=> ISLAMABAD: The Supreme Court on Thursday validated
ISLAMABAD: The Supreme Court on Thursday validated the extra-constitutional steps of Proclamation of Emergency, the Provisional Constitution Order, the Oath of Office (Judges) Order, 2007 made by the chief of the Army staff/president on November 3, 2007.
A full court headed by Chief Justice Abdul Hameed Dogar delivered detailed judgment in Constitutional Petitions No 87-88 of 2007, challenging the Proclamation of Emergency on 3rd November 2007, the Provincial Constitution Order No 1 of 2007 and the Oath of Office (Judges) Order, 2007.
The judgment is written by Chief Justice Abdul Hameed Dogar while other members of the full court were Justice Ijaz-ul-Hassan, Justice Mohammad Qaim Jan Khan, Justice Mohammad Moosa K Leghari, Justice Ch Ejaz Yousaf, Justice Muhammad Akhtar Shabbir and Justice Zia Perwez.
The two petitions were filed in the Supreme Court by Tikka Iqbal Muhammad Khan and the Wattan Party through its Chairman Barrister Zafarullah Khan, ASC under Article 184(3) of the Constitution of Pakistan.
According to the detailed judgment, the full court held that the Constitution of the Islamic Republic of Pakistan, 1973 still remains to be the supreme law of the land albeit certain parts thereof have been held in abeyance in the larger interest of the country and the people of Pakistan; “The extra-constitutional steps of Proclamation of Emergency of the 3rd day of November, 2007, the Provisional Constitution Order No 1 of 2007, the Provisional Constitution (Amendment) Order, 2007, the Oath of Office (Judges) Order, 2007 and the President’s Order No 5 of 2007 are hereby declared to have been validly made by the Chief of Army Staff/President subject to the condition that the country shall be governed, as nearly as may be, in accordance with the Constitution,” says the detailed judgment.
The judgment stated that unfortunately, some members of the superior judiciary by way of judicial activism transgressed the constitutional limits and ignored the well-entrenched principle of judicial restraint.
They rendered the state machinery, particularly legislative and executive branches of the government paralysed and nugatory. They made ineffective the institution of the Supreme Judicial Council set up under the Constitution for the accountability of the members of the superior judiciary, says the judgment.
It further stated that thousands of applications involving individual grievances were being processed as suo motu cases ostensibly in the exercise of power under Article 184(3) of the Constitution, which provision is resorted to for the enforcement of fundamental rights involving questions of law of general public importance.
The detailed judgment stated that all acts and actions taken for the orderly running of the state and for the advancement and good of the people are also validated. In the absence of the Parliament, General Pervez Musharraf, Chief of Army Staff/President, in pursuance of the Proclamation of Emergency of the 3rd day of November 2007 may, in the larger public interest and the safety, security and integrity of Pakistan, under the principle of ‘salus populi suprema lex’ (Let the good of the people be supreme), may perform:
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;
All acts which tend to advance or promote the good of the people; and
All acts required to be done for the ordinary orderly running of the State.
The President, the Federal Government and the Election Commission of Pakistan shall ensure the holding of fair, free and transparent elections as required by the Constitution and the law, says the judgment.
The Superior Courts continue to have the power of judicial review, to judge the validity of any act or action of the Chief of Army Staff, or the President notwithstanding the ouster of their jurisdiction by the aforesaid extra-constitutional measures;
The court found that in the recent past the whole of Pakistan was afflicted with extremism, terrorism and suicide attacks using bombs, hand grenades, missiles, mines, including similar attacks on the armed forces and law enforcing agencies, which reached climax on 18th of October 2007 when in a similar attack on a public rally, at least 150 people were killed and more than 500 seriously injured. The extremists/terrorists resorted to abduction of foreigners, which badly impaired the image of Pakistan in the comity of nations, and adversely affected its economic growth. The situation in Islamabad and various places in NWFP, Balochistan and tribal areas was analogous to “a state within the state”.
Unfortunately, no effort by the government succeeded in curbing extremism, terrorism and suicide attacks. The Prime Minister apprised the President of the situation through his letter of the 3rd of November 2007, says the judgment.
Source: The News
Date:2/15/2008
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