Last Updated: Monday August 13, 2007
PLD 1988 Supreme Court 416
Present: Muhammad Haleem, C.J. , Aalam Riaz Hussain, Muhammad Afzal Zullah, Nasim Hassan Shah, Abdul Kadir Shaikh, Shafiur Rahman, Zaffar Hussain Mirza, Javid Iqbal, Saad Saood Jan, Ali Hussain Qazilbash and Usman Ali Shah, JJ
Miss BENAZIR BHUTTO ‑‑ Petitioner
versus
FEDERATION OF PAKISTAN and another ‑‑Respondents
Constitutional
Petition No. 2‑R of 1987, decided on
Per Muhammad Haleem, C.J.; Aslam Riaz ‑ Hussain, Muhammad Afzal Zullah, Nasim Hasan Shah, Abdul Nadir Shaikh, Shafiur Rahman, Zaffar Hussain Mirza, Javid Iqbal, Saad Saood Jan, Ali Hussain Qazilbash and Usman Ali Shah, JJ. agreeing‑‑
(a) Political Parties Act (III of 1962)‑‑
--‑Preamble‑‑Object of the Act‑‑History and analysis of amendments in the Act.
(b) Constitution of
‑‑‑Arts. 8, 184(3) & 199(1)(c)‑‑Vires of an Act can be challenged if its provisions are ex facie discriminatory in which case actual proof of discriminatory treatment is not required to be shown‑‑Where the Act is not ex facie discriminatory but is capable of being administered discriminately then the party challenging it has to show that it has actually been administered in a partial, unjust and oppressive manner.
When the impugned legislation by reference to its provisions is ex facie violative of Fundamental Rights of an individual or political parties or associations or unions, proceedings lie for the enforcement of those rights irrespective of the fact whether any prejudicial order has been passed by the Executive under the law as the Constitution treats the Fundamental Rights as superior to ordinary legislation and for that reason sub‑Articles (1) and (2) of Article 8 of the Constitution have been enacted which clearly reflect the object and intention of the framers of the Constitution, that is, to keep the Fundamental Rights at a high pedestal and to save their enjoyment from legislative infractions. Sub‑Article (1) of Article 8 lays down that any law in so far as it is inconsistent with the rights conferred by this Chapter shall, to the extent of such inconsistency, be void. This could not have been without a purpose but to preserve and protect the Fundamental Rights. Sub‑Article (2) of Article 8 places a restriction on the Legislature not to make law which takes away or abridges the rights so conferred, and any law made in contravention of this clause shall, to the extent of such contravention, be void. Article 199(1)(c) authorises the High Court to enforce the Fundamental Rights of an aggrieved person and to declare that so much of the law which is inconsistent with the Fundamental Rights shall be void. Therefore, there is the power to declare the law to be void and the power to enforce the Fundamental Rights which are violated by the law itself. Article 184(3) of the Constitution empowers a Supreme Court to enforce the Fundamental Rights where the question of public importance arises in relation thereto. And if looked at from this angle it is hardly of any importance whether the Executive has passed a prejudicial order or not when the infraction of the Fundamental rights takes place by the operation of the law itself. In this context what would be relevant would be the language of the provisions of the impugned Act itself. It will then not be a question of the Court merely granting a declaration as to the validity or invalidity of law i n the abstract.
An enactment may immediately on its coming into force take away or abridge the Fundamental Rights of a person by its very terms and without any further overt act being done. In such a case the infringement of the Fundamental Right is complete co instanti the passing of the enactment and, therefore, there can be no reason why the person so prejudicially affected by the law should not be entitled immediately to avail himself of the constitutional remedy. To say that a person, whose Fundamental Right has been infringed by the mere operation of an enactment, is not entitled to invoke the jurisdiction of Supreme Court for the enforcement of his right, will be to deny him the benefit of a salutary constitutional remedy which is itself his Fundamental Right.
The infractions alleged cannot be regarded as seeking a declaration in the air or asking the Court to decide, in abstract, and for that matter hypothetical or contingent questions.
McGabe v . Atchison (1914) 285 U S 151; S.P. Gupta and others v. President of India and others A I R 1982 S C 149; Standard Vacuum Oil Company v , Trustees of the Port of Chittagong PLD 1961 Dacca 289; Saeed Khan v. Chairman, District Council of Bannu PLD 1967 Pesh. 347; Asma Jilani v. Government of the Punjab PLD 1972 SC 139; Muhammad Boots and 77 others v. Commissioner, Sargodha Division PLD 1973 Lah. 580; Hakim Muhammad Anwar Babri v. Pakistan PLD 1973 Lah.817; National Steel Rolling Mills v. Province of West Pakistan 1968 SCMR 317; Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457; Abanindra Kumar Maity v. A.K.Majumdar AIR 1956 Cal. 273; Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223; K.K. Kochunni v. State of Madras AIR 1959 SC 725; Jibendra Kishore v. Province of East Pakistan PLD 1957 SC 9; Messrs East and West Steamship Company v. Pakistan PLD 1958 SC (Pak.) 41 and Waris Meah v. The State PLD 1957 SC (Pak.) 157 ref.
(c) Constitution of
‑‑‑Art. 184(3) & 199(1)(c)‑‑Political Parties Act (111 of 1962), Ss.3‑B and 3‑C ‑‑Interpretation of Ss.3‑B t& 3‑C of the Act‑‑" Aggrieved party"‑‑Non‑registration of political party‑‑Penalty automatically follows and the political party suffers its political extermination‑‑Political party, therefore, is "aggrieved party" .
Reading subsections (1) and (6) of section 3‑B of the Political Parties Act, 1962 together the conclusion is irresistible that in the case of non‑registration the penalty automatically follows and the political party suffers its political extermination.
The manner in which section 3‑C is worded is, in effect, an application of subsection (3) of section 3‑B again leaving the matter of participation of the political party in the election to the satisfaction of the Election Commission who may, in its discretion, either allow or refuse its participation. Besides, section 3‑C of the Act was enacted for a limited purpose, that is, for the forthcoming elections and those not having been held, it outlived its purpose and is now no longer of any effect, and by no stretch of imagination it negates the provisions of section 3‑B or provides an alternative for non‑registration under that section. This being so, it cannot be doubted that the Political Party is an "aggrieved party".
(d) Constitution of
‑‑‑Arts.184(3) & 199‑‑Whether jurisdiction conferred under Art.184(3) co terminus with that of Art.199 requiring application to be made by an "aggrieved party" ‑‑Legislative history and analysis of Art.184(3; with a comparative study of similar provisions of old Constitutions of Pakistan.
(e) Constitution of
‑‑‑Arts. 184(3) & 199‑‑Interpretation of Art.184(3)—Principles ‑‑"Public importance" –Connotation ‑‑Enforcement of Fundamental Rights by Supreme Court‑‑Scope‑‑Supreme Court, can exercise its power to issue the writ only when element of "public importance" is involved while Art.199(1)(c) has a wider scope as there is no such limitation‑Trappings of Art.199(1)(a) and (1)(c) need not be read into Art.184 (3)‑‑Exercise of power of Supreme Court under Art.184(3) is not dependent only at the instance of the "aggrieved party" in the context of adversary proceedings ‑‑Traditional rule of locus standi can be dispensed with and procedure available in public interest litigation can be made use of, if it is brought to the Court by the person acting bona fide‑‑Provisions of Art .184(3), therefore, have provided abundant scope for the enforcement of the Fundamental Rights of an individual or a group or class of persons in the event of their infraction and it would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class actions from case to case.
It is only when the element of "public importance" is involved that the Supreme Court can exercise its power to issue the writ while sub‑Article 1(c) of Article 199 has a wider scope as there is no such limitation therein.
The opening words "without prejudice" in Article 184(3) mean only not affecting, saving or excepting and when read with the words following thereafter, "to the provisions of Article 199", the expression means no more than to save the provisions of Article 199 without, in any way, superimposing itself on the power of the Supreme Court to decide a question of public importance relating to the enforcement of any of the Fundamental Rights. What it aims at is that it leaves the power of the High Court under Article 199 intact. It is for the party who is affected to choose which of the two forums it wishes to invoke, and if it be the Supreme Court then the power exerciseable is subject to the limitation under Article 184(3), that is, that the element of "public importance" must be involved in the enforcement of Fundamental Rights. The power conferred on the Supreme Court by Article 184(3) is distinct and has its origin in Article 22 of the 1956 Constitution and is exerciseable on its own terminology. The impression, that the trappings of sub‑Articles 1(a) and 1(c) of Article 199 are also to be read into this Article appears to be without substance as there are no words in Article 184(3) to incorporate them except, of course, the words "make an order of the nature mentioned in the said Article", which are specifically referable to the nature of the order in sub‑Article 1(c) of Article 199 giving such directions as may be appropriate for the enforcement of any of the Fundamental Rights. The nature of the order, however, is the end‑product of the judicial power exercised. Therefore, it ,will not control or regulate, in any way, the exercise of power so as to make it exerciseable only at the instance of the "aggrieved party" in the context of adversary proceedings.
The plain language of Article 184(3) shows that it is open‑ended. The Article does not say as to who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved or whether it is confined to the enforcement of the Fundamental Rights of an individual which are infracted or extends to the enforcement of the rights of a group or a class of persons whose rights are violated. In this context the question arises whether apart from the non‑incorporation of sub‑Articles 1(a) and 1(c) of Article 199, the rigid notion of an "aggrieved person" is implicit in Article 184(3) as because of the traditional litigation which, of course, is of an adversary character where there is a lis between the two contending parties, one claiming relief against the other and the other resisting the claim. This rule of standing is an essential outgrowth of Anglo‑Saxon jurisprudence in which only the person wronged can initiate proceedings of a judicial nature for redress against the wrong‑doer. However, in contrast to it, this procedure is not followed in the civil law system in vogue in some countries. The rationale of this procedure is to limit it to the parties concerned and to make the rule of law selective to give protection to the affluent or to serve in aid for maintaining the status quo of the vested interests. This is destructive of the rule of law which is so worded in Article .1 of the Constitution as to give protection to all citizens. The inquiry into law and life cannot, be confined to the narrow limits of the rule of law in the context of constitutionalism which makes a greater demand on judicial functions. Therefore, while construing Article 184(3), the interpretative approach should not be ceremonious observance of the rules or usages of interpretation, but regard should be had to the object and the purpose for which this Article is enacted, that is, this interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution, namely, the Objectives Resolution (Article 2‑A ), the Fundamental Rights and the Directive Principles of State policy so as to achieve democracy, tolerance, equality and social justice according to Islam.
In this milieu, the adversary procedure, where a person wronged is the main actor if it is rigidly followed, for enforcing the Fundamental Rights, would become self‑defeating as it will not then be available to provide "access to justice to all" as this right is not only an internationally recognized human right but has also assumed constitutional importance as it provides a broad‑based remedy against the violation of human rights and also serves to promote socio‑economic justice which is pivotal in advancing the national hopes and aspirations of the people permeating the Constitution and the basic values incorporated therein, one of which is social solidarity, i.e., national integration and social cohesion by creating an egalitarian society through a new legal order.
This ideal can only be achieved under the rule of law by adopting the democratic way of life as ensured by Fundamental Rights and Principles of Policy. The intention of the framers of the Constitution is to implement the principles of social and economic justice enshrined in the Principles of Policy within the framework of Fundamental Rights. Chapters I and II of Part II of the Constitution which incorporate Fundamental Rights and directive principles of State policy, respectively occupy a place of pride in the scheme of the Constitution, and these are the conscience of the Constitution, as they constitute the main thrust of the commitment to socio‑economic justice. The directive principles of State Policy are to be regarded as fundamentals to the governance of the State but they are not enforceable by any Court. Nonetheless,‑ they are the basis of all legislative and executive actions by the State for implementing the principles laid down therein. As the principles of democracy are not based on dogmas and also do not accept the theory of absolutes in any sphere of socio‑economic justice, therefore, the authors of the Constitution, by enumerating the Fundamental Rights and the Principles of Policy, apparently did so in the belief that the proper and rational synthesis of the provisions of the two parts would lead to the establishment of an egalitarian society under the rule of law. However, while implementing the directive Principles of Policy, the State should not make any law which takes away or abridges the Fundamental Rights guaranteed by Chapter I in view of the embargo placed by Article 8(1) and (2). Necessarily, therefore, the directive principles of State Policy have to conform to and to operate as subsidiary to the Fundamental Rights guaranteed in Chapter 1, otherwise the protective provisions of the Chapter will be a mere rope of sand. Law, in the achievement of this ideal, has to play a major role, i.e., it has to serve as a vehicle of social and economic justice which this Court is free to interpret.
Articles 3, 37 and 38 of the Constitution juxtapose to advance the cause of socio‑economic principles and should be given a place of priority to mark the onward progress of democracy. These provisions become in an indirect sense enforceable by law and thus, bring about a phenomenal change in the idea of co‑relation of Fundamental Rights and directive principles of State Policy. If an egalitarian society is to be formed under the rule of law, then necessarily it has to be by legislative action in which case it would be harmonious and fruitful to make an effort to implement the socio‑economic principles enunciated in the Principles of Policy, within the framework of the Fundamental Rights, by enlarging the scope and meaning of liberties, while judicially defining them and testing the law on its anvil and also, if necessary, with the co‑related provisions of the Objectives Resolution which is now a substantive part of the Constitution.
The
liberties, in this context, if purposefully defined, will serve to guarantee
genuine freedom; freedom not only from arbitrary
restraint of authority, but also freedom from want, from poverty and
destitution and from ignorance and illiteracy. That this was the purport of
the role of the rule of law which was affirmed at
"Adequate levels of living are essential for full enjoyment of individual's freedom and rights. What is the use of freedom of speech to under‑nourished people or of the Freedom of Press to an illiterate population. The rule of law must make for the establishing of social, economic and cultural conditions which promote men to live in dignity and to live with aspirations"
The Court will be in a position, if the procedure is flexible, to extend the benefits of socio‑economic change through this medium of interpretation to all sections of the citizens.
This approach is in tune with the era of progress and is meant to establish that the Constitution is not merely an imprisonment of the past, but is also alive to the unfolding of the future. It would thus be futile to insist on ceremonious interpretative approach to constitutional interpretations as hitherto undertaken which only served to limit the controversies between the State and the individual without extending the benefits of the liberties and the Principles of Policy to all the segments of the population.
After all the law is not a closed shop and even in the adversary procedure, it is permissible for the next friend to move the Court on behalf of a minor or a person under disability, or a person under detention or in restraint. Why not then a person, if he were to act bona fide activise a Court for the enforcement of the Fundamental Rights of a group or a class of persons who are unable to seek relief from the Court for several reasons. This is what the public interest litigation /class action, seeks to achieve as it goes further to relax the rule on locus stands so as to include a person who bona fide makes an application for the violation of any constitutional right of a determined class of persons whose grievances go unnoticed and unredressed. The initiation of the proceedings in this manner will be in aid of the meaningful protection of the rule of law given to the citizens by Article 4 of the Constitution, that is, "(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan"
This Article does not say as to what proceedings should be followed, then whatever be its nature must he judged in the light of the purpose, that is, the enforcement of any of the Fundamental Rights. It is, therefore, permissible when the lis is between an aggrieved person and the Government or an authority to follow the adversary procedure and in other cases where there are violation of Fundamental Rights of a class or a group of persons who belong to the category as afore‑stated and are unable to seek redress from the Court, then the traditional rule of locus standi can be dispensed with, and the procedure available in public interest litigation can he made use of, if it is brought to the notice of the Court by the person acting bona fide. On the language of Article 184(3), it ::. needless to insist on a rigid formula of proceedings for the enforcement of the Fundamental Rights. If the framers of the Constitution had intended the proceedings for the enforcement of the Fundamental Rights to be in a strait‑jacket, then they would have said so, but not having done that, one would not read any constraint in it. Article 184(3) therefore, provides abundant scope for the enforcement of the Fundamental Rights of an individual or a group or class of persons in the event of their infraction. It would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class actions from case to case.
Now as to the nature of the order, Article 184(3) is worded to incorporate the order of the nature which the High Court can pass under Article 199(1)(c). Referring to it, it is worded in the widest possible terms which is a clear manifestation of the intention of the framers of the Constitution not to place any procedural technicalities in the way of the enforcement of Fundamental Rights, be it of an individual or group or class of persons.
Lastly is the consideration of the connotation of the expression "public importance" which is tagged to the enforcement of the Fundamental Rights as a precondition of the exercise of the power. This should not be understood in a limited sense, but in the gamut of the constitutional rights of freedoms and liberties, their protection and invasion of such freedoms in a manner which raises a serious question regarding their enforcement. Such matters can be viewed as of public importance, whether they arise from an individual's case touching his humor, rights of liberty and freedom, or of a class or a group of persons as they would also be legitimately covered by this expression.
In order to acquire public importance, the case must obviously raise a question which is of interest to, or affects, the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who is the subject‑matter of the case, may be of no particular consequence.
In all systems of law which cherish individual freedom and liberty, and which provide constitutional safeguards and guarantees in this behalf, any invasion of such freedom in circumstances which raise serious questions regarding the effectiveness and availability of those safeguards, must be regarded as a matter of great public importance.
Having regard to the connotation of the words "public importance" it will be for the Supreme court to consider in each case whether the element of "public importance" is involved in the enforcement of the Fundamental Rights irrespective of the individual's violations or the infractions of a group or a class of persons.
As provisions of Article 184(3) is open‑ended, the proceedings could either be maintained by an individual whose Fundamental Rights are infracted or by a person bona fide alleging infraction of the Fundamental Rights of a class or a group of persons, as there is no rigid incorporation of the notion of "aggrieved person.''
It is not correct that it is only an aggrieved party who can activise the proceedings for the enforcement of the Fundamental Rights under Articles 184(3) of the Constitution as by reason of the fact that the two provisions [ Art _184(3) and Art.199 1(a) 1(c)] are co terminus.
Ch. Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66; Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657 and Charanjit W Chowdhury v. The Union of India and others AIR 1951 SC 41 ref.
Charanjit
Lal v. Union of India AIR 1951 SC 41; Begum Nusrat Bhutto v. Chief of Army
Staff and Federation of Pakistan PLD 1977 SC 657 and Ch. Manzoor Elahi v.
Federation of Pakistan PLD 1975 SC 66 distinguished.
(f) Constitution of
‑‑Art. 184(3)‑‑Petition under Art.184(3)‑‑Similar matters on facts and law pending adjudication before High Courts‑‑Maintainability of petition under Art.184(3) before Supreme Court‑‑Rule of stare decisis‑‑Application.
As to the choice of the forum, it is no doubt correct that ordinarily the forum of the Court in the lower hierarchy should he invoked but that principle is not inviolable and genuine exceptions can exist to take it out from that practice such as in the case where there was a denial of justice as a result of the proceedings being dilatory.
As the human right norm is higher than the law then any violation and its consequent enforcement can only be controlled by an in‑built limitation in the provision itself. A rule of practice which has received recognition as a principle of law is not higher than the norm and the machinery for its enforcement, and, therefore, it cannot control judicial power so as to stultify it until, of course, the petitioner has herself, in the strict sense, elected to seek her remedy from a Court of lower hierarchy exercising concurrent jurisdiction. The reason is salutary that at one and the same time the petitioner cannot be allowed to invoke the two forums in regard to the same relief. She has to choose one or the other. However, there can also be an abuse of this practice if there is an indiscriminate filing of petitions by persons motivated to stultify the exercise of judicial power under Article 184(3) of the Constitution. How then the practice can be strictly adhered to deny to the citizen the remedy under this Article for seeking the enforcement of his Fundamental Rights. The measure of applicability of the practice has to be judged in the light of the particular facts and circumstances of each case.
In spite of a Judge's fondness for the written word and his normal inclination to adhere to prior precedents one cannot fail to recognise that it is equally important to remember that there is need for flexibility in the application of this rule, for, law cannot stand still nor can the Judges become mere slaves of precedents. The rule of stare decisis does not apply with the same strictness in criminal, fiscal and constitutional matters where the liberty of the subject is involved or some other grave injustice is likely to occur by strict, adherence to the rule.
Too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law.
The salutary practice of long standing as applied to the particular facts and circumstances of Ch. Manzoor Elahi's case PLD 1975 SC 66, cannot be invoked with any force to stultify the hearing of this petition.
Begum Zeb‑un‑Nisa v. Pakistan PLD 1958 SC (Pak.) 35; K.K. Koochunni v . State of Madras AIR 1959 SC 725; Daryao and others v. State of U.P. and others AIR 1961 SC 1477; Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66; Asma Jilani v. Government of the Punjab PLD 1972 SC 139 and Pir Bakhsh v. Chairman, Allotment Committee PLD 1987 SC 145 ref.
(g) Interpretation of statutes‑
‑‑‑ Repeal of amending Ordinances would not have the effect of disturbing the textual amendments in the parent Act.
(h) Political Parties Act (III of 1962)‑‑
‑‑‑Preamble‑‑Political
Parties (Amendment) Ordinance (XLII of 1979)‑Political Parties (Second
Amendment) Ordinance (LII of 1979)‑ Laws (Revision and Declaration)
Ordinance (XVIi of 1981). S.7‑‑General Clauses Act (X of 1897). S.6‑A‑‑Constitution
of
(i)
Constitution of
‑‑Art. 270‑A(l)‑‑Legislative background of Art.270‑A(1) with reference to constitutional history of Pakistan‑‑Scope, extent and meaning of Art.270‑‑A(1)‑‑Expressions "affirm", "adopt", "declare'', "notwithstanding any judgment of any Court" and "notwithstanding anything contained in the Constitution" occurring in Art.270‑A(1)--Meaning‑‑ Legislature owned the legal instruments and legal measures made between the specified dates as if enacted by itself so as to give validity and competency to those legal instruments and measures and while adopting principle of ratification such validity and competence was proclaimed‑‑Ouster of jurisdiction is accordingly complete and Court is left with no jurisdiction to strike off the laws without, in any way, affecting the judicial power to interpret the Constitutional provisions which cannot be denied.
Reading Article 270‑A(1), it is found that it is in two parts joined together by the conjunctive "and". The first part deals with the proclamation of the fifth day of July, 1977, legal instruments and all legal measures including Martial Law Regulations and Martial Law Orders made between the specified dates which are "hereby affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made by competent authority" and the second part deals with the ouster of the jurisdiction of Courts in terms: "notwithstanding anything contained in the Constitution shall not hp called in question in any Court on any ground whatsoever".
The word "adopt" is defined to mean "to approve, to take as one's own that which was not so before. It means "to make that one's own act which was not so originally, to accept; consent to, and put into effective operation; as in the case of constitutional amendment, ordinance. court rule, or by‑law". "Adopt" means "to take as one's own, to endorse, approve." The word "affirm" is defined to mean: "to assert confidently or positively, to ratify (a judgment); to conform or stand by " This, worst is defined to convey the meaning: "to ratify, make firm, to make a solemn and formal declaration." This word carries the same meaning, i.e., "to declare solemnly, to confirm or ratify a statement, belief, opinion, decision or judgment." The word "declare " was also used in the earlier constitutional provisions and also in this provision. It means "to make known, manifest. . ; to announce clearly some opinion or resolution" .
Having regard to the meanings which the words "affirm" "adopt" and "declare" convey, it is manifest that the legislature owned the legal instruments and legal measures made between the specified dates as if enacted by itself so as to give validity and competency to those legal instruments and measures. The principle of ratification was here adopted and such validity and competency was proclaimed. This principle belongs to the realm of the law of agency: "In the law of principal and agent, the adoption and confirmation by one person with knowledge of all material facts, of an act or contract performed or entered into in his behalf by another who at the time assumed without authority to act as his agent. Essence of "ratification" by principal of act of agent is manifestation of mental determination by principal to affirm the act, and this may be manifested by written word... In this respect there was a departure from the protection earlier given by the two constitutional provisions, namely, Article 281(1) of the Interim Constitution and Article 269(1) of the 1973 Constitution.
