‘So long as Article six (high treason) is part of the Constitution, parliament is debarred from even condoning unconstitutional acts of (a) usurper, what to talk of validating, affirming and adopting the same,’ the detailed judgment by the court’s larger bench said.
The 343-page detailed verdict, authored by Chief Justice Iftikhar Mohammad Chaudhry, said such acts remained illegal even when disgruntled elements burst with joy over ‘unconstitutional ouster of those in power by means of imposition of martial law or emergency.’
While denouncing successive military takeovers over the past four decades and their endorsement by the superior judiciary, the apex court through a short order on July 31 had declared Gen (retd) Musharraf’s second coup through the Emergency Order of Nov 3, 2007, as unconstitutional. It had declared illegal most of the actions taken under the order, including appointment of several judges and setting up of the Islamabad high court. The short order had also held unconstitutional the appointment of Justice Abdul Hameed Dogar as the chief justice of Pakistan (CJP) as a result of emergency rule and in defiance of an order issued by a seven-judge bench the same day.
The detailed judgment said Pakistan owed its existence to a peaceful struggle launched and pursued by Quaid-i-Azam Mohammad Ali Jinnah within the constitutional and legal framework.
Referring to the taking of oath under the Provisional Constitution Order by Justice Dogar and other judges, the chief justice stated that all of them had shut their eyes to an obvious fact that they were not judges under the Constitution. ‘They knew that some others were the rightful holders of those offices; they had no right in fact and they were not in possession of office by some colour of right and they were usurpers.’
They were intruders because they attempted to perform the duties of an office without authority of law and without the support of public acquiescence, the verdict held.
The seven-judge restraining order of Nov 3 was widely covered in the media, both electronic and print. Besides, it was also communicated to the judges of the Supreme Court and high courts through the registrars, it said.
The judgment expressed the hope that all institutions, on the well-known principles of good governance and without transgressing their constitutional bounds, would endeavour to eradicate corruption and self-enrichment, devoting themselves to the service of the people.
Needless to add that the courts would, at all times, remain vigilant in this regard and would always come to the rescue of any beleaguered citizen or class of citizens whenever and wherever an occasion arose, it said.
The judgment also referred to the referendum, constitutional amendments made by Gen Musharraf through the Legal Framework Order (LFO) and the general elections of 2002 and the 17th Amendment to the Constitution.
It noted that when a petition of the Jamaat-i-Islami and other connected petitions were decided by the Supreme Court in favour of Gen (retd) Musharraf by a majority of six to three, he and his government were satisfied with the functioning of the apex court. But in the second round of litigation, which commenced on a petition of Justice (retd) Wajihuddin Ahmed, apprehensions were expressed by aides of Gen Musharraf about a possible adverse decision, which precipitated the actions of Nov 3.
The judgment declared that the CJP and judges of the Supreme Court were unconstitutionally and illegally prevented from performing their functions, although they were very much available and able to perform such functions. There were no vacancies in the Supreme Court and the increase in number of judges by the Finance Act of 2008 could only be valid to the extent of allocation of funds. It did not meet the requirement of Article 176 of the Constitution which commanded that the number of judges could be increased only by an act of parliament, the judgment said.
Referring to appointment of judges of high courts, it said the law laid down in the Al Jihad Trust case had been reiterated and it had been held that the chief justice being the pater familias, his views definitely deserved due deference.
The court held that the doctrine of necessity, as applied in earlier cases, absolutely had no application to an unconstitutional and illegal assumption of power by an authority not mentioned in the Constitution in a manner not provided for in the Constitution.
Two members of the 14-judge bench, Justice Chaudhry Ijaz Ahmed and Justice Jawwad S. Khawaja, added their separate notes.
Justice Jawwad held that Gen Musharraf had directly undermined the writ of the state by launching a frontal attack on the Constitution, abusing the office of the chief of the army staff and relying on physical force which had been placed under his command.
He suggested that judges and society must have faith in themselves and declared Gen Musharraf’s Nov three action as demonstrating haughty arrogance by claiming to be above the Constitution and assuming the power of arbitrarily amending it.
Justice Ijaz said a society could not exist without justice and justice could not prosper without independent judges. ‘Justice is a holy romance and every goodness emanates from it.’
Talking to reporters, former parliamentary affairs minister Dr Sher Afgan refused to recognise the Supreme Court verdict as a legitimate order, saying he did not consider it a rightful institution.