October 1, 2009


Supreme Court of Pakistan has handed down its Detailed Judgment of the July 31st short-order decision.

The Detailed Judgment (pdf). The 383 page file starts with a list of issues that the judgment addresses, and their respective page numbers, for easy navigation.

Dawn has highlighted some of the findings of the decision:

Referring to the taking of oath under the Provisional Constitution Order by Justice Dogar and other judges, the chief justice stated that all of them had shut their eyes to an obvious fact that they were not judges under the Constitution. ‘They knew that some others were the rightful holders of those offices; they had no right in fact and they were not in possession of office by some colour of right and they were usurpers.’

The judgment also referred to the referendum, constitutional amendments made by Gen Musharraf through the Legal Framework Order (LFO) and the general elections of 2002 and the 17th Amendment to the Constitution.

The judgment declared that the CJP and judges of the Supreme Court were unconstitutionally and illegally prevented from performing their functions, although they were very much available and able to perform such functions. There were no vacancies in the Supreme Court and the increase in number of judges by the Finance Act of 2008 could only be valid to the extent of allocation of funds. It did not meet the requirement of Article 176 of the Constitution which commanded that the number of judges could be increased only by an act of parliament, the judgment said.

Referring to appointment of judges of high courts, it said the law laid down in the Al Jihad Trust case had been reiterated and it had been held that the chief justice being the pater familias, his views definitely deserved due deference.

Justice Jawwad held that Gen Musharraf had directly undermined the writ of the state by launching a frontal attack on the Constitution, abusing the office of the chief of the army staff and relying on physical force which had been placed under his command.

The Dawn story ends with this interesting comment from (and potentially dangerous to the physical soundness of) Dr. Sher Afgan Niazi. One hopes Dr. Sher Afgan will remember to stay away from LHCBA premises in the near future:

Talking to reporters, former parliamentary affairs minister Dr Sher Afgan refused to recognise the Supreme Court verdict as a legitimate order, saying he did not consider it a rightful institution.

PakistanExcerpt from page 100 of the Detailed Judgment that clarifies the role of Armed Forces in the Pakistani Democracy:

Chapter 2 of Part XII of the Constitution deals with the Armed Forces. Clause (1) of Article 243 provides that the Federal Government shall have control and command of the Armed Forces while under clause (1A) it is provided that without prejudice to the generality of the provisions of clause (1), the supreme command of the Armed Forces shall vest in the President. Under clause (3), the President shall, in consultation with the Prime Minister, appoint (a)  the Chairman, Joint Chiefs of Staff Committee; (b)  the Chief of the Army Staff; (c)  the Chief of the Naval Staff; and Const. P 9 & 8/2009 (d)  the Chief of the Air Staff. Under Article 244, every member of the Armed Forces shall make oath in the form set out in the Third Schedule, which recites as under: –

I _________, do solemnly swear that I will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law. May Allah Almighty help and guide me (Ameen).

Article  245(1) of the Constitution deals with the functions of the Armed Forces of Pakistan. It provides as under: –

(1)    The Armed Forces shall, under the directions of the Federal Government defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so.

On a plain reading of the provisions of Article 245(1), the functions of the Armed Forces can be bifurcated into two categories, namely, they shall

(1) defend Pakistan against external aggression or threat of war, and

(2) subject to law, act in aid of civil power when called upon to do so.

Under clause (1) of Article 243, the control and command of the Armed Forces is vested in the Federal Government, therefore, in the performance of both the categories of functions, the Armed Forces act under the directions of the Federal Government. Thus, the provisions of clause (1A) of Article 243 under which the supreme command of the Armed Forces vests in the President, does not, in any manner, derogate from the power of the Federal Government to require the Armed Forces to defend Pakistan against external aggression or threat of war, or to act in Const. P 9 & 8/2009 aid of civil power in accordance with law. The Constitution does not envisage any situation where the Armed Forces may act without any direction by the Federal Government.


  1. khaki says:

    In the national Interests:
    Our most promenant institutes are alway trying in their best to work in the interests of this poor nation. Each political party is working or doing something wether it be wrong or write in the interests of this nation. Our political leaders creating crisis in the intersts of this nation. our government is begging in the interests of this nation. our dear army when takes over this taking over is also mentioned in the interests of this nation. Our judiciary is also trying in best in the interests of this nation. Question is this when all working in the interest of the national interest then why do their lives are so luxurious and why this nation is helpless and in miserable conditions. this nation should think and try to consider this matter.

  2. Eyrie says:

    Its about time that supreme court issued the detailed decision. But this is not sufficient. There is now a small matter of rewarding those who were in breach of the constitution. Musharraf has been bashed for denying judges their rights or denying to perform their duties unlawfuly and unconstitutionally.
    When Musharraf abrogated the constitution he denied the citizens of Pakistan their rights too so who is going to hold him accountable for that. Much has been made of Musharraf trial not being feasible and the possibility of him tried for Bugti murder and Lal Masjid operation, even if he is tried for Bugti murder or Lal Masjid operation, it is a matter of principle that he should be tried for abrogating the constitution for he has breached the privilege of the citizens of Pakistan.
    At this point I remember the famous story of the Prophet (SAW) when one of the elites of Quresh was caught for stealing. They were very afraid of approaching Prophet (SAW) in order to get that person released, so they asked Sahabah (RTA) who refused to be part of any such effort as they knew it will make Prophet (SAW) extremely angry. At last someone told them about approaching Bibi Fatima (RTA). When Bibi Fatima (RTA) approached Prophet (SAW) and asked for release of the thief from Quresh, Prophet’s (SAW) Holy Face got red because of the rage on hearing this. Prophet (SAW) said that the nations before you were destroyed because when a poor/weak person would commit a crime that person would be punished but if a rich/powerful person would commit a crime that person would be spared. At this point The Prophet (SAW) said that I swear to Allah that even if Fatima the daughter of Mohammad (SAW) steals something, She will be punished for that.
    So we have to keep this mind that we are exactly following the path of pre-Islam pagans. I remember the saying of Hazrat Ali (RTA) that “Kufr ki hakoomat to qaim reh sakti he laikin zulm ki hakoomat naheen”. All the prominent and successful civilizations of the past had one thing in common. Justice for All and that’s what makes all the first world countries so successful.

  3. akloaded says:

    It is beyond my understanding as to how come Iftikhar ch is not a PCO judge, he took oath on PCO twice. Now he is passing judgments against the PCO judges who took oath after his removal. He is acting eactly like his boss nawaz, who is there for vendetta.
    Pakistan is more important than the constitution or any other document. What about the Supreme Judicial Council formed for Iftikhars hearing was really illegal and was against the constitution of pakistan.
    As per the constitution of pakistan article 209, Supreme judicial council would have CJP (or acting CJP) 2 senior most Supreme court judges and 2 senior most high court chief justices…….the SJC formed was in breach of the constitution. So what should be done with institution that is in breach of the law ?

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