Huzaima Bukhari & Dr. Ikramul Haq
Soon after the announcement of [i]Murree Declaration signed between Mr. Nawaz Sahrif and Mr. Asif Zardari, Pervez Musharraf, self-styled-unconstitutionally-imposed President, on the advice of his legal team, challenged their pledge of reinstatement of deposed judges within 30 days of formation of the federal government and he succeeded in his pledge. But now he has pitted him against everybody. Mr. Asif Ali Zardari, co-Chairperson of Pakistan People’s Party (PPP), in an interview the other day, called him “the main hurdle between people and democracy” and “relic of the past”. There was a perception that PPP is going to indemnify his actions of November 3, 2007, but suddenly Mr. Zardari turned the tables by calling him a man behind all troubles.
The allies of dictator are still convincing him that his unconstitutional action (which he himself confessed as unlawful) of [ii]November 3, 2007 had “comprehensive constitutional cover and could not be reversed by a simple National Assembly resolution”. Malik Qayyum, the Attorney General, has repeated that two-third majority is required for the restitution of judges. The PPP in the meantime has prepared 62-point constitutional package to counter the dictates of US, as Bush wants Musharraf to rule Pakistan against people’s will.
Legally speaking, the perpetuation of Musharraf is unconstitutional. His assertion of continuing as self-imposed president is untenable, indefensible and based on misinterpretation of law. His election was violative of established principles of constitutional principles. Morally, it is reflective of complete bankruptcy. Politically, it amounts to disrespecting and denying the mandate of people given by them unequivocally and unambiguously in general elections held on February 18, 2008, a historic day in the history of Pakistan.
Musharraf has been paying lip service regarding establishing “democracy” and ensuring political stability as his top priority, but the fact remains that he is inclined and determined to wage a war with the newly-elected parliament if it restitutes the deposed judges. He has said, “I’m looking forward to work with new government for full five years”, but never tried to ascertain whether the new parliament has also possesses the same desire. Can he unilaterally take such a decision? Should he impose himself on a parliament whose vote of confidence he can never secure? Whenever anybody asked him to quit respecting the mandated of people, he replied: “Question does not arise”!
In the wake of the King’s Party humiliating defeat, there is a consensus among political circles that the mandate given by the people of Pakistan should be respected by restituting the pre-November 3, 2007 judiciary. The political will shown by the Pakistan Muslim League-Nawaz (PML-N) and the Pakistan People’s Party (PPP) and a large number of other elected members, who have agreed to cooperate with each other in the National Assembly for this purpose, has posed a serious challenge to Musharraf and his associates.
The proponents of the status quo and supporters of Musharraf have advised Musharraf that amendments made by him through Constitution (Amendment) Order, 2007 are well protected. Since the apex court in Tika Iqbal Muhammad Khan v General Pervez Musharraf and two others PLD 2008 Supreme Court 6 upheld his proclamation of emergency as Chief of Army Staff and also dismissed review petition against it, parliament through resolution of government through executive order cannot restores the deposed judges. The validating the [iii]Proclamation of Emergency declared by Chief of the Army Staff Gen Pervez Musharraf on November 3, 2007, they says creates a judicial bar for the reinstatement of deposed judges. They are of the opinion that the new parliament requires two-third majority in both the houses to undo Constitutional amendments made by Musharraf.
On the other hand, the opponents of Musharraf insist that since the Proclamation of Emergency Order of November 3, 2007 by the then-Chief of Army Staff was declared unconstitutional by [iv]seven-member bench of Apex Court, all subsequent action are void ab initio and reinstatement of deposed judges can be made through an executive order implementing the said decision. In their view, the subsequent two orders — [v]the Provisional Constitution Order No 1, 2007, and the [vi]Oath of Office (Judges) Order, 2007 – has no legal binding, being ultra vires of the Constitution. Since the new parliament, meeting on March 17, 2008, will not validate [vii]Constitution (Amendment) Order, 2007, the cause behind the Supreme Court’s judgment would disappear, paving the way for the restoration of the pre-November 3, 2007 3 judiciary through an executive order alone.