The next expression in this part which needs consideration is "notwithstanding any judgment of any Court". Obviously this expression could not have any reference to Asma Jilani's case as its effect was taken away by Article 281(1) of the Interim Constitution and it could only refer to Begum Nusrat Bhutto's case in which the 1973 Constitution was held to be the supreme law of the land subject to certain portions having been held in abeyance and the Chief Martial Law Administrator to have validly assumed power by means of extra Constitutional steps in the interest of the State and for the welfare of the people. But subsequently this judgment was superseded by the Provisional Constitution Order and its effect was therein nullified. It was, therefore, to avoid the effect of that judgment after the lifting of the Martial Law and the revocation of Provisional Constitution Order and the Laws (Continuance in force Order, 1977, that the expression "notwithstanding any judgment of any Court" was again used.
Coming now to the second part, the non obstante expression "notwithstanding anything contained in the Constitute " in the context in which it occurs is equivalent to saying 'that the provisions of the Constitution shall not be an impediment in ousting the jurisdiction of the Court qua the validity and competency of the legal measures. While on the one hand by this device the legislature has chosen to give wholesale validity and competency to the said legal measures as if it had enacted them and on the other by neutralising the constitutional impediments so as to render them immune from any attack on their validity and competency on any ground whatsoever. Having held so, the dictum laid down in Saeed Ahmad's case will be fully applicable. The ouster of jurisdiction is accordingly complete and the Court is left with no jurisdiction to strike off the laws without, in any way, affecting the judicial power to interpret the constitutional provision, which cannot be denied so long as the Court exists. It is worth mentioning the admirable words' of Chief Justice Hughes of the Supreme Court of United States of America: "We are under a Constitution, but the Constitution is what the judges say it is ...." (Columbia Law Review, Volume 49, p.201).
It is difficult to confine the expression "notwithstanding anything contained in the Constitution" only to the maker of the legal measures as this constitutional provision has to be read as a whole and both its parts have to be harmonised to give full meaning and effect to it.
So far as the ouster of jurisdiction of the Court is concerned, it is absolute and complete.
Miss Asma Jilani v. Government of the Punjab PLD 1972 SC 139: State v‑ Dosso PL D 1958 SC (Pak.) 533, State v Zia‑ur‑Rehman PLD 1973 SC 49; Federation of Pakistan v. Saved Ahmad PLD 1974 SC 151; Karamat Ali v. The State PLD 1976 SC 476; Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Begum Nusrat Bhutto v. Chief of Army Staff etc., PLC 1977 SC 657; Ballentine's Law Dictionary, Third Edn., pp. 36, 46: Black’s Law Dictionary, Fifth Edn., pp, 45, 55, 368, 1135; Chamber's Twentieth Century Dictionary, p.16 and Philips v. Eyre (1868) 4 KB 225 ref.
(j)
Constitution of
‑‑‑‑Art. 270‑A( 1)‑‑Constitutional validity given by Art.270‑A(1) is retroactive and is of a pattern of a curative or validating statute and must be understood and be operative in that context.
During the specified period, the Constitution was in abeyance and so were the Fundamental Right,,‑ Therefore, the power to enact the legal measures which was derives? from the proclamation of the fifth day of July, 1977. and the Law (Continuance in Force Order was without any limitation as to the subject of legislation. There was no occasion, however, for any conflict of the legal measures in the state of things then existing with any constitutional norm.
A curative act is a statute passed to cure defect in a prior law and has prospective operation. Retroactive operation will more readily be ascribed to legislation that is curative or legalising than to legislation which may disadvantageously though legally, affect past relations and transactions.
An invalid Act can be validated by subsequent statute of the competent legislative authority, if the validating statute authorises the doing of the act at the time when it was done. In the absence of such authorisation, the validation will be futile as that will only amount to an attempt to exercise a power ex hypothesis, which does not exist .
Having regard to the purpose of validation, the defects in the legal measures when enacted during the specified dates had to be cured in the state of things as they existed which, of course, did not include any violation of a constitutional norm; and validity in this context could not be said to have achieved anything more than this.
Black's Law Dictionary, Fifth Edn.,
p.1390; Pandit Ram Parkash v. Smt. Savitri Devi AIR 1958 Pb. 87; Moti Ram v.
Bakhwant Singh AIR 1968 Pb. and Haryana 141; Sutherland on Statutory
Construction, Vol. II, 3rd Edn. p.243 and Amalgamated Coalfields,
(k) Constitution of
‑‑Arts. 270‑A(1) & 8T‑Political Parties Act (III of 1962), Preamble‑Provision of Art.270‑A(1) has not given protection to the existing laws which are violative of Fundamental Rights‑‑Political Parties Act, 1962 has not been given validity against Constitutional violations.
Gazette of
(1) Constitution of
‑‑‑Art. 270‑‑A(2), (3) & (6)‑‑Application, scope and extent of Art. 270‑A(2)(3) & (6) highlighted.
(m) Interpretation of Constitution‑
‑‑Expression used in one provision of the Constitution cannot be lifted and superimposed on the other provision.
(n)
Constitution of
‑‑‑Art. 270‑A(6)‑‑Principle of omission from the repealed Act cannot be applied in the context of Art.270‑A(6) which manifests a clear intention to bifurcate the‑ existing laws into two categories.
Article 270‑A is a new provision which is differently worded in many respects from the earlier provisions giving constitutional validity. The principle of omission from the repealed Act cannot be applied here particularly in the context of sub‑Article (6) which manifests a clear intention to bifurcate the existing laws into two categories; one set getting constitutional protection by being specified in the Seventh Schedule and the other left over as ordinary laws amenable to correction by the ordinary procedure applicable to the amendment or repeal of the law by Legislature.
(o) Constitution of
‑‑‑Art. 270‑A(1) & (3)‑‑Measures to which validity has been given by Art.270‑A(1) are not prospective in operation.
The legal measures which have been given validity were enacted during the specified period and not all have survived so as to continue in force until altered, repealed or amended by the competent authority as enacted by sub‑Article (3) of Article 270‑A. If the legal measure is not itself in existence how can it operate prospectively. The test of the legal measures being prospective must be equally applicable to those which have survived and those which have not survived which is not the case here. In this connection sub‑Article (3) of Article 270‑A is itself a clue to the prospective operation of laws which are saved as it gives to them a continuity but not to those which are repealed. This is also against the principle of validation which only remedies the defect retrospectively but does not care‑for any future operation of the law.
Pakistan Tobacco Co. Ltd. v. Karachi Municipal Corporation PLD 1967 SC 241 and Chairman, District Council v. Ali Akbar 1970 SCMR 105 ref.
(p) Constitution of
‑‑‑Art. 270‑A(l), proviso‑‑Martial Law (Pending Proceedings) Order, 1985 (C MLA's No.107), paras 10 & 5‑‑Provisions of Art.270‑A(1), proviso limited the power of President and the Chief Martial Law Administrator to make only such Martial Law Regulations and Orders after the thirtieth day of September, 1985, which would facilitate or were incidental to the revocation of the Proclamation of the fifth day of July 1, 1977.
Proviso to Article 270‑A( 1) limits the power of the President and the Chief Martial Law Administrator to make only such Martial Law Regulations and Martial Law Orders after the thirtieth day of September, 1985, which would facilitate or were incidental to the revocation of the Proclamation of the fifth day of July, 1977. Therefore, the Legislature only gave validity to this extent and if they were to survive and operate as Martial Law Regulations and Martial Law Orders it would be against the purpose of legislation for it that event it would entrench the Martial Law rather than to facilitate the revocation of the proclamation of the Martial Law. There is also the further reason that if the Martial Law Regulations and Martial Law Orders were to survive then they would be in conflict with some of the paragraphs of Martial Law (Pending Proceedings) Order, 1985 and in particular paragraph 5 which could not be the intention of the maker.
In the expression "the provisions of this Order shall have effect", the keywords are "shall have effect'", which mean: "shall have legal effect". The purport of using these words is to give legal protection to the several provisions of the Order as a result of the change‑over from Martial Law to rule of law under the Constitution. This device was earlier adopted for the same purpose so as not to leave a vacuum.
Venkataramaiya's Law Lexicon, Second Edn., Vol. 3, p.2217 ref.
(q) Political Parties Act (III of 1962)‑‑
‑‑‑S. 2( c)‑‑"Political party"‑‑Definition‑‑Political party is defined as including a group or combination of persons who are operating for the purpose of propagating any political opinion or indulging in any other political activity and there is no elaboration of what political opinion or political activity means‑‑Importance of political parties in a Parliamentary democracy and its role for providing leadership for public offices through elections highlighted.
(r) Constitution of
‑‑‑Arts. 17, 16, 15, 18 & 19‑‑Political Parties Act (III of 1962), S.2(c)‑‑Political party‑‑ Constitution while guaranteeing the right to every citizen to form associations or unions also provided separately "to form or be a member of a political party" as its existence is essential for maintenance of other rights guaranteed to the individuals by the Constitution.
The framers of the Constitution while guaranteeing the right to every citizen to form associations or unions also provided separately "to form or be a member of a political party", as its existence is essential for the maintenance of other rights guaranteed to the individuals by the Constitution.
While
the rights guaranteed under sub‑Article (1) of Article 17, Constitution
of Pakistan (1973) were subject to "any reasonable restrictions imposed by
law in the interest of morality or public order", sub‑Article (2)
guaranteed "the right to form or be a member of a political party with the
further obligation to "account for the source of its funds in accordance
with law." The words "sovereignty or integrity of
The
Constitution, therefore, guarantees to every citizen, who is not in the service
of
In the original Article 17, the only power given to the State was to impose reasonable restrictions by law on the right of association in the interest of morality or public order and the right to form a political party was only hedged in with the condition of accounting for the source of its funds, but now it has been further provided that reasonable restrictions may also be imposed by law in the interest of the sovereignty and integrity of Pakistan.
Sub‑Articles (2) and (3) of Article 17 of the Constitution of Pakistan are, therefore, exceptional features of the 1973 Constitution. Freedom of association is one of the pillars of democracy. As such the international community gave recognition to it in Article 22 of the International Covenant on Civil and Political Rights, 1966, and so also this right is recognised by Article 11 of the European Convention on Human Rights, 1950.
Article 17(2) visualises plurality of political parties and so does the definition of the "Political Party" in the Act as plurality has a direct bearing to the Parliamentary system of Government. This right has a positive and a negative aspect. The words "right to form" in this sub‑Article are not only confined to the commencement of association but the right includes the right of continuance of the association as well.
It also includes a right not to alter by law its composition so as to allow members other than those who have voluntarily joined to form the association without the consent of the members nor can any member be compelled to withdraw from the membership of the association. The right also implies the right to refuse to belong to any political party if a person so desires. Here it is also necessary to emphasise that the conjoined rights of an association if it is formed cannot be different from the rights which can be claimed by individual citizens with which the association is composed.
Thus while the right to form political party is guaranteed under sub‑Article (2) of Article 17, the right of the members to meet is guaranteed by Article 16, the right to move from place to place is guaranteed by Article 15, the right to freedom of speech and expression is guaranteed by Article 19 and so on. This is so because the Fundamental Rights are guaranteed to the citizens as such and the association can lay claim to the Fundamental Rights guaranteed by the different Articles solely on the basis of their being an aggregate of citizens composing the party. However, by forming a political party its members do not acquire any higher footing as regards other Fundamental Rights which as individuals they could not claim. Further the political party while exercising its freedom under different Articles is subject to reasonable restrictions imposed thereunder.
Lord Denning on Road to Justice, p.98; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57; State of Madras v. V.G.Row AIR 1952 SC 196 and Balakottah v. Union of India AIR 1958 SC 232 ref.
(s) Constitution of
‑‑‑Chaps. I & II‑‑Constitution has provided auto‑limitations or in‑built restraints on the exercise of Fundamental Rights guranteed in Chaps. I & II‑‑Such auto‑limitations or in‑built restraints not only provide protection to the rights themselves but also further the interest of social solidarity sought to be achieved by the makers of the Constitution‑‑Mutuality has to be there even in liberty and for that matter the attainment of maximum opportunities for the orderly pursuit of happiness as a goal of progress itself which is linked with the availability of restraints on individual liberty.
(t) Constitution of
‑‑‑Preamble‑‑Ideology
of Pakistan is based on Muslim nationhood and includes Islamic Ideology which
in clear terms in the Constitution means injunctions of Holy Qur'an and Sunnah
and was the principal factor in the concept of Muslim nationhood which resulted
in the partition of the sub‑continent and is known as a two‑nation
theory‑Partition Agreement cannot be read as a constituent of the
Ideology of Pakistan.
(u) Constitution of
‑‑‑Arts. 270‑A(3)(6), 17 & 8(3)(b), First Sched.‑‑Political Parties Act (III of 1962), Ss. 3‑A, 3‑B, 3‑C‑‑Freedom of Association Order (20 of 1978), S.3‑‑Freedom of Association Order, 1978 being an ordinary law cannot give any protection 'to the provisions of Political Parties Act, 1962 as against Fundamental Right 17(2), therefore, even if it co‑exists with the Political Parties Act, 1962, it is of no effect although it remains on the statute book.
President's
Order 20 of 1978 was an existing law under sub‑Article (3) of Article 270‑A
and was not protected either under sub‑Article (6) of this Article nor
was it specified in the First Schedule under Article 8(3) (b) of the
Constitution. Article 2 of this Order places it higher than the Constitution by
the use of the words "shall have effect" which means "shall have
legal effect", while Article 3 is worded so as to make it a substitute of
Article 17(2) of the Constitution. It provides additional constraints apart
from sovereignty or integrity of
(v) Constitution of
‑‑‑Art. 17(2)‑‑Provisions of Article 17(2) contain the declaration of the right and restriction in its exercise as authorised by the Constitution thus it is not an absolute or uncontrolled liberty and is accordingly limited in order to be effectively possessed‑‑When the right guaranteed under Art.17(2) is exercised in the context of other Fundamental Rights, it is then that those limitations would be applicable but not otherwise‑‑ Fundamental Right under Art. 17(2) standing alone cannot be subject to other limitations apart from what is prescribed therein.
When the right guaranteed under Article 17(2) is exercised in the context of the other Fundamental Rights, it is then that those limitations would be applicable but not otherwise. But the right standing alone cannot be subject to other limitations apart from what is prescribed therein.
Article 17(2) of the Constitution contains the declaration of the right and the restriction in its exercise as authorised by the Constitution. Thus it is not an absolute or uncontrolled liberty and is accordingly limited in order to be effectively possessed. The restrictive clause is exhaustive and is to be strictly construed.
Sakal Papers (P.) Ltd. v. Union of India AIR 1962 SC 305; O.K.Ghosh v.E.X.Joseph AIR 1963 SC 812 and Abdul Wali Khan's case PLD 1976 SC 57 ref.
(w) Constitution of
‑‑‑Art.l7(1), (2)&(3)‑‑Term "public order or morality"‑‑Connotation‑Term has not been incorporated as a separate limitation apart from being a constituent of the expression "sovereignty or integrity of Pakistan" and would not be read into it as it would amount to re‑writing the limitation in the Constitution.
In sub‑Article (1) of Article 17, the word "public
order" is mentioned in addition to the expression "in the interest of
sovereignty or integrity of
(a) Agitating for secession of the
Provinces from
(b) Disrupting or threatening to disrupt the sovereignty, integrity, unity or security of the nation, the harmony between different sections of the people;
(c) Any scheme to overthrow the Government by force or to create internal disturbance or the disruption of public forces.
As the phrase "public order" is separately used, it has to be construed in the ordinary context as being synonymous with public peace, safety and tranquillity. Public order is an elemental need in any organized society, and no association can flourish in a state of disorder.
The word "public order" is accordingly referable to public
order of local significance as distinguished from national upheavals such as
revolution, civil strife and war. Equally it is distinguishable from the
popular concept of law and order and of security of State. Law and order
represents the largest circle, within which is the next circle representing
public order and the smallest circle represents security of the State. Hence an
activity which affects law and order may not necessarily affect public order
and an activity which may be prejudicial to public order may not necessarily
affect security of the State. It has not been incorporated as a separate limitation
apart from being a constituent of the expression "sovereignty or integrity
of
The limitation cannot be enlarged to admit other grounds on any theory of police power.
In common parlance the word "morality" occurring in Article 17(1), is far more vague than the word decency. The difficulty of determining what would offend against morality is enhanced by the fact that not only does the concept of immorality differ between man and man, but the collective notion of society also differs amazingly in different ages. All that can be said is that the antonym of the word "morality" according to the existing notion depends upon acts which are regarded as acts of immorality by the consensus of general opinion. However, it map‑ be pointed out that owing to ethnic, cultural and even physiological differences, it is not possible to formulate a universal standard of morality. Thus notions of morality vary from country to country and from age to age and the international community has not yet been able to settle any common code of morality. This is because like all other social ideas, ethical ideas are largely shaped or influenced by the exigencies of a particular society. Morality and obscenity are comparative terms and what is obscene or immoral in one society may be considered to be quite decent and moral in another. While considering the question whether certain words or representations are obscene or not, one has to apply standards that are current in the society in which those words have been uttered or representations made.
It is difficult to accept how the word "morality" can be read as a separate limitation in Article 17(2) when there is a conscious omission of it as a limitation in the sub‑Article and it will be outside the scope of limitation unless the expression "sovereignty or integrity of Pakistan" itself includes it as its constituent.
The Holy Qur'an itself is the guide for eliciting the meaning of the word" morality" . In Ayat 152, Sura Al‑Anam (VI), it is ordained:
(Draw not near to shameful deeds, that which be apparent and that which be concealed).
This being the moral code, every Muslim .is enjoined to obey it. This verse is the touchstone of what is moral and what is immoral. Necessarily, morality is part and parcel of Islamic Ideology of Pakistan and included in the expression "Integrity of Pakistan." Therefore, not only individually but also collectively Muslims have to live within an exclusively moral framework as enjoined by the Holy Qur'an and the Sunnah. No civilised society can deny this standard of morality. The concept of democracy in our Constitution should, therefore, be regarded to be imbued with individual and collective morality as according to Islam (Holy Qur'an and Sunnah). It goes without saying that morality provides the basis for the society's spiritual values and in terms of democracy freedom, equality, tolerance and social justice.
Cantwell v.
(x) Constitution of
‑‑‑Art.17(3)‑‑Words "account for the source of its funds"‑‑Connotation‑‑Direction for every political party to account for the sources of its funds is mandatory‑‑Purpose of direction‑‑Rendition of accounts for audit cannot be regarded as unreasonable restriction or outside the ambit of Art.17(3).
Collectively the political parties are now expected to protect public morals in the same way as other legal institutions protect public truthfulness and public symbols of authority. To leave the political parties entirely free to do as they please is to suggest that morality does not matter. A situation like this might prove ultimately subversive to the fabric of the State in the maintenance of the law and order.. Therefore, political parties should conform to stringent obligations of high ethical standard.
Article 17(3) as worded requires every political party to account for
the sources of its funds in accordance with law. The direction is mandatory.
The purpose obviously is to seek out foreign‑aided parties or others
whose activities are prejudicial to the interest of sovereignty or integrity of
The words "account for the source of its funds" would also
include the expenditure as that provides a check for determining actual amounts
received and disbursed in the context of the political activities carried on as
to whether the funds are being utilised for lawful political activities or for
promoting prejudicial activities against the sovereignty or integrity of
(y) Constitution of
‑‑‑Arts.2‑A, 16, 17(1), 19, 31, 63(g), 63(m) & 260‑‑Limitations are to be strictly construed and by no process of interpretation can the ambit of the limitations be enlarged‑‑Only legislature can amend the Article to provide for other limitations‑‑Expression "sovereignty or integrity of Pakistan" having been judicially interpreted by Supreme Court and its scope determined in Abdul Wali Khan's case P L D 1976 S C 57 there was nothing beyond that.
(z) Constitution of
‑‑‑Art.17(2)‑‑Provision of Art.17(2) itself provides for enacting law in the context of reasonable restrictions and is not an ordinary legislation in regard to Item No.58 of the Fourth Schedule so as to attract the aid of Item No.59 for legislating incidental or ancillary matters in regard to this enumerated item.
Haider Automobile Ltd. v . Pakistan P L D 1969 .5 C 623; Ghulam Ali
Shah v . State P L D 1970 S C 253; F. B. Ali v . State PLD 1975 S C 506; ‑
United Provinces v. Atiqa Begum 1940 F C R 110 and Fauji Foundation v. Shamimur
Rehman P L D 1983 S C 457 distinguished.
(aa) Constitution of
‑‑‑Art.17(2)‑‑Words "in the interest of" and "public order"‑Connotation‑‑Words "public order" having not been mentioned separately as a limitation in Art.17(2), the words "public order" are only referable to aggravated forms of national upheavals which endanger the very existence of the State.
Debi Soran v. The State A I R 1954
Pat. 254; Ramji Lal v. State of
(bb) Constitution of
‑‑‑Art.17(2)‑‑Political Parties Act (III of 1962), Preamble‑‑History and interpretation of Art. 17(2)‑‑Political Parties Act, 1962 not being a higher law than the Fundamental Right No.17(2) itself, cannot override or prevail over or be superimposed to make the Fundamental Right operational as it is the guarantee of the Fundamental Right itself which gives it the authority to exercise it‑‑Right to form or be a member of a political party is not an absolute right but is subject to reasonable restrictions imposed by law in the interest of sovereignty and integrity of Pakistan..
Reading Article 17(2) of the Constitution as a whole it not only
guarantees the right to form or be a member of a political party but also to
operate as a political party. The words "right to form" are not only
confined to its formation but to its function as a political party. The
political party, according to its texture, of being an aggregate of citizens
composing the party can exercise the other rights guaranteed under the
Constitution like an individual citizen. Again the forming of a political party
necessarily implies the carrying on of all its activities as otherwise the
formation itself would be of no consequence. In other words the functioning is
implicit in the formation of the party. This being so, the Political Parties
Act not being a higher law than the Fundamental Right itself, cannot override
or prevail over or be superimposed to make the right operational. The functioning
is also explicit from the limitation itself which makes prejudicial activities
against sovereignty and integrity of
The right to form or be a member of a political party is not an
absolute right but is subject to reasonable restrictions imposed by law in the
interest of sovereignty or integrity of
(cc) Constitution of
‑‑‑Art .17.( 2)‑‑Political Parties Act (III of 1962), Ss.3(1) & 6(1)‑"Islamic Ideology", "morality" and "maintenance of public order" in so far as they affect the "sovereignty" or "integrity" of Pakistan would form part of S.3(1) and in no other sense and their use is only upheld in S.3 and same shall be the position of their use in S.6(1).
As
for the apprehension that "Islamic Ideology" or "morality"
or "maintenance of public order" in the context of sections 3(1) and
6(1) of the Act are liable to be misused, one inbuilt safeguard against misuse
is that, no scope would be left for the penalty, interim or otherwise, to be
imposed except by the highest judicial forum‑the Supreme Court itself.
Yet need has been felt for strictly correlating them with
"sovereignty" and "integrity" of
(dd) Constitution of
‑‑‑Art.17(2)‑‑Political Parties Act (III of 1962), S.3‑‑"Security of Pakistan" as mentioned in S.3 of the Act‑‑Connotation‑‑"Security of Pakistan" as a constraint in S.3 of the Political Parties Act, 1962, is violative of Art.17(2) of the Constitution of Pakistan (1973)‑‑Provision of S.3(2) being a reasonable restriction "in the interest of sovereignty or integrity of Pakistan" is accordingly protected.
"Security
of Pakistan" is defined in Article 260 of the 1973 Constitution to mean as
including "the safety, welfare, stability and integrity of Pakistan and of
each part of Pakistan, but shall not include public safety as such." It is
an expression of wide connotation and includes integrity of
Accordingly, this constraint is beyond the scope of Article 17(2). To this extent, the constraint is violative of Article 17(2) of the 1973 Constitution and is void.
Clause
(2) of section 3, however, is a reasonable restriction "in the interest of
sovereignty or integrity of
Abdul
Aziz v.
