Abdul Hameed Dogar, CJ.--The petitioner seeks review of the Short Order dated 23.11.2007 and the detailed judgment of this Court passed in Constitution Petitions No, 87 & 88 of 2007.
2. Briefly stated, the facts giving rise to the present review petition are that on 3rd November 2007, by a Proclamation of Emergency, the Respondent No, 1 (General Pervez Musharraf, Chief of Army Staff) imposed emergency throughout Pakistan and held in abeyance the Constitution of the Islamic Republic of Pakistan, 1973 on the following grounds:--
(1) There is visible ascendancy in the activities of extremists and incidents of terrorist attacks, including suicide bombings, IED explosions, rocket firing and bomb explosions and the banding together of some militant groups have taken such- activities to an unprecedented level of violent intensity posing a grave threat to the life and property of the citizens of Pakistan;
(2) There has also been a spate of attacks on state infrastructure and on law enforcement agencies;
(3) Some members of the judiciary are working at cross purposes with the executive and legislature in the fight against terrorism and extremism thereby weakening the Government and the nation's resolve and diluting the efficacy of its actions to control this menace;
(4) There has been increasing interference by some members of the judiciary in government policy, adversely affecting economic growth, in particular;
(5) Constant interference in executive functions, including but not limited to the control of terrorist activity, economic policy, price controls, downsizing of corporations and urban planning, has weakened the writ of the government; the police force has been completely demoralized and is fast losing its efficacy to fight terrorism and Intelligence Agencies have been thwarted in their activities and prevented from pursuing terrorists;
(6) Some hard core militants, extremists, terrorists and suicide bombers, who were arrested and being investigated were ordered to be released. The persons so' released have subsequently been involved in heinous terrorist activities, resulting in loss of human life and property. Militants across the country have, thus, been encouraged while law enforcement agencies subdued;
(7) Some judges by overstepping the limits of judicial authority have taken over the executive and legislative functions;
(8) The Government is committed to the independence of the judiciary and the rule of law and holds the _superior judiciary in high esteem, it is nonetheless of paramount importance that the honourable Judges confine the scope of their activity to the judicial function and not assume charge of administration;
(9) An important constitutional institution, the Supreme Judicial Council, has been made entirely irrelevant and non est by a recent order and judges have, thus, made themselves immune from inquiry into their conduct and put themselves beyond accountability;
(10) The humiliating treatment meted to government officials by some members of the judiciary on a routine basis during Court proceedings has demoralized the civil bureaucracy and senior government functionaries, to avoid being harassed, prefer inaction;
(11) The law and order situation in the country as well as the economy have been adversely affected and trichotomy of powers eroded; and
(12) A situation has thus arisen where the government of the country cannot be carried on in accordance with the Constitution and as the Constitution provides no solution for this situation, there is no way out except through emergent and extraordinary measures.
It was stated in the Proclamation that the situation had been reviewed in meetings with the Prime Minister, the Governors of all the four Provinces, and with Chairman, Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice Chief of Army Staff and Corps Commanders of the Pakistan Army, and emergency was proclaimed in pursuance of the deliberations and decisions of the said meetings.
3. The Respondent No, 1 also issued Provisional Constitution Order No, 1 of 2007 (hereinafter referred to as "the Order No, 1 of 2007"), which provided that notwithstanding the abeyance of the Constitution, Pakistan would, subject to the Order No, 1 of 2007 and any other Order made by the President, be governed, as nearly as may be, in accordance with the Constitution. The Order No, 1 of 2007 further provided as under:--
(i) The President may, from time to time, by Order amend the Constitution, as is deemed expedient;
(ii) The Fundamental Rights under Articles 9, 10, 15,16,17,19 and 25 shall remain suspended; (iii)Notwithstanding anything contained in the Proclamation of the 3rd day of November, 2007, or this. Order or any other law for the time being in force, all provisions of the Constitution of the Islamic Republic of Pakistan embodying Islamic injunctions including Articles 2, 2A, 31, 203A to 203J, 227 to 231 and 260 (3) (a) and (b) shall continue to be in force; (iv)Subject to clause (1) above and the Oath of Office (Judges) Order, 2007, all Courts in existence immediately before the commencement of this Order shall continue to function and to exercise their respective powers and jurisdiction;
(v) The Supreme Court or a High Court and any other Court shall not have the power to make any order against the President or the Prime Minister or any person exercising powers or jurisdiction under their authority; (vi)All persons who immediately before the commencement of this Order were in office as judges of the Supreme Court, the Federal Shariat Court or a High Court, shall be governed by and be subject to the Oath of Office (Judges) Order, 2007, and such further Orders as the President may pass;
(vii) Subject to clause (1) above, the Majlis-i-Shoora (Parliament) and the Provincial Assemblies shall continue to function;
(viii) All persons who, immediately before the commencement of this Order, were holding any service, post or office in connection with the affairs of the Federation or of a Province, including an All Pakistan Service, service in the Armed Forces and any other service declared to be a Service of Pakistan by or under Act of Majlis-i-Shoora (Parliament) or of a Provincial Assembly, or Chief Election Commissioner or Auditor General shall continue in the said service on the same terms and conditions and shall enjoy the same privileges, if any, unless these are changed under Orders of the President; (ix)No Court, including the Supreme Court, the Federal Shariat Court, and the High Courts, and any Tribunal or other authority, shall call or permit to be called in question this Order, the Proclamation of Emergency of the 3rd day of November, 2007, the Oath of Office (Judges) Order, 2007 or any Order made in pursuance thereof;
(x) No judgment, decree, writ, order or process whatsoever shall be made or issued by any Court or Tribunal against the President or the Prime Minister or any authority designated by the President; (xi)Notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the President, all laws other than the Constitution, all Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan, whether made by the President or the Governor of a Province, shall continue in force until altered, or, repealed by the President or any authority designated by him;
(xii) An Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution; and
(xiii) The above provision shall also apply to an Ordinance issued by the President or by a Governor which was in force immediately before the commencement of the Proclamation of Emergency of the 3rd day of November, 2007.
4. Simultaneously, the President issued the Oath of Office (Judges) Order, 2007 to the following effect:--
(a) A person holding office immediately before this Order as a Judge of the Supreme Court, the Federal Shariat Court or a High Court shall cease to hold that office with immediate effect;
(b) A person who is given, and does make, Oath in the form set out in the Schedule, before the expiration of such time from such commencement as the President may determine or within such further time as may be allowed by the President shall be deemed to continue to hold the office of a Judge of the Supreme Court, the Federal Shariat Court or a High Court, as the case may be; (c)A Judge of a Superior Court appointed after the commencement of this Order shall, before entering upon office, make Oath in the form set out in the Schedule.