Musharraf and his associates know that any amendment in the Constitution, through a two-thirds majority in the parliament will be a difficult proposition. The lawyers community is of the view that even if opponents of Musharraf manage to secure two-third support for any such amendment, it would amount to accepting and endorsing unlawful actions of an individual and setting a bad precedence. In future, any Army Chief would dismiss parliament and judiciary following the footsteps of Musharraf. They say that people of Pakistan are now determined to resist subversion of constitution by any army chief. The [viii]Musharraf era, because of mandate given by people on 18th February, 2008, should end now and he must step down voluntarily. In these circumstances, for the restoration of constitutionalism in Pakistan, people of Pakistan are ready to file and fight a case ‘President(sic) v Judiciary’ in Supreme Court. The will of the people alone can establish a free and independent judiciary and force Musharraf to step down. Since the two leading parties have resolved to reinstate the deposed judges within 30 days of the formation of the federal government, Musharraf and his associates may try to take the matter to Supreme Court. However, this time they will be defeated as judgement on which they intend to rely is per incuriam and in legal review it will not sustain at all.
In view of the hierarchical character of judicial system in Pakistan, it is of paramount importance that the law declared by courts should be certain, clear and consistent. It is an established fact that most decisions of the courts are of significance, not merely because they constitute adjudication on rights of parties and resolve disputes between them, but a fortiori in doing so they embody a declaration of law, operating as a binding principle (stare decisis) in future cases.
In Constitution of Pakistan, the doctrine of stare decisis is reflected in Article 189 and 201, which reads as under:
“189. Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan.“
“201. Subject to Article 189, any decision of a High Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all courts subordinate to it.“
Since the doctrine of stare decisis has constitutional backing, it needs to be implemented in letter and spirit. Any violation of this rule will amount to violation of the supreme law of the land. In the light of above explicit provisions, it can be safely concluded that an important element of our legal system is that the reasoning and decisions found in preceding cases are not simply considered with respect or as good guide, but are BINDING. This is known as the principle of stare rationibus decidendis; popularly referred to as stare decisis. It translates simply as ‘let the decision stand’. Stare rationibus decidendis is the more accurate statement because, it is the reasoning (rationibus) that is the vital binding element in judicial precedent.
There exists one exception to rule of stare decisis i.e. a per incuriam judgement is not binding on it. A decision is per incuriam when Court has acted in ignorance of a previous decision of its own or of a Court of co-ordinate jurisdiction which covered the case before it in which case it must decide, which case to follow or when it has acted in ignorance of decisions of higher courts, which are binding; or when the decision is given in ignorance of the term of a statute or rule having statutory force.
The Supreme Court in Criminal Review Petition No. 44 of 2003 [On review from the judgment/order dated 08.05.2003 passed in Cr. Misc. Appeal No.27 of 2001], explained that “a decision would be treated as given per incuriam when it is given in ignorance of term of statute, or a rule having the force of law”. Earlier, the apex court in the case of Province of the Punjab v Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351) elaborated this principle in great detail and cited the same while declaring its own judgement per incuriam in the above-referred case. In this background, Para 4(vi) of the apex court judgement in the case of Tika Iqbal Muhammad Khan v General Pervez Musharraf and 2 others (PLD 2008 Supreme Court 6) holding that judges who were not given or refused to take oath under the Oath of Office (Judges) Order 2007 “have ceased to hold their respective office on the 3rd of November 2007” is per incuriam judgement having no binding force inter alia for the following:
- The observation that Chief of Army Staff was competent to issue Proclamation of Emergency of the 3rd day of November 2007 is made without citing the language of Article 232 of the Constitution, which gives exclusive powers to the President of Pakistan to take any such measure. Thus the judgement was given in ignorance of Article 232 of the Constitution of Pakistan and is undisputedly per incuriam as decided by the apex court in PLD 1997 SC 351.
