IQBAL HAIDER Versus FEDERATION OF PAKISTAN
This matter concerns an interim order passed by the Supreme Court of Pakistan amidst a constitutional crisis characterized by a breakdown of governance and direct interference with the judiciary. The core legal question addressed was whether the Court could intervene to protect its own integrity and the constitutional order when faced with systematic attempts to undermine the Chief Justice, including rowdyism within the Court premises, mob attacks on the Court building, and the failure of the executive to provide security. The Court held that in these extraordinary circumstances, where the judiciary was being made an object of mockery and its security compromised, it was compelled to act. Consequently, the Court ordered the suspension of the operation of the 13th Amendment to the Constitution of Pakistan 1973. The key principle laid down is that the Supreme Court possesses the inherent authority to pass interim orders to preserve the constitutional machinery and ensure the safety and independence of the judiciary when the executive branch fails to uphold its constitutional obligations and actively obstructs the administration of justice.
- Can the Supreme Court suspend a constitutional amendment as an interim measure during a constitutional crisis?
- Does the Supreme Court have the authority to request security from the Army when the executive fails to protect the judiciary?
- Is the Chief Justice the sole authority empowered to constitute Benches of the Supreme Court?
- Article 184(3), Constitution of Pakistan 1973
- Article 190, Constitution of Pakistan 1973
ORDER
1. In the extraordinary circumstances prevailing in the country, we feel constrained to pass this interim order.
2. There is complete breakdown of the Constitutional machinery and it appears that the Government is not being run according to the provisions of the Constitution. It is very clear that since the day hearing of some cases has been taken in hand, such as, case of contempt against the Prime Minister and some other cases involving question of corruption, the measures have been taken to disobey the orders of the Court or circumvent them and insulting behaviour has been adopted towards the apex Court. A division has been created in the Judges of the apex Court and appointment of the Chief Justice is being called in question, and cognizance is taken by the Judges at various Benches without proper authorisation. Even orders have been passed suspending the notification of the appointment of the Cheif Justice. In one other petition filed Article 184(3) of the Constitution at Peshawar Bench, one learned Judge has assumed the role of the Chief Justice and himself constituted the Bench of 15 Judges for hearing of that case at Islamabad, in which the appointment of the Cheif Justice is called in question. The Cheif Jusitce cancelled that, administrative order as it is the exclusive function of the Chief Justice to constitute the Benches, but it appears that intently the orders of the Chief Justice are being flouted with logistic support from the interested quarters. Persistent efforts are being made to compel the President to approve some summaries on the threat of impeachment. The differences between the President and the Prime Minister are now well-known and are being discussed in the media.
3. On 27-11-1997, during hearing of C.P. No. 248-Q of 1997 (Malik Asad Ali v. Federation of Pakistan and others) at Islamabad, the Court was jam packed with the supporters of the Government and some of them came forward and started rowdyism and insulted the Judges by coming to the roster and using derogatory language against the Chief Justice saying that he is no more Chief Justice and that they do not recognise him as Chief Justice. This was done by Syed Zafar Ali Shah, Parliamentary Secretary for Law, Justice and Parliamentary Affairs, Mushtaq Tahirkhaili, Political Secretary to the Prime Minister, and some other members of the Bar who support the Government party. On the next day of hearing i.e. 28-11-1997, when the contempt case against the Prime Minister was being heard, people in large numbers were brought by the Government party from different districts as a part of the pre planned strategy and during hearing of the case commotion was heard after which some persons dashed in the Court room and one of them shouted that the A Judges should rise as emotionally charged mob was coming to arrest the Chief Justice. In such circumstances, the Judges rose and were taken to the Chamber of the Chief Justice in the police escort. Thereafter, the mob attacked the Court building and the Court room and the police stood by and did nothing to prevent the mob. The whole film was shown on BBC Television Network throughout the world. It was a shameless act in which the supporters of the Government attacked the apex Court building, raised slogans against the Chief Justice and burnt effigy of the Chief Justice. The Judiciary has been made the object of mockery and today a cartoon has appeared in one of the leading newspapers in which two Judges are shown fighting with each other and the Prime Minister is beating drum in happiness.
4. The Chief Justice wrote to the President under Article 190 of the Constitution asking for security cover by the Army as the police is under the control of the Government. If the Government party turns against the Supreme Court, then who would guarantee the security of the Judges of the Court. The request of the Chief Justice was not accepted. In such circumstances, there is no other way out but to suspend the operation of the 13th Amendment which is impugned in this petition.
5. M.B.A./I-7/S Order accordingly.