(ee) Constitution of
‑‑‑Art.17(3)‑‑Political Parties Act (III of 1962), S.3‑A‑‑Provisions of S.3‑A providing for rendition of accounts without any consequence if the accounts are not rendered do not offend against Art.17(3)‑‑ Requirement for rendition of account by a political party as provided in S.3‑A cannot be regarded as an unreasonable restriction or out side the ambit of Art.17(3).
Section 3‑A provides for rendition of accounts but does not provide any consequence if the accounts are not rendered. The provisions of this section do not offend against sub‑Article (3) of Article 17.
The
words "account for the source of its funds" would also include the
expenditure as that provides a check for determining actual amounts received
and disbursed in the context of the political activities carried on as to
whether the funds are being utilised for lawful political activities or for
promoting prejudicial activities against the sovereignty or integrity of
The rendition of accounts by a political party is not an unusual feature. It is also an obligation in other countries.
Accordingly, section 3‑A of the Act cannot be regarded as an unreasonable restriction and it stands protected as sub‑Article (3) of Article 17 itself authorises such rendition in accordance with law.
(ff) Constitution of
‑‑‑Art.17(2)‑‑Political Parties Act (III of 1962), S.3‑B‑‑Compulsive registration of a political party‑‑Section 3‑B of Political Parties Act, 1962 is not only inconsistent with Art.17(2) but is also an unreasonable restriction as it seeks to permit functioning of a political party which is implicit in. the right guaranteed, and, accordingly, reaches the stage of prohibition.
Section 3‑B of the Act requires compulsory Registration of Political Parties. If the political party fails to apply for its registration, it ceases to be eligible to participate in an election to a seat in a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such election. Again if the political party applies for registration then its registration is subject to the satisfaction of the Election Commission upon consideration of the matters mentioned in clauses (a) , (b) and (c) of subsection (3) of section 3‑B of the Act. Further where the party is registered and if it then violates clauses (a) to (e) of subsection (4) of this section, then without prejudice to any action that may be taken in respect of a political party under section 6 of the Act, the Election Commission has power to cancel its registration after giving to it an opportunity to show cause against the action proposed to be taken in which case it will be open to dissolution and at the same time will be disabled from participating in an election.
Section 3‑B is into two parts. The first part deals with the
obligation to register (subsections (1), (2) and (3) of this section), and the
second part deals with the cancellation of the registration. Within the ambit
of the first part., non‑application for registration and application for
registration which is refused are explicit. In both the cases the consequences
that follow are that the political party is debarred from participating in an
election. However, as for the second part there is the further consequence
provided in subsection (4) that it would be liable to dissolution under section
6 of the Act. Clause (c) of subsection (4) of section 3‑B goes further in
the matter of constraints apart from the "Ideology of Pakistan",
"security of Pakistan", "morality" or "maintenance of
public order" as mentioned in section 3. The further constraints are: the
integrity or independence of the judiciary of
If the political party is disabled to participate in an election it loses its political texture and to all intents and purposes it will suffer extermination or in other words its functioning as a political party will come to an end. If this be so then the result will not be different from dissolution as provided in section 6 of the Act.
As for the "satisfaction" of the Election Commission in subsection ( 3) as being a prerequisite for registering a political party, it is silent as to the compliance with the rules of natural justice, and is per se discriminatory constituting a denial of equality based, as it is, on its own opinion as to the belief of the party. It cannot but be an unreasonable restriction as it also fails to provide a remedy against the exercise of discretion in putting to an end the existence of a political party in the context of the right guaranteed by the Constitution. As regards the consequence provided in subsection (4), i.e. "cancellation of registration", again it is left to the discretion of the Election Commission which is not subject to any safeguard as to further redress and on the same principle the exercise of this discretion is also an unreasonable restriction.
Coming now to the effect of non‑registration or cancellation, although the consequence is the same as dissolution, nonetheless there is no safeguard available against it as in the case of dissolution. This is clearly violative of the remedial provisions of Article 17(2) and the result accordingly is that it is an unreasonable restriction in the exercise of the right of a political party to carry on its political activities.
This function, could not be, by law, entrusted to the Election Commission. Compulsive registration, therefore, under section 3‑B is violative of Article 17(2) as it places unreasonable restrictions in the exercise of a right by superimposing itself on the Fundamental Right.
What is here challenged was the compulsive registration of a political party dependent upon the "satisfaction" of the Election Commission on the fulfilment of the conditions laid down by clauses (a) to (d) of subsection (3) which basically amounts to a permission to function as a political party and as such a constraint superimposed on Article 17(2) and, therefore, violative of the right itself. It cannot be regarded as a reasonable restriction in the exercise of the right.
What the disability achieves is that the political party loses its texture as a political party and suffers extermination as it cannot then function as such. In effect, it amounts to the dissolution of the party.
If a party is not allowed to function as a political party then its functioning comes to an end. This being so, the de‑formation is a necessary consequence which is violative of the Fundamental Right.
It is not a registration simpliciter here but is accompanied by penal consequences. Therefore, the meaning of the word registration as given in dictionary will hardly have any bearing on the dispute.
Section 3‑B of the Act is not only inconsistent with Article 17(2) but is also an unreasonable restriction as it seeks to permit the functioning of a political party which is implicit in the right guaranteed, and, accordingly, reaches the stage of prohibition.
Messrs
Raghubar Dayal v.
(gg) Constitution of
‑‑‑Art.17(2)‑‑Political
Parties Act (I1I of 1962), S.6‑‑Constraints "Security of
Subsequent
to the decision of Abdul Wali Khan's case other constraints apart from the
sovereignty or integrity of Pakistan have been inserted in section 6, namely,
(i) "is a foreign‑aided party" or (ii) "Islamic
Ideology" or (iii) "security of Pakistan" or (iv)
"morality" or (v) "maintenance of public order" or (vi)
"has contravened the provisions of section 3‑A." Except for the
constraints: "is a foreign‑aided party" ; "maintenance of
public order" ; "Islamic Ideology"; "morality" the
others (iii and vi) cannot be separately inserted as then it would be inconsistent
with the constraints in Article 17(2) of the Constitution. A foreign‑aided
party is not expected to function within the framework of the Constitution and
in the milieu of sovereignty or integrity of
As for the constraint, "has contravened the provisions of section 3‑A" of the Act there is a constitutional compulsion of Article 17(3) to render accounts explaining the source of the funds in accordance with law. The law namely, section 3‑A of the Act and the rules framed in this behalf provide for the rendition of accounts and its audit. This provision does not provide any consequence for non‑rendition of accounts but in this section the contravention is a ground for the dissolution of the political party which is a serious consequence for the political party as it suffers extermination. The gravity of dissolution outweighs the contravention simpliciter of the requirement to render accounts under section 3‑A of the Act, and, therefore, cannot be regarded as a reasonable restriction as it is disproportionate to the contravention sought to be penalised. This can be remedied by penalising the party with appropriate penalty to an extent to render the accounts, considering the judicial opinions recognising the importance of a political party in the constitutional framework. This could be achieved by amending section 3‑A of the Act. The provision regarding penalty, however, will have to be enacted in such a manner so as to keep the imposition thereof within the jurisdiction of the Supreme Court only, as the same clearly is the underlying intention of Article 17(2).
Article 17(2) provides that the penalty can be imposed by the Supreme Court only and by no other functionary or forum. No doubt it was examined and held in Abdul Wali Khan's case that the penalty provided in section 6(1) is of interim nature and is also subject to subsequent control by the Supreme Court; yet, its initial source power and timing has been left by this provision only to the Government. Sometimes, it can be very well‑visualised, this interim penal action, can prove to be the final and fatal action for the party concerned, before the Supreme Court is able to act. Thus, this part of section 6(1) also contravenes the intent, purpose and content of Article 17(2) and is void. In order to rectify the mischief, similar provision can be made, for the Supreme Court, to pass an interim order in cases of real emergency.
In the result, therefore, the ramaining constraints in section 6, excepting those found justified in the above discussion are inconsistent with Article 17(2) of the Constitution, they were therefore declared to be void while keeping section 6 of the Act alive.
(hh) Political Parties Act (III of 1962)‑‑
‑‑‑Ss .7 & 8‑‑Vires of Ss.7 & 8‑‑In the absence of any specific challenge to the vires of Ss.7 & 8, it is for the legislature to amend the law and Court need not say in regard to their vires.
(ii) Constitution of
‑‑‑Art.17(2)‑‑Political Parties Act (III of 1962), S.8(5)‑‑Provisions of S.8(5) are not related to political party or its activities or in any way violate any reasonable restriction imposed by law but is a residuary power given to the President which is not different from the statutory prerogative to pardon offenders.
The vires of subsection (5) of section 8 of the Act was challenged on the ground that it gave an absolute and arbitrary discretion to the President to remove the disqualification without any guidelines which, according to the petitioner, is per se discriminatory. But this provision is not related to a political party or its activities or in any way violates any reasonable restriction imposed by law. It is a residuary power given to the President and is not different from the statutory prerogative to pardon the offenders.
(jj) Constitution of
‑‑‑Art . 172) & ( 3)‑‑Political Parties Act (III of 1962) , Ss.3( 1), 3‑A, 3‑B, 3‑C & 6‑‑Provisions of Ss.3(1), 3‑A, 3‑B, 3‑C & 6, on account of being inconsistent with Fundamental Right, were declared to be void to the extent stated.
The following provisions of the Political Parties Act, 1962, were declared and held to be void to the extent stated, on account of being inconsistent with the Fundamental Right, enshrined in Article 17(2) and (3) of the Constitution:
(1) Section
3(1) in so far as it relates to and includes therein the disability regarding
"security of
The remaining part of section 3 is upheld.
(2) Section 3‑A has been upheld at the place and in the manner explained in that context. But the penalty under section 6(1) arising therefrom by its insertion therein is void and it has been held so accordingly.
(3) Section 3‑B has been declared void in its entirety.
(4) Section 3‑C as explained, having outlived its purpose, is no more the subject‑matter for any further order.
(5) Section
6(1) in so far as it relates to and includes therein, the references to:
"security of
However "Islamic Ideology"; "morality"; and, "maintenance of public order" have been upheld; in the manner explained in the relevant parts of the judgment.
(6) The remaining parts of section 6 including subsection (2) thereof have been upheld.
Except that the provision regarding the dissolution of a political party the "publication" referred in subsection (1) has been held as void; subject of course, to the possibility of the re‑enactment of a provision regarding the same subject, which as indicated in the relevant part of the judgment, should not offend against Article 17(2).
(7) Regarding, sections 7 and 8, it has been held that in view of the decision in respect of the other provisions of the Act, it is for the Legislature to amend them and nothing need be said about their vires, except for the comment made.
Per Muhammad Afzal Zullah, J. agreeing with
Muhammad Haleem, C.J.‑‑
(kk) Constitution of
‑‑‑Art.17(2)‑‑Political Parties Act (111 of 1962), Preamble‑‑Scope and application of Art.17 (2) .
Article
17(2), Constitution of Pakistan (1973) provides a basic guarantee to the
citizen against usurpation of his will to freely participate in the affairs and
governing of
The electorate or for that matter the people at large, after having thrown up a party/government/Leader even in a well‑organized impartial election remains so aloof and remote in time, space and thought, that it would be difficult to imagine that they would find an organized opportunity to control the activity or direction of a party/ government which decides to go astray.
The ultimate repository of the power to take any final punitive action against a political party under the Constitution, by virtue of Article 17(2) is the Supreme Court and not the Federal Government.
Although, it is correct that the Supreme Court while assuming this constitutional responsibility overcame for the time being, the difficulty created by the power of the Federal Government conferred under section 6(1) of the Political Parties Act to dissolve a party as an interim measure, in the case of Abdul Wali Khan; but the error in the Act as indicated, is in contravention of the underlying intention of the Constitutional provision Article 17(2). The power to suspend even for a very short, time, is with the Supreme Court.
Regarding the second question as to what was the remedy if a fully entrenched political party itself in power through Government constituted by it has to account for what is provided in Art. 17(2) relating to its accountability, the need for an amendment in the Political Parties Act in that behalf always existed. Article 17(2) does not prohibit the making of an appropriate law or necessary provisions in the Political Parties Act so that a party in power, if its conduct falls within the accountability part of Article 17(2), could be proceeded against in accordance with the spirit of the said Constitutional provision. Thus, technical hurdle as felt in the answer given to the above question at the bar, once removed, there should be no difficulty in treatment of all political parties including the party in power, equally in accordance with the Constitution together with well recognized principles of Islamic Jurisprudence/ justice. Any criticism on the basis of imaginary dichotomy involving the highest Court in the country, is only to betray ignorance about the make‑up, and internal working of Supreme Court; in the light of which the apprehension, if any, would be absolutely unfounded. One high mark of this institution is an immense devotion to the cause of national progress, fitness and survival.
The foregoing observations are for the implementation of a very important part of the mandate of Article 17(2). It might help avoid any large scale national effort to overthrow a fully entrenched political party which otherwise falls within the mischief of Article 17(2) ‑ by unorganized force or by organized one which might be projected as right. In either case the Courts including the superior ones are the worst‑hit, besides other consequences. For example, superior Court, in such situations are made to lose their effectiveness; which. in ordinary course, in the case of normal Government. can and do exercise checks through the balancing process, in eventualities of undue acquisition or use of State power. Our code of conduct, when left free to operate ordains as follows:
"The Constitution, by declaring that all authority exerciseable by the people is a sacred trust from Almighty Allah, makes it plain that the justice of this nation is of Divine origin. It connotes full implementation of the high principles which are woven into the Constitution, as well as the universal requirements of natural justice. The oath of a .Judge implies complete submission to the Constitution, and under the Constitution to the law On equiponderance stand the heavens and the earth. By equiponderance, oppression meaning unjust and unequal burdens is removed. The Judge's task is to secure that such equality should prevail in all things."
The suggestion for resolving this difficulty of omission in the legislation, regarding an action by the Supreme Court suo motu, without the enactment of appropriate provisions of law by virtue of Article 17(2) does not seem to be the best possible solution. It should not be difficult for the law‑makers in a civilised country to supply the necessary omission.
With the foregoing observations and remarks it was clarified by his Lordship that this note of concurrence represents the obvious concurrence, and it is further clarified; the note itself does not in any sense even attempt to express any shade of difference. The subject dealt herein was only mentioned during the arguments, therefore, apart from the remarks and observations at places, it is in the nature of suggestion/ proposal and not as a verdict . Nevertheless, the same is not intended to be ignored by those who are otherwise concerned with the legislative machinery at the Federal level.
Per
Nasim Hasan Shah, J. agreeing with
Muhammad Haleem, C.J.‑‑
(11) Pakistan‑‑
--National history from
(mm) Constitution of
‑‑‑Art.184(3)‑‑Petition under Art .184(3)‑‑''Aggrieved person"‑‑Any restriction, which frustrates or impedes the pursuit of a legal activity in the exercise of a .right conferred on a person by Constitution, would result in making him or her as an "Aggrieved" person and furnish him with a locus standi to challenge the said restriction.
(nn) Constitution of
‑‑‑Art.270‑A‑‑Background and history of Art.270‑A stated.
(oo) Interpretation of statutes‑‑
‑‑‑Legislative debates‑‑Relevancy.
Macmillan v. Dent (1907) Ch. 107 (120); River Wear Commissioners v. Adamson (1877) 2 A C 743; Federation of Pakistan v. Moulvi Tamizuddin Khan P L D 1955 F C 240; A. K.M. Fazlul Quader Chowdhury v. Government of Pakistan and another P L D 1957 Dacca 342; Bindra's Interpretation of Statutes, 7th Ed n., p.381 and United States of America v. America Trucking Associations (1940) 310 U S 534 ref.
(pp)
Constitution of
‑‑‑Art.270‑A‑‑None of the provisions of Art.270‑A has the effect of giving immunity to all laws made between 5‑6‑1977 to 30‑12‑1985, from being tested on the touchstone of their inconsistency with the Fundamental Rights.
Federation
of
(qq) Constitution of
‑‑‑Art.17(2)‑‑Political
Parties Act (III of 1962), Preamble‑‑Term "right to form a
party"‑‑Connotation‑‑Any legislation which
provides for restricting, suspending, or terminating the activities of an
association (Political Party) during its . existence would be in violation of
Fundamental Right No.17‑‑Only limitation to such, a right can be
the reasonable restrictions, which the law imposes in the interest of the
sovereignty or integrity of
(rr) Constitution of
‑‑‑Art.17‑‑Political Parties Act (III of 1962), S.3‑B‑‑Provisions of S.3‑B, Political Parties Act, 1962 which require compulsory registration for a political party cannot be sustained.
Persons elected to the legislature in their personal capacities have hardly any importance. They just toss around on the political scene, rudderless and without a destination. It is only when they band themselves into a group, as a party, that they become a force exercising some influence by' their activities. It is only as members of a political party and not as individual members of the leglsiature; can they achieve their objectives. A political party has a right to exert itself using all available channels of mass communication to propagate its views in relation to the whole. complex of the administrative machine including the legislatures, in respect of matters which appear to it to require attention for the amelioration of conditions generally throughout the nation, for improvements, particularly in administrative procedures and policies, as well as in the legislative field, even to the extent of proposing and pressing for amendment of the Constitution itself.
Indeed,
our very State of Pakistan itself could never have come into existence if a
political party (the Muslim League) was not allowed to function as a party, without
let or hindrance. As early as in 1942 in a speech made. by the Quaid‑i‑Azam
at a reception in
"The position of Muslim India during the last 200 years has been that of a ship without a rudder and without a captain, floating on the high seas full of rocks. For 200 years it remained floating, damaged, disorganised, demoralised, still floating. In 1936 with the cooperation of many others we salvaged the ship. Today the ship has a wonderful rudder and, a captain who is willing to serve and always to serve. Its engines are in perfect working order, and it has got its loyal crew and officers. In the course of the last five years it has turned into a battleship."
If members of the Muslim League were allowed to contest elections only in their individual capacities and not as a "loyal crew" i.e. as members of the Muslim League Party, there would have been no battle, no victory, no Pakistan.
Thus, the provisions of section 3‑B of the Political Parties Act, 1962, which require compulsory registration for a political party cannot be sustained. The conditions laid down in the said section are not warranted by Article 17 of the Constitution. By this Article the citizens of Pakistan have been conferred the fundamental right to form political parties subject to two limitations only viz. that their party will not act against the sovereignty and integrity of the country and that it will disclose the sources of its funds. Limitation other than the said two limitations are ultra vires of the right conferred by Article 17. The requirement of compulsory registration contained in section 3‑B of the Political Parties Act stultifies this right and hampers the holding of elections wherein every party can freely participate by creating a sense of insecurity in the political party, not knowing when its registration may be cancelled and it thrown out of the contest. In view of the guarantee of freedom of association including the right to form a political party, conferred by the Constitution in Article 17, such a restriction cannot be sustained.
Per Abdul Kadir Shaikh, J. agreeing with Muhammad Haleem, C.J.,
Shafiur Rahman and Zaffar Hussain Mirza, JJ.‑‑
(ss) Constitution of
‑‑‑Art.184(3)‑‑Scope of jurisdiction conferred by Art .184(3)‑‑Language of Art.184(3) is ‘open ended’ and does not intend any rigid or ceremonious observance of the rules or usage for the enforcement of tile Fundamental Rights, by an individual or a group or class of persons.
It is evident, from the language of Article 184( 3) that it provides a direct access to the highest judicial forum in the country for the enforcement of Fundamental Rights. It caters for an expeditious and inexpensive remedy for the protection of the Fundamental Rights from Legislative and Executive interference. It gives the Court very wide discretion in the matter of providing an appropriate order or direction including declaratory order to suit the exigencies of particular situations. There can be no doubt that declaration of Fundamental Rights is meaningless unless there is an effective machinery for the enforcement of the rights. It is the 'remedy' that makes the right real. It is often said that without 'remedy' there is no right. It is for this reason that Constitution‑makers provided a long list of Fundamental Rights and the machinery for their enforcement. That machinery is the superior Courts, namely, the High Courts so far as the Provincial territory is concerned, and the Supreme Court at the apex having jurisdiction over the entire length and breadth of Pakistan.
Unlike in Article 199, the Framers of the Constitution placed no limitation nor prescribed any condition or stipulation for obtaining relief and redress under Article 184(3). No strait‑jacket formula was prescribed for the enforcement of the Rights. The obvious reason that can be spelled out is that in case the Supreme Court was itself of the view in a given case that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, it should directly interfere, and any rigid formula or strait‑jacket formula prescribed for enforcement of the Rights would be self‑defeating.
The language of Article 184(3) is "open ended", and the Framers of the Constitution did not intend any rigid or ceremonious observance of the rules or usage for the enforcement of the Fundamental Rights, by an individual or a group or class of persons.
(tt) Constitution of
‑‑‑Art.270‑A‑‑Affirmation, adoption, declaration and validation of laws under Art. 70-A ‑Such laws, held, could not in any manner, affect or prejudice the supremacy of the Fundamental Rights guaranteed by the Constitution, and were, indeed subordinate to them.
(uu) Constitution of
‑‑Art.17(2)‑‑Political Parties Act (III of 1962), Preamble‑‑Scope of Art .17(2)‑‑Vires of certain provisions of Political Parties Act, 1962‑Reasonable restrictions‑‑Scope of test of reasonableness.
Apart
from the right to form associations or unions, the Constitution has granted to
every citizen, except for those in service of
The
right to form associations or unions or, political parties, like all other
Fundamental Rights, is not absolute. Article 17 explicitly authorises the State
to impose reasonable restrictions on the exercise and enjoyment of this right.
The restrictions which the State is empowered to impose on the right to form or
be a member of a political party will have to satisfy criteria embodied in
Article 17(2), firstly, that these restrictions should have a statutory
sanction which means that the executive cannot, without the backing of law,
impose any restriction on the exercise and enjoyment of the right. Second, the
restrictions imposed should pass the test of reasonableness before they can
validly restrict the exercise of the right. Third, these restrictions in order
to be constitutional will have to have a clear nexus with one of the grounds
i.e., sovereignty or integrity of
Since Legislature alone is empowered to restrict the exercise of the right by the imposition of reasonable restrictions, a pertinent question may arise as to what is the scope of the test of reasonableness. The scope of the criteria of reasonableness has been examined by the superior Courts in several cases involving the validity of numerous legislative provisions restricting various Fundamental Rights guaranteed under the Constitution. There is always a presumption in favour of the constitutionality of a statute and the onus to rebut the same, lies on the person who challenges it.
It is not possible to formulate any immutable test with general application to all situations, and, therefore, each individual statutory provision has to be judged on its own merits and in the light of all the attendant circumstances obtaining in the case. In order to satisfy the test of reasonableness there must be a direct and proximate nexus or a reasonable connection between the restriction imposed and the object which is sought to be achieved.
So far as Article 17(2) is concerned, the object which it seeks to
achieve by providing for reasonable restrictions to be imposed by the law is to
ensure that no political party is formed or operates in a manner prejudicial to
the sovereignty or integrity of
In the light of the Constitutional provision which guarantees the Fundamental Right to every citizen (not being in the service of Pakistan) to form or be a member of a political party subject, however, to any reasonable restrictions imposed by tats in the interest of the sovereignty or integrity‑ of Pakistan, the question that arose in the present case was whether the provisions of section 3 of the Political Parties Act, which, undoubtedly is a law envisaged under Article 17(2), must be declared as void in so far as it prohibits formation of a political party with the object of propagating any opinion or acting in a manner prejudicial to the "Islamic Ideology" or "Security of Pakistan" or "Morality" or "the Maintenance of Public Order", apart from what is envisaged under Article 17(2) of the Constitution, namely, "sovereignty or integrity, of Pakistan".