- On the one hand, it has been recoded in the order that “Prime Minister apprised the President of the situation through the letter of 3rd November 2007” for imposition of emergency, and on the other order passed by the Chief of Army Staff was approved. It has not been elaborated under what authority of law Chief of Army Staff interfered in the matters relating to imposition of emergency. This renders the judgement per incuriam.
- It is held that “the situation which led to the issuance of Proclamation of Emergency of the 3rd day of November 2007 as well as two Orders, referred to above, was similar to the situation which prevailed in the country on the 5th of July, 1977 and the 12th of October 1999 warranting the extra-constitutional steps”. The two acts, namely, Provisional Constitution Order No.1 of 2007 and Oath of Office (Judges) Order, 2007, issued by the Chief of Army Staff were prima facie ultra vires of constitution and wrong comparison was made with situations on 5th July 1979 and 12 October 1999 when martial laws were. Hence order on the face of it is per incuriam.
- It is held that judges who “who have not been given, and who have not made, oath under the Oath of Office (Judges) Order, 2007, have ceased to hold their offices on the 3rd day of November, 2007. Their case cannot be reopened being hit by the doctrine of past and closed transaction.” Since the Oath of Office (Judges) Order, 2007 is not valid law any proceedings taken in pursuance of the same is void ab initio. There is no way other way except the one provided in Article 209 of the Constitution to remove any judge of Supreme Court or a High Court. The judgement given in ignorance of Article 209 is per incuriam.
There is no need for any constitutional amendment, for which two-third majority is required, as propounded by Malik Qayyum, Ahmad Raza Kasuri et al. The matter is of simple legal nature and should be solved through a legal procedure rather than entering into political polemics and undue controversies. This will not be the first time that the apex court will declare its earlier judgement per incuriam, there are numerous precedents available. The Supreme Court after reinstatement of deposed judges will certainly take cognizance of the matter suo moto or on the initiation of aggrieved party [which is public at large] to correct the mistake. It will restore the rule of law in its real sense in the country. All the (deposed) judges [illegally removed] are still judges as action of 3rd November was coram non judice. The must assume their offices immediately, but in no case later than 17th March 2008. They do not need any support of executive or parliament. On the contrary, in terms of Article 190 of Constitution all executive and judicial authorities throughout Pakistan are legally required to act in the aid of Supreme Court. Thus, the new government will be duty bound to implement the order of seven-members bench of apex court of 3rd November 2007. There is no justification to wait for 30 days. The pre 3rd-November judges who refused to take oath under unlawful order of Musharraf should assume work on 17th March 2008, if not earlier, and members of Parliament should as acknowledgement of mandate of people march up to the building of apex court after taking oath to show respect for rule of law and constitutional supremacy.
The judiciary must be independent in its real sense, but at the same time, it ought to admit its own wrongdoings of the past supporting unconstitutional acts of usurpers of power and must not repeat it again. This time they should invoke Article 6 [ordering the government to file case for high treason under the High Treason Act of 1973] so that in future nobody dares to subvert the supreme law of land. Such a decision will go a long way to start a new era of independent and strong judiciary, rule of law and constitutionalism in Pakistan. All the organs of the State need to remember that it is always the Constitution that represents the will of people, and not the legislature. There is a wrong notion in Pakistan that Parliament is above everything and all other organs are subservient to its will. The newly-elected parliamentarians should work for the supremacy of constitution in the country and all the organs must discharge their functions within the parameters and powers given by the supreme law of the land. This is the only way to sustain democracy, establish responsible government and protect the rights of masses guaranteed in the Constitution. Dispensation of justice is the main pillar of democracy. The legislature, in fact, exercises delegated powers given by the mandate of people within the framework of the Constitution, which should not be distorted or mutilated by the elected representatives, let alone by an individual usurping power through unconstitutional means. The judiciary should be the custodian of Constitution and must never in future condone its violation, subversion or mutilation at any cost by anybody, judges, parliamentarians, executive officers or the men with guns.
