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Chapter No.

3 Constitutional Crises and Supreme


Court

In the background of Pakistan, specified its geo-political, social and religious


contextual and past, the Supreme Court will have to remain performing
‘traditional’ and ‘non -traditional’ roles, but with dynamic stress and emphasis
and an augmented wisdom of accountabilit y to its peculiar checks and
stabilities.

3.1 First Constitutional Crises:


In March 1953, with the imposition of Martial Law in Lahore, emerged the first
constitutional crises in Pakistan. It was associated with a movement to declare
Ahmadi as non-Muslims. This movement created a lot of disturbance and law
and order situation in the country. The crises lead to winding up of a provincial
assembl y. 1
1
Hamid Khan, Constitutional and Political History of Pakistan (Karachi:
Oxford Universit y Press, 2001), 171.

3.2 2 n d Constitutional Crises


Second constitutional crises emerged when Khawaja Nazimudin was dismissed
in April 1953. It was the e nd result of winding up of Punjab provincial
assembl y.
M. Ali Bogra attempted to reduce the powers of Governor -General as a result
his government was also dismissed in October 1954. 2
2
(Mehmood, (1995)

3.3 3 r d Constitutional Crises:


The third constit utional crises emer ged in 1954, when the assembl y was
dissolved.
Dail y newspaper “Dawn” provided as a very justifiable comment on the
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situation. There true words were:
1
Dawn, Karachi, Editorial ‘Revolution’ 11 August 1957

1
1
Dawn, Karachi, Editorial ‘Revolution’ 11 August 1957

Against this dismissal, the speaker of the assembl y Maulvi Tamizudddin filed
a writ petition in Sindh high court that was dul y honored by the worthy court. 4
The court in their order acknowledged the dismissal as illegal and reinstated
the government. But in response to an appeal by the governor general, the
Supreme Court under the chief justice Muhammad Munir approved the decision
of dismissal and disapproved the decision of Sindh high court.
4
Writ Petition Maulvi Tamizudddin Khan, 1954, No. 439/1954
Pakistan judiciary was the first to cope with civilian government. It was
Supreme Court under the supervision of chief justice Muhammad Munir who
disregarded the decision of Sindh high court and declared that Governor
General was just and fair to dissolve the assembl y. Since, the assembl y was
diluted by Governor General there was a constitut ional gap, since there was no
legislative body at that time. So governor general filled a reference to federal
court under section 213 Government of India Act 1935. In this reference the
court was inquired on the actions taken by the Governor General in performing
government affairs. It required the validity of acts taken by Governor General
in absence of Legislative. The reference required validit y up to constitution of
the new assembl y after elections.
In 1956 the constitution of 1956 was promulgated. 5 This was a just reflection
of India Act 1935, since it followed the pattern of that Act. The constitution
empowered the federal Government. It increased the powers of Federal
Government to overrule the provisional governments. The federal government
was considered as supreme authorit y. The concentration of power was in the
hands of Federal government. Different privileges like imposition of
emergency situation in the country or province, winding up of provincial
assembl y, detention of any person were also ves ted with central government.

2
5. Dawn, Karachi, 24th March 1956

The primary flaw in the constitution resulting in vesting no right to legislature


to have no financial control over administrative expenses. The same was
repeated in 1962 and 1973 constitution. This resulted in concentration of power
in few hands and a wea k legislative body.
The consequences was disturbance and conflict between legislative and other
forces fighting for control over powers to rule the country.

3.4 Fourth Constitutional Crises:


Fourth crises arose with the imposition of Martial law in 1958 6. The assembl y
was repealed by Martial Law Administrator. The courted granted the
imposition of Martial Law as legal by making an invalid interpretation of
doctrine of legal positivism presented by Justice Han Kelson in “Dosso Vs
State” 7 as reference case.
6
Manzoorduddin Ahmed, Pakistan: The Emerging State (Karachi: The Allies

Corporation, 1966), 209.


7
Dosso v The State, PLD 533 (SC 1958).
1n 1958, Supreme Court professed that common people were not against
martial law and they were feeling contented over imposition of Martial law in
the country. Therefore, Martial Law was regarded as a source of peace at that
time. The court trailed the theory of legal positivism.
The 1958 Martial law was prolonged and resulted in the General Ayub khan
vision in the form of 1962 constitution of Pakistan. 8
8
Gauhar, Altaf, Ayub Khan, Sang -e-Meel Publications, Lahore, 1988, pp. 169 -
170
The 1962 constitution was framed without any participation from democratic
parties and without any consent from any group of societ y. But it was onl y the
result of insight of Ayub Khan. As said by Chaudhary Muhammad Ali,
“Government of the president, by the president and for the president”. 9
9
Dawn, 2 n d April 1963

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Concentration of powers was the basic objections on 1962 constitution. It was
away from the insight of the people. Here, political parties were discouraged
and it was an era of bureaucratic rule. President had all the powers to run the
affairs of the state. President has both legislative and executive supreme
powers. But with the continuous and increasing pressure from the public , the
assembl y could pass onl y a bill on the human rights. This was the mere
performance of the assembl y at that time. 10
10 Mehmood, Safdar. Dr. A Political Study of Pakistan , Sang-e-meel
publications, Lahore, 1987

In a legal case by “Khuro” the Supreme Court made an effort to ensure that
Martial law period was under a legal instrument. They legitimate Martial Law
period as legal and regarded actions of Arm y not against the law and not on
the wishes of the Martial Law authorities and regulations, but all was under
legal and just rights. It was regarded as necessit y of time.
In “Khuro” case, the Supreme Court also felt that they can review the judicial
decisions made by the judges working under Martial Law rules and regulations.
After introduction of 1962 constitution and lift of 1958 Martial law, the
supreme court also examined the legal position of presidential orders “Removal
of difficulties” (Appointment of ministers as presidential orders) the court
found that it was not discretionary power of president to s top any minister to
hold office. Once a minister was appointed president can’t himself reverse him.
The Supreme Court also issued a verdict that it was the dut y and responsibilit y
of Supreme Court to protect constitution and declare any order against
constitution as illegal. Therefore, presidential orders were declared as
invalid 11.
11
“Fazul Quader P LD 1963 SC 468”

