MEHRAM ALI VERSUS FEDERATION PAKISTAN (PLD 1998 SC 1445)

It was declared that the newly constituted anti-terror court would be subject to the rules and procedures of the existing constitutionally established judicial system, including: the judges of such courts would have fixed and established tenure of service 2. such special courts would be subject to the same or similar procedural rules as regular courts, including rules of evidence, etc.; 3. decisions of specials courts would be subject to appeal before the relevant constitutionally mandated regular courts. Namely, the appeal against the decision of the special court would lie with the respective High Courts and ultimately with the Supreme Court.
1.

It held that no parallel legal system can be constructed that bypasses the operation of the existing regular courts. 1. Provision of S.5(2)(i), Anti-Terrorism Act, 1997 is invalid to the extent it authorises the Officer of Police, Armed Forces and Civil Armed Forces charged with the duty of preventing terrorism, to open fire or order for opening of fire against person who, in his opinion, in all probability, is likely to commit a terrorist act or any scheduled offence, without being fired upon. 2. Section 10 of the Anti-Terrorism Act, 1997 empowers an officer of the police, armed forces or civil armed forces on his being satisfied that there are reasonable grounds for suspecting that a person has in his possession some written material or recording in contravention of section 8, he may enter and search the premises where it is suspected that the material or recording is situated and may take possession of the same. This is directly in conflict with Article 14 of the Constitution, which confers a fundamental right as to the dignity of man by, inter alia, laying down that the dignity of man and, subject to law, the privacy of home shall be inviolable. No doubt, that the above right of privacy is subject to law but such law is supposed to be reasonable and in conformity with the constitutional mandate. 3. Only clause (b) of subsection (10) of section 19 of the Anti-Terrorism Act, 1997 is violative of the fundamental right of access to justice. The above clause (b) of subsection (10) of section 19 authorises a Special Court to order the removal of an accused person from the Court if his behaviour is such as to impede the course of justice and then to proceed with the case in absentia. An accused person for his misbehaviour in Court can be convicted for contempt of Court and punished, but on no principle of law, he can be denied the right to be present and to defend himself in a criminal matter. The right of access to justice is a well recognised and inviolable right enshrined in Article 9 of the Constitution, which lays down that no person shall be deprived of life or liberty save in accordance with law. If an accused person is removed from the Court on account of his misbehaviour and in his absence the trial is concluded and he is sentenced to death, he will be deprived of his life without due course of law. Secondly, under clause (1) of Article 10 of the Constitution an accused person has the right to consult and be defended by a legal practitioner of his choice, in case he is arrested

and detained. 4. Section 26 of the Anti-Terrorism Act provides that notwithstanding anything contained in Qanun-e-Shahadat Order, 1984 (President's Order 10 of 1984), a confession made by a person accused of any offence punishable under section 7 or section 8 of the Act or an offence covered by sub-paragraph (a) of paragraph 2, or paragraph 3 of the Schedule to the Act, or robbery or dacoity with murder or rape, before a police officer not below the rank of a Deputy Superintendent, may be proved against such person. The above provision seems to be violative of Articles 13(b) and 25 of the Constitution. Clause (b) of Article 13 of the Constitution confers a fundamental right by providing, inter alia; that no person shall, when accused of an offence, be compelled to be a witness against himself. Indeed a judicial confession is recorded by a Magistrate which is admissible as a piece of evidence, but keeping in view the state of affairs obtaining in the police force, Court cannot equate a police officer with a Magistrate. Additionally, there are very strict requirements which a Magistrate is required to comply before recording a judicial confession of an accused person. These requirements do not find place in section 26 of the Act. It is true that it will be for the Special Court concerned or for the Appellate Tribunal to accept or not to accept a confession recorded by a police officer specified in the above section, but the fact remains that such a confession is not in consonance with the law and the Constitution. Under Islamic Jurisprudence a confession cannot be accepted lightly and it has certain mandatory requirements. 5. Offences mentioned in the Schedule should have nexus with the object of the Act and the offences covered by sections 6, 7 and 8 thereof. Section 6 defines terrorist acts, section 7 provides punishment for such acts, and section 8 prohibits acts intended or likely to stir up sectarian hatred mentioned in clauses (a) to (d) thereof. If an offence included in the Schedule has no nexus with the above sections, in that event notification including such an offence to that extent will be ultra vires. 6. Sections 24, 25, 27, 28, 30, 35 & 37 of the Anti-Terrorism Act, 1997 in their present form are not valid as the same militate against the concept of independence of Judiciary and are also violative of Arts. 175 & 203 of the Constitution. Under sections 24, 25, 27, 28, 30 and 37 of the Act 'High Court' should be substituted in place of 'Appellate Tribunal' and as the Special Courts are to operate/function under the control and supervision of the High Court concerned in terms of Article 203 of the Constitution, the power to frame rules should vest in the High Court and not in the Government. 7. Section 14 of the Act which provides for composition and appointment of Presiding Officers of Special Courts does not provide for the security of the tenure of the Judges appointed thereunder. The security of tenure of Judges is a sine qua non for independence of Judiciary. The framers of Article 212-B of the Constitution were mindful of the fact that in the absence of security of tenure, no Judge can function impartially and independently. Therefore, section 14 is required to be suitably amended preferably. in line with clause (4) of Article 212-B of the Constitution. 8. Constitution recognises only such specific Tribunal to share judicial powers with the above Courts, which have been specifically provided by the Constitution itself: Federal Shariat