_______________________
The writers (ikram@huzaimaikram.com), legal historians, are member of Adjunct Faculty of Lahore University of Mana
[i] PML (N) leader Mian Nawaz Sahrif and co-chairman PPP Asif Ali Zardari signed the following declaration in a Bhurban hotel, near Murree, on March 9, 2008:
1-Allied parties, the Pakistan People’s Party and the Pakistan Muslim League (N) resolve to form a coalition government for giving a practical shape to the mandate, which was given to the democratic forces by the people of Pakistan on February 18, 2008.
2-This has been decided in today’s summit between the PPP and the PML (N) that the deposed judges would be restored, on the position as they were on November 2, 2007, within 30 days of the formation of the federal government through a parliamentary resolution.
3-The parties agreed that all allied parties would fully support the candidate for the position of the prime minister, nominated by the PPP. The PML (N) suggested that the candidate for prime minister should be such person who can take ahead the common agenda of the allied parties.
4-The parties agreed that the speaker and the deputy speaker of the national assembly would be from the PPP while the speaker and the deputy speaker of the Punjab assembly would be from the PML (N).
5-Both the parties agreed that the PML (N) would be a part of the federal government while the PPP would be a part of the Punjab government.
6-This is the solid opinion of the leaderships of both the parties that the allied parties are ready for forming the governments and the sessions of the national and provincial assemblies be summoned immediately.
[ii] On November 3, 2007, General Pervez Musharraf, the Chief of Army Staff (COAS) and the President of Pakistan, issued a Proclamation of Emergency (POE) in Pakistan followed by the Promulgation of Provisional Constitution Order (PCO) and the Oath of Office (Judges) Order, 2007. The main stated objective of the emergency, and the orders issued following it, was “to end judicial activism.” The Constitution was suspended and judges, who failed to take the new oath of office, were dismissed. The PCO barred judges from making any order against the President and the Prime Minister, or any person exercising authority under them. The POE led to nationwide protests demanding restoration of rule of law and fundamental rights and termination of emergency. Lawyers, human rights activists, and opposition political leaders were arrested.
[iii]
Following is the text of the Proclamation of Emergency declared by Chief of the Army Staff Gen Pervez Musharraf on November 3, 2007:
“WHEREAS there is visible ascendancy in the activities of extremists and incidents of terrorist attacks, including suicide bombings, IED explosions, rocket firing and bomb explosions and the banding together of some militant groups have taken such activities to an unprecedented level of violent intensity posing a grave threat to the life and property of the citizens of Pakistan;
WHEREAS there has also been a spate of attacks on state infrastructure and on law-enforcement agencies;
WHEREAS some members of the judiciary are working at cross purposes with the executive and legislature in the fight against terrorism and extremism, thereby weakening the government and the nation’s resolve and diluting the efficacy of its actions to control this menace;
WHEREAS there has been increasing interference by some members of the judiciary in government policy, adversely affecting economic growth, in particular;
WHEREAS constant interference in executive functions, including but not limited to the control of terrorist activity, economic policy, price controls, downsizing of corporations and urban planning, has weakened the writ of the government; the police force has been completely demoralized and is fast losing its efficacy to fight terrorism and intelligence agencies have been thwarted in their activities and prevented from pursuing terrorists;
WHEREAS some hard-core militants, extremists, terrorists and suicide bombers, who were arrested and being investigated, were ordered to be released. The persons so released have subsequently been involved in heinous terrorist activities, resulting in loss of human life and property. Militants across the country have, thus, been encouraged while law-enforcement agencies subdued;
WHEREAS some judges by overstepping the limits of judicial authority have taken over the executive and legislative functions;
WHEREAS the government is committed to the independence of the judiciary and the rule of law and holds the superior judiciary in high esteem, it is nonetheless of paramount importance that the honourable judges confine the scope of their activity to the judicial function and not assume charge of administration;
WHEREAS an important constitutional institution, the Supreme Judicial Council, has been made entirely irrelevant and non est by a recent order and judges have, thus, made themselves immune from inquiry into their conduct and put themselves beyond accountability;
WHEREAS the humiliating treatment meted to government officials by some members of the judiciary on a routine basis during court proceedings has demoralised the civil bureaucracy and senior government functionaries, to avoid being harassed, prefer inaction;
WHEREAS the law and order situation in the country as well as the economy have been adversely affected and trichotomy of powers eroded;
WHEREAS a situation has thus arisen where the government of the country cannot be carried on in accordance with the Constitution and as the Constitution provides no solution for this situation, there is no way out except through emergent and extraordinary measures;
AND WHEREAS the situation has been reviewed in meetings with the prime minister, governors of all four provinces, and with Chairman of Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice-Chief of Army Staff and Corps Commanders of the Pakistan Army; NOW, THEREFORE, in pursuance of the deliberations and decisions of the said meetings, I, General Pervez Musharraf, Chief of the Army Staff, proclaim Emergency throughout Pakistan.