On 25 t h March 1969, the government was shifted to another arm y general,


General Yahya Khan. Martial law was imposed and 1962 constitution was
cancelled. West Pakistan province was also dissolved by Yahya khan. 12
12
Ahmad, Mushtaq, Government and politics of Pakis tan, Space Publishers,
Karachi, 1970

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3.5 Fifth Constitutional Crises:
Legal Frame work order (LFO)
Yahya khan produced a Legal frame work order to limit the powers of the
assembl y. It was the result of his own intuition. No consultancy with political
powers were made. 13
13
M al u k a, Zu l fiq ar , K h alid , p p . 2 1 0 ,2 1 3
Under LFO new elections were held to constitute assembl y. It repealed the
parit y between two parts i.e. East and West Pakistan. It allowed to start framing
a new constitution in constitutional assembl y of 300 representatives. A single
majorit y was required to form constitution. Majorit y of the members were from
East Pakistan. It was a basic shortcoming in LFO. In 1970’s elections Awami
League was the onl y part y that gained majorit y and could fra me constitution. 14
14
As ia n S ur ve y ( B a nt er , P ak is ta n Vo t es 1 9 7 0 ) V o l. -X i No . 3 Marc h 1 9 7 1

While Awami league has its’ own six point agenda.


Awami league got majorit y by presenting of their six point agenda in East
Pakistan. 15 They insisted on their six points, so they were not offered to form
Federal Government, even they were in majorit y. This dispute got momentum
and blood shed started in the country. Ultimatel y, it resulted in the separation
of the country.
15
B ur ke, S.M . AND Zir i n g, La wr e nce, P a k i sta n ’s Fo r ei g n P o l ic y, O x fo rd Un i ver s it y, P re s s
Kara c hi.

Professor Muzaffar Ahmad, an Awami league leader stated that Bangladesh is


not a colony of the West Pakistan, the results indicate that they never intended
to be a colony of West Pakistan. Another leader Maulana Bashani also extended
his hand to the Awmai league for the cause of separation. 16
1
Pakistan observer, Karachi, 5 t h Jul y 1971

The country was on civil war 17 and arm y ruler has to step down. 18
Supreme Court declared Yahya khan as “Usurper” and dismissed Martial law.
Supreme Court in their famous decision in “Asma Jilani Vs State” declared that

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Martial law by Yahya khan was illegal. Therefore, rule 78 of Martial law was
suspended by the Supreme Court . This brought all the actions that took place
in proclamation of Martial law as invalid. 19
17
T h e T i me s, Ne w Yo r k , 1 0 t h Mar c h , 1 9 7 1
18
C h u had r y, G.W . o p -c i t, p . 3 3
19
As ma J i la n i V s. T he Go ver n me n t o f P u nj ab , P LD 1 9 7 2 S C 1 3 9

The judgment by the worthy court also tried to stop any further imposition of
Martial law in the country. Martial law Administrator was regarded working
against the law and not as a custodian of law.
In the meanwhile, High court also punished a senior arm y officer wh o worked
against the orders of the Supreme Court. The court also declared that there is
no one above the law. 20
20
“H as h mat Al i V s C o l. M. S h a ffi D u rra ni ” wr it p e ti tio n No . 8 7 / 1 9 6 9 d ec id ed o n
0 7 /0 3 /1 9 7 2

3.6 6 t h Constitutional Crises


On Jul y 5, 1977 General Zia ul Haq took charge as chief Martial law
administrator. He dismiss ed constitutional assembl y and Imposed Martial law
in the country. 21 For, this time the arm y chief didn’t dismissed the constitution
but it was suspended for a number of day that prolonged in future. 22 PPP has
majorit y in federal government but their actions in province of Baluchistan and
N.W.F.P were questionable. These were among the other causes that lead to
the fall down of the government on technical grounds. This also emerged the
fifth constit utional crises in Pakistan. There was life -threatening pressure on
judiciary at that time. 23
21
Da wn , 4 t h J u l y 1 9 7 7
22
Da wn , 8 t h J u l y 1 9 7 7
23
Ari f, K ha lid Me h mo o d , o p - ci t, p 2 6 0

The Supreme Court in their order advised the Martial law gov ernment to
operate onl y day to day routine functions of the government and let the people
of Pakistan elect new assembl y through general elections. 24
24
Ka yh a n I n ter n at io nal , T ehr a n ( Zia ’s I nter v ie w), 1 8 t h Sep te mb er 1 9 7 7

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On 20 t h September 1977, Begum Nusra t Bhutto challenged the detention of
Z.A.Bhutto in the supreme court of Pakistan. 25 Chief justice Yaqoob Ali
honored the petition, from this acceptance Martial law authorities smell some
favor to be given to PPP by the court. Since 6 t h amendment in 1973 constitution
26
was brought to favour Chief justice Yaqoob Ali. So, they sought solution to
this problem. This acceptance threatened Zia ul Haq and he decided to amend
1973 constitution. On September 22, 1977 order No. 6 was issued by chi ef
martial law administrator. When chief justice Yaqoob Ali retired from the
office of the chief justice Supreme Court, the office of the chief justice
remained vacant. The chief martial law administrator re-engineered the
Supreme Court and Anwar Ul Haq wa s sworn in as new chief justice.
25
Da wn , 2 1 s t S ep t e mb er 1 9 7 7
26
K ha n H a mid , Co n st it ut io na l a nd P o lit ic al H is to r y o f P a ki s ta n , O x fo rd U n i ver si t y P re s s ,
2001
After reconstruction the court comprising 9 judges heard the appeal for 21 days
(this provided a fu ll court hearing) providing ample opportunit y to Z.A.
Bhutto, Mumtaz Bhutto and Hafiz Pirzada. After complete hearing the court
regarded petition as not maintainable and dismissed the appeal. Chief justice
affirmed the imposition of Martial law and provide d that Military takeover was
just and necessary to stop bloodshed and maintain peace in the country. It was
considered as the need of the hour. The court regarded that Martial law was
necessary to stop violence in the country. The chief justice allowed chi ef
martial law administrator to perform all functions necessary to run the country.
Presidential orders, ordinances, Martial law regulations or any other order b y
the Chief martial administrator was regarded as legal and necessary by the
Supreme Court. 27
27
Ka yh a n I n ter n at io nal , T ehr a n ( Zia ’s I nter v ie w), 1 8 t h Sep te mb er 1 9 7 7

