PAKISTAN LAWYERS FORUM Versus FEDERATION OF PAKISTAN

TASSADUQ HUSSAIN JILANI, J.- -Appellant is a registered Association of Lawyers. Its Constitutional petition, impugning the Legal Framework Order, 2002, stands dismissed by a learned Judge of this Court vide the impugned judgment dated 14-11-2002. The three prayers, which were finally pressed before the learned Judge in Chamber, were as under:--

"(d) That the Legal Framework Order, 2002 issued by the respondent No.2 on 21-8-2002, being diametrically opposed to the judgment of the Supreme Court in Zafar Ali Shah (supra), be declared to be beyond the limits imposed by the said judgment and, therefore, be struck down.

(e) The consequential relief which arises out of above facts is that the General President be declared to have violated the condition of not handing over the power to the civilian within the time-frame and deadline of three years be declared to have lost validly and legitimacy granted to him by the Supreme Court of Pakistan and his regime now is extra-Constitutional and all actions being taken by them are void, inconsistent with the provisions of the Constitution of Pakistan, 1973 ultra vires, without jurisdiction, mala fide and he be directed by this learned Court in exercise of its judicial power to hand over the reins of the Government to non-controversial persons acceptable to all the political parties through common consent.

(f) It is also prayed that since the General President has become a common criminal, a usurper and subverter of the Constitution of the Islamic Republic of Pakistan, 1973, falls squarely within the mischief of Article 6 and needs to be tried, convicted and sentenced for the said offence."

The reasons which found favour with the learned Judge in dismissing the petition were mainly as follow:--

........... The points raised by the learned counsel for the petitioner relate to the interpretation of the judgment of the Hon'ble Supreme Court. I would not like to dwell upon them lest I should trespass on the jurisdiction of the Hon'ble Supreme Court of Pakistan. I agree with the learned Deputy Attorney-General that under para. 17 of the short order passed by the Supreme Court, the Chief Executive was to appoint a date, not later than 90 days before the expiry of the period of 3 years 'for holding a general election to the National Assembly, the Provincial Assemblies and the Senate of Pakistan. In fact the elections to the National Assembly and Provincial Assemblies have been held and the elections to the Senate are scheduled for 12th November, 2002 which is no too far away. To me there appears to be no infringement of the judgment of the Hon'ble Supreme Court ... ... .. .. , ... .. ... .. ... . .. .. ... ... ...

7. The beneficial aspect of Article 58(2)(b) has already been discussed in Mehmood Khan Achakzai's case (supra) and in Zafar Ali Shah's case (supra). The Hon'ble Supreme Court in Zafar Ali Shah's case observed as under:--

"We are of the view that it is never safe to confer unfettered powers on a person who is holding the reins of the affairs of the country as is embedded in the saying, 'power corrupts and absolute power corrupts absolutely. Accordingly, while upholding the judgment in Mehmood Khan Achakzai's case (supra) we would like to observe that probably the situation could have been avoided if checks and balances governing the powers of the President and the Prime Minister had been in the field by means of Article 58(2)(b)''.

As far as the contention that National Security Council has been made a superior body is concerned suffice to say that it is only a consultative forum. Its decisions/resolutions have no binding effect on the Government or the President of Pakistan. This Article cannot be declared as unconstitutional merely on the ground that some Members of the National Security Council are the servants of the State. "

2. After initial hearing of the case we were persuaded to issue notice to the learned Attorney-General for Pakistan whereafter learned counsel for the appellant Mr.A.K. Dogar, Advocate was heard at length. In support of this appeal, he made following submissions:--

(i) That the learned Judge in Chamber has not correctly appreciated the import and effect of the law laid down by the august Supreme Court in Sayed Zafar Ali. Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others (PLD 2000 Supreme Court 869);

(ii) That in afore-referred judgment, the august Supreme Court, by invoking the doctrine of necessity, had allowed the Chief Executive to amend the Constitution and to take all legislative measures and steps for attainment of declared objectives of the regime as mentioned in the judgment, if the Constitution did not provide for a remedy.

(iii) The observation of the learned Judge that "the country cannot 'be plunged into chaos, confusion and instability" has lost sight of the fact that it was not prayed before the Court that the elections be scraped. It was sought that the Legal Framework Order, 2002, by which, the then Chief Executive was installed himself as President for five years, be struck down as violative of the august Supreme Court judgment in Zafar Ali Shah's case (supra).