The expressions: ( 1) Islamic Ideology‑, ( 2) Security of
Pakistan, (3) Morality, and (4) Maintenance of Public Order, do not find any
place in Article 17(2) of the Constitution. On the present language of sections
3 and 6 of the Political Parties Act there can be no doubt that the unqualified
addition of the restraints of (1) Islamic Ideology. ( 2) Security of
But there is an .important point of view which gives meaning to the
concepts of (1) Islamic Ideology, (2) Morality, and (3) Maintenance of Public
Order, as closely relevant to "Integrity or Sovereignty of Pakistan"
in a likely situation in a given case. The concept of Islamic Ideology is the
cornerstone of
For the fears of the misuse on account of the vagueness of these concepts, there is more than sufficient safeguard and assurance in the fact that it is Supreme Court that has to render the verdict whether a Political Party is liable to dissolution on the ground that it has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan. Supreme Court is the Court of final resort, and the repository of the nation's faith and confidence that it shall discharge its duties and perform its functions in accordance with the Constitution and the law. That the case against a Political Party will be dealt with and decided by this Court should allay any fears apprehended by the learned counsel for the petitioner.
It is only in the limited context, and no other, that there is relevancy to the concepts of "Islamic Ideology, "Morality" or "Maintenance of Public Order" in sections 3 and 6 of the Political Parties Act in so far as these are closely interlinked with the expression "Sovereignty or Integrity of Pakistan". But in order to incorporate the afoeresaid concepts, namely, "Islamic Ideology" or "Morality" or "Maintenance of Public Order" in sections 3 and 6 of the Political Parties Act, the language of these sections has got to be suitably amended in a manner that the aforesaid three expressions are so closely interlinked that in the ultimate analysis, action of dissolution of a political party cannot be taken on any ground other than what the language of Article 17(2) permits, namely, that the Political Party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan.
Per Shafiur Rahman, J. agreeing with
Muhammad Haleem, C.J.‑‑
(vv) Constitution of Pakistan (1973)‑
‑‑‑Arts.184(3) & 199‑‑Pendency of Constitutional petition filed by persons (other than the petitioner before Supreme Court) under Art.199 of the Constitution of Pakistan in the High Courts of Pakistan does not, bar or limit, either in law‑ or in propriety, the jurisdiction of Supreme Court under Art.184(3) of the Constitution to entertain and deal with the petition.
The two pending proceedings show that none of them has been filed by the petitioner before Supreme Court, that none. of them has been admitted to hearing so far, that one of them is pending only because the High Court considered it proper not to admit it without hearing the Federation at the pre‑admission stage and the Federation has not been able so far to ensure its effective representation to satisfy the requirement of the Court. With such a conduct of the Federation, such a state of the proceedings in the High Court, such an interest and seriousness shown by those petitioners how can one bar the meaningful prosecution of this petition by another petitioner and its entertainment and adjudication before Supreme Court which has come for final hearing and disposal within four months of its institution. Neither the Constitutional provision nor the legal propriety stands in the way or bars the entertainment of the petition by Supreme Court.
The pendency of the Constitutional Petition filed by persons other than the petitioner before us under Article 199of the Constitution in the High Court of Sind at Karachi and that of Lahore does not, on the facts of the case, bar or limit, either in law or in propriety, the jurisdiction of this Court under Article 184(3) of the Constitution to entertain and deal with this petition.
Manzoor Elahi v. Federation P L D 1975 S C 66 ref.
(ww) Constitution oaf Pakistan (1973)‑‑
‑‑‑Art .270‑A(1)‑‑Affirmance, the adoption, the declaration and the validation of laws specified in Art.270‑A(1) of the Constitution coupled with the clause ousting sweepingly the jurisdiction of all the Courts has not the effect of either effacing, eclipsing or of subordinating the Fundamental Rights guaranteed by the Constitution to the citizens of the country.
The language used in Article 270‑A(1) of the Constitution is of the widest amplitude. The framers of it profess in express words to ratify (b) affirmance), to own (by adoption). to signify (by declaring) . (a) the competence and (b) the validity of not only the enumerated instruments but of all laws made during the specified period. in retrospect. and proceed to do Just the same to a host of such instruments and laws which had not even seen the light of the day, which were to come into existence at a future date and it is mandated to be so notwithstanding "any judgment of any Court". Then follow the most crucial words, words fully loaded against all the Courts of the Country, reaching and according to one view, transcending and subordinating the Court's power to interpret be reference to the Constitutional provisions. The words are "notwithstanding anything contained in the Constitution" these "shall not be called in question in any Court on any ground whatsoever.
This exceptionally wide language has a background, a context, and corresponds to the extensive departures, massive repudiations, rejections, revocations of law laid down by the Supreme Court in Begum Nusrat Bhutto v. Chief of Army Staff etc. (P L D 1977 S C 675). [P. 578 1 F
The inconsistency, the contradictions, the departures and the repudiation of the law laid down in the judgment of Begum Nusrat Bhutto's case and the provisions made in Provisional Constitution Order are too obvious and too numerous. On the revival of the Constitution the repudiations, the rejections and the laws had to be protected ex post facto by constitutional amendment both with regard to the authority making them, as also the contents and operation thereof. To that extent, competency and validity of those and such laws has been achieved and the ouster clause appears to be a replica of Article 17(2) of the Provisional Constitution Order. It is the competence and the validity alone which cannot be challenged by invoking any provision of the Constitution. It cannot on any principle of Constitutional interpretation concerning distribution of State Power and jurisdiction of superior Courts be asserted that all these manifold laws and amendments made during the specified period acquire a supra‑Constitutional status, coexisting with the Constitution subordinating by their own existence even the Fundamental Rights and in case of inconsistency it is not these laws which yield and get eclipsed but the Fundamental Rights themselves yield and get eclipsed. It is not without significance that originally, Political Parties Act with all its amendments now under challenge was sought to he placed in First Schedule of the Constitution thereby exempting it from the rule of repugnancy under Article 8 of the Constitution. By an amendment, and as finally passed this protection was not given to the Political Parties Act, thereby making the intention, purpose and object doubly clear. [p. 580] G
The affirmance, the adoption, the declaration and the validation of laws specified in Article, 270‑A(1) of the Constitution coupled with the clause ousting sweepingly the jurisdiction of all the Courts has not the effect of either effacing, eclipsing or of subordinating the Fundamental Rights guaranteed by the Constitution to the citizens of the country.
Begum Nusrat Bhutto v. Chief of Army Staff etc. P L D 1977 S C 657 ref.
(xx) Constitution of Pakistan (1973)‑‑
‑‑‑Arts.17(2) & 8‑‑Political Parties Act (III of 1962), .Ss.3, 3‑A, 3‑B & 6‑‑Provisions of Political Parties Act, 1962 being inconsistent with Art.17(2) are void.
It is conceded on all hands and is so recognized in the Constitution that Islam confers on the people the right to choose the persons who shall govern them. To deny them the right to organize themselves for choosing such persons is to negate and destroy that right itself.
There appears to be serious division among the learned of this country whether Political Parties are Islamic or un‑Islamic, for the purposes of electing the Government. For those who hold that Political Parties are repugnant to Quran and Sunnah and these must be banished totally from elections and government, it is impossible to make Political Parties .survive and conform to the Islamic Ideology because for them the very formation of a Political Party is negation of Islamic Ideology. Such a polarization in the meaning and the scope of the concepts on the one hand, and an unqualified and uncircumscribed mention of Islamic Ideology which has an obvious link with the Integrity of Pakistan on the other, and the entrustment of the final, conclusive and binding adjudication to the Election Commission would manfiestly appear to be violative of this Fundamental Right. Besides, these enumerated concepts of Islamic Ideology, security of Pakistan, morality, maintenance of public order, foreign‑aided Party in Political Parties Act, happen to be generic, wider in scope and more extensive, than the constitutional limitations contained in the aforesaid Fundamental Right mandating a nexus of all these and such other factors finding a place in the law to sovereignty of Pakistan or integrity of Pakistan. If the whole concept, in all its extensiveness is imported in the law then undolihtedlt' the Fundamental Right would stand greatly abridged. There are three reasons which . call for restraint in adjudicating finally at this stage and in these proceedings on any one of these concepts and holding them to be per se violative of Fundamental Right. The first is that the petitioner Political Party is not immediately and directly aggrieved by any of these concepts. They have not been invoked to its detriment. It has only an apprehension. To that extent the grievance is in the abstract and anticipatory. The real immediate grievance of the petitioner which is operating to its recurring detriment is the requirement of registration, its failure to get itself registered with the Election Commission, thereby incurring the disability of participating in the elections whenever they are held. Secondly, Supreme Court is keeping to itself the final power of interpreting and applying these provisions of the Political Parties Acts and not leaving it to any authority not provided for in Article 17(2). So in a given case, on more concrete facts when Supreme Court is called upon to apply and interpret these provisions it will do so. Thirdly, Supreme Court has to lay down a rule of interpretation culled out from this Fundamental Right itself for the guidance of all concerned with the matter. Clause (2) of Article 17 is in two parts, the first deals with the formation and membership of a Politial Party, the second part deals with the punitive action against the Political Party. The Constitution authorises for the first "reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan". For the purposes of section 3 of the Political Parties Act such an interest of sovereignty or integrity of Pakistan must be reflected and covered and only to that extent and not beyond Islamic Ideology etc. will be within the scope and consistent with this Fundamental Fight. The second requirement for the purposes of section 6, for punitive declaration is more restrictive and imperative. It is mandated that the law shall provide that where the Federal Government. declares that any Political Party, has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, "the Federal Government shall within fifteen days of such declaration refer the matter to the Supreme Court whose decision on such reference shall be final". So the law relating to formation and membership of Political Party has necessarily to be "in the interest of the sovereignty and integrity of Pakistan". For authorising the punitive declaration the law has to concern itself with the formation or operation of a Political Party only to the extent it is "prejudicial to the sovereignty or integrity of Pakistan." At the moment the law does not accomplish any of these requirements. All the same, as all law is to be read subject to Constitutional limitations governing it within which it legally operates, Supreme Court will look for such a nexus in individual cases and actions to determine its vires. The law has to be declared void only where per se it cannot co‑exist. is destructive of or opposed to the Fundamental law. Before a law is struck down as being unconstitutional, every effort must be made to read it in such a manner as to bring it, if possible, into conformity with Constitution.' i
The objection to section 3‑B of Political Parties Act is extensive, more fundamental, and somewhat concrete. The Fundamental Right 17(2) prescribes that the question of formation, operation and dissolution etc. of a Political Party shall be dealt with by law reserving the initiation of punitive action for the Federal Government and its final adjudication by the highest Court in the country. By leaving the question of registration to the satisfaction of the Election Commission, entrusting the matter of cancellation of registration to the same authority and debarring the Political Party not registered or whose registration is cancelled from participating in the elections the entire scheme of guarantees and allocations of functions contained in aforesaid Fundamental Right stands destroyed and subverted. The two cannot coexist. The law must, therefore, yield to the Fundamental Right. The whole of section 3‑B and its consequential provision is void.
The Constitution authorizes the Federal Government to make a declaration and within fifteen days of it to refer the matter to the Supreme Court whose decision on such reference has been made final. What section 6 accomplishes is that such a declaration itself leads to dissolution and forfeiture and the Supreme Court has to adjudicate in the matter ex post facto and the result of the adjudication substitutes the declaration. The dissolution and the forfeiture not being provided in the Constitution as concommitants of declaration by the Federal Government, they cannot be so provided. These have to await the final adjudication of the Supreme Court with regard to the declaration itself. To that extent the provision in section 6 is violative of Fundamental Rights and hence void.
Section 6 in so far it accomplishes dissolution and forfeiture as and when the declaration is gazetted by the Federal Government impinges on the fundamental right guaranteed to the party and must, therefore, be declared void.
The mere contravention of section 3‑A cannot be by itself a ground for dissolution of the Party under section 6 and it was struck down as an available ground for taking such a punitive action.
Tested on the ground of their inconsistency with the Fundamental Rights (Article 17(2)) the following provisions of the Political Parties Act, 1962 as amended uptodate are held to be void under Article 8 being inconsistent with this Article:
(i) The whole of section 3‑B in so far as it prescribes for registration of all Political Parties, makes Election Commission the sole arbiter of it, and disqualifies from participation in the election of those Political Parties which are either not registered or whose registration is cancelled.
(ii) Section 6 in so far as the mere making of the declaration by the Federal Government, without a decision on it, accompishes the dissolution of the Party and forfeiture of its funds and punishes to the same extent for violating section 3‑A.
The following provisions, prima facie appear to be inconsistent with Fundamental Rights but they are not being held to be so because the power of finally interpreting the provisions is, as provided in the Constitution reserved for the Supreme Court and these provisions are necessarily to be read alongwith the Constitutional limitations contained in Article 17(2) within which they legally operate.
(i) The unqualified additions of (a) Islamic ideology; (b) security of Pakistan; (c) morality; (d) maintenance of public order in sections 3 and 6 of the Political Parties Act.
However, Government alone has the power to initiate and the Supreme Court finally to adjudicate in the matter, Supreme Court would wherever finding the expressions (a) Islamic Ideology, (b) Security of Pakistan, (c) Morality, (d) maintenance of public order, (e) foreign‑aided party in Political Parties Act read, where it relates to formation of Political Party, as confined only to that aspect of these concepts which affect the integrity or sovereignty of Pakistan. Similarly in the matter of punitive action as confined to that aspect which is prejudicial to the sovereignty or integrity of Pakistan.
B.Z. Kaikaus v. Federal Government P L D 1981 F S C 1; K.C. Where on Modern Constitutions, p.110 and Abdul Wali Khan's case P L D 1976 S C 57 ref.
(yy) Pakistan‑‑
‑‑‑Constitutional history of Pakistan. [p. 5811 H et seq
P
L D 1958 Central Statutes 577; Gazette of Pakistan, dated 30th June, 1962,
Extraordinary, p.1150; Abul A'la Maudoodi v. Government of West Pakistan P L D
1964 S C 673 and Government of East Pakistan v. Tamizuddin Ahmed P L D 1964 S C
673; P L D 1969 Central Statutes 48; P L D 1969 Central Statutes 122 and P L D
1970 Central Statutes 173 ref.
Per Zaffar Hussain Mirza, J. agreeing with
Muhammad Haleem, C.J., Shafiur Rah®an and Abdul Nadir Shaikh, JJ.‑
(zz) Constitution of Pakistan (1973)‑‑
. ‑‑Art.270‑A‑‑Analysis of Art.270‑A‑‑Laws continued in force would have effect as sub‑Constitutional legislation‑‑Ouster of jurisdiction of superior Court‑Scope.
Upon analysis of the various clauses of Article 270‑A it will appear that broadly speaking clause (1) deals with the validation of the Proclamation of 5th July, 1977, whereby the country was placed under Martial law and all laws, whether of Constitutional nature or of ordinary kind made between 5th July, 1977 and the date on which the Article comes into force (30th December 1985). Clause (2) is confined to the validity conferred on actions taken in exercise of powers derived from the legal instruments and laws, not only those mentioned in clause (1) but all laws and orders passed by any authority, during the period mentioned in clause (1). Clause (3) makes provision for continuance of all laws which were in force immediately before the date on which the Article comes into force, namely, 30th December, 1985. Clause (4) is the usual indemnity clause for protection of authorities and persons for actions taken during the relevant period. Clause (5) is an unusual and unprecedented Constitutional deeming provision declaring all measures and actions taken as referred to in clauses (1) , (2) and (4) to have been taken in good faith and for purpose intended to be served thereby. Lastly clause (6) provides for the manner of amendment of certain specified laws as included in Seventh Schedule out of those mentioned in clause (1) by adopting the manner for the amendment of the Constitution.
Clause (1) is divisible into two parts. The first part proclaims that the laws in question "are hereby affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made by competent authority and the second part, consists of the words "notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever". Both parts are linked up with the conjunction "and". In order to ascertain the intention of the legislature and the legal effect of the provision, it will be necessary to determine the meaning of the crucial terms employed.
The word "affirm", inter alia, means to ratify, whereas the word "adopt" means to make that one's own (property or act) which was not so originally. And the word "declare" is defined as "to make known, manifest, or clear."
The word "ratify" has been defined in the dictionary as‑to approve and sanction; to make valid; to confirm; to give sanction to. Reading the crucial words in the light of these judicial meanings, the effect of the wording of clause (1) of the Article is that the specified laws were validated and although they were not enacted by any law‑making authority known to the Constitution were adopted as though made by the appropriate legislature under the Constitution and were pronounced by the force of the Constitutional provision to have been made by the competent law‑making authority established by the Constitution. Thus the provision in question is a constitutional device to confer validity upon the specified laws by the exercise of constituent power and to give them the status of competently enacted laws, to remove the taint, as to their maker. This was necessary in order to overcome the unconstitutionality of the laws for lack of legislative power because under the Constitution legislative power resides in the organs institutionalized by the Constitution, and not in an authority like the Martial Law Administrator outside the contemplation of the Constitution. The non obstante clause in the first part of clause (1) excluding the effect of a judgment of any Court was obviously inserted to nullify the effect of the judgment in Begum Nusrat Bhutto v. Chief of Army Staff (P L D 1977 S C 657) which placed the constraints of the rule of necessity, inter alia, upon all the legislative measures promulgated during the period the Proclamation of Martial Law was in force. The overall effect of the first part of the provision under consideration, in the premises, is that the protected laws shall have to be regarded as competently enacted by the appropriate authority under the Constitution. The words "notwithstanding anything contained in the Constitution" are significantly omitted from this part and have been placed as the non obstante clause in the second part of clause (1). Therefore, reading it in isolation for the time being and deferring the consideration of the effect of the second part of the clause, if we pause here, all that the first part achieved was that the laws would have force subject to the inhibitory effect of other constitutional limitations, as they operate qua other laws competently made. In this perspective, it appears quite plain that the wording of the first part brings about the effect of bringing the protected laws to the same status and footing as the laws made by means of ordinary exercise of legislative power under the Constitution.
The affirmation, adoption and declaration of validity conferred upon the specified laws in the first part of clause (1) of Article 270‑A, both as to the lack of legislative authority as well as to the content of the laws, inasmuch they are to be regarded as validly enacted laws, at par with other laws which are passed by the legislatures constituted under the Constitution.
But even by achieving this result, can the protected laws be given a supra‑constitutional status by virtue of the blanket validation granted to them by the constitutional provision.
Upon the revival of the fundamental rights, the protected laws yield to the overriding effect of these rights to the extent of inconsistency. In the group of laws protected under clause (1) of the Article are two categories of laws, namely, laws of constitutional nature and laws of sub‑constitutional nature. The instances of the first category are the Revival of the Constitution of 1973 Order, 1985 (P.O. 14 of 1985), the Constitution (Second Amendment) Order, 1985 (P. O. 20 of 1985), the Constitution (Third Amendment) Order, 1985 (P.O. 24 of 1985), and the examples of the second category of laws are the amending Ordinances in the present case. The first category of laws standing as they do ex facie on a higher level partake of the quality of fundamental law on par with the Constitution. Indeed some of them are explicitly directed to amend the Constitution itself. The moment it is conceded that the effect of the first part of clause ( 1) of Article 270‑A is to give them the status and effect of validly enacted legislation by the competent legislative body under the Constitution, it logically follows that they would become an integral part of the Constitution and subject to the rules of interpretation of the Constitution, particularly that the different provisions of the Constitution are to be harmoniously construed, they would stand together with the provisions contained in Chapter I of Part lI of the Constitution, relating to Fundamental rights, and not under or subservient thereto.
On a plain reading of Art.270‑A(3) it appears clear that President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, and enactments etc. which were in force immediately before 30th December 1985, were continued in force and the appropriate legislature was authorised to alter, repeal or amend the same, except that some of the laws which were specified in the Seventh Schedule were to be capable of amendment in the manner provided for amendment of the Constitution. The final result of this analysis is that except for the non obstante clause in the second part of clause (1) of Article 270‑A the necessary conditions for the application of the principle of construction applied in the case of Zia‑ur‑Rahman, are equally present.
So far as the use of the words "notwithstanding anything contained in the Constitution" it may be pointed out that these words are conspicuously absent from clause (3) of the Article which specifically deals with the continuance of laws in force. Clause (1) of the Article deals with the making of the laws during the specified period and conferred notional validation thereon. It will be contrary to the intent of the legislature to hold that the continuance of the laws and their future operation was also on a supra‑Constitutional basis, free from the constitutional limitations.
On a parity of reasoning, it becomes manifest that so far as the continuance in force of the existing laws was concerned, the special provisions of clause (3) would govern their future operation and in the absence of the aforesaid words as they occur in clause (1) it follows that the laws continued in force would have effect as sub‑Constitutional legislation subject to the Constitution.
The ouster of jurisdiction of the Courts must be couched in express terms or must arise by necessary implication. Besides the scope of such provisions which seek to oust the jurisdiction of superior Courts depends upon the nature of the ouster itself. [p. 602 ] G
Therefore, in order to determine the extent of the validation clause the question of intent is a relevant consideration.
(aaa) Constitution of Pakistan (1973)‑
‑‑‑Arts.17 & 8(3)‑‑Saving of sub‑Constitutional legislation from inhibitory force of fundamental rights‑‑Mode.
The recognized mode and practice for saving any sub‑
Constitutional legislation from the inhibitory force of the Fundamental Rights is to include such legislation in the First Schedule of the Constitution by constitutional amendment, so that the saving provisions contained in clause (b) of sub‑Article (3) of Article 8 are made applicable to such legislation. By this method the law can be protected from the application of Article 8.
(bbb) Interpretation of statutes‑‑
‑‑‑Debates in the legislature or legislative discussions, whether appropriate source to ascertain the meaning of the statute as passed.
State of Haryana and another v. Chanan Mal etc. A I R 1976 S C 1654 and Kochuni v . States of Madras & Kerala A I R 1980 S C 1080 ref.
(ccc) Constitution of Pakistan (1973)‑‑
‑‑‑Arts.270‑A & 8‑‑Political Parties Act (I1I of 1962), Preamble‑Interpretation and effect of Art.270‑A‑‑Bill, in the National Assembly, had suggested protection of the Political Parties Act, 1962 from the Fundamental Rights, by placing in the Schedule which exempts statutes from such operation, by virtue of saving clause in Art. 8 of the Constitution but in the final text of the Act passed by the legislature the proposed provision was dropped‑‑Held, it was reasonable to conclude that no such effect was intended to be achieved as reflected in the relevant part of original text of the Bill.
Debates in the legislature or legislative discussions, expressive of the views of the legislature on . pending legislation, are not appropriate sources from which to ascertain the meaning of the statute as passed, but with regard to the amendments or modifications in the Bill during its passage the following observations are relevant.
Under the general rule, amendments or modifications, and changes in the frame of the bill during its passage, and the action of the legislature on amendments offered may be considered if the language of the statute is ambiguous, but not if its meaning is plain. The mere introduction of an amendment has no probative value. The Courts should not read into a statute by implication provisions which the legislature expressly rejected; and it has been held that amendments offered, but not finally incorporated in the statute as passed, cannot be considered. However, the fact that the legislature before final passage deleted language or provisions contained in the bill as originally introduced may be considered in determining legislate intent where the meaning of the language used in the Act is obscure; but the fact that a bas originally drafted contain language which was omitted from the final draft does not of necessity mean that the intent of the omitted portion was not still embodied in the bill as passed. So, the rejection of an entire bill cannot be taken to be a specific rejection of every feature, more especially of those features later introduced in a final draft enacted into law.
In the present case what has been taken into consideration is not to resolve the ambiguity regarding the meaning of a term used in the statute but in order to show that the bill having suggested protection of the Political Parties Act from the operation of the Fundamental Rights, by placing it in the Schedule which exempts statutes from such operation, by virtue of the saving clause in Article 8 of the Constitution, in the final text of the Act as passed by the legislature the proposed provision was dropped. In the circumstances it is reasonable to conclude that no such effect was intended to be achieved as reflected in the relevant part of original text of the bill and this supports the conclusions on the effect of clause (3) of Article 270‑A that the non obstante clause in the second part of the clause (1) did not extend to the future operation and continuance of the Ordinances in question.
