ISLAMABAD - Apprehending extra-constitutional measures from some authorities, in view of the PTI and PAT marches, the Supreme Court Friday directed all the state institutions and functionaries to refrain from acting in any unconstitutional or illegal manner.
A five-member bench, headed by Justice Nasirul Mulk and comprising Justice Jawwad S Khawaja, Justice Mian Saqib Nisar, Justice Asif Saeed Khan Khosa and Justice Mushir Alam, was constituted to hear the constitutional petition of Supreme Court Bar Association (SCBA) President Kamran Murtaza for restraining the state functionaries from taking any unlawful action in view of the present political scenario.
However, Justice Saqib Nisar, who will become Chief Justice of Pakistan in 2017, was not in the bench. A senior lawyer shared with the reporters in the SC premises that "the honourable judge was in Islamabad a day ago, as he had attended the Judicial Commission meeting, therefore his absence at this important juncture is matter of great concern".
SCBA President Kamran Murtaz had filed the petition under Article 184(3) contending the political standoff (created by Imran Khan's Azadi March and Tahirul Qadri's Inqlabi March) is adversely affecting all spheres of national life, and "such situation may prompt or embolden some authorities or functionaries to take undue advantage of the situation and to resort to some unconstitutional measures".
After hearing the arguments of the petitioner and the attorney general, the apex court in its two pages order directed all the state authorities and functionaries to act only in accordance with the constitution and the law who shall be guided by the principles of constitution and law enunciated in the case of Sindh High Court Bar Association v Federation of Pakistan (PLD 2009 SC 897); and they are restrained from acting in any manner unwarranted by the constitution and the law.
The apex court in the Sindh High Court Bar Association (SHBA) judgment, which is also famous as July 31 judgment, besides declaring November 3, 2007 Proclamation of Emergency, PCO and other orders issued by former dictator General (r) Pervez Musharraf as unconstitutional and ultra-vires of the constitution, had said: No judge of the superior judiciary shall offer any support in whatever manner to any unconstitutional functionary. “To defend, protect and uphold the constitution is the sacred function of the Supreme Court,” the July judgment said.
Some of the constitutional experts are of the view that there was nothing new in the order as the Article 6 of the Constitution refrains state functionaries from resorting to unconstitutional means. Justice (r) Tariq Mehmood shared with The Nation that a 7-member bench of the Supreme Court on Nov 3 had passed the restraining order but it failed to prevent imposition of emergency in the country and several judges of the superior judiciary took oath under PCO. However, Kamran Murtaza says, "It’s due to SHCBA judgment that Musharraf is now facing high treason trial in the Special Court."
During the proceeding, Attorney General Salman Butt appeared before the court on behalf of the federation and read out detailed judgment of the Lahore High Court, announced on Thursday. The LHC order refrained PTI and PAT from launching marches or holding sit-in in Islamabad in any unconstitutional way. The AGP urged the court to pass an order that no unconstitutional steps be taken by anyone. He supported the petition saying that the PTI and PAT leaders were making illegal demands.
The chief justice said that political demands could be made. Justice Jawwad S Khawaja remarked that demands could be made to change the constitutional system but for that legal course should be adopted. Justice Nasirul Mulk questioned the petitioner and the AGP what kind of order they wanted from the court. Upon that Justice Asif Saeed Khan Khosa said in light of the historical perspective the petitioner's prayer is valid. He said that no high treason act should be committed and Nov 3 type of incident must not happen. Justice Jawwad said that every organ of the state is bound to act in accordance with the principles laid down in the July 31, 2009 judgment.
As the court was about to announce the order, Ibrahim Satti – who was not the party in the case or any other cases that the court heard on Friday – reached the courtroom. Ibrahim Satti had represented MI and ISI in many cases. The court issued notice to the federation and to the Attorney General for Pakistan under Order XXVII-A Rule1. The hearing was adjourned until August 18.