(iv) That the power to amend the Constitution granted by the Hon'ble Supreme Court in Zafar Ali Shah's case (supra) was qualified both in substance and time framework i.e. (a) the salient features of the 1973 Constitution, independence of judiciary, federalism and parliamentary form of Government blended with Islamic provisions, could not be tinkered with; and (b) any amendment made would- hold good only for a period of three years and thereafter the 1973 Constitution shall remain supreme;

(v) That the Legal Framework Order, 2002, by virtue of which the Chief Executive has become President for a term of five years, is arbitrary and is not in consonance with the canons of democracy and is violative of the mandatory provisions relating to the election to the office of the President of Islamic Republic of Pakistan.

(vi) That by virtue of Article 2A of the Constitution of Islamic Republic of Pakistan, 1973, the Objectives Resolution has become substantive part of the Constitution, Referring at length to the judgment of the Hon'lrle Supreme Court in Asma Jilani v. The Government of Punjab (PLD 1972 Supreme Court 139), he contended that the Objectives Resolution has been declared to be the "grund norm" and any amendment which is violative of this, has to be struck down. He added that in terms of the Objectives Resolution, "Sovereignty is a trust of God and the chosen representatives of people exercise it as a "sacred trust". The assumption of office by the President for five years, he argued, is a betrayal of this concept of trust. .

(vii) That election for the office of the President was not held in accord with the procedure laid down in the Constitution and therefore even the Parliament is not properly constituted in terms of Article 50 of the Constitution.

(viii) That the Constitution of Islamic Republic of Pakistan, 1973 having been fully restored all the amendments brought about and actions taken by the then Chief Executive, have to be adjudged in the light of the criterion laid down by the august Supreme Court in Zafar Ali Shah's case (supra) and Wasim Sajjad and others vs. Federation of Pakistan through Secretary, Cabinet Division and others (PLD 2001 Supreme Court 233).

(ix) That the Referendum Order, 2002 was an ordinary piece of legislation and it could not be made part of the 1973 Constitution and the Hon'ble Supreme Court in the case of Qazi Hussain Ahmad, Ameer Jamaat-e-Islami Pakistan and others v. General Pervez Musharraf, Chief Executive and others (PLD 2002 Supreme Court 853) had clearly held that the consequences flowing from holding of Referendum would be determined at an appropriate time and by virtue of the said Referendum Order. Through the Legal Framework Order, 2002 an attempt is being made to amend Article 46, clause (b) of the Constitution, the same is not tenable and warrants to be struck down by this Court. Referring to the judgment of the august Supreme Court in Asma Jilani v. The Government of Punjab (PLD 1972 Supreme Court 139), he contended that in an Islamic State, the sovereignty belongs to Almighty Allah.

(x) That assumption of power by respondent No.2 and the amendments brought in the Constitution beyond the mandate granted by the Supreme Court tantamount to subversion of the Constitution and warrant a penal action in terms of Article 6 of the Constitution read with High Treason (Punishment) Act, 1973.

3. Mr. Makhdoom Ali Khan, learned Attorney-General for Pakistan, while defending the Legal Framework Order, made following submissions:

(i) That having conceded the beneficial provisions of the Legal Framework Order, which appellant's learned counsel did not wish to attack, it was not open for him to pick and choose. If the power to amend the Constitution was there and was validly exercised then it cannot be argued that the said power was controlled or qualified by any other clause or that the amendments so made would be of no legal effect if the cut off date provided in it, had run out. In Pakistan's Constitutional history the Army interventions were followed by periods where the Constitution either stood abrogated, suspended or held in abeyance. The process of restoration of the Constitution and democracy always required a bridge for smooth transition. The provisions of validation clauses in 1962, Interim Constitution, 1972 and 1973 Constitutions as also the Eighth Amendment of the 1973 Constitution are reflective of this feature. In 1972 the lifting of Martial Law and passage of the 1973 Constitution was preceded by an interim Constitution which inter alia gave "transitional powers to the President of Pakistan in terms of its Article 279 to amend the Constitution for purposes stipulated in clauses (a), (b) and (c) of the afore-referred Article. Sub clause (2), to the said Article mandated that "no order shall be made under this Article after the thirty-first day of March, 1973". The amendment brought about by the then President came up for consideration before the august Supreme Court in Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others (PLD 1974 Supreme Court 151). The argument that this power was controlled by other clauses of the same Article; was repelled by the Court in the afore-referred judgment. Specific reference was made to an observation of the Court' at page 166 of the judgment wherein it was held that 'the power given by sub clause(c) of clause (1) of Article 279 of the Interim Constitution in no way controlled by the other clauses. The amendment was competently made.

