ISLAMABAD: The detailed judgment of the Supreme Court on Yusuf Raza Gilani’s disqualification is going to provide the required legal cover under the de facto doctrine to a large number of decisions taken by the ousted PM for fifty-two days during which he stood disqualified to hold the top office.
“If the two recent judgments of the apex court are any guide, the decisions taken by Gilani even when he was ineligible prime minister will be indemnified starting from April 26,” Fawad Chaudhry, advocate, who was special assistant to Gilani, told The News.
He pointed out that in its July 31, 2009 and December 16, 2009 rulings the Supreme validate several decisions taken by different authorities otherwise there would have been chaos all around.
This is the third judgment after these two, which has retrospect effect, Fawad Chaudhry said, adding that everything would be clear in the detailed order of the three-member bench headed by Chief Justice Iftikhar Muhammad Chaudhry.
Under the de facto doctrine and the doctrine of necessity, courts uphold the validity of decisions taken by authorities even when judicial forums hold their appointments illegal and unconstitutional and this, by itself, doesn’t vitiate the orders and directions issued by them during the specific period - in the case of Gilani from April 26 till June 19.
An important decision taken by Gilani in this period of illegality related to the appointment of seventeen judges of the Supreme Court, Lahore High Court and Balochistan High Court, which went through the constitutional process – clearance by the judicial commission and the parliamentary committee.
Another key decision is the federal budget passed by the National Assembly apart from issuance of a multitude of orders and directions pertaining to bureaucratic transfers, postings and appointments.
The detailed judgment will answer several questions that have arisen or are being discussed about the illegal incumbency of Gilani as prime minister for fifty-two days.In its July 31, 2009 verdict on the November 3, 2007 state of emergency and promulgation of the Provisional Constitution Order (PCO) by Pervez Musharraf, the Supreme Court validated the decisions taken by superior courts having even PCO judges.
It said that any judgments delivered or orders made or any decrees passed by any bench of the Supreme Court or of any of the high courts which comprised or which included the PCO judges whose appointments had been declared void ab initio, are protected.
The judgment said that since the Constitution authorises only the Parliament to determine the number of Supreme Court judges and since the Parliament had so done through the Supreme Court (Number of Judges) Act XXXIII of 1997, therefore, the increase in the strength of the judges through the Finance Act of 2008 which Act was not passed by the Parliament but was passed only by the National Assembly would be deemed to be valid only for financial purposes and not for the purposes of Article 176 of the Constitution. It is resultantly declared that the number of judges of the Supreme Court for purposes shall continue to remain sixteen.
However, the judgment said that the ordinances promulgated by the president or a governor of a province before Nov 3, 2007 which were given permanence by the PCO as also the Ordinances issued by the president or a governor between Nov 3 and Dec 15, 2007, which were also, like-wise given permanence through the same instrument and which legislative measures along with the PCO had been validated by a judgment delivered in the Tikka Iqbal Mohammad Khan’s case stand shorn of their purported permanence.
The judgment said that since on account of the said judgment in Tikka Iqbal Mohammad Khan’s case purporting to be a judgment of the Supreme Court, the presumption that these ordinances were valid laws not requiring approval of the Parliament or the respective provincial assemblies in terms of Article 89 or 128 of the Constitution and since it is today that the apex court has attributed invalidity to these legislative instruments, therefore, the period of 120 days and 90 days mentioned respectively in the Constitution, would be deemed to commence to run from today and steps may be taken to place these Ordinances before the Parliament or the respective provincial assemblies in accordance with law.
The judgment said that Justice Abdul Hameed Dogar not being a constitutional and a valid consultee, the notifications extending the term of office of two judges of the Sindh High Court as additional judges of Sindh are declared to be unconstitutional and of no legal effect.