It may be pointed out that clause (3) of the Article in question seeks to continue in force not only the existing laws but also notifications, rules, orders or bye‑laws. Accepting the argument that the words "notwithstanding anything contained in the Constitution" would also govern clause (3), would result in giving the overriding effect to such notifications, rules, orders, or bye‑laws as against the fundamental rights. This could not be the intention of the legislature. Secondly clause ( 3) covers not only the legislative measures adopted during the Martial Law period as specified in clause (1), but even pre‑existing laws and there appears no rational basis for imputing to the legislature the intention to continue such pre‑existing laws free from all constitutional limitations in the future. It is, therefore, clear that the non obstante clause under consideration does not control clause (3) of Article 270‑A. Apparently the object underlying clause (3), as in case of similar provisions in the earlier Constituional instruments, was to maintain the continuity of laws and to prevent interruption in the legal force of the existing laws so that legal rights are not affected by the disappearance of the laws under which the rights and obligations accrued or were incurred. Clause (3) embraces all the existing laws including enactments which were in force at the relevant time. Such enactments and laws included some of the laws which were in existence at the time of the enactment of Article 268(1) or even earlier. Therefore, it will be unreasonable to attribute to the legislature an intention to convert an existing law which was to continue in force subject to the Constitution, into a law which would override the Constitutional limitations, after being continued under Article 270‑A.
Clause (3) of Article 270‑A has the effect of continuing in force all the existing laws that were in force immediately before the date on which the proclamation of withdrawal of Martial Law was issued and all the provisions of the Constitution were revived. Accepting the argument otherwise will mean that all the existing laws en masse would achieve supra‑Constitutional status free from every constitutional limitation or constraint. Such unbridled supremacy would mean the virtual continuation of the entire legal order existing on the date of withdrawal of Martial Law, over and above the Constitution which, in consonance with the settled principles of interpretation, is difficult to attribute to the legislature.
(ddd) Constitution of Pakistan (1973)‑‑
‑‑‑Arts.270‑A & 8‑‑Laws of sub‑Constitutional nature‑‑Validity‑Extent‑‑Conflict of such laws with Fundamental Rights‑‑Effect‑‑Ouster clause in Art .270‑A‑‑Scope.
So far as laws of sub‑Constitutional nature are concerned, clause (1) of Article 270‑A conferred validity to the extent that such laws acquired the status of validly enacted laws by the competent legislature, in order to cure the lack of legislative competence at their inception when they were promulgated. This validity gave them efficacy to the fullest extent during the protected period when the Fundamental Rights were not in operation and remained in abeyance.
For achieving this object, it was obviously not necessary to save them from the inhibitory force of the Fundamental Rights which in fact were not in operation. In this context it will be apparent that clause (1) of Article 270‑A is confined to the specified period of protection for purposes of ex post facto validation. The effect of this validation would be to bring into force the protected laws and maintain them on the statute book, irrespecive of their possible future conflict with the Fundamental Rights. The ouster clause which follows the clause conferring the validation, would also be equally limited in its scope to the same extent, so that any sub‑Constitutional legislation in its future operation would yield to the extent of inconsistency, to the Fundamental Rights as soon as and as long as they are operative. Therefore in seeking to enforce Fundamental Rights the petitioner is not in effect challenging the validity of the laws in the sense that they are non eat or absolutely void, but only that the impugned ordinances do not operate as against her rights guaranteed by Part II of the Constitution. In other words the validity of the laws in question remains intact qua all persons, to whom the particular Fundamental Right gives no protection and as regards every person during the period the Fundamental Rights are suspended or otherwise not in force. Viewed in this light it is manifest that no challenge is being offered to the laws in question within the contemplation of the ouster clause.
A perfectly valid legislative enactment, under the scheme operates subject to the provisions of Article 8 of the Constitution. The qualitative soundness of a piece of legislation on the constitutional plane, except where it is expressly exempted from the operation of Article 8, does not qualify it to impinge upon the constraints imposed by Fundamental Rights. The effect of these constraints, is not to affect the vires of the law in question but to yield to the relevant Fundamental Right which is sought to be enforced, to the extent of repugnancy.
Province
of East Pakistan v . Md. Mehdi Ali Khan P L D 1959 S C (Pak.) 387 quoted.
Fa uji Foundation's case P L D 1983 S C 4 57 distinguished.
(eee) Constitution of Pakistan (1973)‑
‑‑‑Art.270‑A, proviso‑‑Object of proviso was to validate past and closed transactions, as by that time the legislative measures taken by the President in exercise of the power under the proviso, were past transactions.
Article
270‑A did not come into force immediately upon its enactment. Its
operation was deferred to 30th December, 1985, so that it coincided with the
revocation of the proclamation of Martial Law and with that the power conferred
under the proviso also ceased to be available. In this context it is easy to
see that the object was to validate past and closed transactions, as by that
time the legislative measures taken by the President in exercise of the powers
under the proviso, were past transactions.
(fff) Constitution of Pakistan (1973)‑
‑‑‑Arts.17(2). 8 & 270‑A‑‑Political Parties Act (III of 1962), Ss.3, 3‑A, 3‑B, 3‑C & 6‑‑Repugnancy of provisions of Political Parties Act, 1962 to the Fundamental . Right guaranteed under Art.17(2) of the Constitution rendering said provisions void by virtue of Art.8(2) of the Constitution elaborated.
The question was that how far the impugned provisions (sections 3, 3‑A, 3‑B, 3‑C & 6) of the Political Parties Act are repugnant to the Fundamental Right guaranteed under Article 17(2) and are accordingly rendered void by virtue of Article 8( 2) of the Constitution. As will appear from the text of Article 17(2) the Fundamenal Right to form political parties and be member thereof has been made subject to reasonable restrictions imposed by law. The point to note is that the law which was authorised by the power conferred on the legislature under this provision has been confined to certain defined limits. This part of this Article can be divided into two portions. The first portion authorises the imposition of reasonable restrictions upon the right of formation of political parries and the important words are that these restrictions are to be imposed in the interest of "sovereignty or integrity of Pakistan". The second portion of this provision deals with the question of the power conferred on the Federal Government to declare a party to have indulged in prohibited acts and refer the matter to the Supreme Court for final decision. In this part the words "in the interest of" are conspicuously omitted and it is provided that action can be taken if the "party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan."
Article 17(2) declares that every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party. This Article is included in Chapter I of Part II of the Constitution which is entitled "Fundamental Rights." Article 8(2) contains a mandate to the State not to make any law which takes away or abridges the rights so conferred. The sacrosanct character and the sacredness of these rights is to be viewed in this context. In delegating respective powers to each of the three branches of Government, the legislature, the executive and the judiciary, the people of Pakistan preserved for themselves certain Fundamental Rights, which were kept beyond the reach of the delegated authority vested in the said branches of the Government, to destroy or curtail. The Objectives Resolution, which has become a substantive part of the Constitution, is a historical document and represents the aspirations of the people of Pakistan, laying down the broad principles on which the Constitution was to be framed. It has stood the test of time and is generally accepted to represent the national ethos of the people of this country. A careful examination of this document will reveal the theory of delegation as its basic foundation.
The expression "Political justice" is very significant and it has been placed in the category of Fundamental Rights. Political parties have become a subject‑matter of a Fundamental Right in consonance with the said provision in the Objectives Resolution. Even otherwise, speaking broadly, our Constitution is a Federal Constitution based on the model of Parliamentary form of representative government prevalent in United Kingdom. It is also clear from the Objectives Resolution that principles of democracy as enunciated by Islam are to be fully observed. True and fair elections and the existence of political parties, is an essential adjunct of a functional democratic system of Government.
The opening part of Article 17(2) spells out the Fundamental Right and then provides that the right can be subjected to "any reasonable restrictions imposed by law in the interest of the sovereignty and integrity of Pakistan". The second part of this Article, relating to placing reasonable restrictions by law and providing for reference to the Supreme Court, is obviously a non‑self‑executing provision of the Constitution. The exercise of legislative power to put into execution the constraints on the functioning of the political parties is to be confined, from the very nature of the provisions, within the para meters postulated in the Article itself. Any transgression of the limits so prescribed would obviously be violative of the content of the Fundamental Right and would result in defiance of the Constitutional command proclaimed in Article 8(2) of the Constitution requiring that no law shall be made which takes away or abridges the Fundamental Right. The Constitution demands not only that the restrictions be reasonable, so as to permit the enjoyment of the right conferred as far as possible without let or hindrance but must have nexus with sovereignty or integrity of Pakistan. It is needless to say that any enlargement of the scope of restrictions is inversely related to freedom guaranteed by the Article. Therefore, the test whether the law has been framed so as to remain within the permissible limits is to be strictly applied. Otherwise there will be no guarantee to prevent inroads from being made upon the full enjoyment of the right the Constitution considered sacred.
On a bare perusal of the impugned provisions it would appear that Islamic Ideology, security of Pakistan, public order and morality have been added as the grounds on which action against a political party can be taken, which are not the grounds prescribed in Article 17(2). Accordingly the provisions are inconsistent with the Fundamental Right and would yield to the same to the extent of inconsistency. Argument that the amending law was in consonance with P.O. 20 of 1970 which has been saved by Article 270‑A as existing law is devoid of force. P.O. 20 of 1978 was a legislative measure taken during the period of Martial Law and as Article 17 was revived in its original form without effecting any amendments on the lines contemplated in the said P.O. is sufficient indication that the Constitution as amended was to remain the supreme and fundamental law of the land which cannot be subordinated to a piece of legislation outside it. In any case the Revival of the Constitution of 1973, Order (P.O. 14 of 1985) and P.O. 20 of 1978 have both been approved by the same constitutional measure by Article 270‑A. Therefore, they stand on the same level. As there is inconsistency between Article 17 and P.O. 20 of 1978, they obviously cannot stand together. P.O. 20 of 1978, being an earlier law would by implication be deemed to have been repealed by the subsequent law, namely, P.O. 14 of 1985. Consequently, the provisions of P. O. 20 of 1978, cannot save the provisions of the enactments which are hit by Article 17 of the Constitution.
It is difficult to accept the argument that the terms "sovereignty" and "integrity" include the terms Islamic Ideology, security of Pakistan, morality or public order in the unqualified manner in which they were added. Likewise the argument that restrictions mentioned in respect of other fundamental rights are to be read into Article 17. The very fact that various kinds of rights touching the different aspects of a citizen's life and pursuits have been made the subject‑matter of a separate Article demonstrates that the makers of the Constitution intended to provide restrictions relevant to the exercise of a particular right in the public interest. Therefore if the intention was to apply the restrictions on various fundamental rights to all the fundamental rights cumulatively, it was easy for the makers of the Constitution to lump together all the freedoms and provide common restrictions on the exercise thereof. An act in assertion of a particular Fundamental Right guaranteed under the Constitution may by itself or in connection with series of other acts, fall under the ambit of different Fundamental Rights and be governed in the respective sphere by the restrictions relevant thereto. That does not permit the state to import the restrictions relevant to a particular Fundamental Right, while enacting a law in respect of the restrictions under another Fundamental Right. Similarly the principles of policy prescribed in the Constitution are addressed to the organs and authorities of the state and its functionaries which cannot be invoked to save a legislative enactment from the operation of a fundamental right. To illustrate, the freedom of assembly under Article 16 is subject to reasonable restrictions imposed by law in the interest of public order. Here pubic order in its generic sense is a necessary restriction so far as the right to assembly is concerned, but it was not found necessary to put this restriction on the right to form a political party. If a political party were to call a meeting of its members all its members would then be subject to the restriction imposed by law, so far as public order is concerned, in the exercise of their right of assembly. It will be their obligation as citizens to assemble peacefully and without arms subject to other restrictions imposed by law. Here we are concerned with a right of a citizen to form and be a member of a political party, and not his right to assemble. Similarly morality is a relevant subject‑matter for restriction under Article 20 in regard to the freedom to profess religion and to manage a religious institution.
As there is prima facie inconsistency between the relevant parts of section 3 and section 6 of the Political Parties Act with Article 17(2), in so far as the Islamic Ideology, morality, and maintenance of public order, as well as contravention simpliciter of section 3‑A, in section 6, have been added, these provisions would attract the consequence of being void under Article 8. These terms in a given case may be attracted so as to be prejudicial to the "sovereignty" or "integrity" of Pakistan. In view of the relevance of these terms in the limited sense they need not be struck down.
So far as the provision regarding registration is concerned it is patently an unauthorized and unreasonable restriction for a number of reasons. The right to form a political party being guaranteed by the Constitution, it cannot be made further conditional upon registration, or involve a procedure for a preliminary scrutiny by the Election Commission to satisfy itself whether certain conditions have been fulfilled by the party concerned. The matter whether the party be registered or not has been left to the discretion of the Election Commission and in case it decides not to register the party, the penalty provided is that the party will not be eligible to participate in an election to the Parliament or Provincial Assembly or even to put up candidates under the party ticket in such elections. No provision for an appeal has been made to call in question the. decision of the Election Commission which would obviously result in far‑reaching consequences so far as the affected party is concerned. Reasonableness of the law prescribing restrictions in respect of Fundamental Rights is positively eroded when no right of appeal is provided to a judicial forum . Particularly in view of the importance of political parties in a democratic system, when the Constitution proclaims that formation of political parties is a fundamental right, such right cannot be made dependent upon the subjective satisfaction of an authority to deprive it of all its value. There is no justification that such discretionary power without safeguards and without appeal was necessary or reasonable under the circumstances. One may contemplate great difficulty in applying some of the Standards laid down, like whether the party believed in the ideology of Pakistan, when there is no fixed and defined meaning attached to the terms. In actual practice different individuals may assign wider or narrower meaning to the term according to their individual understanding and background. In fact the power would amount to unfettered and absolute discretion exerciseable according to the subjective satisfaction as observed by Hamoodur Rahman, C. J. in Abdul WaliKhan's case:
In order to test the reasonableness of such restrictions, therefore, no general standard exists. It will depend upon a variety of circumstances including the interest and urgency of the action proposed and the nature of the safeguard, if any, provided to prevent possibilities of abuse of power. The investment of arbitrary power in the executive to put to an end to the existence of a political party on the basis of its own satisfaction which may or may not be capable of being proved in a Court of Law may well be an unreasonable restrictiort• having regard to the importance of the right of association guaranteed by the Constitution. The safeguard that such a declaration by the ‑Executive will be subject to the decision of the Supreme Court is, however, a sufficient safeguard of the interests of the political party and adequately protects it from being dealt with either arbitrarily or whimsically or out of political vengeance.
Since our Constitution contemplates a plural parties system, the elimination of the parties from contest in the election, in accordance with the subjective decision of an executive authority may result in disastrous consequences so far as the functioning of the body politic is concerned. The regulation of the party affairs in enforcing to publish a formal manifesto, holding of party elections periodically and the publication of amendments in the foundation documents, is undue interference in the internal affairs of the parties and a clog upon the free exercise of the Fundamental Right.
These considerations are applicable with much greater force to the penal provisions, whereby the Election Commission has been empowered to cancel its registration.
Ours is the system of Government providing for parliamentary democracy, in which various parties in the country are formed with a view to capture the seat of power in order to implement the policy and programme which they consider beneficial for the progress and advancement of the country. Under the Constitution the achievement of this objective is through the means of election. Therefore, if a political party is barred and kept away from the election, its existence would hardly remain meaningful and effective. It may be pointed out that Article 17(2) does not guarantee a right to form a party but a "political" party. Consequently the right to contest the election to the National and Provincial Legislatures is inherent in the right guaranteed. Depriving a party of its right to participate in election would be its virtual dissolution.
The framers of the Constitution and the legislature while incorporating subsection (2) of section 6 in 1974 "intended to assure all political parties that the right so essential for the establishment of parliamentary democracy would not be interfered with except upon the decision of the Court of law and that too the highest Court of the country." The intervention of the Election Commission, which is certainly not a judicial body, in the operation of political parties, is, therefore, unwarranted and unreasonable restriction, violative of the Fundamental Right in question.The scheme of the amendments impugned even provides for the disqualification of a political party under section 3‑C of the Political Parties Act, which does not apply for registration. Accordingly a political party can be called upon to answer a questionnaire and forced to comply with the requirements of section 3‑B. If the Commission comes to the conclusion that the party has failed to fulfil the requirements applicable to register a party such political party may also be debarred from participating in an election. This prevision stands on the same footing as the provisions regarding registration. The provisions of section 3‑C were in terms temporary in nature, applicable to the then forthcoming election held in 1985.
Yahya Bakhtiar, Senior Advocate Supreme Court, Aitzaz Ahsan, Advocate Supreme Court, S. Iftikhar Ahmed Gilani, Advocate Supreme Court and M.A. Siddiqi, .Advocate‑on‑Record for Petitioner.
Ali Ahmad Fazeel, Attorney‑General for Pakistan, Sh. Ghias Muhammad, Senior Advocate Supreme Court, Muhammad Ali Sayeed, Senior Advocate Supreme Court, Tanvir Ahmed Khan, Addl. AdvocateGeneral, Punjab, Aftab Farrukh, Senior Advocate Supreme Court, Rashid Akhund, Advocate Supreme Court and Fazale Hussain, Advocate‑on‑Record for Respondent No.l.
Malik M. Qayyum, Dy. A.‑G., Sajjad Ahmed Sipra, Dy.A.‑G. and Ch. Fazale Hussain, Advocate‑on‑Record for Respondent No.2. Khalil Ramedy, A.‑G. Punjab, Rao M. Yousaf Khan, Advocate‑on‑Record, Wajihuddin Ahmad, A.‑G. Sind, Bashirullah Khan, Addl. A.‑G. N.‑W.F.P. and Yakub K. Eusafzai,A.‑G. Baluchistan on Court Notice.
Dates of hearing: 1st, 2nd, 3rd, 6th, 7th, 8th, 13th, 14th,
15th, 16th and 17th February, 1988.
JUDGMENT
MUHAMMAD HALEEM, C.J.‑‑By this Constitution Petition filed under Article 184(3) of the Constitution .of the Islamic Republic of Pakistan , 1973, the petitioner who is the Co‑Chairperson of the Pakistan Peoples Party seeks to challenge the amendments made in the Politicial Parties Act, 1962, as violative of Articles 17 and 25 of the Constitution, and the vires of the Freedom of Association Order, 1978 (President's
Order No.20 of 1978), as being unconstitutional and for that reason void ab initio and not an existing law. There was a further challenge to the constitutionality of Article 270‑A as "affirmed and purportedly validated" by the Constitution (Eighth Amendment) Act, 1985, in so far as it curtailed the power to judicially review its content or restricted the jurisdiction of the superior Courts to protect Fundamental Rights of the citizens including the right to form or be a member of a political party under the Constitution as it existed before the 5th of July, 1977; and, finally, in that, its provisions were repugnant to t1he provisions of Article 2‑A of the Constitution which relate to the concept of legal sovereignty in Pakistan and the independence of the judiciary.
It is averred that the Pakistan Peoples Party was formed in 1967 and as a political organization it functioned and contested general elections held in 1970 and 1977, and that it would have also contested the elections to be held in 1979 which were, however, abandoned. During these years no obstacles or restrictions were imposed by law on the party to contest the elections or to impair its functioning as a political organization. However, on the promulgation of Martial Law on 5th of July, 1977, partial or total restrictions were imposed on the functioning of the political parties under various Martial Law Orders or Regulations in that they were either totally banned or only allowed to hold indoor meetings.
As before the imposition of Martial Law, it was the Political Parties Act, 1962 (hereinafter called "the Act"), which regulated and controlled the functioning of the political parties, therefore, it would be appropriate to recall the amendments made in it from time to time after its promulgation on 16th of July, 1962, under Article 173 of the 1962 Constitution when the chapter relating to the Fundamental Rights was not inserted in it. Sections 3 and 6 of the Act are of relevance and reproduced below:‑
"Section 3:
Formation of certain political parties prohibited.‑‑
(1) No political party shall be formed with the object of propagating any opinion, or acting in a manner, prejudicial to the Islamic Ideology, or the integrity or security of Pakistan.
(2) No person shall form, organise, set up or convene a foreign aided party or in any way be associated with any such party.
Section 6:
Reference to Supreme Court regarding certain parties.‑‑
(1) Where the Central Government is of the opinion that any political party has been formed or is operating in contravention of section 3, it shall refer the matter to the Supreme Court, and the decision of the Supreme Court on such question, given after hearing the person or persons concerned, shall be final.
(2) Where the Supreme Court upon a reference under subsection (1), has given a decision that a political party has been formed or is operating in contravention of section 3, the decision shall be published in the official Gazette, and upon such publication, the political party concerned shall stand dissolved and all the properties and funds shall be forfeited to the Central Government."
The object of promulgating this Act was to remove the ban in order to enable the people to form political parties and to seek election with the support of political parties as before the Act there was a ban on the formation of a political party by reason of the Political A Organisations (Prohibition of Unregulated Activity) Ordinance, 1962, and also the prohibition contained in Article 173 of the Constitution against a person holding himself out as a member of a political party or seeking support from such political party at the time of election without the permission of the Central Legislature
On 7th of January, 1963, Ordinance No.I of 1963 was promulgated to amend certain provisions of th a Act. Sections 3 and 6, however, remained unchanged. By Act 1 of 1964, the chapter relating to the Fundamental Rights and Principles of Policy was introduced in the 1962 Constitution. Article 7 of this Constitution which guaranteed freedom of association, was subject to reasonable restrictions imposed by law in the interest of morality or public order. The words "prejudicial to the Islamic ideology, or the integrity or security of Pakistan" did not find place in this Article, This section continued as it was till the 1962 Constitution was abrogated. Therein the Interim Constitution of 1972 was enacted by the National Assembly which came into force on the 21st day of Aprii. 1972. Article 14 of the Interim Constitution of 1972 and Article 7 of the abrogated Constitution of 1962 were in pari materia. The Interim Constitution was repealed by the 1973 Constitution which guaranteed the freedom of association. Article 17 of this Constitution was in two parts. Sub‑Article (1) was worded exactly as Article 14 of the Interim Constitution. Sub‑Article (2) was a new feature. It guaranteed to every citizen a right to form or be a member of a political party. It was further provided that every political party shall account for the source of its funds in accordance with law. By Constitution (First Amendment) Act, 1974, enacted on 8th May, 1974, the following was substituted for sub‑Article (2) of Article 17:
"(2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political ,party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final."
On 18th February, 1975, Act No.XXI of 1975, was promulgated to amend the Act for the purpose of bringing its provisions into accord with Article 17(2) of the 1973 Constitution. Accordingly, subsection (1) of section 3 of the Act was deleted and a new provision was substituted in its place as under:
"(1) No political party shall be _formed with the object of propagating any opinion or acting in any manner prejudicial to the sovereignty or integrity of Pakistan."
Subsection (2) of section 3, as originally stood, was omitted. Again section 6 of the Act was also amended which reads as under:‑
"6. Dissolution of
political parties.‑‑
1) Where the Federal Government is satisfied that a political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, it shall make such a declaration and publish the same in the official Gazette, and upon such publication, the political party concerned shall, subject to the provisions of subsection (2), stand dissolved, and all its properties and funds shall be forfeited to the Federal Government."
This amending Act, however, did not make any provision for the accounting of the funds as required by sub‑Article (3) of Article 17 of the 1973 Constitution.
By the Constitution (Fourth Amendment) Act, 1975, promulgated on 25th of November, 1975, the following in sub‑Article (1) of Article 17 for the words "morality or public order" was substituted:
"sovereignty or integrity of Pakistan, public order or morality."
The next amending Ordinance No.XXVIII of 1975 was promulgated on 26th of December, 1975, by which section 8 was substituted for the original text which reads:
"8. Certain disqualifications for being a member of Parliament or a Provincial Assembly.‑‑
A person who has been an office‑bearer of a political party dissolved under subsection (2) of section 6 or who has been convicted under section 7 shall be disqualified‑‑
(a) from being a member of Parliament or a Provincial Assembly;
and
(b) from being elected or chosen as a member of Parliament or a Provincial Assembly for a period of five years from the date of such dissolution or conviction, as the case may be."
