Chief Justice says that any action of the armed forces taken without direction from the federal government would be unconstitutional, illegal, void ab initio

Chief Justice of Pakistan (CJP) Iftikhar Muhammad Chaudhry reminded the country’s armed forces on Saturday their functions as prescribed in the constitution, saying any action of the armed forces taken without direction from the federal government would be unconstitutional, illegal, void ab initio and consequently of no legal effect.
During his address to the visiting officers from National Defence University at the Supreme Court (SC), he recalled the SC verdict in the case of the Sindh High Court Bar Association vs The Federation of Pakistan to make it clearer that any illegal action of the armed forces would be unconstitutional and invite the wide and varied application of Article 6 to all who abrogate or attempt to abrogate or subvert the constitution. He added that the SC judgement had laid down that the assumption of power by an authority not mentioned in the constitution would be unconstitutional, illegal and void ab initio and not liable to be recognised by any court, including the apex court.
The CJP said the responsibility to interpret the constitution had been assigned to the SC. In the same judgement, he said, the SC had also added a new provision to the Code of Conduct prescribed for judges of the superior courts, prohibiting them from taking fresh oath on any instrument not in consonance with the constitution.He said keeping in view the importance of the armed forces, a complete chapter was introduced in the constitution which contained provisions for the command, oath and functions of the military. He said according to Article 245 of the constitution, the functions and role of the armed forces was, under the directions of the federal government, to defend Pakistan against external aggression or threat of war, and secondly, subject to law, act in aid of civil power when called upon to do so.
He told the visiting officers that the oath provided in the Third Schedule of the constitution bound every member of the armed forces to bear true faith and allegiance to Pakistan and uphold the constitution, which embodied the will of the people. Moreover, they were bound by the oath not to engage in political activities whatsoever and serve the country honestly and faithfully, as required by and under the law. The CJP said further that the constitution of any country was a supreme document that defined the composition and powers of various organs of the state and harmonised the relations between them. The constitution, he said, provided basic framework for governance of a country and its fundamental values. Various constitutions of the world provided different schemes for distribution of powers between the organs of the state, he said, adding that it was important for the state functionaries to be aware of the principles of the constitution and the law. He quoted an excerpt from Quaid-e-Azam’s address to the officers of Staff College, Quetta in 1948, in which he said: “The executive authority flows from the head of the government of Pakistan and, therefore, any command or orders that may come to you cannot come without the sanction of the executive head.”

He said further that the constitution provided for a system of separation of powers between the three organs: the legislature, executive and judiciary. Each organ was required to perform its functions to the fullest extent and avoid intervention in the domain of the other, he added. He said this was how the business of the state could be conducted in an organised and coherent manner and peace and security could be maintained in the country.
He said there was a separate part of the constitution dealing with the composition and jurisdiction of the country’s judicature. However, under the scheme of the constitution, the judiciary had not been defined as a part of the state, he added.
“The Constitution of Pakistan provides the system of checks and balances between the organs of the state. The judiciary has been given the power of judicial review of executive and legislative actions. The constitution has guaranteed the protection of fundamental rights including right to life, safeguard as to arrest and detention, protection of property, right to information, right to education and guarantee of freedom of movement, association, speech, trade, business or profession. The said object of the constitution can only be achieved through an independent judiciary. The constitution guarantees that the independence of judiciary shall be fully secured and for this purpose it must be separated from the executive,” said Chaudhry.

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