(ii) That while examining the power of the. Chief Executive granted by the Supreme Court in Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others (PLD 2000 Supreme Court 869) under which the Legal Framework Order has been issued, this Court cannot sit as a Court of Appeal. The parameters laid down in the afore-referred judgment are similar to the ones in Begurri Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan (PLD 1977 Supreme Court 657). He specifically referred to the observations of the Court, at page 716 wherein it was inter alia observed: "(iii) That the Chief Martial Law Administrator, having validly assumed power by means of an extra Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognized by judicial authorities as falling, within the scope of the law of necessity, namely: (a) All acts or legislative measures which are in accordance with, or could have been made under the. 1973 Constitution, including the power to amend it; (b) all acts which tend to advance or promote the good of the people; (c) all acts required to be done for the ordinary orderly running of the State; and (d) all such measures as would establish or leas to the establishment of the declared objectives of the proclamation of Martial Law, namely; restoration of law and order, and normalcy in the country, and the earliest possible holding of free and fair election for the purpose of restoration of democratic institutions under the 1973 Constitution".

(iii) That the theory of the basic structure doctrine as enunciated is some of the Indian Supreme Court judgments has. never found recognition in Pakistan. The grund norm theory as propounded in Asma Jilani v. The Government of Punjab (PLD 1972 Supreme Court 139), was reversed in The State v. Ziaur Rehman and others (PLD 1973 Supreme Court 49).

(iv) That the Legal Framework Order, 2002 does not reflect any transgression of the parameters laid down by the august Supreme Court in Syed Zafar Ali Shah and others v. General Pervez. Musharraf, Chief Executive of Pakistan and others (PLD 2000 Supreme Court 869).

(v) That while examining the wires of the Legal Framework Order, 2002 this Court has only to seek whether 'there has been any jurisdictional defect. The desirability or otherwise of a 'certain provision on the basis of any subjective preference whether political religious or democratic liberal would not be relevant. Relying on Haji Abdullah v. Presiding Officer, Summary Military Court No.9, Karachi (PLD 1980 Karachi 498) and Fauji Foundation and another v. Shamimur Rehman (PLD 1983 Supreme Court 457) he submitted that the criterion for judging the constitutionality of an act is not whether it was unreasonable or unjust but only whether the Legislature had the authority to pass it or competence to do so.

That the Legal Framework Order, 2002 is reflective of the sum total of the actions taken, the laws framed and the Constitutional amendments made by the Chief Executive to restore 1973 Constitution. By virtue of these Acts, laws and amendments the voting age has been reduced from 21 to 18 years, Graduation has been prescribed as a basic educational qualification for candidates of the National Assembly, the Senate and the Provincial Assemblies, the number of seats in the National Assembly has been increased from 217 to 342. (General Seats 272, Women Seats 60 and Non Muslim Seats 10), the Senate seats from 81 to 100 and the seats of all the Provincial Assemblies have been increased. The President took Oath in terms of Article 41(7) of the Constitution, the Members of the National Assembly and Provinci4l Assemblies have taken Oath, the Prime Minister and the Chief Ministers having been elected by the respective Assemblies have taken Oath of their offices, they have also obtained motions of confidence in their favour. In the National Assembly and the Senate the parliamentarians are engaged in a dialogue on the various provisions. of the Legal Framework Order, 2002 the vires of which are a moot point before this Court. Contended that if this appeal is allowed and the Legal Framework Order, 2002 or any of its provisions are struck down, the afore-referred superstructure would collapse and it would result in t6tal chaos. Drawing a parallel with the revival of Constitutional Order ,whereby the , then Chief Martial Law Administrator (General Ziaul Haq) restored amended 1973 Constitution which revival Constitutional Order having been accepted by the Parliament was subjected to modification through Eighth Amendment of the Constitution, learned Attorney-General for Pakistan submitted that a Full Bench of the Sindh High Court, Karachi in Abdul Majeed Pirzada v. Federation of Islamic Republic of Pakistan and 87 others PLD 1990 Karachi 9), dismissed the petitions and upheld the Eighth Amendment in terms of which Article 58(2)(b) of the Constitution (as amended through RCO) was retained. This judgment was upheld by the Hon'ble Supreme Court in Abdul Majeed Pirzada v. Federation of Pakistan and others PLD 1997 Supreme Court 232).