2. I, hereby, order and proclaim that the Constitution of the Islamic Republic of Pakistan shall remain in abeyance.
This Proclamation shall come into force at once.”
[iv] On November 3, 2007, seven judges of the Supreme Court overturned the Provisional Constitutional Order and restrained the Chief of Army Staff, corps commanders, staff officers and other civil and military officers from acting under the decree. The judges restrained President Gen Pervez Musharraf and Prime Minister Shaukat Aziz from taking actions contrary to the independence of the judiciary and asked the judges of the Supreme Court and the high courts, including their chief justices, not to take an oath under the PCO or follow any other extra-constitutional step. Headed by Chief Justice Iftikhar Mohammad Chaudhry, the bench that handed down the unanimous two-page order consisted of Justice Rana Bhagwandas, Justice Javed Iqbal, Justice Mian Shakirullah Jan, Justice Nasirul Mulk, Justice Raja Fayyaz and Justice Ghulam Rabbani. Anticipating something unusual, the judges remained in the Supreme Court till late afternoon on a day when the court never assembles. It otherwise would not have been possible for them to pass the order. “We feel that the government has no ground or reason to take extra-constitutional steps, particularly for the reasons being published in newspapers that a high-profile case is pending and is not likely to be decided in favour of the government, although the matter is still pending,” the order said. Appointment of the chief justice or judges of the Supreme Court or chief justices of the high courts under the new PCO would be unlawful and without jurisdiction, it said. Copies of the order were sneaked out to the awaiting newsmen outside the court premises. The order came on an application of Supreme Court Bar Association president Barrister Aitzaz Ahsan. The application was fixed for next working day to be taken up by a full court. According to constitutional experts, the oath taking of the new chief justice and other judges was illegal because the PCO was struck down the moment it was issued. More than seven judges of the Supreme Court were required to reverse the restraining order but only four judges were available in the capital till late night on that day. Lawyer close to the government circles put the blame on the judiciary saying “they asked for it”. They termed the extra-constitutional measure a bitter pill necessary for the treatment of an ailment. In its order, the Supreme Court said the PCO had been promulgated to enable the government to administer a fresh oath to the chief justice and judges of the court so that favourable judges could be appointed. Aitzaz Ahsan, while filing his application on had requested an 11-member bench to take immediate action before the axe fell on the judges. Attorney-General Malik Mohammad Qayyum had replied in an angry tone that no martial law was being imposed. What happened thereafter was a national shame. Chief Justice Iftikhar Mohammad Chaudhry and some other judges who refused to take an oath under the new PCO were placed under house arrest shortly after the seven-member bench declared the proclamation of emergency unconstitutional. The government had earlier told Justice Iftikhar Chaudhry that his services were no longer required and he had been escorted back to his home. He returned home in his car carrying the chief justice flag, along with the official motorcade. Alighting from his vehicle, he looked calm and composed and was greeted by his personal staff. His home was later surrounded by personnel of the Islamabad police, Punjab Constabulary and intelligence agencies. The road leading to judicial colony had been blocked since then.
