SINDH HIGH COURT BAR ASSOCIATION through Secretary and another vs FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice, Islamabad and others
This matter arises from constitutional petitions concerning the events of 3rd November 2007, involving the Federation of Pakistan and General (Rtd.) Pervez Musharraf. During the hearings, the core legal question arose as to whether notice should be issued to General (Rtd.) Pervez Musharraf before proceeding, given potential adverse observations or actions against him, and whether exceptions to the principle of natural justice applied based on historical precedents. The Court held that it is a cardinal and universal principle of natural justice that no one should be condemned unheard, and courts must invariably provide an opportunity of being heard when an adverse decision or action is likely against an individual, notwithstanding the silence of relevant statutes. The Court distinguished prior case law where notice was omitted or where superior courts refrained from making binding observations against absent parties, and ordered that formal notice be issued to General (Rtd.) Pervez Musharraf pursuant to the Supreme Court Rules, 1980. The key principle laid down is the strict adherence to the audi alteram partem rule, requiring personal notice to affected individuals despite widespread public awareness of proceedings.
- Whether notice of proceedings must be issued to a person against whom adverse observations or actions are likely to be taken?
- Does widespread media publicity of court proceedings satisfy the legal requirement of the principle of audi alteram partem?
- Whether the failure of the government to defend an individual's actions dispenses with the requirement of issuing a notice to that individual?
- Rule 9 of Order XXV, Supreme Court Rules 1980
ORDER
' Mr. Hamid Khan, learned Senior Advocate Supreme Court, advanced his arguments and made repeated references to the factual background of the pre and post 3rd November 2007 events. He also submitted that the learned counsel appearing for General (Rtd.) Pervez Musharraf, respondent in Constitution Petition No. 73 of 2007 apprehended, particularly after 5-10-2007, that the judgment in the case was not likely to be announced in his favour, therefore, they tried to prolong the hearing of the case on one or the other reason. In view of the contentions being raised by Mr. Hamid Khan, we inquired from him, whether it would not be fair and proper to issue notice of the instant proceedings to General (Rtd.) Pervez Musharraf The learned counsel stated that as the Federation of Pakistan was a party in Constitution Petitions Nos.8 and 9 of 2009 and was being represented by the learned Attorney General for Pakistan, there was no need to issue the aforesaid notice. At this, the learned Attorney General made a categorical statement at the bar that he was neither representing General (Rtd.) Pervez Musharraf nor had he received any such instruction from the Government. He further stated that the party in power (Pakistan Peoples Party) had all along been opposing dictatorial/repressive regimes and anti-people forces getting into the corridors of power through backdoor channels, therefore, the present democratic government led by their Party would not justify/support the action of 3rd November 2007. The Court rose fora short interval and when the hearing resumed, Mr.Hamid Khan, learned Senior Advocate Supreme Court stated that in the case of Asma Jillani v. Government of the Punjab (PLD 1972 SC 139), no notice was issued to General (Retd.) Agha Muhammad Yahya Khan, who was declared usurper in the said case, therefore, according to him, there was no need of issuing any notice to General (Rtd.) Pervez Musharraf. His attention was also drawn to the cases of Malik Feroze Khan Noon v. State (PLD 1958 SC 333), Fauji Foundation v. Shamim-ur-Rehman (PLD 1983 SC 457) and Amanullah Khan v. Federal Government of Pakistan (PLD 1990 SC 1092).
2. We have given our anxious consideration to the above aspect of the case. It is a cardinal principle of natural justice of universal application that no one should be condemned unheard. Not only this Court, but the courts in other countries having a regular system of administration of justice would, in almost every case, where there was likelihood of any adverse decision/action against anyone, follow the above principle and provide the person concerned an opportunity of being heard. The Courts would invariably issue notice even in cases where the concerned statute/law was silent in this regard. As far as the cases of Malik Feroze Khan Noon, Fauji Foundation and Amanullah Khan (supra) were concerned, the superior courts stayed their hands off and did not allow the benefit to the opponents of the observations made against a person who was not a party to the proceedings before the Court in those cases. No doubt, in Asma Jillani (supra), notice was not issued, but the fact remained that the respondent- government in that case had not made any categorical statement not to defend the actions of General (Retd.) Agha Muhammad Yahya Khan, as is the position in the present case. The instant proceedings are going on for the last 2-3 days and are being widely publicized in the print and electronic media, anyone interested therein or concerned with the promulgation of the Proclamation of Emergency and other measures of 3rd November 2007 has an ample notice/knowledge and is at liberty to appear before the Court, for or against the said action. But, on such plane, though a valid one, the requirement of the principle of audi alteram partem would not be fulfilled. Therefore, in terms of Rule 9 of Order XXV of the Supreme Court Rules, 1980, let a notice of the instant proceedings be issued to General (Rtd.) Pervez Musharraf at his residential address in Islamabad, leaving to him appear before the Court or otherwise.
3. Hearing of the case is postponed to 29-7-2009.
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