By Ordinance No.V of 1976, section 8 was amended and a new provision was substituted therefor. It reads as under: ‑
"8. Certain disqualifications for being a member of Parliament or a
Provincial Assembly.‑‑A person who as‑‑
(i) at any time on or after the twentieth day of December, 1971, been an office‑bearer of a political party dissolved under subsection (2) of section 6 and has not, before a declaration in respect of such party is made by the Federal Government under subsection (1) of that section, resigned from, or publicly announced his dissociation with, such party, or
(ii) been convicted under section 7, shall be disqualified from being a member of Parliament or a Provincial Assembly and from being elected or chosen as such a member for a period of five years from the date of such dissolution or conviction, as the case may be.
Explanation.‑‑In this section, "office‑bearer of a political party" means an office‑bearer at the National or Provincial set‑tap of the party, but does not include a person‑‑
(a) who is merely a member of the Working, Central, Provincial or other Committee of the party; or
( b) who is an office‑bearer of the party below the Provincial setup. "
There was a further amendment of section 8 by Ordinance No.XIX of 1976 promulgated on 17th of May, 1976. The substituted provision reads as under:‑
"8. Certain disqualifications for being a member of Parliament or a Provincial Assembly.‑‑A person who has‑‑
(a) at any time on or after the twentieth day of December, 1971, been an office‑bearer of a political party dissolved under subsection (2) of section 6 and has not, before a declaration in respect of such party is made under subsection (1) of that section, resigned from, or publicly announced his dissociation with such party; or
(b) been convicted under section 7;
shall be disqualified from being a member of Parliament or a Provincial Assembly and from being elected or chosen as such a member for a period of five years from the date of such dissolution or conviction, as the case may be.
Explanation.‑In this section, 'office‑bearer of a political part:' means as office‑bearer at the National or Provincial set‑up of the party otherwise than as a mere member of the working, Central, Provincial or other Committee of the party."
This Ordinance repealed the earlier Ordinance No. V of 1976.
Section 8 was again amended by the Political Parties (Amendment) Act, 1977, promulgated on 9th of January, 1977, to read as under:
"8. Certain disqualifications for being a member of Parliament or a Provncial Assembly.‑A person who has‑
(a) at any time on or after the twentieth day of December 1971, been an office‑bearer of a political party dissolved under subsection (2) of section 6 and has not, before a declaration in respect of such party is made under subsection (1) of that section, resigned from, or publicly announced his dissociation with, such party; or
(b) been convicted under section 7; shall be
disqualified from being a member of Parliament or a Provincial Assembly and
from being elected or chosen as such a member for a period of five years from
the date of such dissolution or
conviction, as the case may be.
Explanation.‑‑In this section, office‑bearer of a political party means an office‑bearer at the National or Provincial set‑up of the party otherwise than as a mere member of the Working, Central, Provincial or other Committee of the party."
By Ordinance XLI of 1978, drastic amendments were made in the Political Parties Act. The following were substituted for section 3 of the Act:
"3. Formation of certain political parties prohibited. ‑‑
(1) No political party shall be formed with the object of propagating any opinion or acting in any manner prejudicial to the Islamic Ideology, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order.
(2) No person shall form, organise, set‑up or convene a foreign‑aided party or in any way be associated with any such party.
Explanation.‑‑In subsection (2), "foreign‑aided party" means a political party which‑‑
(a) has been formed or organised at the instance of any Government or political party of a foreign country; or
(b) is affiliated to or associated with any Government or political party of a foreign country; or
(c) receives any aid, financial or otherwise, from any Government or political party of a foreign country, or any portion of its funds from foreign nationals."
Again section 6 of the Act was amended. In subsection (1) after the words "political, party", occurring for the first time, the words "is a foreign‑aided party or" were inserted, and for the words "sovereignty or integrity of Pakistan" the words "Islamic Ideology, or the sovereigny, integrity or security of Pakistan, or morality, or ~,~aintenance of public order" were substituted. A new subsection (2‑A) was inserted in section 7 of the Act as under:‑
"(2‑A) If any person who was‑ an office‑bearer of a political party at the time of its dissolution under subsection (2) of section 6 indulges or takes part in any political activity within seven years of its dissolution, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both."
Section 8 of the Act was renumbered as subsection (1) and subsection (2) was inserted as under:‑
"(2) A person who has at any time on or after the fifth day of July, 1977, been a member of a political party dissolved under subsection (2) of section 6 and convicted for an offence committed before such dissolution and punishable with imprisonment for a term which is not less than two years shall be disqualified from being a member of Parliament or a Provincial Assembly or a local body and from being elected or chosen as such a member for a period of seven years from the date of such dissolution."
Ordinance No.XLII of 1979 enacted on 30th of August, 1979, brought two new insertions in the Act, namely 3‑A and 3‑B, which read as under:
"3‑A. Political parties to submit accounts, etc.‑‑Every political party shall, in such manner and form an at such times as may be provided by rules made by the Federal Government, account for the source of its funds to, and submit its finances and accounts to audit by, an officer or authority authorised by the Election Commission in this behalf:
Provided that every political party in existence at the commencement of the Political Parties (Amendment) Ordinance, 1979, shall account for the source of its funds, and submit its finances and accounts to audit, within fifteen days of the publication of the rules made under this section.
Explanation.‑In this section and in section 3‑B, "Election Commission" means the Election Commission constituted under Article 218 of the Constitution or under the Election Commission order, 1977 [P. (P.‑P.) O.No.4 of 1977].
3‑B. Registration of political parties.‑‑
(1) Every political party in existence at the commencement of the Political Parties (Amendment) Ordinance, 1979, shall, within one month of such commencement, and every political party formed after such commencement, shall, within one month of its being formed, apply to the Election Commission for registration.
(2) An application under subsection (1) shall be made on behalf of a political party by such person and in such form, and shall be accompanied by such documents besides a copy of its constitution, a list of the names of its office‑bearers at the National level and a statement of its total membership in each Province, as the Election Commission may, by notification in the official Gazette, specify.
(3) The Election Commission shall register a political party applying for registration in accordance with subsection (2) if the Commission is satisfied that the political party‑‑
(a) has published a formal manifesto, that is to say, the party's foundation document or constitution giving its aims and objectives and provided therein for elections of its office‑bearers being held annually;
(b) has undertaken to publish any amendment to any document referred to in clause (a) as and when such amendment is made; a nd
(c) believes in the ideology of Pakistan and the integrity and sovereignty of Pakistan.
(4) If a political party which has been registered under subsection (3)
(a) fails to submit its accounts within the period specified in section 3‑A or the rules made thereunder;
(b) fails to hold election of any of its office‑bearers within the time allowed by, and in accordance with, its constitution and rules;
(c) propagates any opinion, or acts in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan;
(d) receives any aid, financial or otherwise, from the Government or any political party of a foreign country, or any portion of its funds from foreign nationals; or
(e) does or omits to do any such act or thing as would have resulted in registration being refused to it in the first instance; then, without prejudice to any action that may be taken in respect of the political party under section 6, the Election Commission may, after giving the political party an opportunity of showing cause against the action proposed to be taken, cancel its registration.
(5) The cancellation of the registration of a political party under subsection (4) shall be notified by the Election Commission in the official Gazette.
(6) A political party which has not been registered under subsection ( 3), or the registration of which has been cancelled under subsection (4), shall not be eligible to participate in an election to a seat in a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such election."
Section 6 was also amended to the extent that the words "or has contravened the provisions of section 3‑A" after the words "public order" were inserted. Section 3‑B was further amended by Ordinance No.LII of 1979 promulgated on 27th of September, 1979. In clause (a) of subsection (3) the word "periodically" was substituted for the word "annually" . The word "and" was deleted from clause (b) of this subsection. For the full‑stop in clause (c) the semi‑colon and word "and" were substituted. After clause (c) a new clause (d) was inserted as under:
"(d) has submitted its accounts as required by section 3‑A".
In subsection (4), in clause (a) after the word "fails", the commas and words "or has failed," are inserted:
The next amendment was the insertion of section 3‑C after section 3‑B of the Act by Ordinance No.LIII of 1979, which reads as under:
"3‑C. Certain political parties to be eligible to participate in forthcoming elections. ‑
(1) The provisions of this section shall have effect notwithstanding anything contained in section 3‑B.
(2) The Election Commission shall, by notification in the official Gazette, call upon the political parties which had complied with the provisions of section 3‑A but had not applied for registration under section 3‑B to furnish to the Commission,
within such time as may be specified in the notification, answers to a questionnaire published therewith.
(3) Answers to a questionnaire referred to in subsection (2) shall be furnished on behalf of a political party by such person, and shall be accompanied by such documents, besides a copy of its constitution and manifesto, a list of the names of its office‑bearers at the National level and a statement of its total membership in each Province, as may be specified in the notification published under the said subsection.
(4) If, after giving a political party which has furnished answers to the questionnaire as required by subsection (2) an opportunity of being heard, the Election Commission is satisfied that the party has fulfilled the requirements of subsection (3) of section 3‑B, the Election Commission shall declare the political party, by notification in the official Gazette, to be eligible to participate in an election to a seat in a House of Parliament or a Provincial Assembly and to nominate or put up a candidate at any such election."
Section 8 was next amended by Ordinance No.III of 1985. In subsection (1) after the words "as the case may be", a proviso was inserted which reads as under:
"Provided that, 'in respect of a person who has, at any time on or after the twentieth day of December, 1971, and before the fifth day of July, 1977, been an office‑bearer of a political party as aforesaid, this subsection shall have effect as it for the words "five years" the words "twelve years" were substituted"; .......
After subsection (2) , new subsections (3) to (5) were inserted as under:
"(3) A person who has, at any time after the first day of December, 1971 been an office‑bearer or member of the executive committee at the National or Provincial set‑up, by whatever name called, of a political party which was neither registered with the Election Commission nor declared by the Commission, by the eleventh day of October, 1979 to be eligible to participate in elections, shall not be qualified for a period of seven yeas to be elected or chosen as a member of Parliament or a Provincial Assembly:
Provided that the disqualification in this subsection shall not apply to a person who has, at any time since the fifth day of July, 1977, been a member of the Federal Council (Majlis‑eShoora) or a provincial council or a Federal Minister, a Minister of State, an Adviser or a Provincial Minister.
(4 A person who has, at any time after the first day of December, 1971, and before the fifth day of July, 1977, been a Federal Minister, a Minister of State, an Adviser or a Provincial Minister shall not be qualified for a period of seven years to be elected or chosen as a member of Parliament or a Provincial Assembly.
(5. The President may, at any time, either of his own motion or on the application of any person who is disqualified under subsection (3) or subsection (4), by order in writing, remove the disqualification."
Section 8 was further amended by Ordinance VI of 1985 promulgated on 17th of January, 1985. In subsection (1) of section 8 another proviso was added as under:
"Provided further that the disqualification in this subsection shall not apply to a person who has, at any time since the fifth day of July, 1977, been a member of the Federal council (Majlis‑e‑Shoora) or a Provincial Council or a Federal Minister, a Minister of State, an Adviser or a Provincial Minister."
Subsections (3) and (4) were omitted, and the consequential amendment was made in subsection (5) . In lieu of the words subsection (3) or subsection (4), subsection (1) was substituted.
Act XXII of 1985 was enacted to further amend the Act. In section 3‑A, the Explanation was omitted and a new section 8‑B was inserted after section 8. It reads as under:
"8‑B. Disqualification on _ground of defection, etc.‑(1) It a member o a House‑
(a) having been elected as such as a candidate or nominee of a political party, or
(b) h avi ng been elected as such otherwise than as a candidate or nominee of a political party and having become a member of a political party after such election, defects or withdraws himself from the political party he shall, from the date of such defection or withdrawal, be disqualified from being a member of the House for the unexpired period of his term as such member, unless he has been re‑elected at a bye‑election held after his disqualification.
(2) If any question arises whether a member of a House has become disqualified under subsection (1) from being a member, the question shall, on a reference by the Leader of the Parliamentary party concerned, be determined by the Election Commission.
(3) An appeal against a decision of the Election Commission under subsection (2) shall lie to the Supreme Court, within thirty days of the decision.
Explanation.‑In this section, "House" means a House of the Majlis‑e‑Shoora (Parliament) and includes a Provincial Assembly. "
Two new sections 11 and 12 were also added after section 10 of the Act as follows:
"11. Exercise of powers,
etc., of Election Commission.‑
During the period when an Election Commission does not stand constituted, the election commission constituted under Article 218 of the Constitution or under the Election Commission Order, 1977 (P. (P.P.) O.No.4 of 1977], for the purpose of a general election to the National Assembly and to a Provincial Assembly shall continue to exercise the powers and perform the functions conferred upon the Election Commission under this Act until thn constitution of an Election Commission for the purpose of
the succeeding general election to the National Assembly and to a Provincial Assembly.
12. Power to make rules.‑
The Federal Government may, by notification in the official Gazette, make rules for carrying out the purpose of this Act."
By the Federal Laws (Revision and Declaration) Ordinance, 1981, enacted on 8th July, 1981, the Political Parties (Amendment) Ordinance, 1979 (XLII of 1979) and the Political Parties (Second Amendment) Ordinance, 1979, were repealed. However the saving clause provided that the repeal would not affect the continuance of the amendments made by these two Ordinances in the Political Parties Act, 1962. It is, however, significant to note that on 17th of October, 1978, not only the Political Parties (Amendment) Ordinance, 1978, was promulgated but also the Freedom of Association Order, 1978, (President's Order No.20 of 1978), which by para. 3 re‑enacted Article 17(2) of the 1973 Constitution with the following modification, and gave to it an overriding effect over Article 17 of the 1973 Constitution which was then in abeyance:
"3. Freedom of association.‑(1) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the Islamic Ideology, the sovereignty, integrity or security of Pakistan, public order or morality, and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner' prejudicial to the Islamic Ideology, the sovereignty, integrity or security of Pakistan, public order or morality, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such a reference shall be final.
(2) Every political party shall account for the source of its funds in accordance with law."
The grievance of the petitioner is that the Political Parties Act, 196 2, as it existed before the 5th of July, 1977, allowed it to function and propagate its views, manifesto, policy and programme as a political party, but by its amendments by Ordinance XLI of 1978, Ordinance XLII of 1979 and President's Order No.20 of 1978 unreasonable restraints were placed on the functioning of the political party ‑ so much so that it is not eligible to participate in an election to a seat in a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such election as it has not got itself registered within the specified period as provided by subsection (1) of section 3‑B of the Act.
According to Mr. Yahya Bakhtiar, learned counsel for the petitioner; firstly, Article 17(2) of the Constitution provides for the imposition of "reasonable restrictions" by law in the interest of the sovereignty or integrity of Pakistan; and, secondly, that the political party is only required to account for the source of its funds in accordance with law. In his view, therefore, any extraneous requirements in the Political Parties Act beyond these conditions are inconsistent with Article 17(2) and (3) of the Constitution and,
therefore, void. In this context he referred to the several provisions of the Act to which he took exception as being violative of the Fundamental Right relating to the formation and functioning of the political party. The first such section is 3 which prohibits the formation of certain political parties. In this section there is the addition of the Islamic Ideology, security of Pakistan, morality and the maintenance of public order apart from sovereignty or integrity of Pakistan which expressions in his view are vague and not capable of general objective definition, and hence very difficult to comply besides being outside the ambit of Article 17(2) of the 1973 Constitution. These are, therefore, ,void as being inconsistent with Article 17(2).
Next to follow is section 3‑A which requires the political parties to submit accounts. The learned counsel took objection to the words "submit its finances and accounts to audit" besides accounting for the source of its funds as it was like an income‑tax return according to the nature of declaration required to be filed. As for the source of funds, the counsel did not object to it as it was the requirement of Article 17(3) of the Constitution, but, according to him, there was no justification to ask the party to submit its finances and accounts to audit by a person or authority authorised by the Election Commission which was a highly unreasonable restriction in the functioning of the party, and, therefore, void as it was beyond the scope of Article 17(3) of the 1973 Constitution.
The main thrust was against section 3‑B of the Act which provides for registration of political parties. The learned counsel stated that registration per se may not be violative of Article 17(2) of the Constitution; but if it provides further constraints such as those as now contained in subsection (3) of section 3‑B of the Act which, in effect, give untrammelled power to the Election Commission to allow or not to allow a political party to function is ex facie arbitrary and violative of Article 17(2) of the Constitution. In particular, the learned counsel also highlighted the distinction between section 3(1) where the expression used is "Islamic Ideology" and clause (c) of subsection (3) of section 3‑B of the Act where the expression is "Ideology of Pakistan" which expression, according to the learned counsel, is included by implication within the meaning of the term "integrity" of Pakistan and should not have been mentioned in isolation as a requirement of the belief of the political party. Exception was also taken to clause (d) of subsection (3) which lays a pre‑condition for submission of accounts for the purposes of
registration of a political party. As for the propriety of subsection (4) of section 3‑B of the Act which enumerates grounds for the
cancellation of registration of the political party, the learned counsel contended that the penal provisions gave unfettered power to the Election Commission to cancel the registration of the political party which was final and no remedy by way of appeal is provided against such an action, besides subjecting the political party to double jeopardy as it also saved the action for the dissolution of the party under section 6 of the Act. Exception was taken to subsect4on (6) of section 3‑B which places a restriction on the political party in the case of either non‑registration or cancellation of registration as not to be eligible to participate in an election to a seat in a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such election either where the party was not registered or its registration was cancelled.
Exception to section 3‑C was taken on the ground that this was discriminatory as it was inserted with the object to allow certain Pakistan National Alliance (PNA) parties which had not applied directly for registration to participate in the elections indirectly, which were to be held in November, 1979, requiring at the same time the satisfaction of the Election Commission as to the fulfillment of the conditions laid down in subsection (3) of section 3‑B of the Act which are violative for the same reasons as given earlier.
As to section 6 of the Act, the learned counsel stated that it was wholly inconsistent with the provisions of Article 17 with regard to dissolution save those mentioned in Article 17(2) and (3) of the Constitution, and, therefore, void.
Sections 7 and 8 of the Act, according to the learned counsel, provide consequences which flow from the dissolution of the political party under section 6, and that they also need modification if his submissions with regard to sections 3, 3‑A, 3‑B and 3‑C are accepted. Further, exception was taken to the second proviso to section 8(1) of the Act which automatically removes the disqualification of a person if he was a member of the Federal Council (Majlis‑e‑Shoora) or a Provincial Council or a Federal Minister, a Minister of State and Adviser of a Provincial Minister, as being discriminatory. Again section 8(5) of the Act was also challenged as it gave an absolute and arbitrary discretion to the President to remove the disqualification without any guidelines which is per se discriminatory and liable to be struck down.
The learned counsel also attacked the vires of President's Order No.20 of 1978 on the ground that being an existing law and not having any constitutional status it cannot prevail over President's Order No.14 of 1985 which revives Article 17 of the Constitution without any modification and that upon the enforcement of the Constitution it could not override Article 17 of the Constitution. The other ground of attack was that President's Order No.14 of 1985 being the later will of the Legislature, prevails over President's Order No.20 of 1978, and. that as President' Order No.20 of 1978 and Article 17 of the Constitution as revived cannot stand together, President's Order No.20 of 1978 should be regarded as having been repealed by implicated on .
In regard to Article 270‑A(1) of the Constitution, the learned counsel stated that it gave constitutional competence and validity to the legal instruments and laws during the specified period, that is, from 5th, of July, 1977 to 11‑11‑1985; and that as for those repealed their effect was not continued further but those saved continue in force until altered, repealed or amended by the competent authority, i.e., the appropriate Legislature. Their status is that of ordinary law and are subject to attack on the ground of being violative of the Fundamental Rights specified in Part 11 of Chapter I of the Constitution or any other provision of the Constitution with which they are inconsistent. As to the implication of the expression "notwithstanding anything contained in the Constitution" in Article 270‑A(1), the learned counsel stated that it only meant giving protection to the person who enacted the laws during the specified period but had no legal authority to do so‑ and that if the preliminary objection is that the pre‑condition of being an "aggrieved person" was not fulfilled as required by
Article 199 of the Constitution as there was no refusal by the Election Commission to register the party then even without making an application for registration, the same consequence follows by the operation of section 3‑B of the Act, and the petitioner becomes an "aggrieved person" as the right of the political party is invaded. In the alternative the argument was that Article 184(3) of the Constitution did not provide for a person to be "aggrieved" before invoking the relief as that is not mentioned in that sub‑Article which provides that "the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred b) Chapter I ‑of Part II is involved have the power to make an order of the nature mentioned in the said Article." It was emphasised that the common feature was only an order of the nature mentioned in Article 199 of the Constitution. The expression "without prejudice to the provisions of Article 199" occurring before the words "the Supreme Court shall" do not have the effect of incorporating Article 199 into it, but only saves the jurisdiction exercised by the High Court in regard to Article 199 relating to the enforcement of the Fundamental Rights. Therefore, the requirements of Article 199 cannot be read into Article 184(3) which is cf particular significance, in that, it is limited in scope and the jurisdiction only arises where the question is one of public importance relating to the enforcement of any of the Fundamental Rights while Article 199 is wider in scope, and for the same relief an aggrieved person can, under that provision, apply for the violation of any of the Fundamental Rights. The learned counsel thus, asserted that it is open to the petitioner either to have applied under Article 199 or to have invoked Article 184(3) of the Constitution as there was concurrent jurisdiction for seeking the same relief. In this context the learned counsel also referred to Rule 6 of Order ~XXV of the Pakistan Supreme Court Rules, 1980, where the requirement of "aggrieved person" is not mentioned, but only as to whether the petitioner "has moved the High Court concerned for the same relief, and if so with what result", which goes to show the concurrent jurisdiction of the High Court and the Supreme Court.
While raising these contentions, the learned counsel stated that he would confine himself within the .framework of the Legal Order itself. And thus, did not question the validity of Article 270‑A, and, accordingly, no arguments were addressed in that behalf so as to examine its wires.
Two preliminary objections were taken by the learned AttorneyGeneral in regard to the maintainability of the petition‑ The first i
that the vires of the law could be questioned only in its application to a person in relation to an action taken against him and not in the abstract when no cause of action has arisen meaning thereby that the petitioner should be an "aggrieved person". And the second is that the petition is not maintainable for reason of pendency of three petitions claiming, inter alia, similar reliefs in the High Courts of Lahore and Sind.
Taking the first point, the reply to it is formulated in the argument of the learned counsel for the petitioner earlier, in that, by the operation of section 3‑B of the Act, the petitioner becomes an "aggrieved person" as the right of the political party is invaded by not seeking its registration and in the alternative this is not a
requirement of Article 184(3) but that of Article 199 which is not incorporated in Article 184(3) so as to require the conditions therein to be fulfilled. The argument in the alternative is also referable to the first preliminary objection which I shall deal later. But as to the first namely that the petitioner is not an "aggrieved person", the learned Attnrne y‑General vehemently urged that unless action was taken against the party under section 3‑B of the Act, the petitioner does not become an "aggrieved party" as his .right to seek the relief is non‑existent. In this connection he referred to the various amendments in the Act Which have been challenged, but in regard to those amendments there is no adverse order against tt‑c petitioner so as to give her a cause of action. Reference was also made to the fact that the Pakistan Peoples Party had submitted its accounts for the years 1985‑86 and 1986‑87, but no adverse order was passed. :.‑, suport of this contention, the learned Attorney‑General relied on A.K.M. Fazlul Quader Chowdhury v. Government of Pakistan P L D 1957 Dacca 342, Standard Vacuum Oil Company v . Trustees of the Port of Chittagong, P L D 1961 Dacca 289; Saeed Khan v. Chairman. District Council of Bannu and others, P L D 1967 Pesh. 347; Miss Asma Jilani v. Government of the Punjab and another P L D 1972 SC 139; Muhammad Boota and 77 others v. Commissioner, Sargodha Division, PLD 1973 Lah. 580; National Steel Rolling Mills v. Province of West Pakistan, 1968 S C M R 317; Fauji Foundation v Shamimur Rehman, PLD 1983 S C 457; In re Ramamoorthi, A I R 1952 Mad. 94; Abanindra Kumar v. A K. Maiumdar, A I R 195fi Cal. 273 and Charanjit lal v. Union of India, A 'I R 1951 S C 41.