(d) A person who has made oath as aforesaid shall be bound by the provisions of the Oath of Office (Judges), the Proclamation of Emergency of 3rd November, 2007, the Provisional Constitution Order No, 1 of 2007, and, notwithstanding any judgment of any Court, shall not call in question or permit to be called in question the validity of any of the provisions thereof.
The Judges of the Superior Courts who were not given, or who had not taken oath in terms of the aforesaid Order ceased to hold their office on and with effect from 3rd November 2007.
5. On 20th November, 2007, by means of the Constitution (Amendment) Order, 2007 (President's Order No, 5 of 2007) the President made certain amendments in the Constitution, i,e,, Articles 175, 198 and 218 (establishment of High Court for Islamabad Capital Territory), Article 186A (withdrawal by the Supreme Court of any case, appeal or other proceedings pending before a High Court to it and disposing of the same), Article 270B (General Elections 2008 to the National Assembly and the Provincial Assemblies to be deemed to be held under the Constitution) and Article 270C (appointment/cessation of office of Judge under the Oath of Office (Judges), Order, 2007 to be deemed under the Constitution). By the same Order, the President added Article 270AAA in the Constitution (validation and affirmation of laws etc.)
6. By the Constitution (Second Amendment) Order, 2007 (P.O. No, 6 of 2007), amendments were made in Article 193 (appointment of a Judge of the High Court of Islamabad Capital Territory, age limit for appointment of High Court Judges to be 40 years instead of 45 years), Articles 194 and 208 (Oath of the Chief Justice of Islamabad High Court and rules of the Islamabad High Court) and Article 270C (Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts who had not taken oath under the Oath of Office (Judges) Order, 2007 to cease to hold office on and with effect from 3rd November 2007 and the Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts appointed and/or continued as such' by virtue of the Oath of Office (Judges) Order, 2007, on revival of the Constitution to take oath as set out in the Third Schedule to the Constitution.
7. By Constitution Petitions No, 87 and 88 of 2007, the petitioner and one Zafarullah Khan respectively called in question the validity of the instruments and measures of 3rd November 2007.
They prayed that the deposed Judges of the Superior Courts and the Fundamental Rights be restored, the general election to the National Assembly and the Provincial Assemblies be held within the period provided by the Constitution, the detenus held under preventive detention laws be released forthwith and restrictions on the media be lifted. The Full Court disposed of both the Constitution Petitions by means of the Short Order as under:-- "The above Constitution Petitions are directed against the Proclamation of Emergency of the 3rd day of November 2007 and the Provisional Constitution Order No, 1 of 2007 issued by the Chief of Army Staff, as also the Oath of Office (Judges) Order, 2007 made and promulgated by the President of Pakistan.
2. We have heard Mr. Irfan Qadir, learned ASC for the petitioner in Constitution Petition No, 87/2007 and Barrister Zafarullah Khan in Constitution Petition No, 88/2007 as well as Syed Sharifuddin Pirzada, Senior Advocate Supreme Court and Malik Muhammad Qayyum, Attorney General for Pakistan on behalf of the respondents in both the petitions. We find that--
(i) in the recent past the whole of Pakistan was afflicted with extremism, terrorism and suicide attacks using bombs, hand grenades, missiles, mines, including similar attacks on the armed forces and law enforcing agencies, which reached climax on 18th of October 2007 when in a similar attack on a public rally, at least 150 people were killed and more than 500 seriously injured. The extremists/terrorists resorted to abduction of foreigners, which badly impaired the image of Pakistan in the comity of nations, and adversely affected its economic growth. The situation in Islamabad and various places in NWFP, Balochistan and tribal areas was analogous to "a state within the state". Unfortunately, no effort by the government succeeded in curbing extremism, terrorism and suicide attacks. The Prime Minister apprised the President of the situation through his letter of the 3rd of November 2007; (ii)The Constitution of Pakistan is based on the principle of trichotomy of powers. All the three organs of the State, namely, the legislature, the executive and the judiciary are required to perform their functions and exercise, their powers within their specified sphere. Unfortunately, some members of the superior judiciary by way of judicial activism transgressed the constitutional, limits and ignored the well-entrenched principle of judicial restraint. Thousands of applications involving individual grievances were being processed as suo motu cases ostensibly in the exercise of power under Article 184(3) of the Constitution, which provision is resorted to the enforcement of fundamental rights involving questions of law of general public importance. Instances of transgression of judicial authority at large scale may be found in the cases of determination of prices of fruits, vegetables and other edibles, suspension and transfers of government officials, frequent directions to enact particular laws, stoppage of various development projects, such as New Murree City, Islamabad Chalets, Lahore Canal Road and many more. They rendered the state machinery, particularly legislative and executive branches of the government paralyzed and nugatory. They made ineffective the institution of the Supreme Judicial Council set up under the Constitution for the accountability of the members of the superior judiciary; (iii)The sum total of the circumstances led to a situation where the running of the government in accordance with the provisions of the Constitution became impossible for which the Constitution provided no remedy or satisfactory solution. There was a strong apprehension of disastrous consequences that would have followed in case the action of the 3rd day of November 2007 was not taken by the Chief of Army Staff/Preside n t;
(iv) The situation which led to the issuance of Proclamation of Emergency of the 3rd day of November 2007 as well as the other two Orders, referred to above, was similar to the situation which prevailed in the country on the 5th of July 1977 and the 12th of October 1999 warranting the extra-constitutional steps, which had been validated by the Supreme Court of Pakistan in Begum Nusrat Bhutto V. Chief of the Army Staff (PLD 1977 SC 657) and Syed Zafar Ali Shah V. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) in the interest of the State and for the welfare of the people, as also the fact that the Constitution was not abrogated, but merely held in abeyance; Sufficient corroborative material has been produced by the respondents, which justifies the taking of the extra-constitutional measures by the Chief of Army Staff and the President.