(vi) That no salient feature of the 1973 Constitution, as identified in Sayed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others (PLD 2000 Supreme Court 869) has been tinkered with through Legal Framework Order, 2002. The salient features in terms of the said judgment are independence of judiciary, Federalism and Parliamentary form of Government blended with Islamic provisions. The Legal Framework Order 2002, it was contended, does no curtail any power vested with judiciary under Articles 184, 185, 187 and 199 of the Constitution and other enactments. No feature of the Constitution relating to the Federal structure has been amended to the detriment of any Province and that is way no Legislature has challenged any provision of the Legal Framework Order, 2002. Coming to the amendments brought in the retiring age of the Judges of the Supreme Court and High Courts, and pursuant to a Court query, learned Attorney-General contended that this amendment was brought keeping in view the provisions relating to the retiring ages in some of the advanced countries other world. Furthermore, it was realized that the State could get better benefit from the maturity and experience of the Judge if the retiring age is increased. In USA, according to him, a Judge of the Federal Court is appointed for life and the question of retirement is left to his discretion. In England, the Judges used to retire at their own pleasure. However, subsequently, the retiring age was reduced to 75 but even reduction in age, it was so provided in law, would not apply to the sitting Judges and they continued to retire at their own pleasure. The classic example, according to the Attorney-General; is of Lord Denning who continued working till the age of 90. He placed following chart as retirement ages in some countries of the world:--

RETIREMENT AGES OF JUDGES AROUND THE WORLD

S.No Country Retirement Age

1. USA Retirement at Will

2. India Supreme Court: 65 years

High Court: 62 years.

3. United Kingdom House of Lords. Court of Appeal and High Court: 70 years

Privy Council: 75 years

4. Canada 75 years

5. Australia 70 years

6. Philippines 70 years ,

7. Jamaica 70 years

8. Germany 68 years

9. Newzealand 65 years (subject to extension)

10. Singapore 65 years (subject to extension)

(vii) That primarily learned counsel for the appellant has taken exception to two provisions of the: Legal Framework Order, 2002 i.e. (i) Article 58(2) (b) and (ii) Article 41(7), in terms of which the present incumbent of the Office of Presidency stands elected for a term of five years. So far as Article 58(2)(b) is concerned, he contended that this provision was not plucked out from the air. This provision has a Constitutional background and history. This provision is there even in the British political system as a prerogative power but it has not been exercised because of political stability. In Australia this power was exercised by Governor-General Sir John Kerr in 1975 when he dismissed the Government of Labour Party headed by Prime Minister Gugh Whitlem and the reason given was that the legislation was being blocked by the Senate. It was a double dissolution in the sense that the Governor General not only dissolved the Assembly but also the Senate. This provision, he added, is embodied in Article 356 of the Indian Constitution as well.

4. Addressing the Court in rebuttal on 3-4-2003, appellant's learned counsel took exception to the, submissions of the learned Attorney-General on the issue of increase in retirement age of Judges of the superior Courts. He submitted that this provision was added in the L.F.O. after he had filed the Constitutional petition. He contended that since he had not raised this either in the petition or in the arguments, learned Attorney-General's submissions were uncalled for and may raise the issue of bias as no one should be a Judge of his own cause. He however, did not press this point any further and continued his submissions following day on import of 13th Amendment to the Constitution of 1973 vide which Article 58(2)(b) had been done away with, the implications of the insertion of this provision in the Legal Framework Order, the National Security Council and how the parameters laid down in Zafar Ali Shah's case (supra) have been transgressed.

5. We have heard learned counsel for the appellant, learned Attorney General for Pakistan and have given anxious consideration to the submission made in the light of the precedent case law cited.

6. To appreciate whether the Legal Framework Order, 2002 is in accord with the law laid down in Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others (PLD 2000 Supreme Court, 869) it is necessary to refer to the operative part of the said judgment which has been reproduced at page 3 of the impugned judgment. It is as under:--

(4) "That the 1973 Constitution still remains the supreme law of the land subject to the condition that certain parts thereof have been held in abeyance on account of State necessity.

(5) That the superior Courts continue to function under the Constitution. The mere fact that the Judges of the superior Courts have taken a new Oath under the Oath of Office (Judges) Order No.1 of 2000. does not in any manner derogate from this position, as the Court has been originally established under the 1973 Constitution. and have continued in their functions in spite of the Proclamation of Emergency and PCO No.1 of 1999 and other legislative instruments issued by the Chief Executive from time to time.