In the case of A.K.M. Fazlul Quader Chowdhury, the facts are that the Electorate Act, 1956, was passed pursuant to Article 145 of the 1956 Constitution which gave out the principle of Electorate namely joint electorate in East Pakistan and separate electorate in West Pakistan for the National and Provincial Assemblies. However, no electoral laws as contemplated in Article 144 under Chapter VIII of the Constitution were enacted for the conduct of elections. The grievance of the petitioner was that by the passing of the Electorate Act, 1956, his prospective right of franchise was infringed as by the joint electorate his chance for election to the National or Provincial Assembly had become dim as he had lost the sympathies of Hindu voters. Ills counsel had practically admitted. that the petitioner had no present right but only a potential or inchoate right as electoral laws had not been enacted, and it was only when this dispensation was enacted that he could claim a right to stand as a candidate for election. On these facts the High Court held that there was no infringement of his present legal right which could require performance of a legal duty which the statute imposed. The observations, therefore, at page 350 of the report are confined to the propriety of issuance of writ of mandamus. In coming to the conclusion the High Court relied on the cases, namely Charanjit Lai Chowdhury and Ramamoorthi. The learned Attorney‑General also relied on these cases in support of his proposition.
In the case of Charanjit Lai Chowdhury, a shareholder of one ordinary share in Sholapur Spinning and Weaving Company Limited had sought for a writ of mandamus and certain other reliefs under Article 32 of the Indian Constitution to challenge the vires of Sholapur Spinning and Weaving Company (Emergency Provisions) Act of 1950,
which was enacted to meet the emergency arising from the mismanagement of the Company necessitating unemployment and loss of production which was substituted by an Act incorporating all the provisions of the Ordinance. The vires of the enactment was challenged as violative of Articles 14, 19 and 31 of the Constitution, that is, it was discriminatory legislation which unjustifiably interfered with the right to hold the property and its deprivation. The relief sought was in the shape of a declaration in regard to the invalidity of the Act which was apparently inappropriate to an application under Article 32 of the Constitution.
What ‑ was emphasised in the case was that the rights which could be enforced under Article 32 must ordinarily be the rights of the petitioner himself who claims infraction of those rights and approaches the Court for relief. On this view of the matter, there was no scope for a discussion of the infringement of the fundamental rights of the Company as that was outside the purview of inquiry as the Company itself had not sought for the redress of a wrong done to it by the impugned legislation, which course was also open to the old Directors of the Company who were ousted from their position and on that footing the majority of the shareholders could also assert the rights as such. It was further held that Article 32 is not directly concerned with the determination of constitutional validity of a particular legislative enactment but what it aims at is the enforcing of fundamental rights guaranteed by the Constitution, no matter whether the necessity for such enforcement arises out of an action of the Executive or of the Legislature. Therefore, to make out a case under this Article it was necessary for the petitioner to show not only that the law complained of was beyond the competency of the Legislature but also that it affected or invaded his fundamental rights guaranteed by the Constitution. The reference to the remark in the case of A. K. M. Fazlul Quader Chowdhury finds mention in para. 7 of the separate judgment of Fazal Ali, J., which was stated by Hughes, J. in McGabe v. Atchison, (1914) 285 U.S. 151., with which the learned Judge agreed, and while applying it to the case under consideration held that so far as the property belonging to the Company has been taken possession of or the right enjoyed by it under Article 19(1)(f) has been infringed, it would be for the Company to come forward to assert or vindicate its own rights and not for any individual shareholder to do so. But as fox the violation of the rights as a shareholder under Articles 19(1) (f) and 31 of the Constitution is concerned, it could be the subject‑matter of investigation. Mukherjea, J. , while examining the alleged violations, however, stated in the judgment that if the wrong was done to the Company then it is a settled law that the action should prima facie be brought by the Company itself, and having stated so the learned Judge proceeded to lay down that if the individual rights of the petitioner himself are infringed then those could be enforced under Article 32. He then proceeded to examine whether there was an infringement of his fundamental rights under Article 31 of the Constitution, and held that by the impugned legislation no property or interest therein of the petitioner himself as a shareholder of the Company has been taken possession of. The violations under other Articles were also examined and not only that but the vires of the legislation as to its competency was also investigated and the crux of his conclusion was that the petitioner was not entitled to the relief of mandamus claimed in the petition as he had failed to show any infraction of the fundamental rights under the aforesaid Articles.
In re: Ramamoorthi, the question for consideration was whether the petitioner, who was a citizen of India and a member of the Madras Legislative Assembly having been elected on the Communist's Party ticket in the general elections held in January, 1952, could challenge the nomination of Sri Chakravarthi Rajagopalachari to be the Chief Minister. The High Court of Madras held that upon the facts of the case it was clear that he had no personal or direct interest in the matter of nomination for which he could seek redress under Article 226 o; the Constitution as all that he claimed was a political right which could not be taken notice of in a Court of law unless it had the character of a legal right. The petitioner thushaving failed to show that the nomination had inflicted a legal injury on him, the petition was dismissed.
It will be seen that in the first case, the present legal right of the petitioner (A.K.M. Fazlul Quader Chowdhury) was not infringed by the impugned legislation and what was sought to be enforced was the prospective right of franchise. In the second case the petitioner (Charanjit Lal Chowdhury) had failed to establish any infraction of his fundamental rights under Articles 14, 19 and 31 of the Indian Constitution and also the incompetency of the impugned legislation, and in regard to the deprivation of the property belonging to the Company, the petitioner had no locus standi to challenge the impugned legislation in his individual ,capacity. However. what is significant to note in this case is the remark that if the question arises for the enforcement of fundamental rights under Article 32 then it is actionable irrespective of the fact that the need for such enforcement arise out of an action of the Executive or of the Legislature. In the third case the petitioner (Ramamoorthi) only alleged the infraction of his political right which was held not to be justiciable. Therefore, in each case the petitioner had no locus standi for the issuance of the writs.
After the decision in the case of Charanjit' Lal Chowdhury, the Supreme Court of India has expanded the scope of Article 32 of the Constitution in S.P. Gupta and others v. President of India and others A I R 1982 S C 149 by giving to it a creative and purposive interpretation, and thereby enlarged the meaning of the word "locus standi" to ensure the constitutional objectives and goals and to bring justice within the easy reach of the poor and the disadvantaged sections of the people. Now the initiation of the proceedings is no longer confined to an "aggrieved person" . Any person acting bona fide can activise the Court for the infraction of the Fundamental Rights of a class or a group of persons in addition to an aggrieved person whose individual rights are violated,. As a result of this innovation a new form of litigation has come into existence which is gaining momentum as is evident from the successive judgments of that Court. This is a creative and a beneficial approach not only for the enforcement of Fundamental Rights, but also for securing social and economic justice, and if I mad say so the case of Charanjit Lal Chowdhury has been left far behind.
In Standard Vacuum Oil Company v . Trustees of the Port of Chittagong, P L D 1961 Dacca 289, the petitioner had failed to prove while attacking the impugned notification issued under the Chittagong Port Commissioner Act, 1887, the existence of right and its alleged violation, and it was held that it had no right to ask for mere opinion of the Court on a general proposition of law or seek redress to prevent a possible invasion of its right in future. In Saeed Khan v. Chairman, District Council of Bannu, P L D 1967 Pesh. 347, there was no evidence to identify the land leased out by the respondents which was the subject‑matter of a declaratory decree in a civil suit, and the petitioner failed to disclose the violation of his legal right. In these circumstances, relief was denied. These cases do not go further than what was held in A.K.M. Fazlul Quader Chowdhury. In Asma Jillani v. Government of the Punjab, P LD 1972 S C 139, the learned Attorney‑General relied on the passage at page 166 (E) as under:
"The Courts do not decide abstract hypothetical or contingent questions or give mere declarations in the air. 'The determination of an abstract question of constitutional law divorced from the concrete facts of a case', as observed by the same learned Chief Justice, "floats in an atmosphere of unreality', it is a determination in vacuo and unless it amounts to a decision settling rights and obligations of the parties before the Court it is not an instance of the exercise of judicial power."
There is no cavil with this proposition as it is an acknowledged principle of judicial review. The Supreme Court of India in S.P. Gupta and others v. President of India and others A I R 1982 S C 149 at page 226 has also held so:
"... it would be al fruitful exercise for the Court to determine whether the decision not to appoint him as an Additional Judge was unconstitutional and he should have been appointed as an additional Judge for a further term. The Court does not decide issues in the abstract. It undertakes determination of a controversy provided it is necessary in order to give relief to a party and if no relief can be given because none is sought, the Court cannot take upon itself a theoretical exercise merely for the purpose of deciding academic issues, howsoever important they may be. The Court cannot embark upon an inquiry whether there was any misuse or abuse of power in a particular case, unless relief is sought by the person who is said to have been wronged by such misuse or abuse of power. The Court cannot take upon itself the role of a commission of inquiry‑‑a knight errant roaming at will with a view to destroying evil wherever it is found."
I do not see how the proposition in Asma Jillani's case strengthens the argument of the Attorney‑General in regard to the requirement of an "aggrieved person" when the question to be decided is whether the impugned legislation infringes the Fundamental Right of the petitioner. The infractions alleged cannot be regarded as seeking a E declaration in the air or asking the Court to decide, in abstract, and for that matter hypothetical or contingent questions.
In Muhammad Boota and 77 others v. Commissioner., Sargodha Division P L D 1973 Lah. 580, reliance was placed on a principle stated at para. 5 of the judgment. This again relates not to the violation of any present right by an Executive action but merely an apprehension of a future injury. This decision does not, however, take note of the fact that where the vires of the Act itself is impleached on the ground that it is void as it contravenes the Fundamental Rights of an individual, the superior Courts have a duty to enquire into the alleged violation of the Fundamental Rights. This case is, accordingly, distinguishable on this score.
In Hakim Muhammad Anwar Babri v . Pakistan P L D 1973 Lah. 817, it was held that as there was no order of the Central Government of Pakistan recognizing Bengladesh, no writ can issue at this stage as the matter is premature and it is only when "some legal or constitutional question presents itself for judicial determination" that the power of judicial review can be exercised This case is also of no help as the stage was premature and the right was inchoate. In National Steel Rolling Mills v. Province of West Pakistan, 1968 SCMR 318, there was no present injury but a mere anticipation of a penal action by the Government, and hence it was held that this did not constitute a cause of action for invoking the writ jurisdiction of the Court as the proper opportunity would arise only when prosecution commences and it would be then that the petitioner, by way of defence, can challenge the vires of the Notification. In Fauji Foundation v. Shamimur Rehman, P L D 1983 S C 457, reference was made to the enunciation of the principle namely, scope of judicial review, in para. 68 of the report, but I fail to see how it is relevant in the present context.
In the Full Bench case Abanindra Kumar Maity v . A. K. Majumdar, A I R 1956 Cal. 273, the learned Attorney‑General relied on para. 10 of the judgment at page 274. The facts in this case are of peculiar character, in that, that under the West Bengai Bargadars Act (2 of 1950), the petitioners had made applications anc obtained back the possession of their lands in regard to which they sought redress under Article 226 of the Indian Constitution claiming the quashing of the order of the Appellate Officer and the issuance of injunction against the opposite party by way of protecting the possession of their land. On these facts, the Court held that the jurisdiction under Article 226 cannot be exercised for the purpose of declaring, at the instance of the petitioners, that certain proceedings which they themselves initiated are grounded in a void law and for quashing all orders passed in the proceedigns whether against them or in their favour. In this context, there was a further observation that the jurisdiction under this Article could only be invoked for the purpose of obtaining relief and not for the purpose of seeking the validity of the Acts adjudged in the abstract or being deliverer: from the relief "which had been obtained by a mistaken recourse to a void law." Here the purpose of seeking the relief was improper as the petitioners having elected to initiate proceeding to take back the possession of their lands under the impugned Act, it was not open to them to have those proceedings 4uashed by recourse to Article 226 of the Constitution as that provision was not intender? to adjudge the validity of the Acts in the abstract or from being absolved from the relief obtained under a mistaken impression that it was a valid law. I do not see how the ratio decidendi of this case will strengthen the contention of the learned Attorney‑General when the facts upon which relief had been denied are altogether different.
Here I may refer to a case reported as Fazal Din v. Lahore Improvement Trust, P L D 1969 S C 223, wherein it was held that the right considered sufficient is not necessarily a right in the strict juristic sense but it is enough if the .petitioner discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise. There is thus, a departure from the earlier rigid notion of a legal right to exist as a pre‑condition for maintaining the application for constitutional redress.
Therefore, there can be no doubt that when the impugned legislation by reference to its provisions is ex facie violative of[ F.undamental Rights of an individual or political parties or associations or unions, proceedings lie for the enforcement of those rights irrespective of the fact whether any prejudicial order has been passed by the Executive under the law as the Constitution treats the Fundamental Rights as superior to ordinary legislation and for that reason sub‑Articles (1) and (2) of Article 8 of the Constitution have been enacted which clearly reflect the object and intention of the framers of the Constitution, that is, to keep the Fundamental Rights at a high pedestal and to save their enjoyment from legislative infractions. Sub‑Article (1) of Article 8 lays down that any law in so far as it is inconsistent with the rights conferred by this Chapter" shall, to the extent of such inconsistency, be void. This could not have been without a purpose but to preserve and protect the Fundamental Rights. Sub‑Article (2) of Article 8 places a restriction on the Legislature not to make law which take away or abridges the rights so conferred, and any law made in contravention of this clause shall to the extent of such contravention, be void. Article 199(1)(c) authorises the High Court to enforce the Fundamental Rights of an aggrieved person and to declare that so much of the law which i inconsistent with the Fundamental Rights shall be void. Therefore, there is the power to declare the law to be void and the power to enforce the Fundamental Rights which are violated by the law itself. Article 184(3) of the Constitution empowers the Supreme Court to enforce the Fundamental Rights where the question of public importance arises in relation thereto. And if looked at from this angle it i. hardly of any importance whether the Executive has passed a prejudicial order or not when the infraction of the Fundamental Rights takes place by the operation of the law itself. In this context what would be relevant would be the language of the provisions of the impugned Act itself. It will then not be a question of the Court merely granting a declaration as to the validity or invalidity of law in the abstract. Reference in this connection may be made to K.K. Kochunni v. State of Madras, A I R 1959 S C 725, wherein at page 731, it was held:
"An enactment may immediately on its coming into force take away or abridge the Fundamental Rights of a person by its very terms and without any further overt act being done. In such a case the infringement of the Fundamental Right is complete co instanti the passing of the enactment and, therefore, there can be no reason why the person so prejudicially affected by the law should not be entitled immediately to avail himself of the constitutional remedy under Article 32. To say that a person, whose Fundamental Right has been infringed by the mere operation of an enactment, is not entitled to invoke the jurisdiction of this Court under Article 32, for the enforcement of his right, will be to deny him the benefit of a salutary constitutional remedy which is itself his Fundamental Right."
In Jibendra Kishore v. Province of East Pakistan, P L D 1957 S C 9, the Act namely the East Bengal State Acquisition and Tenancy Act, 1950, was passed by the Provincial Assembly of "East Bengal" and by subsection (1) of section 3, the Provincial Government was authorised to acquire by notification all interests of such of the rent‑receivers as were specified in the notification. Further, subsection (2) of that notification also enabled the Government to acquire all or any of the lands in the khas possession of such rent‑receivers. The rent‑receivers whose interests were expropriated were entitled to receive compensation by virtue of section 37 of the Act on a sliding scale, that is to say, the rate of compensation decreasing as the income increased. Such interests were acquired before the Constitution of 1956, and after its promulgation those affected moved petitions for writs of mandamus against the Provincial Government for a direction to withdraw or rescind the notification. It was urged that section 3 of the Act enabled the Government to pick and choose rent‑receivers whose interests were to be acquired and that gave to the Government a naked and arbitrary power which was capable of being used in a discriminatory manner and for that reason was void as it offended Article 5 of the Constitution which guaranteed equal protection of law to the citizens of the State. Further as for the compensation payable, section 37 of the Act drew a distinction between income earning groups of rent‑receivers, which for that reason, was ex facie discriminatory and, therefore, void. It was held that the Act itself was not ex facie discriminatory but if what was challenged was that it was capable of being administered in a discriminatory manner then the party challenging the vires of the Act must show that it has actually been administered to the detriment of a particular class and in a partial, unjust and oppressive manner. The petitioner, however, was denied the relief as apart from the mere submission there was no proof of any discriminatory treatment. The distinguishing feature against discrimination was that the acquisition challenged was not piecemeal but wholesale. As for the attack on section 37 on the basis that it constituted an infraction of the equality provision, it was held that as the Constitution itself recognised inequality in the matter of compensation by Article 15, no equality in that matter can be claimed under the general provisions of Article 5 of the Constitution. In regard to the violation of Article 18 of the Constitution, the view expressed in Copen v . Foster, 12 Pick 485‑488, in relation to right of political franchise was held to be applicable to its interpretation to the extent of religious freedom recognised by Article 18 of the Constitution. And it was observed:
"The Article appears to me to proceed on the well‑known principle that while legislature may not interfere with mere profession or belief, law may step in when professions break out in open practices inviting breaches of peace or when belief, whether in publicly practising a religion or running a religious institution, leads to overt acts against public order."
And as no question of law and order was involved, the Court differed from the view taken of this Fundamental Right by the High Court. Messrs Fast and West Steamship Company v. Pakistan, P L D 1958 SC 41 follows the same principle as laid down in Jibendra Kishore Achharyya Chowdhury and others v. The Province of East Pakistan P L D 1957 S C 9.
In Waris Meah v. The State P L D 1957 S C 157, by the promulgation of Foreign Exchange Regulation (Amendment) Act, sections 22‑A, 23‑A and 23‑B were added to the original Act which gave power to the Central Government or the State Bank to determine whether an offender under the original Act was to be tried under the ordinary law or by an Adjudication Officer or by a Tribunal and thus, prescribed three different punishing authorities each with different power and procedure and entailing punishment of unequal nature and description. It was held that the amending Act makes the principal Act ex facie discriminatory and infringes the subjects' Fundamental Rights to equal protection of law guaranteed by Article 5 of the Constitution, as it confers discretion of a very wide character on stated authorities to act in relation to subjects falling within the same class in three different modes varying greatly. In this case, Muhammad Munir, C.J. , spoke for the Court and while distinguishing the contention of Mr. A. K . Brohi that as it had not been shown that in the actual prosecution of offenders any discrimination has, in fact, been observed, the Act cannot be held to be ultra vires, on the dictum laid down in Jibendra Kishore Achharyya Chowdhury's case, the learned C .J. , at page 167 held:‑
"We emphatically rejected the contention that the Act questioned in that case was on the face of it discriminatory and proceeded to hold that where a statute is not ex facie discriminatory but is capable of being administered in a discriminatory manner, the party challenging the constitutionality of that statute must show that it has actually been administered to the detriment of a particular class and in a partial, unjust and oppressive manner."
However, in the case under consideration, he went on to say that the impugned Act is ex facie discriminatory and "we have no hesitation in saying that it is."
From the consideration of these cases, it is clear that the vires of an Act can be challenged if its provisions are ex facie discriminatory in which case actual proof of discriminatory treatment is not required to be shown, but where it is not ex facie discriminatory but is capable of being administered discriminately then the party challenging it has to show that it has acts ally been administered in a partial, unjust and oppressive manner. On this view of the matter,1 the contention of the learned Attorney‑General is devoid of any merit.
Having held so, the question which now requires to be considered is whether section 3‑B of the Act is ex facie discriminatory as by reason of non‑registration of the party its principal activity namely "to participate in an election to a seat in a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such election" is invaded to such an extent as to destroy its political existence. Reading subsections (1) and (6) of section 3‑B of the Act together the conclusion is irresistible that in the case of non ‑registration the penalty automatically follows and the political party suffers its political extermination. The learned Attorney‑General, in reply to it, referred to section 3‑C of the Act and contended that if the party had not applied for registration even then on the basis o the questionnaire issued by the Election Commission and the answers given to it, the party could be eligible to participate in the forthcoming elections provided the Election Commission was satisfied that it fulfilled the requirements of subsection (3) of section 3‑B of the Act. Therefore, the consequence flowing from the non‑registration of the party under subsection (6) of section 3‑B of the Act was wholly mitigated as its main activity was not stultified. The petitioner could not, therefore, be regarded as an "aggrieved party" in the context of the fact that it had an opportunity to participate in the elections but it failed to avail it.
To me it appears that the manner in which section 3‑C is worded is, in effect, an application of subsection (3) of section 3‑B again leaving the matter of participation of the political party in the election to the satisfaction of the Election Commission who may, in its discretion, either allow or refuse its participation. Besides, section 3‑C of the Act was enacted for a limited purpose, that is, for the forthcoming elections and those not having been held, it outlived its purpose and is now no longer of any effect, and by no stretch of imagination it negates the provisions of section 3‑B or provides an alternative for non‑registration under that section. This being so, it cannot be doubted that the petitioner is an "aggrieved party" as contended by the learned counsel for the petitioner
Another important question mooted for considerartion is as to whether the requirement of an "aggrieved party" is spelt out from Article 184(3) of the Constitution. The submission of the learned counsel for the petitioner was that the word "aggrieved" does not find mention in this sub‑Article, and, therefore, it cannot be read into it while that of the learned Attorney‑General was that the jurisdiction conferred on the Supreme Court under Article 184(3) is co‑terminus with that of Article 199 which by its sub‑Article 1(a) and 1(c) envisaged the application to be made by an "aggrieved party" and that this requirement should also be read into Article 184(3). In support of his contention, the learned Attorney‑General relied on Ch. Manzoor Elahi v. Federation of Pakistan, P L D 1975 SC 66, Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan P L D 1977 S C 657 and Charanjit Lal Chowdhury v. The Union of India and others A I R 1951 S C 41.
Before I proceed to examine this question, it would be pertinent to refer to the legislative history of sub‑Article 184(3). In the 1956 Constitution it found its place as a Fundamental Right in Article 22
of the Constitution. This Article read as under:‑
"22. Remedies for enforcement of rights conferred by this part. ‑
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue to any person or authority, including in appropriate cases any Government,
directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) The right guaranteed by this Article shall not be suspended except as otherwise provided by the Constitution.
(4) The provisions of this Article shall have no application in relation to the Special Areas."
This Article and Article 32 of the Indian Constitution are in pari materia, except for its sub‑Article (3). Co‑existing with this Article was Article 170 of the 1956 Constitution which gave to the High Court the power to issue writs. It was worded as under:
"170.
Power of High Courts to issue certain writs, etc.‑
Notwithstanding anything in Article 22, each High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement. of any of the rights conferred b y Part I I and for any other purpose.";
and followed the pattern of Article 226 of the Indian Constitution which is also worded alike. Article 22 was omitted in the 1962 Constitution and Article 170 was re‑enacted as Article 98 which was differently worded. Upon its abrogation, the Interim Constitution of the Islamic Republic of Pakistan, 1972, was enacted but this Fundamental Right was not incorporated. This Constitution was repealed by the Constitution of the Islamic Republic of Pakistan, 1973, and this Fundamental Right was enacted not in the Chapter relating to Fundamental Rights but as Sub‑Article (3) of Article 184 and in a different terminology. It reads as under:‑
"184(3). Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to th.e enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
Instead of the words "notwithstanding anything in Article 2211, in Article 170 of the 1956 Constitution the words used in Article 184(3) are: "without prejudice to the provisions of Article 199." The use of the non obstante clause in Article 170 was not without a purpose as the same jurisdiction was intended to be conferred on the High Court. But each of the two provisions‑‑one relating to the jurisdiction of the Supreme Court and the other relating to High Court, was thus kept intact with the difference that Article 22 of the 1956 Constitution guaranteed the right to move the Supreme Court for the enforcement of the rights conferred by Part II and also gave the power to the Supreme Court to issue the appropriate writs for the enforcement of the Fundamental Rights. Article 170 of the 1956 Constitution, however, had a wider scope as power was given to the High Court to issue the appropriate writ for the enforcement of Fundamental Rights and "for any other purpose" . The distinguishing feature of this Article when compared to Article 22 is that the words "public importance" are hedged in, in the enforcement of the Fundamental Rights. It is only when the element of "public importance" is involved that the Supreme Court can exercise its power to issue the writ while subArticle 1(c) of Article 199 has a wider scope as there is no such limitation therein.