We, therefore, hold that--
(i) the Constitution of the Islamic Republic of Pakistan, 1973 still remains to be the supreme law of the land albeit certain parts thereof have been held in abeyance in the larger interest of the country and the people of Pakistan;
(ii) the extra-constitutional steps of Proclamation of Emergency of the 3rd day of November, 2007, the Provisional Constitution Order No, 1 of 2007, the Provisional Constitution (Amendment) Order, 2007, the Oath of Office (Judges) Order, 2007 and the President's Order No: 5 of 2007 are hereby declared to have been validly made by the Chief of Army Staff/President subject to the condition that the country shall be governed, as nearly as may be, in accordance with the Constitution. All acts and actions taken for the orderly running of the State and for the advancement and good of the people are also validated. In absence of the Parliament, General Pervez Musharraf, Chief of Army Staff/President, in pursuance of the Proclamation of Emergency of the 3rd day of November 2007 may, in the larger public interest and the safety, security and integrity of Pakistan, under the principle of salus populi suprema lex may perform--
(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; and
(c) All acts required to be done for the ordinary orderly running of the State.
4. We further hold and direct as under:--
(i) The old Legal Order has not been completely suppressed or destroyed but it is a case of constitutional deviation for a limited transitional period;
(ii) Constitutional amendments can be resorted to only if the Constitution fails to provide a solution for the attainment of the declared objectives of the Chief of Army Staff/President, but without affecting the salient features of the Constitution, i,e,, independence of Judiciary, federalism, parliamentary form of Government blended with Islamic provisions;
(iii) The President, the Federal Government and the Election Commission of Pakistan shall ensure the holding of fair, free and transparent elections as required by the Constitution and the law;
(iv) The Superior Courts continue to have the power of judicial review, to judge the validity of any act or action of the Chief of Army Staff, or the President notwithstanding the ouster of their jurisdiction by the aforesaid extra-constitutional measures; (v) The Chief Justices and Judges of the superior Courts (Supreme Court of Pakistan, Federal Shariat Court and the High Courts) are subject to accountability only before the Supreme Judicial Council in accordance with the procedure laid down in Article 209 of the Constitution; (vi)The learned Chief Justices and Judges of the superior Courts, (Supreme Court of Pakistan, Federal Shariat Court and the High Courts), who have not been given, and who have not made, oath under the Oath of Office (Judges) Order, 2007 have ceased to hold their respective offices on the 3rd of November 2007. Their cases cannot be re-opened being hit by the doctrine of past and closed transaction; and
(vii) The Proclamation of Emergency of the 3rd day of November, 2007 shall be revoked by the President and/or the Chief of Army Staff at the earliest so that the period of constitutional deviation is brought to an end. However, this Court may, at any stage, reexamine the continuation of the Proclamation of Emergency if the circumstances so warrant.
5. The petitions are disposed of in the above terms."
8. The detailed judgment in support of the above Short Order was released on 13.2.2008. The review petition filed against the Short Order and the detailed judgment was dismissed vide Short Order dated 15.2.2008 as under:-- "For reasons to be recorded later on, this review petition is dismissed."
9. Mr. Arshad Ali Chaudhiy, learned ASC/AOR for the petitioner submitted that the pleas taken in the Constitution Petition were not separately dealt with by this Court in the Short Order as well as detailed judgment. The learned AOR argued that the Short Order/judgment called for review on the following grounds:--
(i) The judgment and the short order passed by this Court suffer, from various errors apparent on the face of record and the same deserve to be reviewed and recalled.
(ii) The judgment under review is based on surmises and conjectures and it proceeds on incorrect comprehension and interpretation of the Constitutional law.
(iii) There was no justification for taking extra-constitutional steps on 3.11.2007, which were coram non judice and without lawful authority.
(iv)The Chief of Army Staff did not have the power or authority to proclaim emergency, which under the Constitution could only be done by the President.
(v) The President could not have delegated his power of proclamation of emergency to the Chief of Army Staff, who, even otherwise, did not possess any such authority under the Constitution or the Army Act.
(vi) The extra-constitutional steps taken by the respondent were not in the national interest and were directed against certain Constitutional functionaries.
(vii) The former Chief Justices and the former Judges of the Superior Courts were removed without having recourse to the Supreme Judicial Council as required by Article 209 of the Constitution. The provisions of the Oath of Office (Judges) Order, 2007 being ultra vires Article 209 of the Constitution were liable to be struck down.
19. On the other hand, Malik Muhammad Qayyum, learned Attorney General for Pakistan submitted that the judgment under review elaborately dealt with each and every point raised in the Constitution Petitions and left nothing unattended. He referred to Paragraph 7 of the judgment, wherein the arguments of Mr. Irfan Qadir, ASC, learned counsel for the petitioner (in Constitution Petition No, 87 of 2007) were noted. Likewise in Paragraph 8 thereof, the arguments advanced by Barrister Zafarullah Khan, ASC, (in Constitution Petition No, 88 of 2007) were noted in great detail. In Paragraph 13, legal position with regard to the jurisdiction of the Supreme Court under Article 184(3) of the Constitution was examined in the light of the law laid down in Begum Nusrat Bhutto's case (PLD 1977 SC 657) and Syed Zafar Ali Shah's case (PLD 2000 SC 869). He submitted that the issue of maintainability of petitions under Article 184(3) in the present case was conceded at the hearing and this Court reaffirmed the view already taken in the case of Syed Zafar Ali Shah and held that the Supreme Court was competent to examine the vires of the Proclamation of Emergency of 3rd November 2007, the Order No, 1 of 2007, as amended, and the Oath of Office (Judges) Order, 2007 notwithstanding the ouster clauses contained therein.
11. The learned Attorney General further submitted that in Paragraph 15 of the judgment, this Court dealt with the grounds on which the Proclamation of Emergency was founded. In this context, the letter of the Prime Minister giving the details of law and order situation, which prevailed during the period from January 2007 to October 2007 was taken into consideration. This Court also took note of the speech of the President in which he recalled the circumstances leading to the issuance of Proclamation of Emergency and the other Orders issued pursuant thereto. In Paragraph 19, this Court recounted some of the major incidents of terrorism which occurred in various parts of the country and observed that the wave of terrorism reached its climax on 18th October 2007 when, in two bomb blasts at the rally of a former Prime Minister, about 150 people were killed and 350 seriously wounded. The incident posed grave threat to the national security and also lowered the image, of Pakistan in the international community. This Court read with great pain the comments made in the news story titled The Most Dangerous Nation in the World is not Iraq - It's Pakistan", carried by the Newsweek of 29th October 2007. This Court took the view that unfortunately the Government efforts to combat terrorism bore no fruit.
