1. ' SAIDUZZAMAN SIDDIQUI, ACTG. C.J.---The above petition under Article 184(3) of the Constitution of 1973 (hereinafter to be referred as the Constitution), was filed by the petitioner seeking the following reliefs:-- "Interim Relief:
(a) To reassure the citizens, the Court should pronounce that its Original Jurisdiction under Article 184 cannot be suspended by a Presidential Order in any kind of emergency,
(b) That the Presidential Order be suspended to the extent that it does not infringe the citizen's Fundamental Rights except those mentioned in Article 233(1).
(c) That the petitioner's appeal in H.R. Case No,793 of 1997 be taken up immediately and without any further delay.
2. ' Ultimate Remedy:--
(i) That any of the Fundamental Rights listed in Article 233 (1) which, in the view of this Court, does not tend to harm the national security be restored forthwith.
(ii) That the President be penalized for violating the Constitution in accordance with the provisions of Article 47.
(iii) Any other relief that the Court may consider proper when it allows the petition with costs."
3. ' The above petition alongwith several other petitions, wherein proclamation of emergency in the country under Article 232(1) and suspension of right to move the Courts for enforcement of fundamental rights, under Article 232(2) of the Constitution by the President of Pakistan, on 28-5- 1998, were challenged, came up for hearing before a Bench of this Court headed by the Hon'ble Chief- Justice of Pakistan on 15-6-1998. The petitioner, who was appearing in person, argued before the honourable Bench that the expression "any Court" used in clause (2) of Article 232, of the Constitution did not refer to Supreme Court of Pakistan. The learned Judges of the Bench after hearing the petitioner came to the conclusion that the contention of the petitioner was different from the points raised in the other petitions and accordingly, passed the following order:-- "The petitioner is present in person. He has not contested the power of the President to issue the Proclamation under clause (1) of Article 232, or to pass an Order under clause (2) of Article 233, of the Constitution suspending the Fundamental Rights. His contention is that in clause (2) of Article 233 of the Constitution the expression 'any Court' used does not refer to the Supreme Court. In other words, his submission is that the expression ' any Court' referred to above does not include the Supreme Court and hence the Supreme Court in spite of the issuance of the above Proclamation under clause (1) of Article 232 and the Order under clause (2) of Article 233 of the Constitution, has the jurisdiction to entertain the Constitutional Petition under Article 184(3) of the Constitution.
4. ' The above contention is somewhat different from the points urged in the other three, Constitutional Petitions and, therefore, this petition is to be separated from the other three petitions.
5. Notice of this petition may also be issued to the learned Attorney-General on the question of maintainability of the above petition. Adjourned to a date in office."
6. The above petition has, accordingly, been fixed before us for hearing. The petitioner has referred to several Articles of the Constitution in an attempt to show that the expression "any Court" used in Article 233 (2) of the Constitution does not include Supreme Court of Pakistan. The learned Deputy Attorney-General, who is appearing on Court notice, on the other hand, contended that the controversy raised in the above petition is only academic in nature now as this contention was raised by the petitioner in connection with the maintainability of the petition under Article 184(3), of the Constitution which was filed to question the validity of the Proclamation of Emergency and suspension of the right to move the Courts to enforce fundamental rights which has since been decided by this Court, in the case of Farooq Ahmad Khan Leghari v. Federation of Pakistan (PLD 1999 SC 57).
7. ' The contention of the learned Deputy Attorney-General is not without force. We have already reproduced the reliefs claimed by the petitioner in the above petition. In our view, none of the reliefs claimed by the petitioner can be granted in the changed circumstances.
8. ' The question of maintainability of petition under Article 184(3) of the Constitution, to question the validity of proclamation of the President issued under Article 232 of the Constitution has been decided by this Court in the case of Farooq Ahmed Khan Leghari v. Federation of Pakistan (supra), as follows:--
(17) It seems that .By now it is a well-entrenched proposition of law that notwithstanding the ouster of jurisdiction of the Court and the fact that the formation of opinion in terms of the relevant provision of the Constitution or of a statute is to be based on the satisfaction of a State functionary mentioned therein, the Court has the jurisdiction to examine whether the prerequisites provided for in the relevant provision of the Constitution/statute for the exercise of the power thereunder existed, when the impugned order was passed. If the answer of the above question is in the negative, the exercise of power will be without jurisdiction calling for interference by the Court."
9. ' In view of the above enunciation of law by this Court, the contention of the petitioner that whether the expression "any Court" used in Article 233(2) of the Constitution refers to this Court or not, is now only 'academic in nature.
10. ' The petitioner has prayed in the above petition that his H.R. Case No,793 of 1997, be taken up immediately. This prayer of the petitioner has also become infructuous as H.R. No,793 of 1997, alongwith C.M.A. No,893 of 1998, has been disposed of by a Bench of this Court on 13-11-1998, and the decision is reported as. Shahid Orakzai v. Mian Muhammad Nawaz Sharif (PLD 1999 SC 46).
11. ' In so far the prayer of the petitioner that the 'Fundamental Rights listed in Article 233(1) of the Constitution which, in the view of this Court does not tend to harm the national security be restored forthwith' is concerned the same also stands decided by the decision of this Court Farooq Ahmad Khan Leghari's case (supra), as under:- "(47)In the present case the President passed first order under clause (2) of Article 233 of the Constitution on 28-5-1998, providing the right to move any Court including a High Court and the Supreme Court for the enforcement of all Fundamental Rights conferred by Chapter 1 of Part II of the Constitution and all proceedings pending in a Court which were for the enforcement or involving determination of any question as to the enforcement of any of the said rights, shall remain suspended for the period during which the said Proclamation was to remain in force.
