News — October 1, 2009

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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.