12. The learned Attorney General next contended that in Paragraphs 20 and 21 of the judgment, this Court examined the other ground of the Proclamation of Emergency relating to the erosion of trichotomy of powers enshrined in the Constitution of Pakistan on account of actions taken and orders passed in some cases by some of the former Judges, particularly the former Chief Justice of Pakistan. This Court held that the Supreme Judicial Council was virtually rendered ineffective and redundant. It was an extraordinary situation for which the Constitution provided no solution..
13. In the above context, the learned Attorney General stated that the judgment under review discussed threadbare the principle of separation of powers, which was the cornerstone of the Constitution of Pakistan and held that the former Chief Justice of Pakistan umpteen times interfered with, and interrupted, the working of almost every department/office of the Government and created a situation in which the other branches of the Government were handicapped from performing their functions and discharging duties in accordance with of the Constitution and the law. This Court found that on 3rd November 2007 a situation of chaos and anarchy prevailed in the country.
Therefore, the Chief of Army Staff was constrained to take extra-constitutional steps in the larger interest of the State necessity and for the welfare of the people. The learned Attorney General referred to Paragraphs 41 to 51 wherein this Court elaborated the doctrine of salus populi est suprema lex, the nature and the kind of actions envisaged by the said doctrine and the circumstances necessitating proclamation of emergency, particularly in the backdrop of jurisprudence that had developed after going through a historical process spreading over 60 years of the emergence of the State of Pakistan. The learned Attorney General stated that the issue of reinstatement of the former Judges/Chief Justices of the Supreme Court and the High Courts, who had ceased to hold their office under the Oath of Office (Judges) Order 2007 was dilated upon in Paragraph 53 of the judgment. It was found that the instant case was covered on all fours by the law laid down in Zafar Ali Shah's case. He further submitted that at Paragraphs 63 and 64, this Court took up the issues, such as suspension of certain Fundamental Rights, alleged restrictions on the media and the alleged detention of lawyers-cum-political workers. This Court, with conscious application of mind had due deliberation considered all the points involved in the Constitution Petition. He contended that the earlier findings of this Court were supported from the material available on record. As such, there was neither any misreading nor any error apparent on the face of record warranting review of the impugned judgment.
14.Syed Sharifuddin Pirzada, Sr. ASC, learned counsel for the Respondent No, 1 submitted that all the issues raised in the Constitution Petitions had been adequately dealt with in the impugned judgment. He confined his submission to the scope of review jurisdiction of this Court. He contended that bare reading of the pleas taken in the review petition made it abundantly clear that the petitioner had, in fact, sought re-hearing of the matter, which was not permissible at law as laid down in the cases of Mian Rafiq Sehgal v. Bank of Credit and Commerce International (Overseas) Ltd (PLD 1997 SC 865), Abdul Ghaffar-Abdul Rehman v. Asghar Ali (PLD 1998 SC 363) and Waseem Sajjad v. Federation of Pakistan (PLD 2001 SC 233).
15. We have heard the learned counsel for the parties as well as the learned Attorney General for Pakistan at length. The Proclamation of Emergency, the Order No, 1 of 2007 and the Oath of Office (Judges) Order, 2007 were primarily founded on two grounds, viz., incidence of terrorism, militancy and extremism beyond the control of the civilian government, and the erosion of trichotomy of powers in consequence of increased interference in the other branches of the Government by some members of the superior judiciary, particularly the former Chief Justice of Pakistan.
16. This Court, while declaring the extra-constitutional steps of the Chief of Army Staff of 3rd November 2007 as valid, minutely examined the prevailing conditions and circumstances and recorded its finding on all the points involved in the case and agitated by the learned counsel for the parties. For facility of reference, some excerpts from the judgment are reproduced below:- RE: MAINTAINABILITY OF THE CONSTITUTION PETITIONS "13...However, at the hearing of the petitions both Syed Sharifuddin Pirzada, Sr. ASC as well as Malik Muhammad Qayyum, learned Attorney General for Pakistan candidly conceded that in view of the law laid down in Begum Nusrat Bhutto's case (PLD 1977 SC 657) and Zafar Ali Shah's case (PLD 2000 SC 869), this Court would continue to exercise the power of judicial review to judge the validity of the Proclamation of Emergency and the other Orders issued by the President/Chief of Army Staff despite the non obstante clauses contained in the Provisional Constitution Order No, 1 of 2007. We have ourselves considered the question of ouster of jurisdiction of this Court. A somewhat similar objection was dealt with in the case of Zafar Ali Shah (supra) in which the following observations were made:-- "220. It seems quite clear that the Army takeover of 12th October, 1999 was extra-constitutional. The Superior Courts of Pakistan have laid down that they retain the power of judicial review despite the ouster of jurisdiction which came either from within the Constitution, or by virtue of Martial Law Orders or by legislation. Even non obstante clauses in these cases had failed to prevent such objectives of the incumbent administrations. Thus visualized, the purported buster in the Proclamation and the PCO 1 of 1999 of the jurisdiction of the Superior Courts is an exercise in futility and the power of judicial review remains intact. Both under Islamic doctrines as well as under its constitutional/juridical personality, the Superior Courts would continue to exercise this power."
The relevant portion from the Short Order Zafar Ali Shah's case is reproduced below:-- "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."
14. We would like to reaffirm the view taken by this Court in the aforesaid case of Zafar Ali Shah. This Court is competent to examine the vires 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 until these measures are protected by making an amendment in the Constitution. These petitions are, therefore, held maintainable under Article 184(3) of the Constitution."
RE: TERRORISM, MILITANCY AND EXTREMISM "19....The sovereignty, integrity and solidarity of the nation need to be preserved and protected internally as well as externally. The unabated gruesome terrorist activities worsened the security as also the law and order situation in the country. which called for zero tolerance approach. It is also clear from the letter of the Prime Minister that the Government's efforts to combat terrorism on the civil side unfortunately bore no fruit. It was an extraordinary situation that called for taking such measures, which were not provided by the Constitution."