Chief justice of Pakistan postponed elections and orders to keep it postponed


until the accountabilit y process is completed. Chief justice declared extra
constitutional steps by the Arm y as legal and valid. 28
28
P re sid e nt Zia ’ s ad d r e s s, 1 6 t h O cto b er 1 9 7 9 , Mi ni s tr y o f I n fo r mat io n, P ak is ta n

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3.7 7 t h Constitutional Crises: Provisional Constitutional
orders (PCO)

On 25 t h March 1981, provisional constitutional orders was promulgated by


Arm y administrator. It was to serve as constitution of Pakistan for till further
orders.
The honorable judges of court were required to take a new oath under PCO. It
was on discretion of President to refuse to take oath to any judge or allow them
to take oath. Onl y justice Drab Patel refused to take oath under PCO . 29
29
K ha n Ha mi d , Co n st it u tio na l a nd P o li ti ca l H i st o r y o f P a ki s ta n , O x fo rd U ni ver s it y P r es s ,
2001 pp. 666

However, the same PCO was questioned in the court of law by a convicted
Arm y retired general in Lahore high court. Unfortunatel y the court uphold PCO
as valid and supreme court also approved the same. At that time, Supreme
Court has authenticated Chief martial law administrator to amend the
constitution as he thinks fit and just. 30
30
P LD 1 9 8 1 , Ce n tr a l sta tu e s, Vo l. XX XIII, p . 1 8 3 (C M LA’s Ord er No -1 o f 1 9 8 1

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3.8 8 t h Constitutional Crises
Revival of constitutional orders (RCO)
Revival of constitutional orders brought a constitutional crises in Pakistan.
Constitution was amended by chief martial law administrator. RCO empowered
the president to enjoy all the legislative and supreme executive powers. The
balance of powers vested with executives shifted clearl y towards one man that
is the president. However, in 1973 constitution the root of power was
parliament and prime minister and president was just a symbol of units of state.
Even a single order to be issued by the president require authentication from
prime minister. The intention was to give more and more powers to General
Zia ul Haq as president. General Zia ul Haq got himself elected as president of
Pakistan in 1984 through so called referendum. The referendum granted Zia ul
Haq a period of five years as head of state and hub of power. The referendum
was proved to be planned drama sinc e less than 10% people actuall y
participated and voted in favor of Zia ul Haq. 31
31
P LD 1 9 8 5 , Ce n tr a l S t at ue s, Vo l. X XX VII, p , 4 9 9

3.9 9th Constitutional Crises: Janejo Case

M. Ali Janejo was made Prime minister of Pakistan by the elections under
control of Arm y. But when Janejo could not full fill their requirements, his
government was dismissed by the president using the powers vested upon him
on 29 t h May, 1988. 32
32
T h e M u sl i m, I s la ma b a d , 3 0 t h Ma y 1 9 8 8

The Lahore high court in response of hearing PLD 1988 Lahore 725 filled by
Khawaja Muhammad Sharif against federation of Pakistan, regarded
presidential Act as illegal but could not restore the position of Mr. Janejo and
his cabinet. 33 The federal government filed an appeal against the decision but
Supreme Court did not disapproved the high court decision. 34
33
P LD 1 9 8 8 , La ho r e p . 7 2 5
34
P LD 1 9 8 9 , S up r e me c o ur t, p . 1 6 6

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When the new elections were conducted and new assembl y was formed. The
same case of Mr. Janejo was declared as dead in 1981 by the honorable court.

3.9.1 Mirza Aslam Baig Intervention

It was a misfortune that Mirza Aslam Baig a retired Arm y general confessed
that he sent a message to the honorable judges of Supreme Court when they
were hearing the Junejo’s of dismissal (Haji Muhammad Saifullah’ case ). 35
The
message conveyed that Junejo government should not be restored. He expressed
this in an open discussion at Lahore press club on February 4 t h 1993. He tried
to justify his message by saying that the government has made all t he
arrangements for the conduct of new elections. Therefore, the judges must
allow to go to general elections rather than restoring Junejo government.
Justice M.A. Zulleh, the honorable chief justice of Pakistan, served a notice of
contempt of court on 13 t h February 1993 to Mirza Aslam Baig on the statement
issued by him in press. 36 A bench comprising of five honorable judges was
constituted to hear the contempt. The hearing was on dail y basis, the media
created anxiet y among people regarding this case. The people were eager to
hear about this case. However, Mirza Aslam Baig never turned from his
statement. He acknowledged that he has given the statement to the press. He
appeared before the court on 20 t h February, 1993. Fakhurddin G. Ibrahim was
his counselor. He admitted before the court that he has made the statement and
send a message to the judges 37. But, all this is done in good faith. He said that
it was not his intention to disgrace the judge or Supreme Court. But, he did
was in good faith and for the pe ople of Pakistan, he said. 38
35
T h e N at io ns . 5 t h F eb r uar y 1 9 9 3
36
P LD 1 9 9 3 , S up r e me c o ur t, p 3 1 0 ( P e ti tio n Mi sce ll a neo u s No . 1 2 o f 1 9 9 3 )
37
P LD 1 9 9 3 , S up r e me c o ur t, P 3 2 2
38
A mi n, Ha f iz, Ge r nia l o o n Kee Aiee n e T er ma m ie m, Do st As so cia te s, L aho r e, 2 0 0 3 , p 1 0 4

Mr. Baig also told that Wasim Sajjad was the person who carried the message
to the judges. So, Wasim Sajjad was called upon by the Supreme Court . On 4 t h
March, 1993 Wasim Sajjad appeared before the court and repudiated from the
statement and said that he has no concern with the case, he never worked as
carrier between Army chief and judges of the Supreme Court .

