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Viceroy Saturday, August 01, 2009 09:26 AM

Supreme Court strikes down Nov 3 emergency
 
Text of Supreme Court verdict
[B]IN THE SUPREME COURT OF PAKISTAN [/B]
(Original Jurisdiction).

PRESENT:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ.
Mr. Justice Javed Iqbal
Mr. Justice Sardar Muhammad Raza Khan
Mr. Justice Khalil-ur-Rehman Ramday
Mr. Justice Mian Shakirullah Jan
Mr. Justice Tassaduq Hussain Jillani
Mr. Justice Nasir-ul-Mulk
Mr. Justice Raja Fayyaz Ahmed
Mr. Justice Chaudhry Ijaz Ahmed
Mr. Justice Ghulam Rabbani
Mr. Justice Sarmad Jalal Osmany
Mr. Justice Muhammad Sair Ali
Mr. Justice Mahmood Akhtar Shahid Siddiqui
Mr. Justice Jawwad S Khawaja.

[B]CONSTITUTION PETITION NO. 09 OF 2009[/B]
Sindh High Court Bar Association through its secretary.
PETITIONER

[B]CONSTITUTION PETITION NO. 08 OF 2009[/B]
Nadeem Ahmed Advocate
PETITIONER

[B]VERSUS[/B]
Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others.
RESPONDENTS

For the petitioner: Mr. Hamid Khan, Sr. ASC.
(Const.P.09/2009) Mr. Rashid A. Razvi, ASC.
Mr. MS Khattak, AOR
Assisted by
M/s Waqar Rana, Waheed Khalid Khan and Haq Nawaz Talpur, Advocates.

For the petitioner: Mr. Muhammad Akram Sheikh, Sr. ASC.
(Const.P.08/2009)
Assisted by
Barristers Ms Natalya Kamal & Syed Shehryar, Advocates

[B]For respondent No.1[/B]
Sardar Muhammad Latif Khan Khosa Attorney General of Pakistan.
Agha Tariq Mehmood Khan, DAG
Mr. Shah Khawar, DAG.
Chaudhry Akhtar Ali, AOR.

[B]For respondent No.2[/B]
Mr. Muhammad Yousaf Leghari, A.G. Sindh.
Raja Abdul Ghafoor, AOR.

For respondent Nos.3 & 4. Nemo.
Respondent No.5. Not represented.
Dates of hearing: 20th to 24th and 27th to 31st July, 2009.

[B]JUDGEMENT[/B]
Iftikhar Muhammad Chaudhry, CJ.

The above Constitutional Petitions bearing Nos. 9 of 2009 and 8 of 2009 involve common questions of facts and law and are disposed of by this single judgment.

2. In the first mentioned petition, the petitioner while referring to several provisions of Constitution and the case law, beside making other contentions, legal and factual, has stated, in para No.5, that:
“The removal of Judges of Supreme Court and High Courts on 3.11.2007 was not only violative of Article 209 of the Constitution, 1973 but was against the rule laid down by the bench of twelve (12) Judges of Supreme Court in the case of Syed Zafar Ali Shah (PLD 2000 SC 869). The subsequent validation in the case of Tika Iqbal Khan (PLD 2008 SC 178) a smaller bench of the Supreme Court is per-incuriam and in any event, is not by a Supreme Court that is de jure. It is respectfully submitted, that Justice Abdul Hameed Dogar could not be treated as Constitutional head of the Supreme Court even after the decision in the case of Tika Iqbal Khan (supra) as he himself was the real beneficiary of the said Judgement and contrary to one of the cardinal principles of natural justice, “no person should be judge in his own cause” had headed the bench. Hence, in view of the facts and reasons stated above Justice Iftikhar Muhammad Chaudhry is still the Chief Justice of Pakistan as per Constitution and all appointments and re-appointments made in the Supreme Court and High Courts without consultation of de jure Chief justice of Pakistan are unlawful, illegal, ultra-vires of the Constitution as well as malafide”.

3. Having made above averments, the petitioner has, inter-alia, sought a declaration to the effect that the respondents Nos 3 and 4 namely Justice Zaffar Ahmad Khan Sherwani and Justice Abdul Rashid Kalwar are and continue to be Judges of High Court of Sindh and that they would continue as Additional Judges till 25.8.2010 and that their term of appointment has not expired as opined by Mr. Justice Abdul Hameed Dogar, as then he was called. During the course of his submissions, learned counsel appearing for him prayed further that following declarations be also granted:
i) that the purported acts done by General Pervez Musharraf, (Rtd) between 3.11.2007 to 16.12.2007 aimed at to suspend and amend the Constitution through several instruments are unconstitutional, invalid and without any legal consequence;
ii) that on account of his acts taken during 3.11.2007 to 15.12.2007 relating to superior judiciary, General Pervez Musharraf (Rtd) became a usurper;
iii) all the appointments of judges of superior judiciary on or after 3.11.2007 up till 22.3.2008 which were without consultation of de-jure Chief Justice of Pakistan are/were unconstitutional, invalid and without any legal consequence;
iv) that the two (so called) judgements dated 23.11.2007 and 15.2.2008 on Constitutional Petitions No. 87 and 88 of 2007 filed by Tika Iqbal Muhammad and WATAN Party and the Review Petition No.7 of 2008 filed by the former are/were nullity in law, being decisions per incuriam, corum-non-judice, without any legal basis and based on malafide proceedings rendered by biased persons of Tribunal (then calling themselves as Judges of this Court) fraudulently, collusively and lacking in bona-fides;

4. In the other petition No. 8 of 2009 which has been filed by Nadeem Ahmad, a practicing Advocate, while criticising the judgement delivered in case of Tikka Iqbal Muhammad Khan versus Federation of Pakistan (PLD 2008 SC 178), the petitioner has, inter-alia, averred as follows:
“All the persons who were not judges on 3rd November 2007 but who were brought into Supreme Court and High Courts as ‘judges’ despite the fact that the Honourable Chief Justice of Pakistan was never consulted before their appointment which meant that they were never appointed under the Constitution.”
AND
“On the night of 22 March 2009, issuance of cause lists comprising persons who have not been appointed in strict adherence to Article 177 and who are therefore complete strangers to the Supreme Court, is a serious matter and it is incumbent on the Honourable Chief Justice, before proceeding with any other judicial work, to forthwith stop all these persons from hearing any cases till such time that he, along with other validly appointed judges, are able to look into and judicially determine validity of their appointments as judges.”

