the immediately following election of such Assembly.
xvi) The Proclamation of Emergency of the 14th October, 1999, all President's Orders, Ordinances, Chief Executive's Orders, including the P. C. O. No. 1 of 1999, the Oath of Office (Judges) Order 2000, the Referendum Order 2002 (Chief Executive's Order No. 12 of 2002), and all other laws made between the October 12, 1999 and the date on which this Article comes into force, are hereby affirmed, adopted and declared notwithstanding any judgment of any court, to have been validly made by competent authority and notwithstanding anything contained in the Constitution shall not be called in question in any court on any ground whatsoever.
xvii) All Proclamations, President's Orders, Ordinances, Chief Executive's Orders, laws, regulations, enactments, 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 competent authority.
Through L. F. O. 2000, the President and Chief Executive revived the Constitution of Pakistan, except a few articles pertaining to the Provincial Governments and the Senate of Pakistan, etc., with effect from 16th November, 2002, which are to be restored later. Those parts of the Constitution which are restored include "Preamble, Article 1 to 58 (both inclusive), Article 64 to 100 (both inclusive), Annex, insertion of Article 152A and the schedule to the Constitution".
The LFO 2002 declared that it could not be challenged in any court which was indeed in contravention to the Judgment in 2000 where the courts stated that any amendment in the Constitution of 1973 or any order passed by the Chief Executive can and will be scrutinized under Judicial review. The Order also reversed the 13th amendment and made Pakistan a semi-presidential system once again where majority of the powers rested with the president. The President of Pakistan could dissolve assemblies which would bring back the weak democratic setup of 90s. The LFO also looked to give power to Musharraf as President of Pakistan and with it the authority to create the National Security Council and allow him to solidify his control on the parliament. This was challenged in the famous case of Watan Party vs Chief Executive/President of Pakistan PLD 2003 SC 74 where the court validated the Martial Law once more and declared that power of amending the Constitution was allotted to the Chief Executive in the words that “all acts and legislative measures which were in accordance with or could have been made under the Constitution of Pakistan 1973 including the power to amend if; restriction was, however, placed upon the power to amend the constitution to the effect that it could be restored to only if the Constitution failed to provide a solution for attainment of the declared objectives of the Chief Executive. The Supreme Court declared that such a question was the domain of the legislative and not the courts since Article 239 of the Constitution 1973 remained unaltered and the Parliament retained the power to amend the Constitution of 1973 as it had before the promulgation of the Legal Frameworks Order 2002 and only the Parliament can bring it to such and by bringing the 17th amendment which would see the LFO become part of the Constitution of 1973, the order would stand validated.
The first thing President Musharraf did was to get the parliament to validate the LFO through the amendment. The above case was filed when the LFO was announced but by the time the judgment was announced. The elections had already happened and as time went by in the December of 2003, the 17th amendment was passed as well.
The amendment saw extreme fighting in the parliament and President Musharraf witnessed how this Martial Law was far different to the takeovers of the past. The Parliament was home to various parties and with it the amount of disagreements and differences were equally severe and what would have taken his predecessors a a few weeks to pass, witnessed an entire year of bickering with a petition in the Supreme Court being heard alongside it.
As i stated before that i was writing a book called the 'The Legal Evolution of the Constitution 1979' and this is an excerpt from it where we discuss the LFO and the Aforementioned Case that validated the Coup of Musharraf
@Nilgiri @Joe Shearer @Kaptaan @Yankeestani @VCheng @T-123456 @Saithan
You know what is truly amazing is that all these dictators came with the sole promise of punishing the corrupt and reforms but did neither. Infact Ayub was the only one that actually harmed the landowers by passing land reforms and curtailing their growing powers whereas Zia and Musharraf did neither. Zia did counter of this
