' ABDUL HAMEED DOGAR, C J.---The petitioner, a candidate for election of President seeks review of the judgment dated 22-11-2007 whereby his Constitution Petition No, 83 of 2007 was dismissed by this Court.
2. The facts of the case, succinctly stated, are that the petitioner, in order to contest election of the President of Pakistan scheduled to be held in October, 2007 filed his nomination paper. The Chief Election Commissioner of Pakistan rejected his candidature vide order dated 29-9-2007, which reads as under:- "This nomination paper is not in order as the proposer is not a voter. Besides, there is no seconder.
Reference may be made to sub-rule (3)(b) of Rule 5 of the Presidential Election Rules, 1988."
3. The petitioner was heard at length and his Constitution Petition was dismissed vide the impugned judgment dated 22-11-2007 in the following terms:- "Through the titled Constitution Petition, petitioner Dr. Zahoor Mehdi, a candidate for election of President prays that the order of the Chief Election Commissioner dated 29-9-2007 whereby his nomination papers for election of President were rejected may be set aside and he may be held qualified to contest the Presidential election. He further prays that under the doctrine of necessity he may be given caretaker charge of the Government so that he is able to ameliorate the national economy which objective he would achieve by saving 30% of running expenditure of the country and by boosting up 90% NGDP.
(2) In support of the petition, the petitioner contended that Articles 41 and 62 of the Constitution, which deal with the qualifications for the President, do not lay down the requirement of proposer and seconder for a Presidential candidate, but is the requirement of sub-rule (3)(b) of rule 5 of the Presidential Election Rules, 1988, which is a subordinate legislation, therefore, absence of proposer and seconder does not constitute violation of the Constitution. When confronted with the provisions of Paragraphs 4 of the Second Schedule to the Constitution (Election of President), he took the plea that the same are not mandatory in view of the word 'may' used therein. To substantiate his plea, he submitted that the candidates for appointment to different posts in the public service offer themselves without any proposer and seconder and the same principle should apply vis-a-vis the election of President. Moreover, the petitioner is of the view that finding no suitable candidates for the election of President, he has offered himself as a candidate for the said office.
(3) We have heard the petitioner at some length. The petitioner was unable to convince us as to how deviation from the constitutional as well as statutory provisions, referred to above, was permissible and how departure could be made from the law laid down in the case of M.P. Khan v.
Muhammad Rafiq Tarar (1999 SCM R 90) where this Court did not dispense with the requirement of proposer and seconder. The order of the Chief Election Commissioner rejecting the nomination papers of the petitioner is unexceptionable.
(4) Even otherwise, the petition, ex facie, is not maintainable under Article 184(3) of the Constitution.
This Court has already held in the case of Qazi Hussain Ahmed v. General Pervaiz Musharraf (Constitution Petition No, 58 of 2007) that the petitions challenging matters relating to the election of President do not involve question of public importance with reference to the enforcement of fundamental rights conferred by Chapter 1 of Part II of the Constitution (Articles 8 to 28)
(5) In view of the above, the petition is dismissed."
4. The petitioner vehemently contended that his candidature was illegally rejected by the Chief Election Commissioner of Pakistan as the requirement of proposer and seconder was not provided for in the Constitution itself. Therefore, rule 5(3)(b) of the Presidential Election Rules, 1988 laying down the aforesaid condition of proposer and seconder for the Presidential candidate was liable to be struck down being ultra vires Article 41 of the Constitution.
5. From the bare perusal of the nomination paper of the petitioner, it is clear that the petitioner was not even a registered voter as his name did not appear in the electoral roll of 2007 of village Phullarwan, Tehsil Kharian, District Gujrat. When confronted, he took the position that it was not necessary for a Presidential candidate to be enrolled as a voter in the recent electoral roll. We find that in terms of clause (2) of Article 41 of the Constitution, it is clearly provided that a person shall not be qualified for election as President unless he is a Muslim of not less than 45 years of age and is qualified to be elected as member of the National Assembly. By virtue of clause (b) of Article 62, a person is not qualified to be elected or chosen as a member of Parliament unless he is enrolled as a voter in any electoral roll in any part of Pakistan for election of a general seat. The petitioner being not enrolled as a voter in the electoral roll of 2007 was not qualified to be a Presidential candidate.