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The contempt was finall y decided on 30 t h March 1993. Mirza Aslam Baig’s
argument was considered as valid that he worked in best interest of nation
39
although he was convicted for contempt of court but not punished.
39
P LD 1 9 9 3 , S up r e me C o ur t, p 3 3 1

3.10 Tenth Constitutional Crises:


Benazir Bhutto Appeal for Justice

3.10.1 Benazir Bhutto 1st Appeal


Benazir Bhutto went in an appeal against the dissolution of his Government by
Ghulam Ishaq Khan the president at that time. The appeal was rejected by the
Supreme Court and Supreme Court affirmed the decision of LHC in 1992 40
40
“K ha waj a Ah mad T ar i q Vs F ed e r a tio n o f P a ki st a n” P LD 1 9 9 0 .

3.10.2 2nd Appeal by Benazir Bhutto


Benazir Bhutto sued in the court of law for the dismissal of his 2 n d term
government by the president Leghari. Mr. Farooq Ahmad Leghari was a
member of PPP and was elected with the support of PPP. The appeal filed b y
Benazir was also turned down by the supreme court of Pakistan.

3.11 11 t h Constitutional Crises: Supreme Court


Horrible incident

Another crises came when judiciary and largest majorit y ruling part y PML (N)
or Pakistan came in front to front. On the occasion of hearing of contempt of
court against the Prime Minister Nawaz Sharif, PML (N) leaders and workers
attacked the Supreme Court. Although Justice Sajjad Ali, the honorable chief
justice and other justice were hearing the contempt on November 28 t h , 1997.
A bench of three judges of supreme courts inquired the matter of November
28 t h 1997. 41 The chief justice asked the Army protection from president. 42

While some judges at Quetta and Peshawar rose against chief justice. The Chief
justice wrote a letter to the president asking him to file a reference in the

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supreme judicial council for miscon duct. 43 The president following law, asked
the prime minister to provide arm y protection to chief justice and the court,
but due to personal enmit y Nawaz Sharif ignored the same. Then chief justice
directl y wrote a letter to the Arm y chief. The Arm y chief f ollowing the legal
procedure asked the secretary defense to make arrangements. But the supreme
judicial institution of Pakistan was not provided support from government
machinery and was disgraced at the hands of political forces. 44
41
FI R No . 2 2 2 /9 7 , P o lic e S tat io n, Se cre tari at, Is la mab ad
42
S ha h, Al i Saj j ad , o p -c it, p 5 1 6
43
Da wn , 1 6 t h Ma y 1 9 9 8
44
Da wn , 2 n d D ece mb er 1 9 9 7

A worse constitutional crises in the history of Pakistan arose, when there were
two chief justice i.e. Justice Sajjad Ali shah and Justice Saeedud Zaman
Siddiqui both working as chief justice in the same supreme court building.
There were two supreme courts at the same time. 45 The bar tried to resolve the
matter but their efforts were not fruitful. One bench was supported by president
and other was supported by the prime minister.
45
S ha h, Al i Saj j ad , o p -c it, p 5 0 0

On 2 n d December 1997, a bench which was backed up by the president and


headed by the chief justice Sajjad Ali Shah suspended 13 t h amendment in a
biased manner by giving no time to the government for presenting their
arguments. 46 A majority of Supreme Court judges meet in the court room and
Justice Ajmal Main the senior one, assumed the responsibilities to the chief
justice to safeguard the institution. 47 They judges also restrained president
Farooq Leghari to use article 58(2) to dissol ve the National assembl y. Sajjad
48
Ali shah had to go on long leave. The image of the Supreme Court in the eyes
of Pakistan shattered and the conspiracy by Sajjad Ali shah and Farooq Leghari
was open to all the people without any doubt.
46
P LD 1 9 9 8 , S up r e me C o ur t, p . 2 0 7 , Da wn , 3 r d Dece mb er 1 9 9 7
47
P LD 1 9 9 8 , S up r e me C o ur t, p 2 0 8
48
M ia n, Aj ma l, o p -c it, p . 2 2 7

Chief justice Ajmal Mian hold contempt of court proceedings against who were
involved in hostile attack Supreme Court. The court provided that there are no

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justifiable grounds for fixing contempt meanwhile MNA and MPA of PML (N)
apologized for what they did. Supreme Court showing kind heartiness accepted
49
their apology.
49
T h e M u sl i m, 1 5 t h Ma y 1 9 9 9

3.12 Twelfth Constitutional Crises: Zafar Ali Shah


VS. Pervaiz Musharaf
Zafar Ali Shah, a member of the parliament and MNA of PML (N) filed a writ
petition against the act of General Pervaiz Musharaf regarding dismissal of
Nawaz Sharif government. 50 The appeal was rejected by the bench. The bench
not onl y rejected the appeal but also empowered the dictator to make
amendments in the con stitutions. The court consisted on Justice Arshad Ahmad
Khan and Iftikhar Ahmad Chaudhary.
Restoration of chief justice Iftikhar Ahmad by the Supreme Court on September
20 t h 2007 was a remarkable step by the supreme court of Pakistan.
50
2 0 0 0 S CM R 1 1 3 7

3.13 Thirteenth Constitutional Crises:


Pervaiz Musharaf elections as president in Uniform

Supreme Court allowed Pervaiz Musharif to contest to the office of the


president of Pakistan even in service. This decision of the Supreme Court was
criticized by the number of advocates.

The Jamaat -I-Islami and its boss Qazi Hussain Ahmed have documented
petitions against president's maintenance of the workplace of the Chief of
Arm y Staff. Pakistan Tehrik -I-Insaaf boss Imran Khan, Jameel Ahmed and
Shahid Orakzai have tested the double workplaces held by the president.
Sharif Uddin Pirzada, counselor for Pervez Musharraf.
"Whenever chose for the second term as the president, General Pervez
Musharraf will give up charge of the workplace of the Chief of Arm y Staff no t
long after decision, however before making vow of office of the leader of
Pakistan for the following term.

