A turning point in the judicial history
By Hussain H. Zaidi
Sunday, 02 Aug, 2009


FOURTEEN-ME AMBER bench of the Supreme Court, in a unanimous short order, has declared the November 3, 2007 proclamation of emergency by the then President and Chief of Army Staff (COAS) General Pervez Musharraf unconstitutional. The proclamation had suspended the constitution, enforced a provisional constitutional order (PCO) and sacked some sixty members of the superior judiciary including the Chief Justice of Pakistan (CJP).

According to the apex court’s July 31, 2009 verdict, the appointment of Justice Abdul Hamid Dogar as CJP and that of new judges in the Supreme Court and the High Courts as well as the establishment of the Islamabad High Court under the PCO was also unconstitutional and of no legal effect.

Hence, these judges have ceased to hold their office with immediate effect. As for the members of the superior judiciary who took fresh oath under the PCO, their cases shall be referred to the Supreme Judicial Council (SCJ) under Article 209 of the constitution. The dismissal of the judges of the superior courts, who were subsequently reinstated, under the November 3, 2009 proclamation of emergency has also been declared unconstitutional.

The instant judgement of the Supreme Court is comparable with the apex court’s decision in Asma Jilani versus the Government of the Punjab (PLD 1972 SC 139), wherein it was held: “A person who destroys the national legal order in an illegitimate manner cannot be regarded as [a] valid source of law-making. May be, that on account of his holding the coercive apparatus of the State, the people and the Courts are silenced temporarily, but let it be laid down firmly that the order which the usurper imposes will remain illegal and Courts will not recognise its rule and act upon them as de jure.”

Pakistan is a country where the abrogation or suspension of the constitution is not a rare event. On several occasions, the constitution has been abrogated or suspended (1958, 1969, 1977, 1999 and 2007). However, the November 3, 2007 suspension of the constitution differed from such previous acts in at least two respects: One, for the first time judicial activism was cited as a reason (in fact the major reason) for an extra-constitutional step.

The text of the emergency proclamation specifically alleged “increasing interference by some members of the judiciary in government policy, adversely affecting economic growth, in particular.” “Some judges”, the proclamation maintained, “by overstepping the limits of judicial authority have taken over the executive and legislative functions.”

Two, making a complete break with the past, the proclamation was immediately set aside by a seven-member bench of the Supreme Court. However, that landmark order could not be implemented as the members of the bench were among the deposed judges. Later a newly constituted apex court, comprising judges who were sworn in under the PCO, upheld the proclamation of emergency and removal of the judges invoking yet again the doctrine of necessity and the principle of past and closed transactions. One wonders whether those PCO judges could have decided otherwise.

The proclamation of emergency was clearly mala fide, because it was made at a time when the Supreme Court was hearing a petition challenging the eligibility of President Musharaf for re-election. Suspecting that the apex court might reject his candidature, Musharraf subverted the constitution.

The declaration of emergency, suspension of the constitution, proclamation of the PCO and removal of the members of superior judiciary were unconstitutional acts, simply because they were in conflict with the relevant constitutional provisions. To begin with, the constitution does not authorise the COAS to clamp emergency; that power is vested only in the president (to be exercised on the advice of the prime minister). Secondly, the proclamation of emergency cannot hold the constitution in abeyance. Thirdly, no person or body including parliament can suspend the constitution. Fourthly, since the constitution cannot be suspended, a provisional constitutional arrangement is also unconstitutional. Finally, superior court judges can be removed only by president on the recommendations of the Supreme Judicial Council (SCJ) in accordance with Article 209 of the constitution.

Let’s admit for the sake of argument that parliament can validate unconstitutional acts as it did on previous occasions. But even in this case, the November 3rd proclamation of emergency and subsequent amendments to the constitution can be validated only if approved by parliament by a two-third majority in accordance with Article 239. They shall remain invalid as long as parliament does not validate them. But it will be absurd to infer from this that a constitutional amendment is also needed not to validate such acts.

In fact subversion of the basic law, as done on November 3, 2007, is so heinous an act that it has been made an act of high treason, not merely treason, under Article 6 of the constitution in these words: “Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason. Any person aiding or abetting these acts is likewise guilty of high treason.” The High Treason (Punishment) Act, 1973 provides that high treason is punishable with death penalty or life imprisonment.

Article 6 defines high treason in a broad sense. Not only abrogation or subversion of the constitution but also any attempt to do so also constitutes high treason. Likewise, abetment to abrogate or subvert the constitution is also an act of high treason. When for instance the constitution is held in abeyance, a favourite parlance for military dictators in Pakistan, it also amounts to subversion of the constitution and thus constitutes an act of high treason. Likewise what happened on November 3rd, 2007 was also subversion of the constitution, as it upset the existing constitutional order.

In Pakistan, the practice is that suspension of the constitution is followed by promulgation of an interim or provisional constitutional order (PCO), which serves as the supreme law of the land. Members of the superior judiciary are required to owe allegiance to the PCO or face the exit. Later the very judges who owe their office to the PCO, validate the subversion of the constitution by invoking the doctrine of necessity and allow the army chief to amend the constitution.

When the constitution is restored, parliament indemnifies all orders and laws made by the military dictator including amendments to the constitution. It was only on November 3, 2007 that a departure from that practice was made when the Supreme Court invalidated the promulgation of emergency. But that decision was overturned, as expected, by a larger bench of the apex court comprising those judges who were sworn in under the PCO.

Article 6 is an innovation of the 1973 Constitution. The previous two constitutions of 1956 and 1962 did not contain any such provision. Having the memories of abrogation of the constitution twice (in 1958 and 1969), the authors of the 1973 Constitution believed that provision of a constitutional safeguard against abrogation or subversion of the constitution would deter generals from overthrowing the constitution.

However, subsequent events confuted them. On July 5, 1977 and later on October 12, 1999, and on November 3, 2007, the constitution was subverted. This means that incorporation of Article 6 into the constitution has not made any difference. This is because constitutional provisions, though exceedingly important, are not in themselves an effective bulwark against martial laws.

The only effective bulwark against unconstitutional steps is strong and stable democratic institutions. Building such institutions is a difficult and drawn-out process and requires politicians to subordinate their personal or party interests to those of democratic institutions and strengthen these institutions rather than their own positions.

However, it does not mean that those guilty of subverting the constitution should be allowed to go scot-free in the name of national reconciliation or for any other reason.

To conclude, the July 31 decision of the Supreme Court, by

setting aside manifestly unconstitutional actions and decisions, affirms the need to uphold the supremacy of the constitution and the rule of law—without which the country cannot survive much less thrive.

hussainhzaidi@gmail.com