12. ' After that on 13-7-1998, the President passed another order under the above provision of the Constitution providing that in the said order (i.e, the order of 28th May, 1998), in the third paragraph for the words all the Fundamental Rights conferred by Chapter 1 of Part II', the words and figures 'the Fundamental Rights provided for in Articles 10, 15, 16, 17, 18, 19, 23, 24 and 25' shall be substituted. It may be mentioned that the wording of clause (1) of Article 233 of the Constitution indicates that it is not mandatory that whenever a Proclamation of Emergency is issued under clause (1) of Article 232 of the Constitution, an order under the above clause is to follows. The use of the words ' for the enforcement of such of the Fundamental Rights...' as may be specified in the Order shows that the President is required to apply his mind to the question, whether any order under above clause is warranted. If so, to what extent. He is expected to make efforts to see that there should be minimum disturbance of the Fundamental Rights of the citizens and the enforcement of those Fundamental Rights is to be suspended which have direct nexus with the object to meet the situation mentioned in clause (1) of Article 232 successfully. In the aforesaid first order, dated 28-5- 1998 the enforcement of all the Fundamental Rights including relating to prohibition of slavery and freedom of religion was suspended. This demonstrates that the above order was passed on the assumption that the same was mandatory. In the second order, dated 13-7-1998, certain Fundamental Rights have been omitted.
13. ' It may be observed that the effect of issuance of a Proclamation under clause (1) of Article 232, is that by virtue of clause (1) of Article 233 of the Constitution, the State is authorized to make any law or to take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 of the Constitution. The above second order, dated 13-7-1998 under clause (2) of Article 233 of the Constitution in fact added only three Articles, namely Article 10 (relating to the safeguard as to the arrest and detention), Article 23 (pertaining to provisions as to property) and Article 25 (relating to equality of citizens), which are hedged with qualifications. It may be stated that there are more than one statute to cater for the arrest and detention of undesirable elements. Article 24 which guarantees the right of property is already covered by the aforesaid clause (1) of Article 233 and Article 25 pertains to the equality of citizens but the same is subject to reasonable classification as held by this Court inter alia in the case I.A. Sharwani v. Government of Pakistan 1991 SCM R 1041. Prima facie, there was no need of any order under clause (2) of Article 233 of the Constitution.
(48) I am prompted to take above view inter alia for the following reasons:--
(i) That the above view fits in with above modern jurisprudential theory of proportionality.
(ii) That as a rule of interpretation, the Courts should make efforts to preserve the Fundamental Rights of the citizens while construing the Constitutional provisions. This aspect, I intended to deal with hereinafter, while touching upon the aforesaid second question in issue.
(iii) That those who have oath to protect the Constitution, particularly, the Judges of the Supreme Court and the High Courts are bound by their oath and duties to act so as to keep the provisions of the Constitution fully alive and operative, to preserve it in all respects, save from all defects or harm and to stand firm in defence of its provisions against attack of any kind as held by this Court in the case of Fazalul Quader Chaudhry (supra), in which the view taken is in line with the above Constitutional mandate.
(iv) That even in spite of suspension of the enforcement of certain Fundamental Rights under clause (2) of Article 233 of the Constitution, Article 4 thereof, remains fully operative which lays down that "To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
14. In particular...
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do.' ' as held by Salahuddin Ahmad, J. Of this Court in the case of Manzoor Ilahi (supra)
15. ' I am, therefore, of the view that the suspension of enforcement of the above Fundamental Rights when under clause (1) of Article 233 the State had already acquired power to make any law or to take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 of the Constitution, was not justified and warranted by law and, thus, the same was of no legal effect."
16. The last prayer in the above petition is that the President of Pakistan be penalized for violating the Constitution in accordance with the provision of Article 47 of the Constitution. The prayer is totally misconceived. Firstly just for the reason that the Court has struck down any action of the President partially or wholly on the ground that the action is not in accordance with the provisions of the Constitution, it cannot be held that the President is guilty of the charge of violating the Constitution.
17. Secondly, Article 47 of the Constitution invoked by the petitioner for action against the President of Pakistan reads as follows:-- "(47)(1) Notwithstanding anything contained in the Constitution, the President may, in accordance with the provisions of this Article, be removed from office on the ground of physical or mental incapacity or impeached on a charge of violating the Constitution or gross misconduct.
(2) Not less than one-half of the total membership of either House may give to the Speaker of the National Assembly or, ,as the case may be, the Chairman written notice of its intention to move a resolution for the removal of, or, as the case may be, to impeach, the President; and such notice shall set out the particulars of his incapacity or of he charge against him.
(3) If a notice under clause (2) is received by the Chairman, he shall transmit it forthwith to the Speaker.
(4) The Speaker shall, within three days of the receipt of a notice under clause (2) or clause (3), cause a copy of the notice to be transmitted to the President.
(5) The Speaker shall summon the two Houses to meet in a joint sitting not earlier than seven days and not later than fourteen days after the receipt of the notice by him.
(6) The joint sitting may investigate or cause to be investigated the ground or the charge upon which the notice is founded.
(7) The President shall have the right to appear and be represented during the investigation, if any, and before the joint sitting.
(8) If, after consideration of the result of the investigation, if any, a resolution is passed at the joint sitting by the votes of not less than two-thirds of the total membership of Majlis-e-Shoora (Parliament) declaring that the President is unfit to hold the office due to incapacity or is guilty of violating the Constitution or of gross misconduct, the President shall cease to hold office immediately on the passing of the resolution."
18. A reading of the above Article of the Constitution would show that the procedure prescribed therein for removal of President cannot be enforced through Court proceedings.
19. ' As a result of the above discussion, the petition is dismissed.