SC demolishes Musharraf’s unconstitutional edifice
The News, August 01, 2009
Lays foundation for far-reaching future decisions; Islamabad High Court sent packing
By Sohail Khan
ISLAMABAD: The Supreme Court, in its landmark verdict, on Friday declared the actions taken on November 3, 2007, by former military dictator General (R) Pervez Musharraf as unconstitutional and invalid.
The apex court declared all judges of the superior courts who took oath by showing personal loyalty to the former military dictator on November 3, 2007, in violation of the order of the seven-member bench of the apex court as illegal and the court ordered them to stop function forthwith.
In a coincidence showers blessed the people as Chief Justice Iftikhar Muhammad Chaudhry started reading out the landmark verdict, bringing down the high temperature and humidity in the jam-packed courtroom No 1, declaring all the acts taken on November 3, 2007, as void, illegal and unconstitutional.
The larger bench took at least four hours to write down the draft of the verdict and finally it was announced at 8.15pm in courtroom, packed with large number of lawyers and media personnel both local and foreign.
A 14-member larger bench headed by Chief Justice Iftikhar Muhammad Chaudhry heard the constitutional petition, challenging the appointment of judges of the superior judiciary who took oath under the PCO and the steps taken on November 3, 2007.
The court declared Justice Abdul Hameed Dogar as the chief justice of Pakistan as un-constitutional, void ab initio and of no legal effect. “Since Justice Abdul Hameed Dogar was never a constitutional chief justice of Pakistan, therefore, all appointments of judges of the Supreme Court, the chief justices of the high courts and the judges of the high courts made, in consultation with him, during the period that he, un-constitutionally, held the said office from 3.11.2007 to 22.3.2009 (both days inclusive) are hereby declared to be un-constitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith,” says the order.
The chief justice, in his short order, stated that making judges of the superior judiciary non-functional by the former military dictator by imposing martial law and promulgation of the Provisional Constitution Order (PCO) on November 3, 2007, was illegal and unconstitutional after violating Article 279 of the constitution.
The order further said that the chief justice of Pakistan, the judges of the Supreme Court, chief justice of a high court and the judges of the high courts who were declared to have ceased to hold their respective offices in pursuance of the afore-mentioned alleged judgments or any other such judgment and on account of the instruments mentioned in para 21 above, shall be deemed never to have ceased to be such judges, irrespective of any notification issued regarding their reappointment or restoration.
It declared that the office of the chief justice of Pakistan never fell vacant on November 3, 2007, and as a consequence thereof it is further declared that the appointment of Justice Abdul Hameed Dogar as the chief justice of Pakistan was un-constitutional; void ab initio and of no legal effect;
“Provided that subject to whatever is contained hereinafter, the said un-constitutional appointment of Justice Abdul Hameed Dogar as chief justice of Pakistan shall not affect the validity of any administrative or financial acts performed by him or of any oath made before him in the ordinary course of the affairs of the said office,” the order said.
The court further ruled that the judges so un-constitutionally appointed to the Supreme Court while holding the offices as judges of any of the high courts shall rever back as judges of the respective high courts subject to their age of superannuation and likewise, the judges of the high courts, who were district and sessions judges before their un-constitutional elevation to the high courts shall revert back as district and sessions judge subject to limitation of superannuation.
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