Court (Chapter 3-A of the Constitution), Tribunals under Article 212, Election Tribunals (Article 225). It must follow as a corollary that any Court or Tribunal which is not founded on any of the Articles of the Constitution cannot lawfully share judicial power with the Courts referred to in Articles 175 and 203 of the Constitution. In view of Article 203 of the Constitution read with Article 175 thereof the supervision and control over the subordinate judiciary vests in High Courts, which is exclusive in nature, comprehensive in extent and effective in operation. The hallmark of our Constitution is that it envisages separation of the Judiciary from the Executive (which is founded on the Islamic Judicial System) in order to ensure independence of Judiciary and, therefore, any Court or Tribunal which is not subject to judicial review and administrative control of the High Court and/or the Supreme Court does not fit in within the judicial framework of the Constitution. The right of "access to justice to all" is a fundamental right, which right cannot be exercised in the absence of an independent judiciary providing impartial, fair and just adjudicatory framework i.e. judicial hierarchy. The Courts/Tribunals which are manned and run by executive authorities without being under the control and supervision of the High Court in terms of Article 203 of the Constitution, can hardly meet the mandatory requirement of the Constitution. Indeed different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standing and persons accused of heinous crimes. However, this does not mean that a parallel judicial system can be created in violation of Articles 175, 202 and 203 of the Constitution. There can be Special Courts trying heinous crimes expeditiously, but the same should be within the framework of the Constitution. 9. Subsection (1) of section 5 of the Anti-Terrorism Act, 1997 provides that any police officer, or member of the armed forces, or civil armed forces, who is present or deployed in any area may, after giving sufficient warning, use the necessary force to prevent the commission of terrorist acts or scheduled offences, and, in so doing shall, in the case of an officer of the armed forces or civil armed forces, exercise all the powers of a police officer under the Code. There is nothing wrong with the above provision. However, clause (i) of subsection (2) thereof empowers a police officer or member of the above forces, after giving prior warning, to use such force as may be deemed necessary or appropriate, bearing in mind all the facts and circumstances of the situation, against any person, who is committing, or in all probability is likely to commit a terrorist act or a scheduled offence. It also provides that it shall be lawful for any such officer, or any superior officer to use force, or to order the firing upon any person or persons against whom he is authorised to use force in terms thereof. The above provision is violative of Article 9 of the Constitution which guarantees that no person shall be deprived of life or liberty save in accordance with law. 10. The conferment of power on the officers referred to in clause (i) of subsection (2) of section 5 without being fired upon by the accused, is not justifiable. An officer of any of the above forces under the present provision can kill any person, if he considers that in all probability the former is likely to commit a terrorist act or scheduled offence. The formation of opinion as to the probability or likelihood of commission of offence will vary from person to person as it depends on subjective satisfaction. There is no check or guideline provided for the exercise of the above power conferred by the above provision. The aforesaid provision in its

present form is not sustainable. The same may be amended and it may be provided that the officer can fire upon an accused person if he has been himself fired upon by him. 11. A Special Court is a Court subordinate to the High Court. It has to act under its supervision and control. 12. Delay in disposition of cases can be eliminated to a larger extent through good Court management and not necessarily by creation of new. Courts and increase in the strength of Judges. It is for the Presiding Officer of the Court to evolve strategies within the parameters of the law/procedure for accelerating the pace of disposition of civil and criminal cases, resulting in reduction of delay and clearance of backlog. However, sacrifice of justice to obtain speedy disposition of cases could hardly be termed as justice. A balance ought to be maintained between the two commonly known maxims, "justice delayed is justice denied" and "justice rushed is justice crushed". Speed and efficiency should not be at the expense of justice.

