LAHORE, Nov 14: “The Chief Executive was vested with the power to amend the Constitution by the apex court in the Zafar Ali Shah case. It is for the same court to see whether he has transgressed the authority conferred upon him by promulgating the Legal Framework Order.”
This observation was made by Justice Muhammad Saeed Akhtar of the Lahore High Court on Thursday while describing a writ petition of the Pakistan Lawyers Forum challenging the validity of the LFO as without merit and dismissing the petition in limine.
After recording the arguments offered by the petitioner’s counsel A.K. Dogar and Deputy Attorney-General Sher Zaman Khan in favour and against the LFO, the judge observed in his 20-page judgment that the transfer of power from the armed forces to the civil society had always been difficult but not impossible. The government is in the offing and the leadership emerging from the recent polls should be able to find a solution to the problem.
“The country could not be plunged into chaos, confusion and instability at this juncture of time and the question may be left to be determined by the proper forum.”
Justice Akhtar observed that the case could be looked at from another angle as well. The elections to the National Assembly and the provincial assemblies had been held, and the notification of the successful candidates had been issued. All eyes were set on the formation of the civilian government, and the restoration of the Constitution and democracy was in sight. An appeal to the elected representatives was necessary under the circumstances to examine the LFO, he opined.
Dismissing the petitioner’s criticism on re-insertion of Article 58(2)(b) through the LFO, the judge observed: “The beneficial aspect of Article 58(2)(b) has already been discussed in the Mehmood Khan Achakzai and Zafar Ali Shah cases. The honourable Supreme Court observation in the Zafar Ali Shahs Case are as under:
“We are of the view that it is never safe to confer unfettered power on a person who is holding the reins of the affairs of the country as is embodied in the saying ‘power corrupts and absolute power corrupts absolutely’. Accordingly, while upholding the judgment in the Mehmood Khan Achakzai case, we would like to observe that probably the situation could have been avoided if checks and balances governing the powers of the president and the prime minister had been in place by means of Article 58(2)(b).”
Referring to the objections of the petitioner on the National Security Council, the judge observed: “As far as the contention that the National Security Council has been made a superior body is concerned, suffice to say that it is only a consultative forum. Its decisions/resolutions have no binding effect on the government or the president of Pakistan. This article cannot be declared unconstitutional merely on the ground that some members of the National Security Council are the servants of the state.”
