SC strikes down Nov 3 emergency

Updated 27 Nov 2019

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ISLAMABAD, July 31: 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.

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 Inside... 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 3 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.