(6) That the previous proclamation , of Emergency of 28th May, 1998 was issued under Article 232(1) of the Constitution whereas the present. Emergency of 14th October; 1999 was proclaimed by way of an extra-Constitutional step as a follow up of the Army take over which also stands validated notwithstanding the continuation of the previous Emergency which still holds the field.

(6)(i) That General Pervez Musharraf, Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff through Proclamation of Emergency, dated the 14th October, 1999, followed by PCO- 1 of 1999, whereby he has been described as Chief Executive, having validly assumed power by means of an extra-Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures as numerated hereinafter, namely:

(a) all acts or legislative measures which are in accord with, or could have been made under the 1973 Constitution, including the power to amend it;

(b) all acts which tend to advance or promote the good of the , people;

(c) all acts required to be done for the ordinary orderly running of the State; and

(d) All such measures as would establish or lead to the establishment of the declared objectives of the Chief Executive.

(6)(ii) That Constitutional Amendments by the. Chief Executive can be resorted to only if the Constitution fails to provide a solution for attainment of his declared objectives by virtue of clause (6) sub clause(1)(a) ibid is controlled by sub-clauses (b), (c) and (d) in the .same clause.

(6)(iii) That no amendment shall be made in the salient features of the Constitution i.e. independence of judiciary, federalism parliamentary form of Government blended with Islamic provisions.

13. This is not a case where old legal order has been completely suppressed or' destroyed, but merely a case of Constitutional deviation for a transitional period so as to enable the Chief Executive to achieve his declared objectives.

16. That having regard to all the relevant factors involved in the case including the one detailed in paragraphs 14.and 15 above three years period is allowed to the Chief Executive with' effect from the, date of the Army take-over i.e. 12th October, 1999 for achieving his declared objectives.

17. That the Chief Executive shall appoint a date, not later than 90 days before the expiry of the aforesaid period of three years, for holding of a general. election to the National Assembly and the Provincial Assemblies and the Senate of Pakistan."

7. The Legal Framework Order, 2002 is a package of 29 Constitutional amendments/legislative acts and orders passed which were issued by the then Chief Executive of Pakistan. Some of the important amendments, which may have a bearing in this case, are enumerated below:--

(i) The assumption of office of the .President of Pakistan by the then Chief Executive for a period of five years on relinquishing the office of the Chief Executive (by substituting sub-Article (7) of Article 41 of the 1973 Constitution).

(ii) Voting age reduced from 21 years to 18 years: Article 51(2)(b);

(iii) President may dissolve the National Assembly inter alia, if "situation has arisen in which the Government of Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary": Article 58(2)(b). Similar power given to the Governor of a Province regarding Provincial Assembly in terms of Article 112(2)(b).

(iv) National Assembly (Article 51): General. seats increased from 207, to 272, Special Seats for women from zero to 60, 10 Special seats for non-Muslims and Total Seats -of National Assembly increased from 212 to 342.

(v) Provincial Assemblies (Article 106):

BALOCHISTAN:

General Seats increased from 40 to 51;

Special Seats for women from zero to 11;

3 seats for non-Muslims; and

Total seats increased to 65.

N.-W.F.P.: .

General Seats increased from 80 to 99;

Special Seats for women from zero to 22;

3 seats for non-Muslims; and

Total seats increased to 124.,

PUNJAB:

General Seats increased from 240 to 297:

Special Seats for women from zero to 66;;

8 seats for non-Muslims; and

Total seats increased to 371.

SINDH:

General Seats increased from 30 to 130;

Special seats for women from zero to 29;

9 seats for non-Muslims; and

Total seats increased to 168.

(vi) SENATE (Articles 51 and 59):

Total seats increased from 87 to 100: Article 59(1);

Two Senators on general seats and one woman and technocrat including Aalim elected from the Federal Capital: Article 51(1)(c);

Four women elected by the Members of each Provincial Assembly: Article 51 (1)(d);

Four technocrats including Ulima elected by each Provincial Assembly: Article 51(1)(e);

(vii) Creation of National Security Council to serve as a. forum for consultation on strategic matters pertaining to the sovereignty, integrity and security of the State and matters-relating to democracy, governance and inter-provinces harmony: Article 152A.