[v]
Following is the text of Provisional Constitutional Order (PCO) promulgated by Chief of the Army Staff Gen Pervez Musharraf in pursuance of the Proclamation of the November 3, 2007, and in exercise of all powers under the Proclamation of Emergency:
“In pursuance of the Proclamation of the 3rd day of November, 2007, and in exercise of all powers enabling him in that behalf, the Chief of Army Staff, under the Proclamation of Emergency of the 3rd day of November, 2007, is pleased to make and promulgate the following Order:
(1) This Order may be called the Provisional Constitution Order No 1 of 2007.
(2) It extends to the whole of Pakistan.
(3) It shall come into force at once.
2. (1) Notwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, Pakistan shall, subject to this Order and any other Order made by the President, be governed, as nearly as may be, in accordance with the Constitution.
Provided that the President may, from time to time, by Order amend the Constitution, as is deemed expedient:
Provided farther that the Fundamental Rights, under Articles 9, 10, 15,16,17,19 and 25, shall remain suspended.
(2) Notwithstanding anything contained in the Proclamation of the 3rd day of November, 2007, or this Order or any other law for the time being in force, all provisions of the Constitution of the Islamic Republic of Pakistan embodying Islamic injunctions including Articles 2, 2A, 31, 2O3A, 227 to 231 and 260 (3) (a) and (b) shall continue to be in force.
(3) Subject to clause (1) above and the Oath of Office (Judges) Order, 2007, all courts in existence immediately before the commencement of this Order shall continue to function and to exercise their respective powers and jurisdiction:
Provided that the Supreme Court or a High Court and any other court shall not have the power to make any order against the President or the Prime Minister or any person exercising powers or jurisdiction under their authority.
(4) All persons who immediately before the commencement of this Order were in office as judges of the Supreme Court, the Federal Shariat Court or a High Court, shall be governed by and be subject to the Oath of Office (Judges) Order, 2007, and such further Orders as the President may pass.
(5) Subject to clause (1) above, the Majlis-i-Shoora (Parliament) and the Provincial Assemblies shall continue to function.
(6) All persons who, immediately before the commencement of this Order, were holding any service, post or office in connection with the affairs of the federation or of a province, including an All Pakistan Service, service in the armed forces and any other service declared to be a service of Pakistan by or under Act of Majlis-i-Shoora (Parliament) or of a Provincial Assembly, or Chief Election Commissioner or Auditor General, shall continue in the said service on the same terms and conditions and shall enjoy the same privileges, if any, unless these are changed under Orders of the President.
3. (1) No court, including the Supreme Court, the Federal Shariat Court, and the High Courts, and any tribunal or other authority, shall call or permit to be called in question this Order, the Proclamation of Emergency of the 3rd day of November, 2007, the Oath of Office (Judges) Order, 2007, or any Order made in pursuance thereof.
(2) No judgment, decree, writ, order or process whatsoever shall be made or issued by any court or tribunal against the President or the Prime Minister or any authority designated by the President.
4. (1) Notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the President, all laws other than the Constitution, all ordinances, orders, rules, bye-laws, regulations, notifications and other legal instruments in force in any part
of Pakistan, whether made by the President or the governor of a province, shall continue in force until altered, or repealed by the President or any authority designated by him.
5. (1) Any ordinance promulgated by the President or by the governor of a province shall not be subject to any limitations as to duration prescribed in the Constitution.
(2) The provisions of clause (1) shall also apply to an ordinance issued by the President or by a governor which was in force immediately before the commencement of the Proclamation of Emergency of the 3rd day of November, 2007.