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"The nomination paper of Gen Pervez Musharraf ought to be examined by the
Chief Election Commissioner/Returning Officer autonomously and as per th e
law,"
The announcement, in any case, didn't make any mix in the court as Justice
Rana Bhagwandas, who is going a nine -part seat seized with a lot of
indistinguishable petitions testing the president's double workplaces, saw that
the initial segment of t he announcement had been distributed in the media. 51
5 1 Da wn , Sep t e mb er 1 9 , 2 0 0 7

3.14 14 t h Constitutional Crises


Chief Justice Iftikhar Ch. Vs General Pervaiz Musharaf

Suspension of Chief Justice

On March 9, 2007, the President of Pakistan, General P ervaiz Musharraf, come


across the Chief Justice of the Pakistan Supreme Court, Iftikhar Muhammad
Chaudhry, and supposedl y implored him to leave, the Chief Justice's refusal
released an extraordinary revolt driven by Pakistani legal advisors in help of
legal autonom y and the standard of law in Pakistan. Named a "Legal
counselors' Mutiny52," the development additionall y produced open dissents
that is thought could significantl y imperil President Musharraf's hang on
office.
52
Al i K h a n, W a s hb ur n U ni ver s it y Sc ho o l o f La w, A La wy er s’ Mu tin y in Pa ki sta n , J U RI ST
Le gal Ne ws a nd R es ear c h, Ma y 3 0 , 2 0 0 7 , a va ila b le
a t ht tp : //j ur i st .la w.p it t.e d u/ f o r u m y/2 0 0 7 /0 5 / la wy ers - mu t i n y- i n - p a k i sta n .p hp

The Chief Justice's demonstration of refusal against a by and large amazing


official, and notwithstanding weight, is incredible in Pakistan, which has seen
no under four military systems administering the nation for noteworthy periods
during its sixt y-year history. In that time, official legal relations have been
stressed and various judges have been evacuated, notwithstanding defensive
arrangements gave in Pakistan's present Constitution, proclaimed in 1973. 53
Various judges have surrendered despite court -pressing, decreases in
retirement ages, prerequisites to make crisp vows, and different strategies of
the legislature of t he day. 54

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53
Nu m e ro u s ju d g e s re m o ved b y fo rce: Ju st ice R a md a y , T h e D ai l y M ai l, J ul y 4 ,
2 0 0 7 , a va i la b le a t h ttp :/ /d ai l y ma il n e ws .co m/2 0 0 7 0 7 /0 4 / ne ws /d mt o p sto r y 0 2 .h t ml
54
A H i g h Co ur t j ud ge h as la me n ted t ha t “b y a n d lar ge t he j ud ici ar y i n P ak is ta n tri ed , i n
ti me s o f cr is es , to a vo id co n fr o nta tio n wi t h t he ex ec ut i ve a nd we n t o u t o f it s wa y to t a ke
th e p a t h o f lea s t r e si s ta n ce.” P a u la R . N e wb e r g, J ud gi n g t he S ta te: Co u r ts a nd
Co n st it u tio na l P o l it ic s i n P a k is ta n 7 (1 9 9 5 ).

A High Court judge has lamented t hat “by and large the judiciary in Pakistan
tried, in times of crises, to avoid confrontation with the executive and went out
of its way to take the path of least resistance.” Paula R. Newberg, Judging the
State: Courts and Const itutional Politics in Paki stan (1995).
President Musharraf is expressed to have requested that the Chief Justice leave,
in light of grounds of supposed unfortunate behavior, within the sight of Prime
Minister Shaukat Aziz and six other formall y dressed officers. The Chief
Justice's accounted for refusal brought about his virtual suspension and getting
to be "non-functional." In the meantime, President Musharraf likewise
summoned his power under Article 209 of the oft -fixed 1973 Constitution of
Pakistan to allude the supposed maltreatment of office by the Chief Justice to
a Supreme Judicial (Council). This is the first occasion when that a Chief
Justice has been made "non -useful." Soon after, an Acting Chief Justice was
confirmed in a hurriedl y organized service. As clarified, the second senior-
most judge was picked for the acting position on the grounds that the senior -
55
most judge was out of the country.
55
Na sir Iq b al, CJ S u sp e n d ed : * Ju sti ce I ft ikh a r s u mmo n ed b y S J C o n 1 3 t h fo r r ef er en ce
h ea r in g * Ex - Ju d g e s ca ll it a b lo w to ju d icia ry ’s i n d ep en d en c e; m in i s te r d efen d s
d eci sio n * wh ith er ju d ici a l a ct iv i sm? D AW N, Ma r. 1 0 , 2 0 0 7 , a va ila b le
a th ttp :/ / ww w. d a wn .co m/ 2 0 0 7 /0 3 /1 0 / to p 1 . h t m

The regard to the Council, consisting of 5 Supreme Court Justices chaired by


the Acting judge, went into session shortl y once the swearing -in ceremony.
Throughout the proceedings privatel y, the Council ordered judge Chaudhry to
not perform functions because the judge or as a choose of the Supreme Court
till the reference was set. The suspended judge was referred to as upon to
answer during a matter of days the alle gations raised against him.