6. As regards the proposer and seconder, this Court had examined the issue in the case of M.P.
Khan v. Muhammad Rafiq Tarar (1999 SCM R 90) and held as follows:-- "The petitioners also filed their nomination papers without being proposed or seconded by anyone and, thus, during the scrutiny of the nomination papers the Acting Chief Election Commissioner rejected the said nomination papers being violative of Para 4 of the Second. Schedule to the Constitution. Para. 4 of the Second Schedule reads as under:- "4. At any time before noon on the day fixed for nomination any member of the Majil-e-Shoora (Parliament) or of a Provincial Assembly may nominate for election as President a person qualified for election as President by delivering to the Presiding Officer a nomination paper, signed by himself as proposer and by another member of the Majlis-e-Shoora (Parliament) or, as the case may be, Assembly as seconder, together with a statement signed by the person nominated that he consents to the nomination: Provided that no person shall subscribe, whether as proposer or as seconder, more than one nomination paper at any one election"
It may be stated here that under Article 41 of the Constitution, the electoral college to elect the President of Pakistan consists of members of the Majlis-e-Shoora (Parliament) as well as four Provincial Assemblies, therefore, the name of a candidate is required to be proposed and seconded by a voter, who could only be either a member of the Majlis-e-Shoora (Parliament) or a member of any of the four Provincial Assemblies, However, an elaborate procedure has been prescribed to hold election to the office of the President, which need not be dilated upon. Suffice it would be that for valid nomination papers in respect of a candidate for the office of the President, it is essential that the same should be proposed and seconded by a member of the electoral college as aforesaid.
' Since the petitioner' nomination papers were not submitted as required by the Constitution, the Acting Chief Election Commissioner rightly rejected the same."
' The above case of M.P. Khan is applicable to the present case on all fours.
7. The election of the President of the Islamic Republic of Pakistan was held in pursuance of Paragraphs 1 and 3 of the Second Schedule read with Clause (3) of Article 43 of the Constitution.
Besides the respondent No, 3, the incumbent President (General Pervez Musharraf) and several others, including nominees of political parties filed their nomination papers. At the scrutiny of the nomination papers of the candidates, one of the candidates (Justice Retd. Wajihuddin Ahmed) filed objections in writing to the candidature of the respondent No, 3 on the ground of his being a sitting General/Chief of Army Staff. The Chief Election Commissioner of Pakistan through a detailed order (dated 29-9-2007) rejected the objections. This matter was agitated before this Court in pre and post-election rounds and 'ultimately polling was held pursuant to order of this Court dated 5- 10-2007 passed in Constitution Petition No, 73 of 2007 (Wajihuddin Ahmed v. Chief Election Commissioner PLD 2008 SC 13). At the election held on 6-10-2007, the incumbent President secured the highest number of valid votes, i,e, 57% of total number of votes and 99% of the cast votes.
General Pervez Musharraf relinquished the office of the Chief of Army Staff on 28-112007 and took the oath of office of President of the Islamic Republic of Pakistan for the second term in accordance with the Constitution and the law. The petitioner failed to question the validity of the election of the President on any ground whatsoever. He was also unable to show us that the Chief Election Commissioner of Pakistan had incorrectly rejected his nomination papers.
8. Faced with the above, the petitioner then argued that on 3rd November 2007 the Proclamation of Emergency and the Provisional Constitution Order No, 1 of 2007 were promulgated in consequence whereof Fundamental Rights enshrined in Articles 9, 10, 15, 16, 17, 19 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973 were suspended. Therefore, the Supreme Court and the High Courts were precluded from passing any order against the President or the Prime Minister or any authority designated by the President and this Court was not competent to hear the petitioner's Constitution Petition involving the question of enforcement of Fundamental Rights. It was further stated that the Constitution Petition was wrongly decided/dismissed by this Court through the order under review.