RE: EROSION OF TRICHOTOMY OF POWERS "36. A survey of case law makes it abundantly clear that the power and jurisdiction under Article 184(3) of the Constitution cannot be invoked for redress of individual grievances. Unfortunately, the former Chief Justice of Pakistan paid no heed to the judicial precepts. He spared no department, whether judicial, executive or legislative. He took over the functions of superintendence over the subordinate Courts, which was the exclusive domain of the High Courts under Article 203 of the Constitution. He would entertain cases making grievances in matters pending before the High Courts as well as the subordinate Courts or which ought to be dealt with by a District & Sessions Judge. The learned Attorney General submitted that on several occasions, during the hearing of suo motu applications it was pointed out off and on by many counsel that power and jurisdiction under Article 184(3) of the Constitution could not be exercised in those matters, but unfortunately, the former Chief Justice would brush aside such submissions by making awful observations and remarks. According to the learned Attorney General, as a result of the above, the former Chief Justice of Pakistan interfered with and interrupted the working of each and every department/office of the government and created a situation in which the other branches of the government were not allowed to perform their functions and duties in accordance with the provisions of the Constitution and the law. This was a situation of chaos and anarchy for which the Constitution provided no solution and the Chief of Army Staff was constrained to take extra- constitutional steps in the larger interest of the state necessity and for the welfare of the people."
RE: THE SUPREME JUDICIAL COUNCIL OF PAKISTAN "20. The other set of reasons and circumstances given in the Proclamation of Emergency relates to the trichotomy of powers enshrined in the Constitution of Pakistan, which was eroded as a result of actions taken and orders passed in some cases by some of the former Judges of the Supreme Court and the High Courts, particularly the former Chief Justice of Pakistan. The learned counsel for the Respondent No, 2 as well as the learned Attorney General for Pakistan repeatedly submitted that the Government held the superior judiciary in the highest esteem and believed in its independence. They, however, stated that the Supreme Judicial Council was virtually rendered ineffective and redundant. Pakistan was the first country in Asia, apart from Malaysia, which made a provision in its Constitution for accountability of the Judges of the superior Courts by their own peers. Article 209 of the Constitution provides an exclusive forum called Supreme Judicial Council of Pakistan comprising the Chief Justice of Pakistan, two most senior Judges of the Supreme Court and two most senior Chief Justices of High Court. In case of a Reference against a member of the Council, the next senior most Judge of the Supreme Court, or next senior Chief Justice of another High Court, as the case may, is to act as a member of the Council in his place. On 9th March 2007 the President made a Reference under Article 209 of the Constitution to the Supreme Judicial Council against the former Chief Justice of Pakistan. In the course of the proceedings of the Reference, some objections were raised before the Council. Subsequently, a petition was filed by the former Chief Justice of Pakistan invoking the original jurisdiction of this Court under Article 184(3) of the Constitution against the Reference despite the clear bar of jurisdiction of Courts contained in Article 211. The hearing of the petition of the former Chief Justice of Pakistan continued for nearly two months. Unfortunately, very unpleasant and uncharitable observations were made by some former Judges of the Supreme Court and authors of the petition in the course of the hearing, which tended to bring the Supreme Judicial Council into disrespect and disrepute among the masses. Such a conduct on the part of some former Judges was incompatible with their office.
Here, we may cite, with advantage, a passage from page 270 of the book titled "Justice at Cross Roads" by V.R. Krishna Iyer, a former Judge of the Supreme Court of India and a scholar of great repute, which reads thus:-- The bench is a hallowed seat and judges must observe a gracious port and presence without making derisive comments and digs at lawyers and litigants who could as well retort and humble the bench in public. Offensive observations, even regarding other judges and judgments, are not uncommon with little-minded judges. Comic performance cannot be fobbed off on a submissive Bar, David Pannick cites some British instances which may have Indian parallels: "Judicial humour can turn into judicial scorn. The eighteenth century Scottish judge, Lord Braxfield, was 'a disgrace to the age'. He took pleasure in 'tauntingly repelling the last despairing claims of a wretched culprit, and sending him to Botany Bay or the gallows with an insulting jest'. Robert Louis Stevenson based Lord Hermiston upon Braxfield. In Court, Hermiston 'took his ease and jested, unbending in that solemn place with some of the freedom of the tavern, and the rag of man (the defendant) was hunted gallowswa rd with jeers'. Braxfield and his contemporaries have a special place in the annals of judicial misbehaviour. They were 'cynically indifferent to the proprieties of the Bench to an extent which now may well seem incredible. Uncouth in appearance, profane in speech, frequently harsh and contemptuous in the discharge of their judicial functions, addicted to the wildest eccentricities, and exhibiting at all times are decided penchant for deep potation and the course and boisterous jocularity of the tavern...', they lacked all judicial qualities." (David Pannick-Judges-Oxford University Press, 1988 Edn., p.83)
Some judges do not care to listen or are too loquacious and by frequent interruptions make coherent argument impossible. There are many other ways in which judges can disrupt fair hearing. Performance and discipline are components of judicial decorum."
21. On 20th July 2007, through a Short Order the Presidential Reference was set aside by majority and the former Chief Justice was reinstated. Thus, the exclusive jurisdiction, power and authority of a high level constitutional forum meant for the accountability of Judges of the superior Courts were eroded. The Supreme Judicial Council was not only paralyzed but also politicized in disregard of the provisions of Article 209 read with Article 211 of the Constitution. At this stage, it would be pertinent to refer to a judgment in the case of Muhammad Ikram Chaudhry v. Federation of Pakistan (PLD 1998 SC 103), where this Court had held as under:-- "11. A perusal of the above clause (clause 5 of Article 209) indicates that on an information received from the Council or from any other source, the President is of the opinion that a Judge of the Supreme Court or of a High Court may be incapable of properly performing the duties of his office by reason of physical or mental incapacity or may have been guilty of misconduct, he shall direct the Council to inquire into the matter. The above clause does not admit filing of a Constitutional petition for a direction to the Supreme Judicial Council or to the President to initiate proceedings of a judicial misconduct against a Judge of a Superior Court by a practicing lawyer or any other citizen of Pakistan'. The wisdom seems to be that in ,order to keep the Judges free from being pressurized through frivolous Constitutional petitions or other legal proceedings for filing of a Reference, the framers of the Constitution provided above mechanism. This Court or a High Court cannot take upon itself the exercise to record even a tentative finding that a particular Judge has committed misconduct warranting filing of a Reference against him under Article 209 of the Constitution as it will be contrary to the language and spirit of the said Article."