5. The petitioner has, among others, sought a declaration that all those persons, both in Supreme Court and High Courts, regardless of whether they have taken oath under PCO or the Constitution, who have been appointed without ‘consultation’ of Honourable Chief Justice of Pakistan as not judges and therefore, not entitled to function as such.

6. On 22.7.2009 a notice was issued to General Pervez Musharraf (r) on his available address intimating him about the proceedings in this case and 29.7.2009 as the date fixed therein before this court. The Process Serving Officer reported on the same day that he had gone to the residential place viz: C-1, B Park Road, Chak Shahzad, Islamabad where a person identifying himself as Muhammad Hussain son of Amir and that on formers offer the latter refused to receive the notice. The factum of issuance of the afore-referred notice was widely televised through National and International TV channels. Also, it was widely published in National and International print media, but, on the date so fixed no one entered appearance.

7. We have heard learned counsel for petitioners and learned Attorney General for Pakistan.

8. Before dilating upon the pleas taken in the arguments by learned counsel for the parties, in our view, some of the facts/events which took place before 3rd November, 2007 touching the very basis of the issues involved in the matter are brought on record.

9. In our country, during sixty years of its independence after partition, to the misfortune of people, several times, the Constitutions framed by Legislative Bodies were desecrated. Sovereignty of people was not allowed to flourish and get deep-rooted in the polity of our country. Prior to 3rd November, 2007, the Constitutions were either abrogated or put in abeyance and the democratic system of governance was put to an end. For the first time, Constitution of 1956 was abrogated on 7th October, 1958 and Martial Law was imposed by the then president, Sikandar Mirza who dismissed the Central and Provincial Governments; dissolved the Parliament and Provincial Assemblies and abolished all Political Parties and appointed General Muhammad Ayub Khan, the then Commander in Chief as Martial Law Administrator. Sikandar Mirza was soon, within few days, replaced by the latter. On 25th March, 1969, again the then head of Army, General Agha Muhammad Yahya Khan, abrogated the Constitution of 1962 and by proclamation (PLD 1969 Central Statutes 42) Promulgated Martial Law followed by Provisional Constitution Order (Gazette of Pakistan, Extraordinary 4th April, 1969). On 5th July, 1977 once again Martial Law was imposed throughout the country by the then head of Army Chief vis former General Muhammad Zia-ul-Haq, who, vide Proclamation of Martial Law (PLD 1969 Federal Statutes 326) dissolved the National Assembly, the Senate, the Provincial Assemblies etc. and put the Constitution of 1973 in abeyance followed by Laws (Continuance in Force) Order, 1977. When the Constitution was revived, it was undeniably, in a mutilated form by the notorious Eighth Amendment.

10. Later, there was another onslaught on the ongoing democratic system of governance. On 12th October, 1999, the then Chief of Army Staff, General Pervez Musharraf, now retired, once more, put the Constitution in abeyance and the whole of Pakistan was brought under the control of Armed Forces. The National Assembly, the Senate and the Provincial Assemblies were suspended, so also, the Chairman and Deputy Chairman of Senate, the Speaker and Deputy Speaker of the National Assembly and the Provincial Assemblies were suspended and it was declared that the Prime Minister, Federal Ministers, Parliamentary Secretaries, the Provincial Governors, the Provincial Chief Ministers and the Adviser to the Chief Ministers would cease to hold offices, followed by issuance of Provisional Constitution Order and the Oath of Office (Judges) Order, 2000. General Pervez Musharraf (Rtd), self-styled himself as chief executive and started ruling the country under the new dispensation. Later, he, unceremoniously, occupied the office of president and in the coming years revived the Constitution with Seventeenth Amendment.

11. Again, on 3rd November, 2007 the General Pervez Musharraf, (Rtd), in his capacity as Chief of Army Staff, in the garb of declaration of emergency, put the Constitution in abeyance, issued Provisional Constitution Order No 1 of 2007 followed by the Oath of Office (Judges) Order, 2007, making as many as sixty-one (61) Judges of superior judiciary including Chief Justice of Pakistan and Chief Justices of three Provinces dysfunctional for many of them either did not agree to take or were not given the oath. Of them were; from Supreme Court 13 out of 18 (17 permanent and one ad-hoc) Judges including Chief Justice of Pakistan, 18 out of 31 Judges of the Lahore High Court, 24 out of 28 Judges including Chief Justice of High Court of Sindh, 6 out of 13 Judges including Chief Justice of Peshawar High Court. It is quite saddening that all the five Judges including the Chief Justice of Balochistan High Court took oath under the Oath of Office (Judges) Order, 2007.

12. An independent and strong judiciary is a backbone of viable democratic system all over the world. The time-tested experience has proved that independent and strong judiciary provides strength to the institutions running government particularly, those who roll on the wheels of democracy. Equally the independent and strong judiciary acts as an arbiter striking balance among various segments of Democratic system. It helps State organs, such, as, Legislature, Executive and the judiciary itself to function smoothly maintaining balance inter se. The constitution of Pakistan, of 1973, too, provides the judiciary guarantees enshrined in it and states that the judiciary shall be fully secured, but, unfortunately, to its great dismay, this organ of State has, all along been under the wrath of adventurers imposing their dictatorial terms obviously for their ulterior designs. The history of this country witnessed that in a set up of one government tenure of a Chief Justice of Pakistan was curtailed with ulterior motives and was restored to its original position when the designs were stood achieved. Likewise, through various instruments, the favorites and pliant members of superior judiciary were out rightly given underserved benefits while the others were shown doors. This happened during the era of the then Martial Law Administrator General Zia-ul-Haq and following the same foot steps, General Pervez Musharraf (Rtd) did the same in the year 2000. Many judges of superior judiciary who declined to toe his line of action were unceremoniously sacked.

13. General Pervez Musharraf (Rtd) through his 1999/2000 action, declared that the National Assembly, the provincial Assemblies, Senate, Chairman and Deputy Chairman of Senate, Speaker of National Assembly and the Provincial Assemblies were suspended and the Prime Minister, Federal Ministers, Parliamentary Secretaries, the Provincial Governors and the provincial Chief Ministers and the Advisers to the Chief Ministers, to have ceased to hold offices. However, his November 2007 action was a singular in nature, in that, the onslaught was on judiciary alone. All other institutions were intact. The independence of judiciary was given a serious blow. In order to save the judiciary from being destroyed, for the first time in the history of this Country, a seven member bench of this Court headed by the de jure Chief Justice of Pakistan, passed an order, inter-alia, restraining the President and Prime Minister of Pakistan from undertaking any such action, which was contrary to the Independence of Judiciary. So also the Judges of this Court and that of the High Courts including Chief Justice(s) were required not to take oath under the Provincial Constitution Order or any other extra Constitutional step and on the same day viz: 3.11.2007, the order was served on the members of superior judiciary through the respective Registrars of the Courts by way of Fax. It was also sent to all the relevant Executive functionaries.