9. Suffice it to say that in Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869), the question of ouster of jurisdiction of this Court was examined and answered in the affirmative as follows:-- INDEPENDENCE OF JUDICIARY ' Stability in the system, success of the Government, democracy, good governance, economic stability, prosperity of the people, tranquility, peace and maintenance of law and order depend to a considerable degree on the interpretation of Constitution and legislative instruments by the Superior Courts, It is, therefore, of utmost importance that the Judiciary is independent and no restraints are placed on its performance and operation. It claims and has always claimed that it has the right to interpret the Constitution or any legislative instrument and to say as to what a particular provision of the constitution or a legislative instrument means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court. Under the mandate of the Constitution, the Courts exercise their jurisdiction as conferred upon them by the Constitution or the law. Therefore, so long as the superior courts exist, they shall continue to exercise powers and functions within the domain of .Their jurisdiction and shall also continue to exercise power of judicial review in respect of any law or provision of law, which comes for examination before the superior Courts to ensure that all persons are able to live securely under the rule of law; to promote, within the proper limits of judicial functions, the observance and the attainment of human and Fundamental Rights; and to administer justice impartially among persons and between the persons and the State, which is a sine qua non for the maintenance of independence of Judiciary and encouragement of public confidence in the judicial system.
TAKING OATH UNDER PCO NO. 1 OF 1999 ' Fresh oath under Oath of Office (Judges) Order No, 1 of 2000, does not in any way preclude the Judges of this Court from examining the questions raised in the above petitions, which have to be decided in accordance with their conscience and law so as to resolve the grave crises and avoid disaster by preventing imposition of Martial Law for which the Constitution does not provide any remedy.
' New oath of office was taken by the Judges of this Court under PCO No, 1 of 1999 read with Oath of Office (Judges) Order No,1 of 2000 with a view to reiterating the well-established principle that the first and the foremost duty of the Judges of the Superior Courts is to save the judicial organ of the State. This was exactly what was done. By virtue of PCO No.1 of 1999, the Constitution has not lost its effect in its entirety although its observance as a whole has been interrupted for a transitional period. This activity launched by the Armed Forces through an extra constitutional measure, involves the violation of "some of the rights" protected by the Constitution, which still holds the field but some of its provisions have been held in abeyance. A duty it cast upon the Superior Judiciary to offer some recompense for those rights which were purportedly violated in view of the promulgation of PCO No, 1 of 1999. This could be achieved only by taking the Oath and not by declining to do so and thereby becoming a party to the closure of the Courts, which would not have solved any problem whatsoever but would have resulted in chaos, anarchy and disruption of peaceful life Independence of Judiciary does not mean that Judges should quit their jobs and become instrumental in the closure of the Courts,. Indeed, the latter course would have been the most detestable thing to happen. Independence of Judiciary means that the contentious matters, of whatever magnitude they may be, should be decided/resolved by the Judges of the Superior Courts according to their conscience. This Court, while performing its role as "the beneficial expression of a laudable political realism", had three option open to it in relation to the situation arising out of the military take-over on Twelfth day of October, 1999: firstly, it could tender resignation en bloc, which most certainly could be equated with sanctifying (a) chaos/anarchy and (b) denial of access to justice to every citizen of Pakistan wherever he may be; secondly, a complete surrender to the present regime by dismissing these petitions for lack of jurisdiction in view of the purported ouster of its jurisdiction under PCO No, 1 of 1999 and thirdly, acceptance of the situation as it is, in an attempt to save what "institutional values remained to be saved". This Court, after conscious deliberations and in an endeavour to defend and preserve the national independence, the security and stability of Pakistan, Sovereignty and honour of the country and to safeguard the interest of the community as a whole, decided to maintain and uphold the independence of judiciary, which, in its turn, would protect the State fabric and guarantee human rights/Fundamental Rights. It took the Oath under PCO No, 1 of 1999 so as to secure the enforcement of law, extend help to the law enforcing agencies for maintenance of public order and with a view to restoring democratic institutions, achieving their stability and guaranteeing constitutional rights to the people of Pakistan.