15
Reinstatement
The presidential relevance the Council spelled out the allegations concerning
the Chief Justice’s abuse of workplace. In might the Supreme Court suspended
the Council’s inquiry, and when deliberating additional for over four weeks,
the Court dominated on Gregorian calendar month nine that it had jurisdiction
over the Chief Justice’s suspension. The Court admitted a petition filed by the
jurist difficult the lawfulness of the relevance the Council. At first, the g ovt.
argued against the acceptableness of the petition on grounds that the Council
was the competent forum for the reference created against the jurist. It
conjointl y declared that the Council had the abilit y to restrain the jurist from
playing his duties. Later the govt. offered, primaril y claimed to indicate its
“good intentions,” to just accept the reference being determined by either the
Supreme Court or the Council. 56 In a dramatic fruits on Jul y twent y, 2007, the
thirteen-member Court rendered a histor ic call to reinstate the jurist and
dismiss the costs leveled against him. Before long thenceforth, President
Musharraf in public accepted the ruling, stating that judicial independence was
essential for governing the country. 57
56
Pa ki sta n : Go v e rn men t Co u n se l S a y s Mu sh a r ra f No t To Wi th d ra w Re fe r en ce Ag a in st
CJ, Da wn , J u l y 7 , 2 0 0 7 , a va ila b le a t Op e n So ur ce Ce n ter S AP 2 0 0 7 0 7 0 1 0 0 5 0 2 8
(s ub scr ip t io n d a tab a se) .
57
Mu sh a r ra f a cc ep t s Ch ief Ju st ice ru lin g , AB C Ne w s, Au g . 1 , 2 0 0 7 , a va ila b l e
a t ht tp : //ab c ne ws . go .co m/ I nt er nat io na l/ wir eS to r y? id =3 4 3 4 5 7 4

The Supreme Court’s final Order on the Chief Justice’s p etition telegraphicall y
noted: By majorit y of 10 -3 … Constitutional Original Petition No. twent y one
filed by man. Justice Iftikhar Muhammad Chaudhry, the magistrate of Asian
country, is allowed as a result whereof the preceding direction (the Reference)
of the President dated March nine, 2007, is ready asid e. As an additional
consequence therefrom, the petitioner CJP [Chief Justice of Pakistan] shall be
deemed to be holding the aforesaid workplace and shall forever be deemed to
possess been thus holding a similar workplace. The Court reserved all different
legal and constitutional problems raised before it to be answered in due course
in elaborate judgments. 58
58
Constitutional Petition No. 21 of 2007, available at http://www.supremecourt.gov.pk//judgment.htm

16
3.15 Input from law yers:

In order to get a view of the lawyer, a questionnaire was developed, consisting


on 19 discussion questions. A five point likert scale is used to measure the
responses of the respondents. The questionnaire is divided into two parts. The
first is the demographics of the population. The second is the discussion
questions. It is annexed at Annexure “A”.
In order to have a close view of the population 300 lawyers working in Multan
were approached. Since, Multan is the home town of the researcher and it is
eas y to approach Session court and High court Multan Bench.

3.15.1 Demographic of the population

Age of population

Age Number of respondents


Between 25-30 75
Between 30-40 125
Between 40-50 80
Between 50-60 20
Total 300

17
Population age
350

300

250

200

150

100

50

0
Between 25-30 Between 30-40 Between 40-50 Between 5-60 Total

Sex of Respondents
Sex Number of respondents
Male 240
Female 60

Sex of respondents
300

250

200

150

100

50

0
Male Female

18
Working experience

Working experience ( Years) Number of respondents


Less than 5 years 60
Less than 10 years 140
Less than 20 years 80
More than 20 years 20

Working experience of respondents


160

140

120

100

80

60

40

20

0
Less than 5 years Less than 10 years Less than 20 years More than 20 years

19
3.15.2 Discussion questions
Question No. 1
Do you agree with the decision of Justice Munir in 1954?

Options Responses
Strongly Agree 5
Agree 20
Neutral 40
Disagree 100
Strongly disagree 135

Question No. 2
Do you agree with the Supreme Court decision in 1958 declaring Martial law as a source
of peace?

Options Responses
Strongly Agree 8
Agree 20
Neutral 15
Disagree 157
Strongly disagree 100

Question No. 3
Do you agree with the Supreme Court decision in “Khuro” case?

Options Responses
Strongly Agree 10
Agree 15
Neutral 30
Disagree 160
Strongly disagree 85

20
Question No. 4
Do you agree with the Supreme Court declaration about Yahya khan as
“Usurper” and dismissal of Martial law?

Options Responses
Strongly Agree 125
Agree 100
Neutral 0
Disagree 55
Strongly disagree 30

Question No. 5
Do you agree with the decision of Supreme Court in “Asma Jilani” case?
Options Responses
Strongly Agree 15
Agree 20
Neutral 10
Disagree 170
Strongly disagree 85

Question No. 6
Do you agree with the decision of the Supreme Court in Begum Nusrat Bhutto in 1977?
Options Responses
Strongly Agree 5
Agree 10
Neutral 25
Disagree 100
Strongly disagree 160

Question No. 7
Do you agree with the decision of Justice Anwar Ul Haq approving Martial Law?
Options Responses
Strongly Agree 10
Agree 20
Neutral 15
Disagree 185
Strongly disagree 70

21
Question No. 8
Do you think that Supreme Court decision of Upholding PCO in 1981 was a good
decision?
Options Responses
Strongly Agree 15
Agree 5
Neutral 35
Disagree 140
Strongly disagree 105

Question No. 9
Do you think that postponement of general elections by Supreme Court was a good
decision?
Options Responses
Strongly Agree 20
Agree 35
Neutral 10
Disagree 135
Strongly disagree 100

Question No. 10
Do you agree with the Supreme Court decision in Junejo case?
Options Responses
Strongly Agree 25
Agree 45
Neutral 5
Disagree 100
Strongly disagree 135

Question No. 11
Do you think that Supreme Court has played a positive role by providing relief to Mirza
Aslam Baig?
Options Responses
Strongly Agree 5
Agree 15
Neutral 25
Disagree 180
Strongly disagree 75

22
Question No. 12
Do you think the decision of Supreme Court was just in Benazir appeal against the
dismissal of his first government?
Options Responses
Strongly Agree
Agree 20
Neutral 30
Disagree 45
Strongly disagree 145
60

Question No. 13
Do you think decision of Supreme Court made a good decision in dismissing Benazir
appeal against the dismissal of his second government?