In the above case, it is clearly laid down that direction cannot be issued to the Supreme Judicial Council to initiate proceedings of judicial misconduct against any Judge of a superior Court at the instance of a lawyer or a citizen. The above judgment-in clear terms prohibits the Supreme Court at also a High Court to take upon themselves the exercise to record even tentative finding that a particular Judge has committed misconduct warranting filing of a Reference against him under Article 209 of the Constitution. On the same analogy, no direction could be issued to the Supreme Judicial Council to stay its hands off the Reference filed against the former Chief Justice of Pakistan, what to speak of quashing the Reference altogether. During the course of arguments, the learned Attorney General stated at the bar that a former Judge of the Supreme Court, in connivance with a Banking Judge for whom, in turn, he managed to get his tenure extended, purchased property worth more than Rs, 20,000,000/- for a petty consideration of Rs, 4,000,000/-.
The Government very much wanted to file a Reference against him before the Supreme Judicial Council, but refrained from doing so in view of the treatment meted out to the Reference filed against the former Chief Justice of Pakistan."
"50. It is clear from the material placed on record by the respondents and the circumstances of the present case that the situation which led to the issuance of Proclamation of Emergency and the two other Orders was quite similar to the one that prevailed in July 1977 and October 1999. In 1977 almost in an identical situation martial law was imposed and the. Constitution held in abeyance.
The action of the Chief of Army Staff was upheld by this Court in the case of Begum Nusrat Bhutto v.
Chief of Army Staff (PLD 1977 SC 657) on the touchstone of state necessity. The Chief Martial Law Administrator was possessed with the power to amend the Constitution. The Parliament validated all the actions and constitutional amendments of the Chief Martial Law Administrator through the Constitution (Eighth Amendment), Act, 1985 including Article 58(2)(b) of the Constitution, which conferred power on the President to dissolve the National Assembly and to direct holding of fresh elections."
"52. However, in the present case, soon after the imposition of emergency and the promulgation of the Provisional Constitution Order 2007, the Government announced the holding of election on schedule. The tug of war launched by the former Chief Justice of Pakistan and some other former Judges of the Supreme Court and the High Courts against the other branches of the Government made them non-functional and ineffective. Practically, the country had been driven to a state of lawlessness. The situation that prevailed on 3rd November 2007 could also adversely affect the defence capability of the country. From this perspective, the present situation was even worse than the one that prevailed in October 1999, which was fully covered by the law laid down in Zafar Ali Shah's case at page 1169 of the judgment, where this Court held as under:-- "252. After perusing the voluminous record and after considering the submissions made by the parties, we are of the view that the machinery of the Government at the Centre and the Provinces had completely broken down and the Constitution had been rendered unworkable. A situation arose for which the Constitution provided no solution and the Armed Forces had to intervene to save the State from further chaos, for maintenance of peace and order, economic stability, justice and good governance and to safeguard integrity and sovereignty of the country dictated by highest considerations of State necessity and welfare of the people. The impugned action was spontaneously welcomed by all sections of the society."
RE: REINSTATEMENT OF THE FORMER JUDGES
53. As for the reinstatement of the former Judges of the Supreme Court and the High Courts who ceased to hold office under the Oath of Office (Judges) Order, 2007, we have already held in the Short Order that the learned Chief Justices and Judges of the superior Courts, (Supreme Court of Pakistan, Federal Shariat Court and the High Courts), who were not given, or who did not make, oath under the aforesaid Order had ceased to hold their respective offices on 3rd November 2007 and their cases cannot be re-opened being hit by the doctrine of past and closed transaction.
During the course of arguments, both the learned counsel for the petitioners repeatedly submitted that the Government ought to have adopted constitutional means to meet the situation that prevailed in the country on or before 3rd November 2007. However, they failed to point out any particular course that had been provided under the Constitution to meet a situation where any organ of the State, particularly when some former Judges of the superior Courts transgressed their constitutional limits and took upon themselves the execution of the functions of the executive or legislative branches of the Government, thereby bringing the functioning of the Government to a standstill. The learned Attorney General for Pakistan vehemently contended that the treatment the Presidential Reference filed against the former Chief Justice of Pakistan received at the hands of the former Judges of the Supreme Court closed the door for the Government to resort to the constitutional remedies provided for the accountability of the Judges of the superior Courts.
According to him, the practical effect of the order dated 20th July 2007 passed by a majority of 10 to 3 in Constitution Petition No, 21/2007 was that the provisions of Article 209 of the Constitution were rendered nugatory and redundant. He further submitted- that on the eve of hearings before the Supreme Judicial Council of Pakistan lawyers-cum-political workers would enter the Supreme Court premises, raise slogans against the members of the Supreme. Judicial Council and interrupt working of the Council as well as the Supreme Court Benches. The Court premises were practically turned into a ground exclusively meant for political processions and rallies, which badly impaired the sanctity of the Court. The learned Attorney General further stated that on the very first date of hearing of the Reference before the Supreme Judicial Council, the former Chief Justice did not sit in the vehicle made available to him at his official residence for traveling to the Supreme Court to attend the proceedings of the Council and insisted on walking on foot along with his family members. According to the learned Attorney General, it was an act unbecoming of a person who happened to be the Chief Justice of Pakistan and thus, the dignity and prestige of the highest judicial office of the country were disregarded. He submitted that the law enforcing personnel on duty requested the former Chief Justice time and again to use the vehicle provided to him for going to the Supreme Court, but he did not accede to their request. Hence, the behaviour of the former Chief Justice created an unpleasant scene. At the top of it, one of the former Judges took suo motu action of the matter and created an embarrassing situation for the administration - a situation that was the creation of the former Chief Justice. The learned Attorney General lamented on the fact that the media, particularly some private T.V. channels, took the occasion as the high time of their business and never realized the sensitivity of the issue. Instead of confining to their true role of relaying information to the masses, they turned their talk shows into an exercise aimed at advocating a particular point of view.
54. The learned Attorney General also submitted that a politician-cum-lawyer, who was one of the counsel of the former Chief Justice of Pakistan, used all his political skills and expertise in turning the Reference into a political gambol. He used every occasion in the course of the proceedings of the Reference and later the Constitution Petition filed by the former Chief Justice of Pakistan against the said Reference to gain political mileage. He organized political rallies for the former Chief Justice of Pakistan to address the bar associations throughout the width and breadth of the country. He became a personal driver of the former Chief Justice and also intended to ply a coaster for the other former Judges. Many former Judges of the High Courts would participate in those events all of which were calculated to destabilize the Government machinery under a scheme. Every speaker on the stage presided over by the former Chief Justice would make a political speech and at the end the former Chief Justice would deliver speech on the 'rule of law'. It was a mockery of the Constitution and the law.