14. The action of General Pervez Musharraf (Rtd) was, undeniably, taken to prevent the 11-member Bench of this Court, which was hearing the Petition No. 73 of 2007 filed by Mr. Justice (Rtd) Wajihuddin Ahmad and others in which the qualification of the General was in question, and perhaps, he was not expecting a favourable decision. The reasons shall, in that behalf, be found in the detailed judgement. Be that as it may, Justice Abdul Hameed Dogar, as then he was called, alongwith four other Judges of this Court took oath in pursuance of unconstitutional Provisional Constitution Order and the Oath of Office (Judges) Order, 2007 and by that he also violated the order of seven member Bench of this Court which was headed by de jure Chief Justice of Pakistan. Mr. Justice Abdul Hameed Dogar took the oath of Chief Justice of Pakistan, although, the office was not vacant. Some of High Courts Judges too took oath likewise violating the constitution and the order of seven-member Bench, legally and lawfully passed. Besides, many other Judges in this Court and in the High Courts were appointed and they took oath in violation of constitutional provisions and the order of seven-member Bench of this Court.

15. Subsequently, in order to dilute the effect of afore-referred seven-member Bench order, Mr. Justice Abdul Hameed Dogar, the CJP, as then was called, constituted a Bench of eight Judges including those appointed afresh in pursuance of Provisional Constitution Order and took up CMA bearing No. 2874 of 2007 in Constitution Petition No. 73 of 2007 and by their order dated 6.11.2007 illegally and unlawfully, without the mandate of the Constitution, declared the order dated 3.11.2007 to be illegal and without jurisdiction. Later, a 10-member Bench was also constituted, which was headed by Mr. Justice Abdul Hameed Dogar, Chief Justice of Pakistan, as then he was called. This Bench again illegally and unlawfully took up and dismissed the petition No. 73 and Original Criminal Petition No. 51 of 2007 filed by Justice (Rtd) Wajihuddin Ahmad calling in question the eligibility of General Pervez Musharraf to contest election to the office of President although, it already stood dismissed for want of instruction. Further details in this behalf shall be given in the detailed judgment.

16. Also subsequently, another seven-member bench headed by Mr. Justice Abdul Hameed Dogar, Chief Justice of Pakistan, as then he was called, took up hearing the case of Tikka Iqbal Muhammad Khan and WATAN Party and decided the same on the principle of ‘Salus Populi Supreme Lex’ and granted that relief which was even not prayed by the petitioner. This judgement is/was, ex-facie, per incuriam, corum-non-judice illegal and unlawful. Later, a time-barred Review Petition was filed by Tikka Iqbal Khan, which was heard by 13-member Bench and was dismissed, palpably to give impression that a larger Bench decided the matter to dilute the effect of a previous judgment handed down in case of Syed Zafar Ali Shah (PLD 2000 SC 869).

17. It may be noted that the chosen representative of the time, too, did not extend validation to the unconstitutional acts taken up to 3rd November, 2007 as is universally known. It is, however, quite heartening that, for the first time, in the history of our beloved country, the chosen representative of people, who took their offices as a result of election taking place on 18th February, 2008 have, commendably, stayed their hands off and have not sanctified the unconstitutional acts, such as, the Declaration of Emergency, the Provisional Constitution Order No. 1, the Oath of Office (Judges), Order, 2007, the Constitution (Amendment) Order, 2007 (President’s Order No. 5 of 2007), the Constitution (Second Amendment) Order of 2007 (President’s Order No. 6 of 2007) and many other instruments made and declared by General Pervez Musharraf (Rtd). In this, their restraint not extending validity to all these unconstitutional and illegal instruments and other steps taken by retired General are laudable. Evidently, this was done by the present representatives of people believing firmly that the prosperity of the country lies in the strong and independent democratic system which can alone flourish and survive with democratic steps to be taken in the better interest of people always apt and keen to choose them in such a viable system of governance. We are sanguine that the current democratic dispensation comprising of the President, the Prime Minister, Ministers and the Parliament shall continue to uphold the Constitution, its institutions and sacred values.

18. From above, the conclusions drawn are that:

i) The General Pervez Musharraf (Rtd) in the garb of Emergency Plus and the Provisional Constitution Order made amendments in the Constitution by self-acquired the powers which all are unconstitutional, unauthorised, without any legal basis, hence, without any legal consequences;

ii) Mr. Justice Abdul Hameed Dogar, took oath as CJP in violation of the order dated 3.11.2007 passed by a 7 member Bench headed by de-jure Chief Justice of Pakistan and in pursuance of unconstitutional instruments introduced by General Pervez Musharraf (Rtd), additionally knowing well that the office of Chief Justice of Pakistan was not lying vacant;

iii) Also, the Judges who were either retired or were not holding any judicial office, beside those in High Courts took fresh oath on their appointment on and after 3.11.2007 till 15.12.2007 in Supreme Court where the full strength of Judges alongwith an Ad-hoc Judge appointed under the Constitution were already working and thus there was no vacancy. Similarly, many Judges took oath in Provincial High Courts. All of them did so in violation of order dated 3.11.2007 passed by seven-member Bench headed by de-jure Chief Justice of Pakistan. Four incumbent Judges already functioning in the Supreme Court took fresh oath under the influence of and in pursuance of unconstitutional steps of General Pervez Musharraf (Rtd);

iv) The Petition No.73 of 2007 filed by Mr. Justice (Rtd) Wajihuddin Ahmad challenging the eligibility of General Pervez Musharraf (Rtd) to contest for the office of President in uniform was dismissed purportedly on merits although the record maintained in the Supreme Court revealed otherwise;

iv) The decisions in the cases of Tikka Iqbal Muhammad Khan granting validity to the actions of General Pervez Musharraf (Rtd) were per incuriam, corum-non-judice, without any legal basis hence, of no legal consequences;

vi) The amendments in the Supreme Court (Number of Judges) Act, (XXXIII, 1997) 1997 by way of Finance Act, 2008 raising the strength of Judges in Supreme Court from 17 (1+ 16) to 30 (1+29) seemingly aimed at providing allocation of funds for increasing the strength of Judges is unconstitutional because the strengths of Judges of Supreme Court is be increased by Parliament as defined in Article 50 to be read with Article 260 of the Constitution which defines the acts of Parliaments;

vii) Surprisingly, in the past the Courts of the time used to extend favours empowering the adventurers to amend the Constitution in actual effect were to achieve their overt and covert agenda but this time, such powers were acquired by the General Pervez Musharraf (Rtd) himself through the PCO and brought a host of unconstitutional amendments for his own benefits; and

viii) The present representative of people firmly believe in strong and independent judiciary and the democratic system which is evident that the deposed Judges of Supreme Court, High Courts and the de jure Chief Justice of Pakistan were restored with effect from 3rd of November, 2007 implied that the present representatives of people denied the validity of the actions of General Pervez Musharraf (Rtd) taken from 3.11.2007 to 15.12.2007 during which the Constitution remained suspended.