Options Responses
Strongly Agree 15
Agree 25
Neutral 40
Disagree 135
Strongly disagree 85

Question No. 14
Do you think the attack by PML (N) on Supreme Court was just?
Options Responses
Strongly Agree 5
Agree 10
Neutral 20
Disagree 180
Strongly disagree 85

23
Question No. 15
Do you think Chief justice Sajjad Ali shah made a good decision by cancelling 13 th
amendment in constitution?
Options Responses
Strongly Agree 25
Agree 30
Neutral 45
Disagree 120
Strongly disagree 180

Question No. 16
Do you think relieving the persons responsible of Supreme Court attack was a good
decision?
Options Responses
Strongly Agree 10
Agree 5
Neutral 25
Disagree 145
Strongly disagree 115

Question No. 17
Do you think allowing Pervaiz Musharif to amend Constitution by the Supreme Court
was a good decision?

Options Responses
Strongly Agree 2
Agree 3
Neutral 25
Disagree 170
Strongly disagree 100

24
Question No. 18
Do you think turning down Zafar Ali Shah appeal was a constitutional support?
Options Responses
Strongly Agree 4
Agree 2
Neutral 4
Disagree 195
Strongly disagree 95

Question No. 19
Do you think allowing Pervaiz Musharaf to contest in Military uniform by Supreme
Court was a supportive constitutional decision?

Options Responses
Strongly Agree 10
Agree 25
Neutral 35
Disagree 130
Strongly disagree 100

3.16 Conclusion:
It can be easil y observed through the history of constitutional crises and
discussion with different lawyers that Supreme Court has supported the Martial
law authorities on number of occasions. Onl y once, they regarded Martial law
as illegal, in most of th e situations they were helpful to the martial law.

25
Table of Contents
Chapter No. 3 Constitutional Crises and Supreme .................................................................... 1
Court .......................................................................................................................................... 1
3.1 First Constitutional Crises: .......................................................................................... 1
3.2 2nd Constitutional Crises.............................................................................................. 1
3.3 3rd Constitutional Crises: ............................................................................................. 1
3.4 Fourth Constitutional Crises: ...................................................................................... 3
3.5 Fifth Constitutional Crises: ......................................................................................... 5
3.6 6th Constitutional Crises ............................................................................................. 6
3.7 7th Constitutional Crises: Provisional Constitutional orders (PCO) ......................... 8
3.8 8th Constitutional Crises ............................................................................................. 9
Revival of constitutional orders (RCO) ................................................................................. 9
3.9 9th Constitutional Crises: Janejo Case ....................................................................... 9
3.9.1 Mirza Aslam Baig Intervention .............................................................................. 10
3.10 Tenth Constitutional Crises: ................................................................................. 11
Benazir Bhutto Appeal for Justice ....................................................................................... 11
3.10.1 Benazir Bhutto 1st Appeal ..................................................................................... 11
3.10.2 2nd Appeal by Benazir Bhutto ............................................................................... 11
3.11 11th Constitutional Crises: Supreme Court ........................................................... 11
Horrible incident .................................................................................................................. 11
3.12 Twelfth Constitutional Crises: Zafar Ali Shah ..................................................... 13
VS. Pervaiz Musharaf .......................................................................................................... 13
3.13 Thirteenth Constitutional Crises: .......................................................................... 13
Pervaiz Musharaf elections as president in Uniform ........................................................... 13
3.14 14th Constitutional Crises ............................................................................................. 14
Chief Justice Iftikhar Ch. Vs General Pervaiz Musharaf ..................................................... 14
3.15 Input from lawyers: ...................................................................................................... 17
3.15.1 Demographic of the population ................................................................................ 17
Age of population ............................................................................................................ 17
3.15.2 Discussion questions ................................................................................................. 20
3.16 Conclusion: ........................................................................................................... 25
Annexure “A” .......................................................................................................................... 27
Questionnaire ........................................................................................................................... 27
References ................................................................................................................................ 31

26
Annexure “A”
Questionnaire
Part 1st Demographic Information

M y age is  25-30

 30-40

 40-50

 50-60

Gender  Male  Female

Working experience  Less than 5 Years

 Less than 10 Years

 Less than 20 Years

 More than 20 Years

Part 2nd Discussion Questions


Question No. 1
Do you agree with the decision of Justice Munir in 1954?
Do you agree with the decision of Justice Munir in 1954?  1  2  3  4  5

Question No. 2
Do you agree with the Supreme Court decision in 1958  1  2  3  4  5
declaring Martial law as a source of peace?

27
Question No. 3
Do you agree with the Supreme Court decision in  1  2  3  4  5
“Khuro” case?

Question No. 4
Do you agree with the Supreme Court  1  2  3  4  5
declaration about Yahya khan as “Usurper” and
dismissal of Martial law?

Question No. 5
Do you agree with the decision of Supreme Court in  1  2  3  4  5
“Asma Jilani” case?

Question No. 6
Do you agree with the decision of the Supreme Court in  1  2  3  4  5
Begum Nusrat Bhutto in 1977?

Question No. 7
Do you agree with the decision of Justice Anwar Ul Haq  1  2  3  4  5
approving Martial Law?

Question No. 8
Do you think that Supreme Court decision of Upholding  1  2  3  4  5
PCO in 1981 was a good decision?

Question No. 9
Do you think that postponement of general elections by  1  2  3  4  5
Supreme Court was a good decision?

Question No. 10
Do you agree with the Supreme Court decision in Junejo  1  2  3  4  5
case?

Question No. 11

28
Do you think that Supreme Court has played a positive  1  2  3  4  5
role by providing relief to Mirza Aslam Baig?

Question No. 12
Do you think the decision of Supreme Court was just in  1  2  3  4  5
Benazir appeal against the dismissal of his first
government?

Question No. 13
Do you think decision of Supreme Court made a good  1  2  3  4  5
decision in dismissing Benazir appeal against the
dismissal of his second government?

Question No. 14
Do you think the attack by PML (N) on Supreme Court  1  2  3  4  5
was just?

