Shahid Batalvi Speaks

with apology to Black Elk for he speaks first

For once, PLD 1972 SC 139 has been put to good use

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On Saturday August 1, 2009 a fourteen member bench of the Supreme Court of Pakistan disposed of constitutional petitions 9/2009 and 8/2009 with a single judgment. The following are clauses (i), (ii), (xi), (xii) of paragragh 22 of this judgment.
 

i)       the Chief Justice of Pakistan; the Judges of the Supreme Court of Pakistan; any Chief Justice of any of the High Courts and the Judges of the High Courts who were declared to have ceased to hold their respective offices in pursuance of the afore-mentioned alleged judgments or any other such judgment and on account of the instruments mentioned in para 21 above, shall be deemed never to have ceased to be such Judges, irrespective of any notification issued regarding their reappointment or restoration; 

  

ii)      it is declared that the office of the Chief Justice of Pakistan never fell vacant on November 3, 2007 and as a consequence thereof it is further declared that the appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan was un-constitutional; void ab initio and of no legal effect; Provided that subject to whatever is contained hereinafter, the said un-constitutional appointment of Mr.Justice Abdul Hameed Dogar as the Chief Justice of Pakistan shall not affect the validity of any administrative or financial acts performed by him or of any oath made before him in the ordinary course of the affairs of the said office;

 

xi)     that the court acknowledges and respects the mandate given by the sovereign authority i.e. electorate to the democratically elected Government on 18th February, 2008 and would continue to jealously guard the principle of tricotomy of powers enshrined in the Constitution, which is the essence of the rule of law. Any declaration made in this judgment shall not in any manner affect the General Elections held and the Government formed as a result thereof i.e. the President, the Prime Minister, the  Parliament, the Provincial Governments, anything done by these institutions in the discharge of their functions. These acts are fully protected in terms of the age old of principle of Salus Populi Est Suprema Lex reflected in PLD 1972 SC 139.

 

xii)    Before parting with the judgment, we would like to reiterate that to defend, protect and uphold the Constitution is the sacred function of the Supreme Court. The Constitution in its preamble, inter alia, mandates that there shall be democratic governance in the country, “wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed; …………….. wherein the independence of judiciary shall be fully secured.” While rendering this judgment, these abiding values have weighed with us. We are sanguine that the current democratic dispensation comprising of the President, Prime Minister and the Parliament shall equally uphold these values and the mandate of their oaths.

 
For those who are unfamiliar with PLD 1972 SC 139, read the following:
PLD 1972 SC 139 and the Pakistani Judiciary
 

Societies and civil institutions evolve through such social constructs and form the basis of human evolution.

 
My father would have been proud of this judiciary, this fifteen member bench and its ability and courage to pass this judgment.
 
A majority of the judiciary, including the current Chief Justice of the Supreme Court of Pakistan, are his ex-students from his 44 year tenure at the Punjab University Law College. As a lawyer, and in a courtroom, he extended the respect that was due towards any justice of the court, irrespective of his personal acquaintance with the individual, as such.
 
September 25, 2009

 

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Written by Shahid Batalvi

September 25, 2009 at 6:29 pm

Posted in Analysis

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