(viii) The retirement age of Judges of the Supreme Court was increased from 65 to 68 (Article 179) and of the Judges of the High Court from 62 to 65 (Article 195);

(ix) Validation of acts done, orders passed and appointments made by the Chief Executive in the three years preceding restoration of 1973 Constitution: Article 270 AA:

8. Learned counsel for the appellant frankly conceded that the then Chief Executive had the power to amend the Constitution within the parameters laid down by the august Supreme Court (in Zafar Ali Shah's cue supra) and that annulment of the beneficial provisions of the L.F.O. and the consequences flowing from those is not sought. The provision increasing the retirement age of Judges of the superior Courts was neither challenged in the Constitutional petition nor in the body of appeal and not even during arguments. On 3-4-2003 while making submissions in rebuttal, appellant's learned counsel raised the question of bias contending that since the Judges stand to gain by the afore-referred provision they should not be Judges of their, own cause. He was asked by the Court that since the provision in question concerns all Judges of the Superior Judiciary in the country, would he like to have the issue decided by the Parliament to which his reply was emphatic NO. He continued his submissions the next day and never raised the issue of bias again either orally or in writing although opportunity was given vide order dated 4-4-2003. His request for further adjournment was not acceded to by the Court in circumstances alluded to in the interim order dated 4-4-2003 and observed as under:--

........... The Court has to regulate the proceedings and it cannot be left to the whims of the parties and their learned counsel. It is a public time and it is the duty of all the actors involved in the litigation process i.e. the parties, the counsel and the Courts to make a judicious use of time. An unnecessary time granted in a case is denial of time to some other case.

4. We have gone through the precedent case-law to which reference has been made by learned counsel for the appellant in Imranullah v. The Crown (PLD 1954 Federal Court 123). The facts in the said case are distinguishable. There is no cavil to the proposition that it is the right of a counsel to be heard adequately in a trial or an appeal and it cannot be transgressed by the Courts of justice. However. as earlier said, this case is at a motion stage. Appellant's learned counsel, admittedly, has been heard at length for several days. He argued his case on 27-I1-2002, 28-11-2002 and 3-12-2002 whereafter pre-admission notice was issued to the learned Attorney General for Pakistan. Appellant's learned counsel again resumed his arguments and argued the case on 21-2-2003, 28-2-2003, 6-3-2003, 7-3-2003, 17-3-2003 and finally on-18-3-2003 he completed his submissions and the case was adjourned. On 27-3-2003 and ,3-4-2003, learned Attorney-General for Pakistan concluded his submissions and the case was adjourned to 4-4-2003 on the request of the learned counsel for the appellant for his right to reply. He was heard for more than two hours (i.e. from 9-00 to 10-30 a.m., and 11-30 a.m. to 12-30 p.m.) and with appellant's consent the case was taken up at 3-00 p.m. after the Jumma Prayer. His appearance in Court at 3-00 p.m. without the brief, his request to the Court to wait till he brings his brief back from home, his non-committal) reply as to how much further time did he require to complete his submissions are pointer to the fact that he is not too keen to conclude in near future rather would further prolong the case.

5. In afore-referred circumstances we have not been able to persuade ourselves to believe that the request of appellant's learned counsel for further adjournment, in any manner; would be of any assistance or would promote the ends of justice. He has already exhausted his right to argue and reply. We, therefore, reserve the judgment. The parties, however, may add to their submissions in writing by 10-00 a. m. tomorrow."

9. Mr. A.K.Dogar, Advocate confined his attack in the body of the appeal and during arguments mainly on assumption of office of the President for five years by the then Chief Executive through Referendum Order and by amending Article 41(7) and the insertion of Article 58(2)(b) in the Constitution and creation of National Security. Council as, according to him, these provisions have the effect of violating the "grund norm" and basic structure of the Constitution as spelt out by the august Supreme Court in Asrna Jilani v. The Government of Punjab (PLD 1972 Supreme Court 139) and Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and. others (PLD 2000 Supreme Court 869). The Objectives Resolution adopted by the then Constituent Assembly in 1949 was a declaration of intent and to canvass that a Constitutional provision be struck down if it is not in consonance with the said Resolution, would not be a correct exposition of the law laid down in Asma Jilani v. The Government of Punjab (PLD 1972 Supreme Court 139). In The State v. Ziaur Rehman and others (PLD 1973 Supreme Court 49) the Court while alluding to the said judgment,, at page 70, held as under:--