Question No. 15
Do you think Chief justice Sajjad Ali shah made a good  1  2  3  4  5
decision by cancelling 13th amendment in constitution?

Question No. 16
Do you think relieving the persons responsible of  1  2  3  4  5
Supreme Court attack was a good decision?

Question No. 17
Do you think allowing Pervaiz Musharif to amend  1  2  3  4  5
Constitution by the Supreme Court was a good decision?

Question No. 18
Do you think turning down Zafar Ali Shah appeal was a  1  2  3  4  5
constitutional support?

Question No. 19
Do you think allowing Pervaiz Musharaf to contest in  1  2  3  4  5
Military uniform by Supreme Court was a supportive
constitutional decision?

29
30
References

1
Hamid Khan, Constitutional and Political History of Pakistan (Karachi:
Oxford Universit y Press, 2001), 171.
2
(Mehmood, (1995)

3
Dawn, Karachi, Editorial ‘ Revolution’ 11 August 1957
4
Writ Petition Maulvi Tamizudddin Khan, 1954, No. 439/1954
5
Dawn, Karachi, 24th March 1956
6
Manzoorduddin Ahmed, Pakistan: The Emerging State (Karachi: The Allies
Corporation, 1966), 209.
7
Dosso v The State, PLD 533 (SC 1958).
8
Gauhar, Altaf, Ayub Khan, Sang -e-Meel Publications, Lahore, 1988, pp. 169 -
170
9
Dawn, 2 n d April 1963
10
Mehmood, Safdar. Dr. A Political Study of Pakistan , Sang-e-meel
publications, Lahore, 1987

11
“Fazul Quader PLD 1963 SC 468”

12
Ahmad, Mushtaq, Government and politics of Pakistan, Space Publishers,
Karachi, 1970

13
Maluka, Zulfiqar, Khalid, pp. 210,213

14
Asian Survey (Banter, Pakistan Votes 1970) Vol. -Xi No. 3 March 1971

15
Burke, S.M. AND Ziring, Lawrence, Pakistan’s Foreign Policy, Oxford
Universit y, Press Karachi.

16
Pakistan observer, Karachi, 5 t h Jul y 1971

31
17
The Times, New York, 10 t h March, 1971

18
Chuhadry, G.W. op -cit, p. 33

19
Asma Jilani Vs. The Government of Punjab, PLD 1972 SC 139

20
“Hashmat Ali Vs Col. M. Shaffi Durrani” writ petition No. 87/1969 decided
on 07/03/1972

21
Dawn, 4 t h July 1977

22
Dawn, 8 t h July 1977

23
Arif, Khalid Mehmood, op -cit, p 260

24
Kayhan International, Tehran (Zia’s Interview), 18 t h September 1977

25
Dawn, 21 s t September 1977
26
Khan Hamid, Constitutional and Political History of Pakistan , Oxford
Universit y Press, 2001
27
Kayhan International, Tehran (Zia’s Interview), 18 t h September 1977

28
President Zia’s address, 16 t h October 1979, Ministry of Information, Pakistan

29
Khan Hamid, Constitutional and Political History of Pakistan , Oxford
Universit y Press, 2001 pp. 666
30
PLD 1981, Central statues, Vol. XXXIII, p. 183 (CMLA’s Order No -1 of
1981

31
PLD 1985, Central Statues, Vol. XXXVII, p, 499

32
The Muslim, Islamabad, 30 t h May 1988

33
PLD 1988, Lahore p. 725
32
34
PLD 1989, Supreme court, p. 166
35
The Nations. 5 t h February 1993

36
PLD 1993, Supreme court, p 310 (Petition Miscellaneous No. 12 of 1993)
37
PLD 1993, Supreme court, P 322

38
Amin, Hafiz, Gernialoon Kee Aieene Termamiem, Dost Associates, Lahore,
2003, p 104
39
PLD 1993, Supreme Court, p 331
40
“Khawaja Ahmad Tariq Vs Federation of Pakistan” PLD 1990.
41
FIR No. 222/97, Police Station, Secretariat, Islamabad
42
Shah, Ali Sajjad, op -cit, p 516
43
Dawn, 16 t h May 1998
44
Dawn, 2 n d December 1997
45
Shah, Ali Sajjad, op -cit, p 500
46
PLD 1998, Supreme Court, p. 207, Dawn, 3 r d December 1997
47
PLD 1998, Supreme Court, p 208
48
Mian, Ajmal, op -cit, p. 227
49
The Muslim, 15 t h May 1999
50
2000 SCMR 1137
51
Dawn, September 19, 2007

52
Ali Khan, Washburn Universit y School of Law, A Lawyers’ Mutiny in
Pakistan, JUR IST Legal News and Research, May 30, 2007, available
at http://jurist.law.pitt.edu/forum y/2007/05/lawyers -mutiny-in-pakistan.php
53
Numerous judges removed by force: Justice Ramday, The Daily Mail, Jul y 4,
2007, available
at http://dail ymailnews.com/200707/04/news/dmtopstory02.html
54
A High Court judge has lamented that “by and large the judiciary in Pakistan
tried, in times of crises, to avoid confrontation with the executive and went out
of its way to take the path of least resistance.” Paula R. Newberg, Judging the
State: Courts and Constitutional P olitics in Pakistan 7 (1995).
55
Nasir Iqbal, CJ Suspended:*Justice Iftikhar summoned by SJC on 13th for
reference hearing*Ex-Judges call it a blow to judiciary’s independence;
33
minister defends decision* whither judicial activism? DAWN, Mar. 10,
2007, available athttp://www.dawn.com/2007/03/10/top1.htm
56
Pakistan: Government Counsel Says Musharraf Not To Withdraw Reference
Against CJ, Dawn, Jul y 7, 2007, available at Open Source Center
SAP20070701005028
57
Musharraf accepts Chief Justice ruling, ABC News, Aug. 1, 2007, available
at http://abcnews.go.com/ International/wireStory? id=3434574
58
Constitutional Petition No. 21 of 2007, available at
http://www.supremecourt.gov.pk//judgment.htm

34