WAJIHUDDIN AHMAD vs CHIEF ELECTION COMMISSIONER AND OTHERS
This matter arises from an application filed in the Supreme Court of Pakistan praying for extra-constitutional measures, including the imposition of martial law or a Provisional Constitution Order (PCO). Taking cognizance of media reports regarding the impending promulgation of a PCO to administer a fresh oath to judges and undermine the independence of the judiciary, the Supreme Court addressed the core question of whether the executive and military authorities can take extra-constitutional steps or interfere with the judiciary. Holding that the government has no ground to undertake extra-constitutional actions, the Court restrained the President, Prime Minister, Chief of Army Staff, Corps Commanders, and all civil and military authorities from acting on any PCO, administering fresh oaths, or taking any action contrary to the independence of the judiciary. The Court laid down the principle that any measures or appointments resulting from extra-constitutional steps to compromise judicial independence are unlawful and without jurisdiction.
- Whether the government can undertake extra-constitutional measures such as imposing a Provisional Constitution Order?
- Are judges of the Supreme Court and High Courts restrained from taking an oath under a Provisional Constitution Order?
- Whether civil and military authorities can be restrained from acting on extra-constitutional steps that undermine the independence of the judiciary?
' IFTIKHAR MUHAMMAD CHAUDHRY, CJ.---This application was filed in Court on 2nd November, 2007, praying that respondent-Government may change composition of Bench by adopting extra.
Constitutional measures, which could mean either by placing martial law or bringing PCO or by imposing emergency.
2. Application could not be taken up as it was not numbered. However, now it has been marked to Bench. In the meantime, in electronic and print media news appeared that PCO has been promulgated to enable Government to administer fresh oath to the Chief Justice as well as Judges of the Supreme Court so that favourable Judges could be appointed. Be that as it may, we feel that Government has no ground/reason to take extra-Constitutional steps, particularly for reasons being published in the newspapers that high profile case is pending and is not likely to be decided in favour of Government although matter is still pending. Therefore, a Special Bench has been constituted and on considering pressing situation and news which have been published in newspaper we direct as follows:--
(i) Government of Pakistan i.e, President and Prime Minister of Pakistan are restrained from undertaking any action which is contrary to the Independence of Judiciary.
(ii) No Judge of Supreme Court or the High Courts (including Chief Justice(s) shall take oath under PCO of any other extra-Constitutional step.
(iii) Chief of Army Staff, Corps Commanders, Staff Officers and all concerned of the Civil and Military Authorities are hereby restrained from acting on PCO which has been issued or from administering fresh oath to Chief Justice of Pakistan or Judges of Supreme Court and Chief Justice(s) or Judges of the Provincial High Courts.
(iv) They are also restrained to undertake any such action which is contrary to Independence of Judiciary. Any further appointment of the Chief Justice of Pakistan and Judges of Supreme Court and Chief Justices of High Courts or Judges of Provinces under new development shall be unlawful and without jurisdiction.
(iv) Put up before Full Court on 5th November, 2007.