19. Considering the above, in the light of submissions of learned counsel for the parties and on examination of the material brought before us and for the detailed reasons to be recorded, we dispose the above petitions as follows.

20. The judgment purported to have been delivered in Constitutional Petitions bearing No: 87 and 88 of 2007 in the case titled as TIKA IQBAL MUHAMMAD KHAN VS. GENERAL PERVEZ MUSHARRAF AND OTHERS (PLD 2008 SC 25 and PLD 2008 SC 178) and the judgement dated 15.2.2008, purported to have been passed in C.R.P.No. 7 of 2008 titled as TIKA IQBAL MUHAMMAD KHAN VS. GENERAL PERVEZ MUSHARRAF AND OTHERS and any other judgwment/judgwments passed on the strength of the said two judgements are hereby declared to be void ab initio.

21. The Proclamation of Emergency issued by General Pervez Musharraf as the Chief of Army Staff (as he then was) on November 3, 2007; the Provisional Constitution Order No. 1 of 2007 issued by him on the same date in his said capacity; the Oath of Office (Judges) Order of 2007 issued by him also on the same date though as the President of Pakistan but in exercise of powers under the aforesaid Proclamation of Emergency and the Provisional Constitution Order No. 1 of 2007; The Provisional Constitution (Amendment) Order, 2007 issued by him like-wise on 15.11.2007; the Constitution (Amendment) Order, 2007 being President’s Order No. 5 of 2007 issued on November 20, 2007; the Constitution (Second Amendment) Order, 2007 being the President’s Order No. 6 of 2007 issued on 14th December, 2007; the Islamabad High Court (Establishment) Order 2007 dated 14th December 2007 being the President’s Order No. 7 of 2007; the High Court Judges (Pensionary Benefits) Order, 2007 being Presidents Order No. 8 of 2007; the Supreme Court Judges (Pensionary Benefits) Order, 2007 being President’s Order No. 9 of 2007 dated 14th December, 2007 are hereby declared to be un-constitutional, ultra-vires of the Constitution and consequently being illegal and of no legal effect.

Viceroy Saturday, August 01, 2009 09:26 AM

Contd.
 
22. As a consequence thereof:-

i) the Chief Justice of Pakistan; the Judges of the Supreme Court of Pakistan; any Chief Justice of any of the High Courts and the Judges of the High Courts who were declared to have ceased to hold their respective offices in pursuance of the afore-mentioned alleged judgments or any other such judgment and on account of the instruments mentioned in para 21 above, shall be deemed never to have ceased to be such Judges, irrespective of any notification issued regarding their reappointment or restoration;

ii) it is declared that the office of the Chief Justice of Pakistan never fell vacant on November 3, 2007 and as a consequence thereof it is further declared that the appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan was un-constitutional; void ab initio and of no legal effect;
Provided that subject to whatever is contained hereinafter, the said un-constitutional appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan shall not affect the validity of any administrative or financial acts performed by him or of any oath made before him in the ordinary course of the affairs of the said office;

iii) since Mr. Justice Abdul Hameed Dogar was never a constitutional Chief Justice of Pakistan, therefore, all appointments of Judges of the Supreme Court of Pakistan, of the Chief Justices of the High Courts and of the Judges of the High Courts made, in consultation with him, during the period that he, un-constitutionally, held the said office from 3.11.2007 to 22.3.2009 (both days inclusive) are hereby declared to be un-constitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith;
Provided that the Judges so un-constitutionally appointed to the Supreme Court while holding the offices as Judges of any of the High Courts shall revert back as Judges of the respective High Courts subject to their age of superannuation and likewise, the Judges of the High Courts, who were District and Sessions Judges before their said unconstitutional elevation to the High Courts shall revert back as District and Sessions Judge subject to limitation of superannuation;

iv) the Judges of the Supreme Court of Pakistan, if any, the Chief Justices of the High Court, if any, and the Judges of any of the High Courts, if any, who stood appointed to the said offices prior to 3.11.2007 but who made oath or took oath of their respective offices in disobedience to the order passed by a Seven-Member Bench of the Supreme Court of Pakistan on 3.11.2007 in C.M.A.No. 2869 of 2007 in Constitution Petition No.73 of 2007, shall be proceeded against under Article 209 of the Constitution. The Secretary of the Law Division of the Government of Pakistan shall take steps in the matter accordingly;
Provided that nothing hereinabove shall affect those Judges who though had been appointed as Judges/Chief Justices of any of the High Courts between 3.11.2007 to 22.3.2009 but had subsequently been appointed afresh to other offices in consultation with or with the approval of or with the consent of the Constitutional Chief Justice of Pakistan;

v) any judgements delivered or orders made or any decrees passed by any Bench of the Supreme Court or of any of the High Courts which comprised of or which included the afore-described Judges whose appointments had been declared void ab initio, are protected on the principle laid down in MALIK ASAD ALI’S CASE (PLD 1998 SC 161);

vi) since the Constitution (Amendment) Order, 2007 being the President’s Order No. 5 of 2007 and the Islamabad High Court (Establishment) Order being President’s Order No.7 of 2007 establishing Islamabad High Court for the Federal Capital Territory, have been declared to be un-constitutional and of no legal effect, therefore, the said Islamabad High Court shall cease to exist forthwith. All judicial matters pending before the said High Court before the passing of this order shall revert/stand transferred to the courts which had jurisdiction in the said matters before the promulgation of afore-mentioned President’s Order No.5 of 2007 and President’s Order No. 7 of 2007 promulgated on 14th December, 2007. The Judges of the said Court shall, as a consequence thereof, cease to be Judges except such Judges or the Chief Justice of the said court, who prior to their appointments in the said Islamabad High Court, were Judges of some other High Court who shall revert to the court of which they were originally the Judges, subject to their age of superannuation. The officers and employees of the said Court shall also cease to hold their respective appointments and shall become part of the Federal Government Surplus Pool for their further appointments. However, if any such officer or employee was an officer or an employee of some other court or department or office, such officers or employees shall revert to their respective courts, departments or offices to which they belonged before joining the service in the Islamabad High court, subject again to their age of superannuation;
we would like to mention here that establishment of a High Court or a Federal Court for the Federal Capital Territory might be a desirable act but it is unfortunate that such a step was taken in an unconstitutional and a highly objectionable manner. We may, therefore, add that notwithstanding what has been declared and ordered above, the relevant and competent authorities may take steps to establish such a court in accordance with the Constitution/the law.