55.The learned Attorney General for Pakistan next submitted that the former Chief Justice as well as the former Judges of the Supreme Court created an atmosphere of extreme uncertainty in the matter of hearing/decision of the case relating to the election of the President of Pakistan. In the first round, the matter was heard for a very long time and ultimately the petitions were found to be not maintainable by a majority of six to three. Thereafter the nomination papers of the incumbent President were accepted by the Chief Election Commissioner through a well reasoned order, which was upheld by this Court vide judgment dated 19th November 2007 passed in Constitution Petition No, 73/2007 and Criminal Original Petition No, 51 of 2007. At the scrutiny of the nomination papers for the election of the 'President, some mischief mongers attempted to interrupt the functioning of the Chief Election Commissioner of Pakistan and created a situation of law and order. The law enforcing agencies had to intervene to ensure that the aforesaid constitutional functionary of the State was not prevented from performing his constitutional functions. However, the former Chief Justice of Pakistan, in line with his past conduct, initiated suo motu action against the concerned public servants and compelled the Government to take instant arbitrary action against those officials without waiting for the result of the inquiry ordered by the Government into the matter.
Rather he never allowed the Government to proceed with the aforesaid inquiry. According to the learned Attorney General, this was not the first time that the State functionaries were intimidated, frightened and put in an embarrassing situation by the former Chief Justice. The suo motu actions of the former Chief Justice had created an atmosphere in which no senior officer was willing and ready to be posted in the administration of Islamabad Capital Territory.
56. The learned Attorney General for Pakistan further submitted that after the acceptance of the nomination papers for the Presidential election, the matter was again brought before the Supreme Court in the second round. The hearing continued for nearly two months. During this period the election to the office of President took place and though the incumbent President secured the highest votes (about 98%), yet the former Judges passed an order restraining the Chief Election Commissioner from issuing notification of the result of the election. The former Chief Justice of Pakistan kept changing the composition of the Bench, rather increased from time to time the number of the Judges on the Bench. Firstly, a Bench of 9 Judges was constituted. Later the number was raised to 11. The matter of election of the highest office of the country required urgent resolution in the supreme national interest. The situation was being closely monitored at the international level, particularly in view of the position taken by the Government of Pakistan in the war on terrorism. Summing up his arguments, the learned Attorney General submitted that the above uncertain state of affairs badly impaired the image of the country among the comity of nations, negatively impacted on the security as also the law and order situation in the country and adversely affected the economic growth.
57. We have given deep consideration to this aspect of the matter. The learned counsel for the petitioners have not been able to rebut the submissions made by the learned counsel for the Respondent No, 2 as well as the learned Attorney General for Pakistan on the above issue. The facts and circumstances narrated by the learned Attorney General for Pakistan in the preceding paragraphs presented an alarming situation and unfortunately the concerned stakeholders in the judicial and the legal arena of the time never realized the implications of the situation to which the country had been driven. The State functionaries were pushed against wall and no way out was left for them. Thus, the action of 3rd November 2007 had become inevitable, which had been taken by the Respondent No, 2 to save the country from chaos and anarchy. Being a step taken in the interest of State necessity and for the welfare of the people, this Court through the Short Order dated 23rd November 2007 validated the same."
"61. The cases of the former Judges of the superior Courts who ceased to hold office by virtue of the Oath of Office (Judges) Order, 2007, are fully covered by the law laid down in Zafar Ali Shah's case and cannot, be dealt with differently. Further, soon after the action of 3rd November 2007 the process for filling the vacancies was undertaken and consequently appointments were made in the Supreme Court as well as in the High Courts. The Constitution stands revived on and from 15th December 2007 and is in full force. The action in respect of the former Chief Justice and former Judges has attained finality and being a fait accompli the same is even otherwise not reversible.
The present dispensation attracts the provisions of Article 264 of the Constitution, which, inter alia, says:-- "Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, , the repeal shall not, except as otherwise provided in the Constitution,--
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operation of the law or anything duly done or suffered under the law..."
We, therefore, reaffirm, uphold and validate the action taken by the Respondent No, 2 under the Oath of Office (Judges) Order, 2007 in the light of the law laid down in Zafar Ali Shah's case. Upon Proclamation of Emergency, the Provisional Constitution Order and the Oath of Office (Judges)
Order of 2007, the former Chief Justice of Pakistan and other former Judges of superior Courts had ceased to hold office. Thereafter any order passed or function performed by them was void, coram non judice and of no legal effect or consequence.
RE: SUSPENSION OF FUNDAMENTAL RIGHTS "63We gave some thought to the issue of suspension of Fundamental Rights under Articles 9, 10, 15, 16, 17, 19 and 25 of the Constitution under the Provisional Constitution Order No, 1 of 2007. During the course of arguments, on a Court query, the learned counsel for the Respondent No, 2 as well as the learned Attorney General for Pakistan stated that as soon as the objects of the emergency were achieved and the situation returned to normalcy, the emergency would be lifted immediately.
Considering the positive assurance given on behalf of the Government, no order was deemed to be called for on this aspect of the matter.
RE: ALLEGED RESTRICTIONS ON THE MEDIA "64As to the alleged restrictions on the media, or the alleged detention of certain lawyers-cum- political workers, suffice it to observe that the matter involved individual grievances of the concerned T.V. channels and the alleged detenues, which could not be properly adjudicated upon in these proceedings. The owners of those T.V. channels, as also the alleged detenues were at liberty to seek remedy at the appropriate forums in accordance with law. However, all through the emergency, there were no restrictions on the print media and the viewpoint of the citizens got full coverage. The critics of the actions of 3rd November 2007 even got extra coverage, rather undue projection. During this period yellow journalism touched new heights and attempts to malign the institutions of the State were made, which was an unhealthy sign in this noble profession. It should be hoped that some thought would be given to this aspect of the matter at the appropriate level and an effort made to draw a line somewhere.".
RE: DURATION OF ORDINANCES/LEGISLATIVE MEASURES "71. In our view, the Ordinances promulgated and legislative measures taken by the President, or as the case may be, by the Governor, which were in force at the time of, or during the period for which the Proclamation of Emergency of 3rd November, 2007 held the field, would continue to be in force by virtue of the Provisional Constitution Order, 2007, read with Article 270AAA(3) of the Constitution, until altered, repealed or amended by the appropriate legislature. There would be no question of expiry of these Ordinances in terms of Article 89(2), or as the case may be, under Article 128(2) of the Constitution."
