KARACHI, Dec 26: The court which decided the Zafar Ali Shah case in the year 2000 was not the Supreme Court of Pakistan in contemplation of the 1973 Constitution as its members had forsaken their constitutional oath and had taken a fresh oath under the Provisional Constitutional Order of October 1999 swearing allegiance to the military regime, former chief justice of Pakistan Saiduzzaman Siddiqui said here on Wednesday.
Delivering his presidential speech at a seminar on the Legal Framework Order and constitutional amendments, hosted by the Sindh Bar Council (SBC) in a hotel and attended and addressed by lawyers’ representatives from across the country, Justice Siddiqui, who was compelled to resign as chief justice of Pakistan for his refusal to agree to the new oath in January 2000, elaborated that the LFO was not a part of the Constitution and hoped that the new elected government would “resolve the existing constitutional impasse in accordance with the aspirations of the people by following a constitutional course in the best national interest.”
“Pakistan is once again standing at a crossroads. The nation having undergone the ordeal of a referendum followed by ‘an ominous’ exercise of a general election in October was now haunted by a constitutional mess created by the mutilation of the consensus Constitution of 1973 by an individual,” he observed.
The amendments made by the military regime in utter disregard of the procedure envisaged by the Constitution had further polarized society, opening a fierce debate and adding to the already existing confusion in the country, he said.
While unveiling its constitutional package earlier this year, he recalled, the government had claimed popular sanction behind it. The claim had been belied by the elections, in which the people rejected the LFO by voting for anti-government parties with a larger majority, he said.
If the amendments were allowed to become part of the Constitution, the former chief justice warned, they would not only change its salient feature of keeping the military bureaucracy away from the civil administration but would also allow the armed forces “a permanent and dominant role” in the country’s governance in complete negation of articles 243, 244 and 245 and the oath prescribed for the members of the armed forces in the Third Schedule of the Constitution. Could anyone in his right senses say that the Father of the Nation envisioned Pakistan as a state to be governed by military junta? he asked.
Felicitating the SBC on holding a seminar on the Quaid-i-Azam’s birth anniversary, he recalled two occasions when the Quaid admonished armed forces officers for commenting on government policies. “...armed forces are the servants of the people and you do not make national policy; it is we, the civilians, who decide these issues and it is your duty to carry out the tasks which you are entrusted,” the Quaid had said. On another occasion, he warned military officers at the Quetta Staff College: “I would like you to study the constitution which is in force in Pakistan at present (the Government of India Act of 1947, as adapted) and understand its true constitutional and legal implication when you say that you will be faithful to the Constitution of the Dominion. I want you to remember...that the executive authority flows from the head of the Government of Pakistan, who is governor-general, and, therefore, any command that may come to you cannot come without the sanction of the executive head.”
SC STATUS: About the claim that the LFO became part of the Constitution by virtue of the Supreme Court judgment in the Zafar Ali Shah case, the former chief justice said: “We must bear in mind that the learned judges who decided the case had forsaken their oath under the Constitution of 1973 and had taken a fresh oath under the PCO promulgated by the military regime swearing allegiance to the new government. Such a court, in my humble opinion, did not enjoy the status of a constitutional court envisaged under the provisions of the Constitution.”
Presuming that the court was duly constituted, he said, even then it could not authorize any individual to carry out constitutional amendments contrary to the provisions of articles 238 and 239 of the Constitution. The Supreme Court was only empowered to interpret law or the Constitution. It was under oath to protect and preserve the Constitution and could not strike down any constitutional provision, he emphasized, citing chief justice Hamoodur Rehman’s judgment in the 1973 Ziaur Rehman case. In the Zafar Ali Shah case, Justice Siddiqui added, the court neither interpreted nor determined the effect of articles 238 and 239, which dealt with constitutional amendment, while empowering the army chief-chief executive to amend the Constitution. The Constitution having been suspended in its operation was otherwise a dead letter at that time and could not be amended or dealt with in any manner without first reviving it. “Therefore, the judgment of the court insofar as it authorized the military government to amend the Constitution was per incuriam,” he said.
It was because of the temporary nature of the extra-constitutional change that the court validated the October 1999 military takeover, Justice Siddiqui pointed out. The power to amend the Constitution was made conditional on the failure of the constitutional provisions to help achieve the regime’s declared objectives. In no case, however, could it be exercised to impinge on the Constitution’s salient features, ie, independence of the judiciary, federalism and parliamentary system blended with Islamic provisions. The regime could not thus make amendments of a permanent nature, least of all tamper with the salient features of the Constitution, even under the court judgment in the Zafar Ali Shah case, he said.
“Therefore, from whatever angle the proposed amendments to the Constitution are examined, they could not form part of the Constitution without being ratified by the parliament that came into existence as a result of the October elections,” the former chief justice concluded.
