IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: Mr.Justice Abdul Hameed Dogar, HCJ Mr.Justice Muhammad Nawaz Abbasi Mr.Justice Faqir Muhammad Khokhar Mr. Justice M. Javed Buttar Mr.Justice Ijaz-ul-Hassan Mr.Justice Muhammad Qaim Jan Khan Mr.Justice Mohammad Moosa K.Leghari Mr.Justice Ch.Ejaz Yousaf CMA No.2874 of 2007 in Constitution Petition No.73 of 2007 (Application under Order XXXIII Rule 6 of the Supreme Court Rules, 1980) Wajihuddin Ahmed Versus Chief Election Commissioner & others For the applicant: On Court Call: … Petitioner … Respondents Mr. Arshad Ali Ch. ASC/ AOR Malik Muhammad Qayyum, Attorney General for Pakistan 6th November, 2007. Date of hearing: ORDER ABDUL HAMEED DOGAR, C.J. This miscellaneous application has been moved by the Federation of Pakistan seeking clarification in respect of the order dated 3.11.2007 purportedly passed by this Court. 2. Learned Attorney General for Pakistan has submitted that on 2.11.2007, during the course of hearing of Constitution Petition No.73 of 2007, Mr. Aitzaz Ahsan, Sr. ASC, learned counsel for the petitoner in the said petition, by presenting an application/CMA in Court sought a direction to restrain the Federation of Pakistan and the President of Pakistan from taking any step through an extra-constitutional measure which might affect the composition and jurisdiction of the Bench or the Supreme Court. Learned counsel was directed to file the said CMA in the office to be fixed for hearing after registration. Learned CMA 2874/07 in Const.P. 73/07 2 Attorney General, with reference to a news item published on 4.11.2007 in some of the newspapers, has submitted that after the Proclamation of Emergency of the 3 rd day of November, 2007, the Provisional Constitution Order No. 1 of 2007, and Oath of Office (Judges) Order, 2007, seven former Judges of the Supreme Court, including former Chief Justice, gathered in the evening and purportedly passed the following order: - (i) Government of Pakistan, i.e. President and Prime Minister of Pakistan are restrained from undertaking any such action, which is contrary to Independence of Judiciary; No judge of the Supreme Court or the High Courts including Chief Justice(s)shall take oath under PCO or any other extraConstitutional step; Chief of Army Staff, Corps Commanders, Staff Officers and all concerned of the Civil and Military Authorities are hereby restrained from acting on PCO which has been issued or from administering fresh oath to Chief Justice of Pakistan or Judges of Supreme Court and Chief Justice or Judges of the Provincial High Courts; They are also restrained to undertake any such action, which is contrary to independence of Judiciary. Any further appointment of the Chief Justice of Pakistan and Judges of the Supreme Court and Chief Justices of High Courts or Judges of Provinces under new development shall be unlawful and without jurisdiction; Put up before full court on 5th November 2007.” (ii) (iii) (iv) (v) 3. According to the learned Attorney General, the above order was passed or the superior Courts purported to have been passed by this Court when the Judges of had already ceased to function and exercise judicial powers. He submitted while placing reliance on Federation of Pakistan v. Aitzaz Ahsan (PLD 1989 SC 61) decided by Full Supreme Court that unless a law was finally declared as ultra vires for any reason, the same would continue to have its normal operation, therefore, the action taken in pursuance of Proclamation of Emergency read with PCO and Oath of Office (Judges) order, 2007, referred above, was valid and not questionable. Learned Attorney General submitted that notwithstanding the taking of extra-constitutional steps, martial law has not been imposed in the country and the Federal, the Provincial Governments, the Prime Minister of Pakistan with his Cabinet and the Chief Ministers in the Provinces with their Cabinets are performing their duties as usual. The Parliament (National CMA 2874/07 in Const.P. 73/07 3 Assembly and Senate) and the Provincial Assemblies have not been dissolved. The President as well as the Governors in the Provinces, continue to discharge their functions as before. He added that in the circumstances prevailing in the country and in the given situation, no exception could be taken to the measures adopted and since the order in question was passed without giving any notice or providing any opportunity of hearing to the Federation of Pakistan in utter disregard to the principle of natural justice, therefore, the same was otherwise not a legal order. 4. Having heard the learned Attorney General for Pakistan at some length and gone through the order purported to have been passed on 3.11.2007, we find that the said order was invalid as it was passed after Proclamation of Emergency of the 3rd day of November 2007 read with Provisional Constitution Order No. I of 2007, promulgated by the Chief of Army Staff and Oath of Office (Judges) Order, 2007 issued by the President of Pakistan. The Constitution of Islamic Republic of Pakistan was held in abeyance by virtue of Paragraphs 2 and 3 of Proclamation of Emergency dated 3.11.2007, therefore, without first taking oath under Oath of Office (Judges) Order 2007, the Judges of the Supreme Court and other superior Courts could not perform their functions. The present position as explained in Articles 2 and 3 of Provisional Constitution Order 2007, is as under: “Article 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 further 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, 203A to 203J, 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: CMA 2874/07 in Const.P. 73/07 4 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-e-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 Service of Pakistan by or under Act of Majlis-e-Shoora (Parliament) or of a Provincial Assembly, or Chief Election Commission 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. Article 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.” 5. In pursuance thereof, the Judges of the Supreme Court, the Federal Shariat Court and the High Courts including the Chief Justices of these Courts immediately on Promulgation of Emergency read with PCO and Oath of Office (Judges) order, 2007, ceased to hold their respective offices and could not have performed their functions or exercise the judicial powers and consequently, the Chief Justice and Judges who have passed the order in question, could not have passed such an order as they ceased to be the Judges. The order in question is even otherwise not a valid order as it was passed without notice to the parties or to the Attorney General for Pakistan under Order 27-A CPC read with Order 29 of the Supreme Court Rules, 1980. The perusal of the impugned order prima facie shows that the question of validity or otherwise of Proclamation of Emergency as well as Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007, was not as such examined and their operation was also not suspended, therefore, we are also not called upon to express CMA 2874/07 in Const.P. 73/07 5 our opinion on these questions at this stage. In view of above discussion and in the light of observation made by this Court in the case of Federation of Pakistan v. Aitzaz Ahsan (PLD 1989 SC 61), supra, we hold that in presence of Proclamation of Emergency and Provisional Constitution Order read with Oath of Office (Judges) Order, 2007, the order dated 3.11.2007 was nullity in law. 6. Consequently, the impugned order dated 3.11.2007 is hereby declared to be illegal and without jurisdiction. The same shall be deemed to have never been passed. The CMA is allowed accordingly. Chief Justice Judge Judge Judge Judge Judge Judge Judge Islamabad: 6.11.2007 Approved for Reporting.