vii) the Ordinances promulgated by the President or a Governor of a Province before 3.11.2007 which were given permanence by the Provisional Constitution Order No. 1 of 2007 as also the Ordinances issued by the President or a Governor between 3.11.2007 and 15.12.2008 (both days inclusive) which were also, likewise given permanence through the same instrument and which legislative measures alongwith the said Provisional Constitution Order had been validated by the afore-mentioned judgment delivered in TIKA IQBAL MUHAMAD KHAN’S CASE, stand shorn of their purported permanence on account of our aforementioned declarations. Since on account of the said judgment in TIKA IQBAL MUHAMMAD KHAN’S CASE purporting to be a judgment of this Court, the presumption that the said Ordinances were valid laws not requiring approval of the Parliament or the respective Provincial Assemblies in terms of Article 89 or 128 of the Constitution and since it is today that this Court has attributed invalidity to the said legislative instruments, therefore, the period of 120 days and 90 days mentioned respectively in the said Article 89 and the said Article 128 of the Constitution, would be deemed to commence to run from today and steps may be taken to place the said Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law;

viii) since the Constitution, through its Article 176, authorises only the Parliament to determine the number of Judges of the Supreme Court of Pakistan and since the Parliament had so done through the Supreme Court (Number of Judges) Act XXXIII of 1997, therefore, the increase in the strength of the Judges through the Finance Act of 2008 which Act was not passed by the Parliament but was passed only by the National Assembly would be deemed to be valid only for financial purposes and not for the purposes of Article 176 of the Constitution. It is resultantly declared that the number of Judges of the Supreme Court for purposes of the said Article 176 shall continue to remain sixteen.

ix) in the Code of Conduct prescribed for the Judges of the Superior Courts in terms of Article 209(8) of the Constitution, a new clause shall be added commanding that no such Judge shall, hereinafter, offer any support in whatever manner to any unconstitutional functionary who acquires power otherwise than through the modes envisaged by the Constitution and that any violation of the said clause would be deemed to be misconduct in terms of the said Article 209 of the Constitution;

x) in view of our findings above regarding Mr. Justice Abdul Hameed Dogar not being a constitutional and a valid consultee, the notification dated 26.8.2008 and the notification dated 15.9.2008 extending the term of office of Mr. Justice Abdur Rashid Kalwar and of Mr. Justice Zafar Kalwar Khan Sherwani as Additional Judges of the High Court of Sindh are declared to be un-constitutional and of no legal effect.

xi) that the court acknowledges and respects the mandate given by the sovereign authority

Viceroy Saturday, August 01, 2009 09:28 AM

Fall-out of SC judgment on PCO
 
[B]Fall-out of SC judgment on PCO[/B]

Saturday, August 01, 2009
By By Jamal Khurshid
Karachi

The Sindh High Court (SHC) will be hugely affected following the judgment of the Supreme Court’s (SC) larger bench that declared the former President General Pervez Musharaf’s November 3 Provisional Constitutional Order (PCO) illegal.

In the light of the SC judgment, as many as eight judges of SHC, who took oath under the PCO on November 3, 2007, will have to face proceedings before the Supreme Judicial Council (SJC) under Article 209, while 16 judges of SHC – of which three are confirmed judges appointed during November 3 PCO, while the 13 other additional judges were appointed on March 3 this year – would cease to hold office forthwith.

Three judges of the SHC Justice Mohammad Moosa K Leghari, Justice Zia Pervez and Justice (Retd) Zawar Hussain Jaffery, who were elevated as Judges of the Supreme Court under the PCO, will either stand retired if their tenure is completed or face proceedings before the SJC for violation of SC’s seven member bench that restrained judges of the superior courts from taking oath under the PCO.

Three judges, Justice Salman Ansari, Justice Zafar Ahmed Khan Sherwani and Justice Abdur Rasheed Kalwar, who although did not take oath under the PCO, but in August and September last year got either an extension or a confirmation with the consultation of Chief Justice Abdul Hameed Dogar, will also cease to hold the office as judges of SHC.

The SC observed in its judgment that as Justice Dogar was never a constitutional Chief Justice of Pakistan, therefore, “all appointments of judges of the Supreme Court of Pakistan, of the Chief Justices of the High Courts and of the Judges of the High Courts made, in consultation with him, during the period that he, unconstitutionally, held the said office from 3.11.2007 to 22.3.2009 (both days inclusive) are hereby declared to be unconstitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith.”

For those judges who took oath under the PCO in November 2007, the SC observed that those judges who stood appointed to the said offices prior to November 3, 2007, but took oath of their respective offices in disobedience of the order passed by a seven member bench of SC in constitution petition 73 of 2007 shall be proceeded against under Article 209 of the Constitution. In this regard, secretary of law division shall take steps in the matter accordingly.

The judges from Sindh who took oath under the November 3 PCO in violation of SC’s seven member bench are: Justice Mohammad Afzal Soomro as Chief Justice, Justice Munib Ahmed Khan, Justice Mrs. Qaiser Iqbal, Justice Yasmeen Abbasey, Justice Nadeem Azhar Siddiqui, Justice Ali Sain Dino Maitlo, Justice Abdur Rehman Farooq Pirzada, Justice Syed Mahmood Alam Rizvi and Justice Azizullah M Memon (who retired in March this year).

During the PCO, President Pervez Musharraf appointed eleven additional judges of the SHC who took oath under the Article 197 of the Constitution read with PCO 2007.

These judges were Justice Khawaja Naveed Ahmed, Justice Rana M Shamim, Justice Khalid Ali Z Kazi, Justice Agha Rafiq Ahmed Khan (now Chief Justice of Federal Shariat Court), Justice Syed Pir Ali Shah, Justice Bin Yamin, Justice Arshad Noor Khan, Justice Dr Qamaruddin Bohra, Justice Ghulam Dastagir Shahani, Justice Furrukh Zia Sheikh and Justice Qadir Khan.

Out of eleven, only 3 judges, including Chief Justice of the Federal Shariat Court Justice Agha Rafiq Ahmed Khan, Justice Khalid Ali Z Kazi and Justice Bin Yamin were confirmed by the former Chief Justice Abdul Hameed Dogar.