[vi]
OATH OF OFFICE (JUDGES)
ORDER, 2007
No. 2 – 9 / 2007 – Min – I (B), Islamabad, 3rd November, 2007. ——- Whereas in pursuance of the Proclamation of Emergency of the 3rd day of November, 2007, and the Provisional Constitutional Order No. 1 of 2007, the Constitution of the Islamic Republic of Pakistan has been held in abeyance;
Whereas Pakistan is to be governed, as nearly as may be, in accordance with the Constitution and the President has, and shall be deemed always to have had the power to amend the Constitution;
Whereas all Courts in existence immediately before the commencement of this Order will continue to function and to exercise their respective powers and jurisdiction subject to the Proclamation of Emergency and the Provisional Constitutional Order No. 1 of 2007;
And Whereas to enable the Judges of the Superior Courts to discharge their functions, it is necessary that they take Oath of their office;
Now, Therefore, in pursuance of the aforesaid Proclamation and the Provisional Constitutional Order No. 1 of 2007, and in exercise of all other powers enabling him in that behalf, the President is pleased to make and promulgate the following order:-
1. Short title and commencement.
(1) This Order may be called the Oath of Office (Judges) Order, 2007.
(2) It shall come into force at once.
2. Interpretation.
In this Order, ‘Superior Court’ means the Supreme Court of Pakistan, the Federal Shariat Court or a High Court, and ‘Judge’ includes Chief Justice.
3. Oath of Judges.
(1) A person holding office immediately before this Order as Judge of the Supreme Court, the Federal Shariat Court, or a High Court shall cease to hold that office with immediate effect:
Provided that a person who is given and does make, Oath in the form set out in the Schedule, before the expiration of such time from such commencement as the President may determine or within such further time as may be allowed by the President shall be deemed to continue to hold the office of a Judge of the Supreme Court, the Federal Shariat Court or a High Court, as the case may be.
(2) A Judge of the Supreme Court appointed after the commencement of this Order shall, before entering upon office, make Oath in the form set out in the Schedule.
(3) A person referred to clause (1) and (2) who has made Oath as required by these clauses shall be bound by the provisions of this Order, the Proclamation of Emergency of the 3rd day of November, 2007, the Provisional Constitutional Order No. 1 of 2007, and notwithstanding any judgment of any court, shall not call in question or permit to be called in question the validity of any of the provisions thereof.
(4) A Judge of the Supreme Court or the Federal Shariat Court shall make oath before the President or a person nominated by him, and a Judge of the High Court shall make oath before the Governor or a person nominated by him.
THE SCHEDULE
CHIEF JUSTICE OF PAKISTAN, THE FEDERAL
SHARIAT COURT OR A HIGH COURT OR JUDGES OF
SUPREME COURT, THE FEDERAL SHARIAT COURT
OR A HIGH COURT
(In the name of Allah, the most Beneficent, the
most Merciful)
I ___________________________ do solemnly swear that I will bear true faith and allegiance to Pakistan:
That, as Chief Justice of Pakistan or a Judge of the Supreme Court of Pakistan, the Chief Justice of the Federal Shariat Court or a Judge of the Federal Shariat Court, or the Chief Justice or Judge of the High Court for the Province of …………………………., I will discharge my duties and perform my functions honestly and to the best of my ability and liability in accordance with the Proclamation of Emergency of the 3rd day of November, 2007, the Provisional Constitutional Order No. 1 of 2007, and the law.
That I will abide by the provisions of the Proclamation of Emergency of the 3rd day of November, 2007, the Provisional Constitutional Order No. 1 of 2007 and the Code of Conduct issued by the Supreme Judicial Council.
That I will not allow my personal interest to influence my official conduct or my official decision.
And that, in all circumstances, I will do right to all people, according to law, without fear or favour, affection or ill-will.
May Allah Almighty help and guide me (Amen).