"Having said this much about the Constitutional Position of the Courts and their relationship with the other equally important organ of the State, namely, the Legislature, it is now necessary to examine as to whether any document other than the Constitution itself can be given a similar or higher status or whether the judiciary can, in the exercise of its judicial power, strike down any provision of the Constitution itself either, because, it is in conflict with the laws of God or of nature of morality or some other solemn 'declaration which the people themselves may have adopted for indicating the form of Government they wish to be established. I for my part cannot conceive of a situation. in which, after a formal written Constitution has been lawfully adopted by a competent body and has been generally accepted by the people including the judiciary as the Constitution of the country, the judiciary can claim to declare any of its provisions ultra vices or void. This will be no part of its function of interpretation. Therefore, in my view, however, solemn or sacrosanct a document, if it is not incorporated in the Constitution or does not form a part thereof it cannot control the Constitution. At any rate, the Courts created under the Constitution will not have the power to declare any provision of the Constitution itself as being in violation of such a document. If in fact that document contains the expression of the Will of the vast majority of the people, then the remedy for correcting such a violation will lie with the people and not with the judiciary. It follows from this that under our own system too the Objectives, Resolution of 1949, even though it is a document which has been generally accepted and has never been repealed or renounced, will not have the same status or authority as the Constitution itself until it is incorporated within it or made part of it ."

This view was reiterated in Begum Nusrat Bhutto v. Chief Army of Staff and Federation of Pakistan (PLD 1977 Supreme Court 657) and. Fauji Foundation and another v. Shamimur Rehman (PLD 1983 Supreme Court 457).

10. Interestingly Article 2A through which The Objectives' Resolution was made substantive part of the Constitution and on which appellant's learned counsel has laid much stress was brought about by the then Chief Martial Law Administrator General Muhammad Ziaul Haq by an order similar to Legal Framework Order, 2002 i.e. Revival of Constitution of 1973 Order, 1985. The Parliament accepted it but with certain modifications which are reflected in the Eighth Amendment to the Constitution. Notwithstanding its becoming substantive part of the Constitution, even then the august Supreme Court did not accord it a supra-Constitutional status and held," ..Thus, instead of making 1973 Constitution more purposeful, such an interpretation of Article 2A, namely, that is in control of all the other provisions of the Constitution would result in undermining it and pave the way for its eventual destruction or at least its continuance in its present form". Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others (PLD 1992 Supreme Court 595 at page 617).

11. Besides the insertion of Article 2A, P.O. 14 amended Article 41(7), General Ziaul Haq assumed the office of President for a period of five years through Referendum, and 58(2)(b), was introduced for the first time empowering the President to dissolve the National Assembly.

12. The vires of 58(2)(b) of the Constitution and P.O. 14 of 1985 were challenged in the High court and a Full Bench of the Sindh High Court dismissed the petition in Abdul Majeed Pirzada v. Federation of Islamic Republic of Pakistan and 87 others (PLD 1990 Karachi 9). At page 78 it was observed as under:--

" . The present legal edifice is based on the amended .Constitution. If we take out some amended provisions, the superstructure of democracy built on it may collapse. For example, under Article 41(3) read with Second Schedule to the Constitution electoral college for election of the President has been made more representative by P.O. No.14 of 1985 by providing that the Provincial Assemblies will also form part of the electoral college. If I were to hold the above amendment as illegal, it would affect the incumbent of the office of the President, which in turn will affect the incumbent of the office of the Prime Minister as the President had nominated the Prime Minister under amended Article 91(2). It is true that the Prime Minister had obtained a vote of confidence but the challenge to the National Assembly can be thrown on the grounds that its seats by. direct or indirect election have been increased and the qualifying age for a voter has been raised from 18 years to 21 years, by P.O. No. 14 of 1985 which deprived right of franchise to a sizeable number of voters between the ages of 18 to 21 years. A number of other incumbents of other offices and a number of other institutions, who are not before us, will also be affected. This will be an unending process. In my view, there is no manageable .standard or the objective standard available with this Court to decide, which of the amendments should be struck down and which of them should be retained. This is a highly sensitive and politicized controversy, which has unfortunately assumed great significance in view of polarized and charged political climate obtaining in the country. In my view, it is a fit case where this Court should press into service, what Arvo Van Alstyne Kenneth Karst Jules Gerard in his aforesaid book term 'Discretionary Technique.