' Oath of Office prescribed under Articles 178 and 194 of the Constitution for the Judges of the Superior Courts contains a specific provision that a Judge shall abide by the Code of Conduct issued by the Supreme Judicial Council. Same is the position with regard to the provisions regarding Oath of Office (Judges) Order No, 1 of 2000. The precise provisions in the Oath of Office (Judges) Order, 2000 are that a Judge, to whom oath is administered, shall abide by the provisions of Proclamation of Emergency of Fourteenth day of October, 1999, PCO No, 1 of 1999, as amended, and the Code of Conduct issued by the Supreme Judicial Council. But there is specific omission of words, "to preserve and defend the Constitution". Adherence to the Code of Conduct has not been subjected to any pre-conditions and there can be no deviation from it by a Judge who takes oath either under the Constitution or PCO No,1 of 1999 or Oath of Office (Judges) Order No, 1 of 2000. One of the requirements of the Code of Conduct is that the oath of a Judge implies complete submission to the Constitution, and under the Constitution to the law. Subject to these governing obligations, his function of interpretation and application of the Constitution and the law is to be discharged for the maintenance of the Rule of Law over the whole range of human activities within the nation. Thus the new Oath merely indicates that the Superior Judiciary, like the rest of the country had accepted the fact that on 12th October, 1999, a radical transformation took place.
MAINTAINABILITY OF PETITIONS ' Notwithstanding anything contained in the Proclamation of Emergency of the Fourteenth day of October, 1999, the Provisional Constitution Order No,1 of 1999, as amended and the Oath of Office (Judges) Order No,1 of 2000, all of which purportedly restrained this Court from calling in question or permitting to call in question the validity of any of the provisions thereof, this Court, in the exercise of its inherent powers of judicial review has the right to examine the validity of the aforesaid instruments. Additionally, submission of the Federation in response to the Court's notice concerning its own legitimacy also suggests that this Court has an inherent authority, arising from the submission of both the parties to its jurisdiction, notwithstanding the preliminary objection raised in the written statement as to the maintainability of the above petitions. In the exercise of its right to interpret the law, this Court has to decide the precise nature of the ouster clause in the above instruments and the extent to which the jurisdiction of the Courts has been ousted, in conformity with the well-established principles that the provisions seeking to oust the jurisdiction of the Superior Courts are to be construed strictly with a pronounced leaning against ouster. The Constitution Petitions filed by the petitioners under Article 184(3) of the Constitution are, therefore, maintainable."
10. The law laid down in the case of Zafar Ali Shah was followed by this Court in the case of Tika Muhammad Iqbal Khan v. General Pervez Musharraf, Chief of Army Staff (PLD 2008 SC 178) wherein the validity of the Proclamation of Emergency of 3rd November 2007, the Provisional Constitution Order No, 1 of 2007 and the Oath of Office (Judges) Order, 2007 was called in question. The legal and constitutional position expounded in the case of Zafar Ali Shah was reaffirmed.
11. We, therefore, hold that the power of judicial review of this Court was, in no way, affected by the Proclamation of Emergency or the Provisional Constitution Order holding the Constitution in abeyance or the Oath of Office (Judges) Order whereunder the Judges of the Superior Courts were necessarily required to take a fresh oath. The Court continued its existence and was not bereft of its power of judicial review by recitals contained in such extra-constitutional instruments. We would like to re-emphasize in unequivocal terms that this Court is, and has always been, fully competent to decide the validity of all such extra-constitutional measures/actions. The fact that the Court, in the facts and circumstances of any particular case, may pass any appropriate order including upholding of any action challenged before it, or the giving of any appropriate directions in the matter suggests nothing else but the exercise of judicial power and jurisdiction by this Court in the matter brought before it for adjudication.
11-A. These are the reasons for our order dated 15.2.2008 whereby this review petition was dismissed.