________________________________________ GROUNDS FOR POE, 2007

1. Ascendancy Extremist Activities And Terrorist Atta 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; 2. Attacks On State Infrastructure & LEAs There has also been a spate of attacks on state infrastructure and on law-enforcement agencies; 3. Judiciary Working At Cross Purposes 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; 4. Interference by Judiciary in Government Policy There has been increasing interference by some members of the judiciary in government policy, adversely affecting economic growth, in particular; 5. Interference by Judiciary in Executive Functions The 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; 6. Release of arrested hard-core militants etc

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. 7. Overstepping The Limits Of Judicial Authority Some judges by overstepping the limits of judicial authority have taken over the executive and legislative functions; 8. Judicial Authority not focusing on rule of law 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; 9. Irrelevancy of Supreme Judicial Council 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; 10. Demoralized Civil Machinery 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; 11. Erosion of law & order, economy & trichotomy of powers The law and order situation in the country as well as the economy have been adversely affected and trichotomy of powers eroded. 12. The Constitution Provides No Solution For This Situation 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; POE 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. 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.

_____________________________________________ PCO, 2007

1.Constitution subject to this order 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. 2.Power of President to amend the constitution Provided that the President may, from time to time, by Order amend the Constitution, as is deemed expedient: 3. Suspension of Fundamental Rights Provided farther that the Fundamental Rights, under Articles 9, 10, 15,16,17,19 and 25, shall remain suspended. 4. Islamic injunctions to remain 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. 5. Court to function subject to this order and 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 subject to this order and the Oath of Office (Judges) Order, 2007,: 6. No court to make any order against the President or the Prime Minister 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. 7. Judges to be governed by the Oath of Office (Judges) Order, 2007 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. 8. Continuation of Pariament & PAs The Majlis-i-Shoora (Parliament) and the Provincial Assemblies shall continue to function subject to this order. 9. Continuation in service of Pakistan 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. 10. PCO not subject to judicial review 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. 11. No judgement, decree etc against President, PM etc 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. 12. Other laws continue to remain in force 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. 13. Ordinances not subject to limitations of constitution 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. This provision 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. _________________________________________________________________

DECLARING PCO, 2007 ILLEGAL

APPLICATION Aitzaz Ahsan filed an application on November 2, 2007 requesting 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. BENCH
1. 2. 3. 4. 5. 6.

Chief Justice Iftikhar Mohammad Chaudhry Justice Rana Bhagwandas Justice Javed Iqbal Justice Mian Shakirullah Jan Justice Nasirul Mulk Justice Raja Fayyaz

Justice Ghulam Rabbani ORDER 1. 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.
7.

2. 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. 3. 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. 4. 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. 5. 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.
___________________________________________________________________________

UPHOLDING PCO, 2007

BENCH
1. 2. 3. 4. 5. 6. 7.

Chief Justice Abdul Hameed Dogar Justice Ejazul Hassan Justice Muhammad Qaim Jan Khan Justice Muhammad Moosa K Laghari Justice Chaudhry Ejaz Yousaf Justice Muhammad Akhtar Shabbir Justice Zia Pervez
_______________________________________________________________

PCO JUDGES CASE, 2009

1. POE on Nov 3 and instruments/measures promulgated in pursuance thereof declared unconstitutional and void ab initio 2. Grounds of POE were non-existent 3. Appointment of Justice Abdul Hameed Dogar as CJP declared unconstitutional

4. Appointment of Judges in Superior Judiciary without consultation of de jure CJP declared unconstitutional & illegal 5. Appointments made in consultation with justice Abdul Hameed Dogar declared unconstitutional & void ab initio 6. Judges who took oath under PCO 2007 were to be proceeded against in terms of Article 209 of Constitution 7. Establishment of Islamabad High Court rendered unconstitutional and of no legal effect 8. Protection given to judgments and orders rendered by Justice Abdul Hameed Dogar & others 9. Number of Judges of the Supreme Court 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. 10. New Clause in Code of Conduct for Superior Judiciary A new clause shall be added, in the Code of Conduct prescribed for the Judges of the Superior Courts, 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 11. Notifications for extension of services unconstitutional The notifications 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. 12. Ordinances promulgated by President and Governors between 03-11-2007 to 15-11-2007 shorn off their purported permanence. 13. Judgements in Tikka Iqbal's case were per incuriam, corum-non-judice, without any legal basis hence, of no legal consequences. 14. General Elections 2008 were constitutional