Sitting Panel: Sh. Riaz Ahmed, C. J., Munir A. Sheikh, Iftikhar Muhammad Chaudhry, Qazi Muhammad Farooq, Mian Muhammad Ajmal, Syed Deedar Hussain Shah, Hamid Ali Mirza, Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

Summary:

This consolidated case involved multiple constitutional petitions challenging the legality and vires of the Referendum Order, 2002 (Chief Executive’s Order No. 12 of 2002), as well as the Chief Executive’s Orders No. 2 and 3 of 2001, through which General Pervez Musharraf assumed the office of President. The petitioners, including Qazi Hussain Ahmad and the Supreme Court Bar Association, argued that the Referendum Order was unconstitutional for electing a President (which should be done by an electoral college), that General Musharraf’s assumption of the Presidency was unlawful, and that the challenged orders violated the 1973 Constitution and the Supreme Court’s earlier judgment in Syed Zafar Ali Shah’s case (PLD 2000 SC 869), which had validated the 1999 military takeover for a transitional period.

The Supreme Court dismissed the petitions, upholding the validity of the Referendum Order and General Musharraf’s assumption of the Presidency. The Court reiterated that the Proclamation of Emergency and the Provisional Constitution Order, 1999 (PCO), validated by the Syed Zafar Ali Shah case, empowered the Chief Executive to issue such legislative measures. It clarified that the Referendum Order was not issued under Article 48(6) of the Constitution but derived its authority from the extra-constitutional powers validated by the Court for the transitional period. The Court emphasized that General Musharraf’s assumption of the Presidency was a valid exercise of these powers, and that a writ of quo warranto could not be granted due to laches and the collateral nature of the challenge. The Court deemed questions regarding the future consequences of the referendum as “purely academic, hypothetical and presumptive in nature” and therefore declined to address them at that stage.

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