17. In the Short Order followed by the detailed judgment, we have held that the extra-constitutional measures of 3rd November 2007 were taken by the Chief of Army Staff in the larger interest of the State necessity and for the welfare of the people under the doctrine of salus populi est suprema lex. The grounds of the Proclamation of Emergency have been duly considered in the judgment. It is concluded that a situation had arisen under which the constitutional machinery had come to a grinding halt and the extra-constitutional measures had become inevitable. On 12th October 1999, in a somewhat similar situation, the Chief of Army Staff proclaimed emergency, held the Constitution in abeyance, issued the Provisional Constitution Order No, 1 of 1999 and assumed the position and status of the Chief Executive of the country with power to amend the Constitution. He also issued the Oath of Office (Judges) Order, 2000 in pursuance whereof a number of the then learned Judges of the Superior Courts including the then Chief Justice of Pakistan ceased to hold their office. The former Chief Justice of Pakistan Justice Iftikhar Muhammad Chaudhry and former Senior Poise Judge, Justice Rana Bhagwandas, amongst others, not only took oath under the Oath of Office (Judges) Order, 2000, but were also signatories to the judgment of this Court in Syed Zafar Ali Shah's case wherein this Court declared the above actions of the Chief of Army Staff as valid. In these circumstances, we have not found any distinguishing features between the actions of 3rd November 2007 and those of 12th October 1999 and 26th January 2000.
18. The Superior Courts as well as the successive Parliaments in Pakistan have recognized the exercise of power by the Chiefs of Army Staff to amend the Constitution during the period of constitutional deviation, which is borne out from the judgments of this Court in the cases of .Begum Nusrat Bhutto, Syed Zafar Ali Shah and Tika Iqbal Muhammad Khan as well as through the Eighth and the Seventeenth Amendments of the Constitution. Both the said constitutional amendments reaffirmed/validated the amendments brought about in the Constitution through the President's Orders/Legal Framework Order. The amendments made in the Constitution through the President's Orders/Legal Framework Order have substantially remained unaffected. Therefore, consistent with the previous constitutionals developments of Pakistan, this Court in the instant case held that General Pervez Musharraf, Chief of Army Staff/President, in the larger public interest and the safety, security and integrity of the country was entitled, during the interregnum, to perform--
(a) All acts or legislative measures which were in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;
(b) All acts which tended to advance or promote the good of the people; and
(C) All acts required to be done for the ordinary orderly running of the State.
19. Consequently, all the President's Orders, Ordinances, Orders of the Chief of Army Staff, including the Order No, 1 of 2007, the Oath of Office (Judges) Order, 2007, amendments in the Constitution made through the Constitution (Amendment) Order, 2007 (P.O. No, 5 of 2007) and the Constitution (Second Amendment) Order, 2007 (P.O. No, 6 of 2007) and all other laws,. orders made, proceedings taken, appointments made, actions taken or done on or after 3rd November 2007, notifications, rules, orders and byelaws, which were in force at the time of or, during the period of operation of Proclamation of Emergency have been validly made, taken or done and shall continue in force subject to their repeal, alteration or amendment as contemplated by Article 270AAA of the Constitution. The question of automatic repeal of the Ordinances, which were in force at the time of, or issued during, the Proclamation of Emergency of 3rd November 2007, in terms of Article 89(2) or Article 128(2) of the Constitution would not arise. In our view, all the acts and legislative measures including the amendments made in the 1973 Constitution and all other actions taken as aforesaid, have been taken or done in the interest of State necessity to advance and promote the good of the people for the ordinary orderly running of the State. The same are, therefore, reaffirmed.
20. As regards the reinstatement of the learned former Chief Justices and Judges of the Superior Courts, who were not given, or who had not taken, oath under the Oath of Office (Judges) Order, 2007, this Court examined the issue with all its ramifications and found that they had ceased to hold their office on 3rd November 2007. Later, by virtue of President's Orders No, 8 and 9 of 2007 dated 14.12.2007, they have been retired and held entitled to draw pensionary benefits accordingly.
On 15th December 2007, the emergency has been revoked by the President by the Revocation of Proclamation of Emergency Order, 2007. The Order No, 1 of 2007 has been repealed. However, the aforesaid revocation or repeal would not revive anything not in force or existing at the time of the revocation or repeal, or affect the previous operation of any law or anything done or purported to, or suffered to have been done under the Proclamation of Emergency, the Order No, 1 of 2007 and the Oath of Office (Judges) Order, 2007. The action in respect of the former Chief Justice and former Judges, being a fait accompli and hit by the doctrine 'of past and closed transaction cannot be reopened and is irreversible. Reference to Article 209 of the Constitution in the matter is inapt, as the said provision cannot be attracted where the Constitution is held in abeyance. Thus, the case of such Judges is fully covered by the law laid down in Zafar Ali Shah's case.
21. The Constitution of the Islamic Republic of Pakistan, 1973 has been revived. The Chief Justice of Pakistan and the other Judges of the Superior Courts have taken oath of office as provided by the Constitution. Being holders of constitutional office, all such Judges including the Chief Justices shall be governed by the Constitution. The rights, privileges or obligations so acquired, accrued or incurred, including their tenure of office are protected under the Constitution.
22. No exception can be taken to the conclusions arrived at the findings recorded and the directions given in the Short Order and the detailed judgment. The petitioner cannot be allowed to re-agitate the same points, which have already been dealt with and determined by this Court. In Mian Rafiq Saigol v. Bank of Credit and Commerce International (Overseas) Ltd. (PL1) 1997 SC 865), which was quoted with approval in Wasim Sajjad v. Federation of Pakistan (PLD 2001 SC 233) it was held that-- Review proceedings cannot partake re-hearing at a decided case. Therefore, if the Court has taken a conscious and deliberate decision on a point of law or fact while disposing of a petition or an appeal, review of such judgment or order cannot be obtained on the grounds that the Court took an erroneous view or that another view on reconsideration is possible. Review also cannot be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced. A ground not urged or raised at the hearing of petition or appeal cannot be allowed to be raised in review proceedings. Only such errors in the judgment/order would justify review, which are self-evident, found floating on the surface, are discoverable without much deliberation, and have a material bearing on the final result of the case."
23. The petitioner has not been able to make out any case for review of the Short Order and the detailed judgment. Therefore, this review petition is dismissed.
24. The above are the reasons for our Short Order dated 15th February 2008.