On March 3 this year, President Asif Ali Zardari has also appointed 13 additional judges of the SHC. The additional judges are: Justice Maqbool Ahmed Awan, Justice Safdar Ali Bhutto, Justice Moharram G Baloch, Justice Malik Mohammad Aqil, Justice Shafqat Ali Shah Masoomi, Justice Ms. Soofia Latif, Justice Mohammad Iqbal Mahar, Justice Salman Talibuddin, Justice Khadim Hussain M Sheikh, Justice Mohammad Ismail Bhutto, Justice Arshad Siraj Memon, Justice Amir Raza Naqvi and Justice Mohammad Karim Khan Agha. After the SC’s judgment the appointment of these judges was also declared unconstitutional as these were not consulted with the dejure Chief Justice of Pakistan.

The SC also observed in the judgment that judges so unconstitutionally appointed to the SC while holding the offices as Judges of any of the High Courts shall revert back as judges of the respective high courts subject to their age of superannuation and likewise, the judges of the High Courts, who were District and Sessions Judges before their said un-constitutional elevation to the High Courts shall revert back as District and Sessions Judge subject to limitation of superannuation.

The court also observed that nothing hereinabove shall affect those Judges who though had been appointed as Judges/Chief Justices of any of the High Courts between 3.11.2007 to 22.3.2009 but had subsequently been appointed afresh to other offices in consultation with or with the approval of or with the consent of the Constitutional Chief Justice of Pakistan.
[B]
Source[/B]
[url]http://www.thenews.com.pk/print1.asp?id=190909[/url]

Viceroy Saturday, August 01, 2009 09:31 AM

SC refers PCO-protected ordinances to parliament
 
[B]SC refers PCO-protected ordinances to parliament[/B][I]

* 37 ordinances — 29 promulgated before emergency, 8 during emergency rule — deemed to commence from July 31

By Irfan Ghauri [/I]

ISLAMABAD: The Supreme Court – as part of its verdict delivered on Friday – referred all ordinances protected under the Provisional Constitutional Order (PCO) or promulgated during emergency rule to parliament for a decision on their fate.

A 14-member larger bench – which declared the November 2007 emergency unconstitutional – said all such ordinances would be deemed to have commenced from Friday, July 31, and asked the government to table the documents in parliament or provincial assemblies in line with the law.

The court also declared “invalid” the judgement in the Tikka Iqbal case, under which these ordinances were considered valid laws that did not require parliamentary approval.

According to the judgement on Friday, all these ordinances would be valid for another 120 or 90 days as mentioned in Articles 89 and 128 of the constitution.

Around 37 ordinances were promulgated by former president Pervez Musharraf from July 12, 2007, to December 14, 2007. Of these, 29 were issued before the imposition of emergency and eight during emergency rule. Among important ordinances issued before the imposition of emergency are the National Reconciliation Ordinance (NRO), the Earthquake Reconstruction and Rehabilitation Authority (ERRA) Ordinance, the Anti-Money Laundering Ordinance, the National Database and Registration Authority (Amendment) Ordinance and the National Disaster Management Authority Ordinance.

The important ordinances promulgated during emergency rule include the Islamabad High Court Ordinance and the National Command Authority Ordinance. Following the verdict delivered by the SC, the government would have to get all such ordinances validated from parliament and provincial assemblies within the stipulated period or they would lapse on expiry of their legal period, deemed to begin from July 21.

[B]Source[/B]
[url]http://www.dailytimes.com.pk/default.asp?page=2009\08\01\story_1-8-2009_pg7_27[/url]

Viceroy Saturday, August 01, 2009 09:32 AM

Civil society lauds SC decision declaring PCO illegal
 
[B]Civil society lauds SC decision declaring PCO illegal[/B][I]

* Dr Mehdi Hasan says SC ruling was expected, most of judges on 14-member bench were affected by emergency, PCO

Staff Report [/I]

LAHORE: Civil society activists praised the Supreme Court’s (SC) decision of declaring the Provisional Constitutional Order (PCO) illegal, and believed that the SC should extend its decision to the illegal constitutional steps of 1977 and November 12, 1999.

They said the judiciary should once and for all close the door on military intervention and declare all those steps justified under the “doctrine of necessity” unconstitutional.

Victims: Dr Mehdi Hasan said the SC decision was not surprising and was according to expectations. He said, “The short decision given by the SC was expected. Most of the judges of the 14-member larger bench were affected by the November 3 steps and the PCO”.

Hasan said it was a welcome decision but it could have been a much bigger one had the court extended this to the October 12, 1999 steps. He said that under the decision, all steps taken during the emergency were illegal and unconstitutional. “All in all it’s a good decision,” he maintained.

Women’s Action Forum Convener Nighat Saeed Khan said the SC ruling was a welcome decision and the court should extend it to the 1977 and 1999 steps as well.

Human Rights Commission Chairwoman Asma Jahangir said she would comment on the decision only after learning the details of the SC ruling.

Aurat Foundation member Umme Laila said the SC should not limit its decision to the emergency imposed by former president Pervez Musharraf, and rather should review all steps taken under the “doctrine of necessity” and declare them unconstitutional.

[B]Source[/B]
[url]http://www.dailytimes.com.pk/default.asp?page=2009\08\01\story_1-8-2009_pg7_27[/url]

Viceroy Saturday, August 01, 2009 09:33 AM

88 justices sent packing
 
[B]88 justices sent packing[/B]

LAHORE - As a result of Supreme Court’s historical judgment on Friday, six judges of the apex court would cease to hold offices, five would go back to their respective high courts and matter of three judges would be referred to Supreme Judicial Council (SJC).

Supreme Court of Pakistan has also sent 34 judges of the Lahore High Court (LHC) home who had either taken oath under the PCO or were appointed with the consultation of Abdul Hameed Dogar as the chief justice, while the fate of 14 judges would be decided by the SJC, bringing the number of LHC judges to 22.

But all the 14 judges who passed the judgement would remain safe and sound as none of them is carrying the stigma of PCO or appointee of Justice Dogar.
They include Chief Justice Iftikhar Muhammad Chaudhry, Justice Javed Iqbal, Justice Sardar Muhammad Raza Khan, Justice Khalil-ur-Rehman Ramday, Justice Mian Shakir ullah Jan, Justice Tasadduq Hussain Jilani, Justice Nasir-ul-Mulk, Justice Raja Fayyaz Ahmed, Justice Ch Ijaz Ahmed, Justice Ghulam Rabbani, Justice Sarmad Jalal Usmani, Justice Muhammad Sair Ali, Justice Mahmood Akhtar Shahid Siddiqui and Justice Jawwad S Khawaja.