The afore-referred judgment was upheld by the august Supreme Court in Abdul Majeed Pirzada v. Federation of Pakistan and others (1997 SCMR.232). Article 58(2)(b) of the Constitution was held to be a beneficial provision by the august Court and it observed that "Article 58(2)(b) brought in the Constitution, by the Eighth Amendment which maintains Parliamentary Form of Government has ,provided checks and balances between the powers of the President and the Prime Minister to let the system work without let or hindrance to forestall a situation in which martial law could be imposed".

13. The afore-referred view was further affirmed in Mahmood Khan Achakzai v. Federation of Pakistan and others PLD 1997 Supreme Court 426 and Mohtarma Benazir Bhutto and another v. President of Pakistan and others PLD 1998 Supreme Court 388. Even in Syed Zafar Ali Shah's case (supra), enforcement of which is sought, the rationale of this provision was taken note off.-The Hon'ble Court, at page 1154, referred to the suggestions made by the Chief Justice Hamoodur Rehman to the then President of Pakistan regarding proposed amendments in 1973 Constitution qua powers of the President. The Court also noted how by 13th Amendment, the President had-been reduced to a rubber stamp. It observed as under:--

"Thus, Justice Hamoodur Rehman made suggestion for Promulgation of Martial Law by the President for a limited period which could only be extended by the National Assembly for a maximum period of six months and had also opined that such amendment was necessary so that Prime Minister does not become dictator, which ultimately led to the insertion of Article 58(2)(b) in the Constitution by means of the 8th Amendment. However, 13 th Amendment was adopted and all the powers vesting in the President by virtue of the 8th Amendment were deleted and the President was reduced to a mere cipher. The circumstances leading to 12 th October, 1999 action proves that if that power continued to remain with the President, possibly the situation could have been averted."

14. The assumption of office of President by the then Chief Executive through Referendum was challenged in Qazi Hussain Ahmad, Arneer Jamaat e-Islami and, others v. General Pervez Musharraf, Chief Executive and others PLD 2002 Supreme Court 853 and the petition was dismissed by the august Supreme Court. It was held, at page 922, that " ..... ... ... ... it is further pertinent to mention here that the country is being steered towards the path and democracy and this is a transitional or transformation period and in the present scenario, the Referendum Order has turned out to be a springboard for reiteration of the commitment of the Chief Executive to hold the general elections in October, 2002".

15. The vires of the entire Legal Framework Order, 2002 were challenged before the Supreme Court in Watan Party's case (supra) and while dismissing the petition, at page 81, it held as under:--

"It is worthwhile to mention that all the major political parties have fielded their candidates to contest the General Election, 2002 under the conduct of General Elections Order, 2002 (Chief Executive's Order No.7 of 2002) and none of them has come forward with a petition to question any provision of the Legal Framework Order. It is well-known now that after the election the National and Provincial Assemblies will meet. The members will elect Speakers, Deputy Speakers, Prime Minister, Chief Ministers and the Senators. The elected Parliament is in immediate sight and obviously the Parliament and not this Court is the appropriate forum to consider all these amendments. We may further observe that procedure to amend the Constitution as enshrined in Article 239, Part XI remains unaltered. The Parliament retains same power to amend the Constitution as it did before the promulgation of the Legal Framework Order."

16. The foregoing survey of the judgments of the Constitutional Courts in Pakistan indicates that generally such matters ultimately have been left to be decided by the political sovereign and the Parliament. And rightly so Parliament 'continues to be the supreme, body. As. aptly remarked, by U.S. Judge of Court of appeal Learned Hand, 'those who put their hopes in Constitutions, laws or Courts were mistaken. Liberty lies in the hearts of men and women and when it died, no Constitution, no law and no Court could do much to help it'. (Learned Hand: The Man and the Judge by Gerald Gunther).

17. The precedent case-law and the afore-referred decision of the august . Supreme Court are binding and this Court cannot sit to review them as a Court of Appeal. Article 189 of the Constitution mandates that "any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on, all other Courts in Pakistan". More so when none of the political patties, represented in the Parliament, have challenged the Legal Framework Order, 2002 in Court and are currently engaged in a dialogue for a consensual formula on the issues raised with regard to the Legal Framework Order, 2002.

18. Before parting with the judgment, we would like to acknowledge the hard work and zeal reflected in the assistance rendered by appellant's learned counsel. We place on record our appreciation for the eloquence and a deep understanding of our Constitutional history and norms which characterized the submissions of Mr. Makhdoom Ali Khan, learned Attorney-General for Pakistan.

19. For what has been discussed above, the appeal fails and is dismissed accordingly.

M.B.A./P-135/L Appeal dismissed.