[vii] Pervez Musharraf promulgated invoking his power to unilaterally amend the country’s constitution under Article 2(1) of the own-enforced Provisional Constitution Order and making the November 3 declaration of emergency and accompanying orders immune from any legal challenge by deeming them always to have been validly made. The Constitution (Amendment) Order, 2007 provides that Article 270 of the Constitution is amended to include the following provision:
270AAA. Validation and affirmation of laws etc.-
(1) The proclamation of Emergency of 3rd November, 2007, all President’s Orders, Ordinances, Chief of Army Staff Orders, including the Provisional Constitution order No.1 2007, the Oath of Office (Judges) Order, 2007, the amendments made in the constitution through the Constitution (Amendment) Order, 2007 and all other laws made between the 3rd day of November, 2007 and the date on which the Proclamation of Emergency of the 3rd Day of November, 2007, is revoked (both days inclusive), are accordingly affirmed, adopted and declared to have been validly made by the 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, on or after the 3rd day of November, 2007 in exercise of the powers derived from any Proclamation, Provisional Constitution Order No. 1 of 2007, President’s orders, ordinances, enactments, including amendments in the Constitution, notifications, rules, orders, bye-laws, or in execution of or in compliance with any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding anything contained in the Constitution or 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 of Army Staff Orders, laws, regulations, enactments, including amendments in the Constitution, notifications, rules, orders or bye-laws in force immediately before the date on which the Proclamation of Emergency of the 3rd day of November, 2007 is revoked, 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 of Army Staff 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 prosecution or any other legal proceedings, including but not limited to suits, constitutional petitions or complaints, shall, notwithstanding anything contained in the Constitution or any other law for the time being in force, lie in any court, forum or authority against any person or authority on account of or in respect of issuance of the legal instruments referred to in clause (1) and on account of or in respect of any action taken by the Chief of Army Staff, the President or any other in exercise or purported exercise of the powers referred to in clause (2).
(5) For purpose of clauses (1), (2) and (4) all orders made, proceeding taken, appointments made, including secondments and deputation, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken in good faith and for the purpose intended to be served thereby.
[viii] General Prevez Musharraf ousted the democratically elected government of Prime Minister Nawaz Sharif and assumed the title of Chief Executive. In 2001, he appointed himself to the office of President of Pakistan. In a referendum conducted in 2002, in which he was the sole candidate, he got himself elected as President for a period of five years – a procedure not prescribed by the Constitution of Pakistan. Upon being elected as the President, he did not give up the post of Chief of Army Staff (COAS). In 2007, before the expiration of his five-year term as President, petitions were filed in the Supreme Court of Pakistan opposing his eligibility to contest the presidential election while also being the COAS. Just days before the pronouncement of court decision on these petitions, on November 3, 2007, Musharraf suddenly issued a Proclamation of Emergency (POE) on the country. The Constitution was suspended and was followed by mass arrests of public personalities, human rights activists, and opposition political leaders. The people of Pakistan and international community was at a loss to understand the cause and course of the General’s action in the midst of hearing of election petitions against him. In the wake of the Proclamation of Emergency, while laying the blame for the POE on the doorsteps of the judiciary, Musharraf stated that the action became imperative to end judicial activism and the hurdles which the Supreme Court was creating in the Government effort to return to complete civil rule. Quoting President Abraham Lincoln in support of his action, he declared that he, too, “broke laws and usurped the rights of the people to preserve the Constitution.” Castigating the judiciary he stated, “[o]n the one hand, Pakistan’s sovereignty has been seriously challenged by terrorists and on the other the country’s system is semi-paralyzed due to judicial activism.
The General’s preempting a judicial order on the election petitions by the issuance of the POE, was incomprehensible, however, it is undisputed that the real objective was to forestall the judicial verdict against him. The Constitution of Pakistan empowers the President to issue a POE if the security of the country is threatened by war or external aggression, or by internal disturbance which may be beyond the control of a Provincial Government. Since the COAS has no constitutional authority for making such declaration, it may aptly be described as a martial law order in the garb of emergency.
Following the POE, police and other law-enforcement agencies swung into action in a crackdown, apparently, in anticipation of a country-wide campaign against the POE, leading to arrest and detention of political leaders, prominent and active lawyers, and members of the public. The police beating the lawyers within public view was a sight never seen before in Pakistan. Thousands of protesting lawyers were clubbed and tear gassed. In the Multan city, two judges, who took the oath of office, on being threatened by the lawyers, fled the court.