Before November 3 PCO, the number of SC judges was fixed at 17 but the PP-led coalition government had increased the number to 29 through a finance bill but the Supreme Court have also declared it as illegal.

Interestingly, four out of these 14 judges had also taken oath from Justice Abdul Hameed Dogar after accepting government’s offer of fresh appointment. They include Justice Mian Shakir ullah Jan, Justice Tasadduq Hussain Jilani, Justice Sardar Muhammad Raza Khan and Justice Nasir-ul-Mulk.

But after Justice Iftikhar’s reinstatement, these re-appointed judges were restored to pre-3rd November, 2007, position through a notification issued on June 4 to remove constitutional hurdle that would have blocked their way as a result of this judgement.

This notification was issued on the recommendation of the CJP Justice Iftikhar that put them at par with other judges who were restored along with Justice Iftikhar on March 17.

Justice Faqir Muhammad Khokhar and Justice M Javed Buttar would also remain in the SC but their cases would be referred to SJC for violating the seven-member bench judgement. Justice Sayed Zahid Hussain had taken PCO oath as a judge of the Lahore High Court and later was made chief justice LHC. He was promoted to the SC on the recommendation of CJP Iftikhar; therefore, he would continue working, as an apex court judge but his matter would also be sent to the SJC for taking PCO oath.

From 11 remaining judges six would cease to hold offices immediately because they had attained superannuation (62 years in case of a high court judge) and could not be sent back to their respective high courts as working judges. They are: Justice Ijaz-ul-Hassan, M Qaim Jan Khan, Justice Sheikh Hakim Ali, Justice M Farrukh Mahmud, Justice Sardar Muhammad Aslam and Justice Hamid Farooq.

[B]Source[/B]
[url]http://www.nation.com.pk/pakistan-news-newspaper-daily-english-online/Politics/01-Aug-2009/88-justices-sent-packing[/url]

Viceroy Saturday, August 01, 2009 09:40 AM

Zardari, Gilani welcome SC verdict
 
[B]Zardari, Gilani welcome SC verdict

ISLAMABAD: President Asif Ali Zardari and Prime Minister Yousuf Raza Gilani have welcomed the Supreme Court’s short order declaring the Nov 3, 2007, emergency unconstitutional and termed it a triumph of democratic principles.[/B]

‘The Supreme Court’s short order today declaring the Nov 3, 2007, actions of Gen Pervez Musharraf as unconstitutional is a triumph of democratic principles, a stinging negation of dictatorship and is most welcome,’ presidential spokesman Farhatullah Babar said in a statement.

He said that Pakistan People’s Party and President Zardari had all along maintained the same stance against the dictatorship of Gen (retd) Musharraf.
The spokesman said that after Nov 3, 2007, the late Benazir Bhutto had cut short her visit to Dubai and rushed to Pakistan to challenge the emergency and dictatorship even at the risk of her life.

The negation and rejection of dictatorship and its actions by the Supreme Court, he said, was a triumph of the principles for which the party had fought and its chairperson and countless workers laid down their lives.
He pointed out that details of the judgment were still awaited.—APP

[B]Our Staff Reporter adds:[/B]
Prime Minister Gilani said the verdict was a good omen for the future of democracy.

Mr Gilani was presiding over a meeting on law and order and austerity measures when he was informed about the apex court’s judgment.
According to sources, the prime minister informed the chief ministers attending the meeting about it and they welcomed it as a historic event which would go a long way in strengthening judiciary and democracy.

[B]Source[/B]
[url]http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/news/pakistan/09-zardari-gilani-welcome-sc-verdict--szh-12[/url]

Viceroy Saturday, August 01, 2009 09:41 AM

[B]SC judgment strangles anti-democratic elements: Aitzaz[/B]

LAHORE: The former president Supreme Court Bar Association (SCBA) Chaudhry Aitzaz Ahsan said the Supreme Court (SC) has strangled the anti-democratic elements by demolishing Nov 3 unconstitutional elements.

Talking to media at his residence here on Friday, he said SC ruling has strengthened the democratically elected government of Pakistan and urged upon parliament to render services in favour of people.

He said it rests solely upon President Asif Ali Zardari to take or not to take oath again after SC verdict.

Now, former President Musharaff could be booked for judicial trial over sabotaging constitution but it does not seem possible, he concluded.

[B]Source[/B]
[URL="http://www.geo.tv/8-1-2009/46871.htm"]http://www.geo.tv/8-1-2009/46871.htm[/URL]

[B]SC ruling akin to victory of democratic forces: Nawaz[/B]

LONDON: The Quaid Pakistan Muslim League-Nawaz (PML-N) Mian Muhammad Nawaz Sharif, welcoming the Supreme Court’s verdict of declaration of Nov 3 steps unconstitutional, termed it as the victory of democratic forces.

In a statement released from here, He felicitated the lawyers, civil society, media and the activists PML-N on SC ruling adding that the decision has been resulted so due to untiring efforts of democratic forces.

Nawaz was of the view his party will continue carry out efforts for hegemony of law and supremacy of democracy in Pakistan.

[B]Source[/B]
[url]http://www.geo.tv/8-1-2009/46869.htm[/url]

Viceroy Saturday, August 01, 2009 09:46 AM

Supreme Court strikes down Nov 3 emergency
 
[B]ISLAMABAD: In what has been billed as a verdict that may change the course of the country’s political and judicial history, the Supreme Court on Friday denounced successive military takeovers over the past four decades and their endorsement by the superior judiciary and then went ahead to declare Gen Pervez Musharraf’s Emergency Order of Nov 3, 2007, and most of the actions taken under it, including the appointment of over 100 superior court judges, as illegal and unconstitutional.[/B]

In a judgment that has no precedence in the country’s judicial history, a 14-judge bench, headed by Chief Justice Iftikhar Mohammad Chaudhry, declared unconstitutional Justice Abdul Hameed Dogar’s appointment as the Chief Justice of Pakistan after the imposition of emergency. The court decided to refer to the Supreme Judicial Council the cases of Justice Dogar and other judges who had defied the order of a seven-judge bench on the same day and took oath under the PCO.

The verdict was quite clear on many points. It declared Gen Musharraf’s action of declaring emergency on Nov 3, 2007, as illegal and unconstitutional, but refrained from passing any order against him.
It also declared all appointments of judges since Nov 3 taken in consultation by, what it described as an unconstitutional chief justice, as illegal and that they ceased to exist as judges with immediate effect.
The court declared that creation of the Islamabad High Court under the emergency order was unconstitutional and that its judges would cease to remain as judges. However, the bench made it clear that the present dispensation, including parliament, will remain intact.

