WUKALA MAHAZ BARAI TAHAFAZ DASTOOR vs FEDERATION OF PAKISTAN and another
This petition for leave to appeal challenged an order of the High Court, which had dismissed the petitioner's Intra Court Appeal and upheld a Single Judge's decision to dismiss a Constitution petition. The petitioner had sought judicial directives compelling the Federation of Pakistan to command the Armed Forces to defend against alleged external aggression, to declare the USA an enemy state, and to dispose of or relocate Pakistan's nuclear arsenal. The core legal question was whether the judiciary possesses the jurisdiction to adjudicate upon matters concerning foreign policy, national defence, and state security. The Supreme Court held that the issues raised were non-justiciable and fell outside the judicial domain. The Court affirmed the dismissal of the petition, reasoning that judicial interference in such matters would violate the constitutional principle of the trichotomy of powers between the Legislature, Executive, and Judiciary. Consequently, the Court found no grounds to interfere with the concurrent orders of the High Court, as the petition lacked merit and sought relief beyond the scope of judicial review under the Constitution.
- Are matters relating to foreign policy, national defence, and state security justiciable under Article 199 of the Constitution of Islamic Republic of Pakistan 1973?
- Does the judiciary have the authority to issue directives to the Executive regarding the management of the Armed Forces or nuclear assets?
- Does judicial interference in matters of state security violate the constitutional principle of the trichotomy of powers?
- Article 199, Constitution of Islamic Republic of Pakistan 1973
ORDER
' TASSADUQ HUSSAIN JILLANI, J.--- Leave is sought against the order dated 27-10-2009 vide which petitioner's Intra Court Appeal against the order of the learned Single Judge in Chamber was dismissed and the order of the learned Single Judge in chamber was upheld. Vide the latter order the learned High Court had dismissed petitioner's Constitution petition, wherein following prayers were made:-- "(iii) Respondent Federation be directed to command the Armed Forces of Pakistan to defend Pakistan against the external aggression currently carried out by the American Forces under NATO cover which are in occupation of Afghanistan.
(iv) An authoritative declaration be made that USA is an Enemy State and for taking all measures provided by the domestic law such as expulsion of its diplomatic personnel and seizure of assets.
(v) If Nuclear Arsenal is found to be incapable of protecting Pakistan and instead poses a threat to its survival, respondent Federation may be directed either to sell it in international market to the highest bidder or to place it in safe-custody of Iran."
2. A bare reading of the afore-quoted prayers would indicate that the issues raised in the Constitution petition and the prayer made are relatable to matters of foreign policy, defence and security of the country. Such issues are neither justiceable nor they fall within the judicial domain for interference under Article 199 of the Constitution of Islamic Republic of Pakistan. Any such interference by the courts would be violative of one of the foundational principles of the Constitution, which envisages a trichotomy of powers between the Legislature, Executive and Judiciary. That being so, we do not find the concurrent orders of the learned High Court to be exceptionable, warranting interference. The petition lacking in merit is accordingly dismissed and .
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