It decided not to insist that President Asif Zardari take a fresh oath from a de jure chief justice. Justice Dogar had administered oath to President Zardari.

The bench said that although it had reservations about the way the issue of presidential ordinance was handled by the Supreme Court during the emergency period, it decided that instead of undoing them, including the controversial National Reconstruction Ordinance (NRO), the present government should be given 120 days to regularise them through parliament.

It was an amazing day in the courtroom No 1, where after several days of hearing, the chief justice announced that the verdict would be handed down by 3.30pm. But it turned out to be a long wait. The 14 judges arrived in the room after five hours. Chief Justice Iftikhar Chaudhry handed down the verdict in front of a packed courtroom.

By that time several senior lawyers, including Supreme Court Bar Association President Ali Ahmed Kurd, had taken the front seat. In fact, there was not a single soul in the courtroom who was opposed to the position taken by the bench. If there were any, they must have decided to lie low.

The room burst into slogans as soon as reading of the verdict began. But on the chief justice’s orders, sanity was restored. Soon after the judges left, the courtroom reverberated with slogans in support of law and justice and against Gen Musharraf.

The slogan-chanting lawyers then marched outside the court and started more catchy slogans like death for the former military ruler.
The order declared that the office of the CJ had not fallen vacant on Nov 3, 2007, and, therefore, the appointment of Justice Dogar as the CJ was unconstitutional and of no legal effect. However, the administrative or financial acts performed by him in the ordinary course of affairs of the office would not be affected, it said.

The order said that judges appointed to the Supreme Court while holding the offices as judges of any of the high courts would revert as judges of the respective high courts subject to their superannuation and likewise the judges of the high courts who were district and sessions judges would go back to their old positions.

Those judges of the Supreme Court (Justice Faqir Mohammad Khokar and Justice Javed Buttar), the chief justice and judges of the high courts who had taken oath in disobedience to the Nov three order of the seven-judge bench would be proceeded against under Article 209 (SJC) of the Constitution.

The law secretary would take steps in the matter accordingly, the order said.

It said that judges of the Islamabad High Court (IHC) would also cease to be judges, except its CJ, and its officers and employees would be sent to the federal government’s surplus pool for their further appointments or return to their parent departments.

However, the court suggested to the government to establish such a court or a federal court for the federal capital territory as it might be a desirable act, but the IHC was set up through an unconstitutional and a highly objectionable manner.

The order asked the government to add a new clause to the Code of Conduct prescribed for the judges of superior courts in terms of Article 209 of the Constitution, commanding that no judge would offer any support in whatever manner to any unconstitutional functionary who acquires power otherwise the Constitution and that any violation of the said clause would be deemed to be a misconduct.

The court acknowledged and respected the mandate given by the sovereign authority (the elected government) and said it would continue to jealously guard the principle of trichotomy of powers enshrined in the Constitution. The judgment vowed to defend, protect and uphold the Constitution.

The order praised the present representatives by saying they firmly believe in strong and independent judiciary and the democratic system, recalling that the deposed judges of the Supreme Court, high courts and the de jure Chief Justice of Pakistan were restored retrospectively from Nov 3, 2007, implying that they considered the actions of Gen Musharraf as invalid.

[B]Source[/B]
[url]http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/news/pakistan/09-zardari-gilani-welcome-sc-verdict--szh-12[/url]

Viceroy Saturday, August 01, 2009 10:01 AM

NYT - Musharraf Decree in ’07 Was Illegal, Court Rules
 
[B]New York Times
Musharraf Decree in ’07 Was Illegal, Court Rules
[/B]
ISLAMABAD, Pakistan — The Supreme Court on Friday ruled that the emergency rule briefly imposed by former President Pervez Musharraf two years ago was illegal and unconstitutional.

In a widely anticipated verdict, a 14-member bench of the Supreme Court, headed by Chief Justice Iftikhar Muhammad Chaudhry, declared null and void all acts taken by Mr. Musharraf during the emergency period, declared from Nov. 3 to Dec. 15, 2007.

In a separate decision, the court also ruled illegal the appointment of all judges inducted during the period. The ruling will affect more than 100 judges in the higher and lower courts, the Dawn television network reported.

The judges include Abdul Hameed Dogar, who was sworn in as chief justice when Mr. Musharraf dismissed Mr. Chaudhry under the emergency decree. The court declared that the dismissal of Mr. Chaudhry was unconstitutional. Mr. Chaudhry was in any case restored as chief justice under a political deal struck in March.

The court said, however, that its ruling would not affect the oath taken by President Asif Ali Zardari, which Justice Dogar had administered.

Mr. Musharraf was not at the hearings and has been living in London. Some political analysts said the rulings could open the way for further legal challenges against the former president, a onetime general who took power in a coup, including whether he could be tried for treason.

Legal experts said the Supreme Court could not initiate treason charges on its own. “It is up to the federal government to initiate charges against Musharraf,” said Athar Minallah, a prominent lawyer.

But the civilian government, already absorbed in an expanding battle against Taliban insurgents in the country, may want to avoid antagonizing the military, which is likely to resist any effort to put Mr. Musharraf on trial. For now, the government and Parliament will have to decide on what to do with more than three dozen ordinances that Mr. Musharraf promulgated during the emergency period.

Even before the ruling on Friday, Chief Justice Chaudhry made clear this week that the court would bend toward a decision that would seek to avoid sowing more chaos in the country.

Babar Sattar, a constitutional lawyer based in Islamabad, called the court’s ruling “a very principled decision.”

“It has interpreted the Nov. 3 action strictly according to the Constitution,” he said.

Arif Rafiq, a political analyst, agreed. “The Supreme Court of Pakistan is reasserting its constitutional space and institutional integrity by cleansing itself of the vestiges of dictatorship,” he said. “But its political challenge appears to be limited.”

Farahnaz Ispahani, the media adviser to Mr. Zardari, hailed the decision as a “victory for democracy.” Describing the decision as the last nail in the coffin of dictatorship, Ms. Ispahani emphasized that it would block any future attempts to topple a democratic government by any army general.
But some voiced disagreement.

“The decision is difficult to justify in terms of transitional justice because it doesn’t state why the court is beginning the task of correcting unconstitutionality in 2007 and not 2002, when military rule began,” said Rafia Zakaria, a columnist for The Daily Times, a leading English newspaper.

[B]Source[/B]
[url]http://www.nytimes.com/2009/08/01/world/asia/01pstan.html?hp[/url]


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