The opening words "without prejudice" in Article 184(3) mean only not affecting, saving or excepting and when read with the words following thereafter, "to the provisions of Article 199", the expression means no more than to save the provisions of Article 199 without, in any way, superimposing itself on the power of the Supreme Court to decide a question of public importance relating to the enforcement of any of the Fundamental Rights. What it aims at is that it leaves the power of the High Court under Article 199 intact. It is for the party who is affected to choose which of the two forums it wishes to invoke, and if it be the Supreme Court then the power exerciseable is subject to the limitation under Article 184(3), that is, that the element of "public importance" must be involved in the enforcement of Fundamental Rights. I would, however, like to make it clear that the power conferred on the Supreme Court by Article 184(3) is distinct and has its origin in Article 22 of the 1956 Constitution and is exerciseable on its own terminology. The impression, if there is, that the trappings of sub‑Articles 1(a) and 1(c) of Article 199 are also to be read into this Article appears to me to be without substance as there are no words in Article 184(3) to incorporate them except, of course, the words "make an order of the nature mentioned in the said Article", which are specifically referable to the nature of the order in sub‑Article 1(c) of Article I 199 giving such directions as may be appropriate for the enforcement
of any of the Fundamental Rights. The nature of the order, however, is the end‑product of the judicial power exercised. Therefore, it will not control or regulate, in any way, the exercise of power so as to make it exerciseable only at the instance of the "aggrieved party" in the context of adversary proceedings,
The plain language of Article 184(3) shows that it is openended. The Article does not say as to who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved or whether it is confined to the enforcement of the Fundamental Rights of an individual which are infracted or extends to the enforcement of the rights of a group or a class of persons whose rights are violated. In this context the question arises whether apart from the non‑incorporation of subArticles 1(a) and 1(c) of Article 199. the rigid notion of an "aggrieved person" is implicit in Article 184(3) as because of the traditional litigation which, of course, is of an adversary character where there is a lis between the two contending parties, one claiming relief against the other and the other resisting the claim. This rule of standing is an essential outgrowth of Anglo‑Saxon jurisprudence in which the only person wronged can initiate proceedings of a judicial nature for redress against the wrongdoer. However, in contrast to it, this procedure is not followed in the civil law system in vogue in some countries. The rationale of this procedure is to limit it to the parties concerned and to make the rule of law selective to give protection t
the affluent or to serve in aid for maintaining the status quo of the
vested interests. This is destructive of the rule of law which is so, worded in Article 4 of the Constitution as to give protection. to all citizens. The inquiry into law and life cannot, in my view, be confined to the narrow limits of the rule of law in the context of constitutionalism which makes a greater demand on judicial functions. Therefore, while construing Article 184(3), the interpretative approach should not be ceremonious observance of the rules or usages of interpretation, but regard should be had to the object and the purpose for which this Article is enacted, that is, this interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution, namely, the Objectives Resolution (Article 2‑A ), the Fundamental Rights and the directive principles of State policy so as to achieve democracy, tolerance, equality and social justice according to Islam.
In this milieu, I am of the view that the adversary procedure, where a person wronged is the main actor if it is rigidly followed, as contended by the learned Attorney General, for enforcing the Fundamental Rights, would become self‑defeating as it will not then be available to provide "access to justice to all" as this right is not only an internationally recognized human right but has also assumed constitutional importance as it provides a broadbased remedy against the violation of human rights and also serves to promote socio‑economic justice which is pivotal in advancing the national hopes and aspirations of the people permeating the Constitution and the basic values incorporated therein, one of which is social solidarity, i.e. , national integration and social cohesion by creating an egalitarian society through a new legal order.
This ideal can only be achieved under the rule of law by adopting the democratic way of life as ensured by Fundamental Rights and Principles of Policy. The intention of the framers of the Constitution, as it seems to me, is to implement the principles of social and economic justice enshrined in the Principles of Policy within the framework cf Fundamental Rights. Chapters I & II of Part II of the Constitution which incorporate Fundamental Rights and directive principles of State policy, respectively occupy a place of pride in the scheme of the Constitution, and if I may say so, ‑these are the conscience of the Constitution, as they constitute the main thrust of the commitment to socio‑economic justice. The directive principles of State policy are to be regarded as fundamentals to the governance of the State but they are not enforceable by any Court. Nonetheless, they are the basis of all legislative and executive actions by the State for implementing the principles laid down therein. As the principles of democracy are not based on dogmas and also do not accept the theory of absolutes in any sphere of socio‑economic justice, therefore, the authors of the Constitution, by enumerating the Fundamental Rights and the Principles of Policy, apparently did so in the belief that the proper and rational synthesis of the provisions of the two parts would lead to the establishment of an egalitarian society under the rule of law. However, while implementing the directive principles of policy, the State should not make any law which takes away or abridges the Fundamental Rights guaranteed by Chapter I in view of the embargo placed by Article 8(1) and (2). Necessarily, therefore, the directive principles of State policy have to conform to and to operate as subsidiary to the Fundamental Rights guaranteed in Chapter I, otherwise the protective provisions of the Chapter will be a mere rope of sand. Law, in the achievement of this ideal, has to play a major role, i.e. , it has to serve as a vehicle of social and economic justice which this Court is free to interpret.
Articles 3, 37 and 38 of the Constitution juxtapose to advance the cause of socio‑economic principles and should be given a place of priority to mark the onward progress of democracy. These provisions become in an indirect sense enforceable by law and thus, bring about a phenomenal change in the idea of co‑relation of Fundamental Rights and directive principles of State policy. If an egalitarian society is to be formed under the rule of law, then necessarily it has to be by legislative action in which case it would be harmonious and fruitful to make an effort to implement the socio‑economic principles enunciated in the Principles of Policy, within the framework of the Fundamental Rights, by enlarging the scope and meaning of liberties, while juridically defining them and testing the law on its anvil and also, if necessary, with the co‑related provisions of the Objectives Resolution which is now a substantive part of the Constitution.
The liberties, in this context, if purposefully defined will serve to guarantee genuine freedom; freedom not only from arbitrary restraint of authority, but also freedom from want, from poverty and destitution and from ignorance and illiteracy. That this was the purport of the role of the rule of law which was affirmed at Lagos in 1961 in the World Peace Through Law Conference:
"Adequate levels of living are essential for full enjoyment of individual's freedom and rights. What is the use of freedom of speech to under‑nourished people or of the freedom of press to an illiterate population. .The rule of law must make for the establishing of social, economic and cultural conditions which promote men to live in dignity and to live with aspirations."
The Court will be in a position, if the procedure is flexible, to extend the benefits of socio‑economic change through this medium of interpretation to all sections of the citizens.
This approach is in tune with the era of progress and is meant to establish that the Constitution is not merely an imprisonment of the past , but is also alive to the unfolding of the future. It would thus, be futile to insist on ceremonious interpretative approach to constitutional interpretations as hitherto undertaken which only served to limit the controversies between the State and the individual without extending the benefits of the liberties and the Principles of Policy to all the segments of the. population.
After all the law is not a closed shop and even in the adversary procedure, it is permissible for the next friend to move the Court on behalf of a minor or a person under disability, or a person under detention or in restraint. Why not then a person, if he were to act bona fide activise a Court for the enforcement of the Fundamental Rights of a ,group or a class of persons who are unable to seek relief from the Court for several reasons. This is what the public interest litigation/class action, seeks to achieve as it goes further to relax the rule on locus standi so as to include a person who bona fide makes an application for the violation of any constitutional right of a determined class of persons whose grievances go unnoticed and unredressed. The initiation of the proceedings in this manner will be in aid of the meaningful protection of the rule of law given to the citizens by Article 4 of the Constitution, that is, "(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan."
Taking the discussion further, this Article does not say as to what proceedings should be followed, then whatever be its nature must be judged in the light of the purpose, that is, the enforcement of any of the Fundamental Rights. It is, therefore, permissible when the Us is between an aggrieved person and the Government or an authority to follow the adversary procedure and in other cases where there are violation of Fundamental Rights of a class or a group of persons who belong to the category as aforestated and are unable to seek redress from the Court, then the traditional rule of locus standi can be dispensed with, and the procedure available in public interest litigation can be made use of, if it is brought to the notice of the Court by the person acting bona fide. On the language of Article 184(3), it is needless to insist on a rigid formula of proceedings for the enforcement of the Fundamental Rights. If the framers of the Constitution had intended the proceedings for the enforcement of the Fundamental Rights to be in a strait‑jacket, then they would have said so, but not having done that, I would not read any constraint in it. Article 184(3) therefore, provides abundant scope for the enforcement of the Fundamental Rights of an individual or a group or class of persons in the event of their infraction. It would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class of actions from case to case.
Now as to the nature of the order, Article 184(3) is worded to incorporate the order of the nature which the High Court can pass under Article 199(1)(c). Referring to it, it is worded in the widest possible terms which is a clear manifestation of the intention of the framers of the Constitution not to place any procedural technicalities in the way of the enforcement of Fundamental Rights, be it of an individual or a group or class of persons.
Lastly is the consideration of the connotation of the expression "public importance" which is tagged to the enforcement of the Fundamental Rights as a pre‑condition of the exercise of the power. This should not be understood in a limited sense, but in the gamut of the constitutional rights of freedoms and liberties, their protection and invasion of such freedoms in a manner which raises a serious question regarding their enforcement. Such matters can be viewed as of public importance, whether they arise from an individual's case touching his human rights of liberty and freedom, or of a class or a group of persons as they would also be legitimately covered by this expression. Reference in this connection can be made to the observations of Anwarul Haq, J. , as he then was, in Manzoor Elahi v. Federation of Pakistan P L D 1975 S C 66 at p. 145, as under:
"The learned Attorney‑General is clearly right in saying that a case does not involve a question of public importance merely because it concerns the arrest and detention of an important person like a Member of Parliament. In order to acquire public guaranteed in Chapter I, otherwise the protective provisions of the Chapter will be a mere rope of sand. Law, in the achievement of this ideal, has to play a major role, i.e. , it has to serve as a vehicle of social and economic justice which this Court is free to interpret.
Articles 3, 37 and 38 of the Constitution juxtapose to advance the cause of socio‑economic principles and should be given a place of priority to mark the onward progress of democracy. These provisions become in an indirect sense enforceable by law and thus, bring about a phenomenal change in the idea of co‑relation of Fundamental Rights and directive principles of State policy. If an egalitarian society is to be formed under the rule of law, then necessarily it has to be by legislative action in which case it would be harmonious and fruitful to make an effort to implement the socio‑economic principles enunciated in the Principles of Policy, within the framework of the Fundamental Rights, by enlarging the scope and meaning of liberties, while juridically defining them and testing the law on its anvil and also, if necessary, with the co‑related provisions of the Objectives Resolution which is now a substantive part of the Constitution.
The liberties, in this context, if purposefully defined will serve to guarantee genuine freedom; freedom not only from arbitrary restraint of authority, but also freedom from want, from poverty and destitution and from ignorance and illiteracy. That this was the purport of the role of the rule of law which was affirmed at Lagos in 1961 in the World Peace Through Law Conference:
"Adequate levels of living are essential for full enjoyment of individual's freedom and rights. What is the use of freedom of speech to under‑nourished people or of the freedom of press to an illiterate population. .The rule of law must make for the establishing of social, economic and cultural conditions which promote men to live in dignity and to live with aspirations."
The Court will be in a position, if the procedure is flexible, to extend the benefits of socio‑economic change through this medium of interpretation to all sections of the citizens.
This approach is in tune with the era of progress and is meant to establish that the Constitution is not merely an imprisonment of the past , but is also alive to the unfolding of the future. It would thus, be futile to insist on ceremonious interpretative approach to constitutional interpretations as hitherto undertaken which only served to limit the controversies between the State and the individual without extending the benefits of the liberties and the Principles of Policy to all the segments of the. population.
After all the law is not a closed shop and even in the adversary procedure, it is permissible for the next friend to move the Court on behalf of a minor or a person under disability, or a person under detention or in restraint. Why not then a person, if he were to act bona fide activise a Court for the enforcement of the Fundamental Rights of a ,group or a class of persons who are unable to seek relief from the Court for several reasons. This is what the public interest litigation/class action, seeks to achieve as it goes further to relax the rule on locus standi so as to include a person who bona fide makes an application for the violation of any constitutional right of a determined class of persons whose grievances go unnoticed and unredressed. The initiation of the proceedings in this manner will be in aid of the meaningful protection of the rule of law given to the citizens by Article 4 of the Constitution, that is, "(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan."
Taking the discussion further, this Article does not say as to what proceedings should be followed, then whatever be its nature must be judged in the light of the purpose, that is, the enforcement of any of the Fundamental Rights. It is, therefore, permissible when the Us is between an aggrieved person and the Government or an authority to follow the adversary procedure and in other cases where there are violation of Fundamental Rights of a class or a group of persons who belong to the category as aforestated and are unable to seek redress from the Court, then the traditional rule of locus standi can be dispensed with, and the procedure available in public interest litigation can be made use of, if it is brought to the notice of the Court by the person acting bona fide. On the language of Article 184(3), it is needless to insist on a rigid formula of proceedings for the enforcement of the Fundamental Rights. If the framers of the Constitution had intended the proceedings for the enforcement of the Fundamental Rights to be in a strait‑jacket, then they would have said so, but not having done that, I would not read any constraint in it. Article 184(3) therefore, provides abundant scope for the enforcement of the Fundamental Rights of an individual or a group or class of persons in the event of their infraction. It would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class of actions from case to case.
Now as to the nature of the order, Article 184(3) is worded to incorporate the order of the nature which the High Court can pass under Article 199(1)(c). Referring to it, it is worded in the widest possible terms which is a clear manifestation of the intention of the framers of the Constitution not to place any procedural technicalities in the way of the enforcement of Fundamental Rights, be it of an individual or a group or class of persons.
Lastly is the consideration of the connotation of the expression "public importance" which is tagged to the enforcement of the Fundamental Rights as a pre‑condition of the exercise of the power. This should not be understood in a limited sense, but in the gamut of the constitutional rights of freedoms and liberties, their protection and invasion of such freedoms in a manner which raises a serious question regarding their enforcement. Such matters can be viewed as of public importance, whether they arise from an individual's case touching his human rights of liberty and freedom, or of a class or a group of persons as they would also be legitimately covered by this expression. Reference in this connection can be made to the observations of Anwarul Haq, J. , as he then was, in Manzoor Elahi v. Federation of Pakistan P L D 1975 S C 66 at p. 145, as under:
"The learned Attorney‑General is clearly right in saying that a case does not involve a question of public importance merely because it concerns the arrest and detention of an important person like a Member of Parliament. In order to acquire public importance, the case must obviously raise a question which is of interest to, or affects, the whole body of people or an entire community. In other words, the ‑case must be such as, gives rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who is the subject‑matter of the case, may be of no particular consequence.
Seen in this light, there can be little doubt as to the public importance of the questions arising in this case. I think I will not be far wrong in saying that it is not often that a single case raises so many questions of public importance touching, the liberty of the citizen. In all systems of law which cherish' individual freedom and liberty, and which provide constitutional safeguards and guarantees in this behalf, any invasion of such freedom in circumstances which raise serious questions regarding the effectiveness and availability of those safeguards, must be regarded as a matter of great public importance."
Having regard to the connotation of the words "public importance" it will be for the Supreme Court to consider in each case whether the element of "public importance" is involved in the enforcement of the Fundamental Rights irrespective of the individual's violations or the infractions of a group or a class of persons.
This brings me to the consideration of the cases relied on by the learned Attorney‑General in support of his contention.
In Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan, P L D 1977 S C 657, one of the preliminary objections raised was in the following words:
"That the petitioner is not an aggrieved person in terms of Article 184(3) of the Constitution read with Article 199 thereof, as she does not allege any violation of her own Fundamental Rights, but only those of the detenus."
There is obvious tagging of Article 199 with Article 184(3) and in that context late Mr. A.K. Brohi contended that the petitioner was not an aggrieved person as she did not allege any violation of her own Fundamental Rights, but those of the other detenus. While dealing with this preliminary objection, the rigid notion of an aggrieved person in Article 199 was read in sub‑Article (3) of Article 184 in the milieu that the former conferred a power on the Supreme Court to make an order for the enforcement of Fundamental Rights on the same terms as envisaged in the provisions of Article 199. Accordingly, it was held that "clause 1(c) of Article 199 does indeed contemplate that an application for the enforcement of Fundamental Rights has to be made by an aggrieves person", but as the petitioner had filed the petition in two capacities, namely, as wife of one of the detenus and as an Acting Chairman of the Pakistan Peoples Party to which all the detenus belonged, the petitioner was held to be an aggrieved person within the meaning of Article 199 which was more or less in similar terms as in the case of Manzoor Elahi v. Federation of Pakistan, P L D 1975 SC 66.
Obviously, there was no independent consideration of Article 184(3), and the finding of this Court specifically related to the objections raised. In my analysis of this provision, I have held that
as this provision is open‑ended, the proceedings could either be maintained by an individual whose fundamental rights are infracted or by a person bona fide alleging infraction of the fundamental rights P of a class or a group of persons, as there is no rigid incorporation of the notion of "aggrieved person" . Therefore, the dictum laid down in this case and so also in the case of Manzoor Elahi cannot be read as in conflict with my interpretation of this provision. The learned Attorney‑General also relied on Charanjit Lal Chowdhury's case which I have already distinguished as by the subsequent judgments of the Supreme Court of India, the rule of locus standi has since been relaxed leaving aside the rigid notion of an "aggrieved person", and the proceedings can now be activised bona fide by any person on behalf of a group or a class of persons.
As a result of the above discussion, I am of the view that the learned Attorney" General is not correct in contending that it is only an aggrieved party who can activise the proceedings for the 1 enforcement of the fundamental rights under Article 184(3) of the Constitution as by reason of the fact that the two provisions are co terminus.
The second preliminary objection is directed against the maintainability of the petition. It is contended by the learned Attorney‑General that the power under Article 184(3) being discretionary and co‑terminus with that of Article 199 of the Constitution should not be exercised by the Supreme Court when similar matters on facts and law are pending adjudication before the High Courts, inter alia, for the reason that the appeals lie from the decisions rendered by the High Court in those petitions to the Supreme Court. In support of this argument, reliance was placed on the case of Ch. Manzoor Elahi v. Federation of Pakistan P L D 1975 S C 66 at pp.79, 144 and 159.
He referred to the three constitutional petitions out of which the first two are pending in the Lahore High Court while the third in the High Court of Sind at Karachi. Those pending in the Lahore High Court are Writ Petition No.951 of 1986, titled as Rana Shaukat Ahmad, Secretary‑General, Pakistan Peoples Party (Punjab) v. Federation of Pakistan, through Law Secretary, Civil Secretariat, Islamabad, and Writ Petition No.476 of 1986, titled as Ghulam Fareed Meerani, Member National Assembly and Mrs. Raffia Tariq, Member National Assembly v. Federation of Pakistan, through Ministry of Law and Parliamentary Affairs, Islamabad. The one pending in the High Court of Sind at Karachi is Writ Petition No. D‑473 of 1987, titled as Ali Muhammad Aziz, President, Pakistan Peoples League and Muhammad Ha nif Khan, Vice‑President, Pakistan Peoples League v . Federal Government of Pakistan and two others. In regard to Writ Petition No.476 of 1986 filed in the Lahore High Court on 30‑1‑1986, it was stated at the Bar that this petition is still pending though its progress is not known. About Writ Petition No.D‑473 of 1987, the learned . Attorney‑General stated that he was not aware whether it was admitted or not. However, his main thrust was against the pendency of Writ Petition No.951 of 1986 in which there was a challenge to all the provisions of the Political Parties Act, 1962, and the common feature stated was that the petitioners in both the petitions are office‑holders of the same Political Party and have thus, a common interest. Thus, having regard to the subject‑matter of both the petitions and also because the jurisdiction being co‑terminus, the present petition should not be allowed to proceed until the High Court gives its decision in the Writ Petition from which an appeal lies to this Court. The principle of election was also impliedly invoked, and it was urged that if an office‑holder of the same Political Party had elected to get a decision from the High Court, the present petitioner was bound by that election and could not insist for the hearing of her petition till such time as that petition was decided by the High Court as the jurisdiction exerciseable by Supreme Court is an enabling one.
In rebuttal, the learned counsel for the petitioner vehemently denied any knowledge of that petition and stated that Rana Shaukat Mahmood had filed a petition in his individual capacity although he described himself as the Secretary‑General, Pakistan Peoples Party (Punjab) without there being any authorisation from the petitioner who was the co‑Chairperson of the Party. Therefore, the petitioner was neither bound by the choice of the forum nor the conduct of Rana Shaukat Ahmad in filing that petition. On the factual plane, the learned Attorney‑General has from the common factor that both to petitioners being office‑holders of the same political party surmised "common interest" which is factually denied. Be that as it may, the element of "common interest" would strike at the choice of selecting the forum only when there is proof to elicit common design between the two petitioners which is not forthcoming. Apart from it, the question needs decision on the legal plane.
It appears from the order‑sheet that this writ petition was filed on 22‑2‑1986 and till October, 1987, for almost a year and eight months there was no order of the High Court admitting it to regular hearing. On 2nd of March, 1986, Malik Saeed Hassan, the learned counsel for the petitioner appeared in the Court. The Court diary of that day reads:
"Heard partly. The Court time is over. To be re‑fixed at the request of the learned counsel."
It was again fixed on the 18th of March, 1986, when the same counsel appeared and the order‑sheet of the day reads:‑
"The learned counsel states that he had not requested the of flee to fix this case.
2. Adjourned. Office is directed to fix this case only when the learned counsel makes a request."
The petition then came up for hearing on 21‑9‑1986, and in the presence of the counsel, it was ordered: "To be re‑fixed within one month." The case was, however, not fixed as ordered but it was listed on 13‑6‑1987 on which date again it was ordered in the presence of the counsel for the petitioner that: "The case to come up on 15‑6‑1987." On 15‑6‑1987, the counsel was present and the following order was passed:
"We have heard the preliminary submissions. Learned counsel prays that this case be taken up in the month of October, 1987. Adjourned as requested."
It is regrettable to note that the High Court has surrendered the management of the case to the sweetwill of the counsel who was taking dates at his convenience without making any serious effort to get the matter admitted to regular hearing, and the High Court, in turn, acquiescing in it, dillydallying and shirking from its duty towards a pending cause by accommodating the counsel. Therefore, there was, for a period of a year and eight months, a failure on the part of the High Court to pass any order either admitting the petition to regular hearing or rejecting it in limine, and, for that matter, even on the date of hearing of this petition it was not known as to whether it was admitted or not. On these facts, the learned Attorney General has invoked the principle of practice as to the choice of the forum and so also the vested right of the opposite party to come in appeal to this Court as material considerations for this Court to keep its hands off from hearing the petition. As the High Court was not legally seized of the dispute as a result of an order admitting it, it remains to be seen to what extent the practice can be followed which without doubt is salutary and of long standing.
In Begum Zeb‑un‑Nisa v. Pakistan, P L D 1958 S C (Pak.) 35, this Court under Article 22 of the 1956 Constitution, entertained and decided the petition in the absence of any objection as to the mainainability of the petition. As Article 22 provided a guarantee to the citizens to move the Supreme Court for the enforcement of the Fundamental Rights so guaranteed, the remedy was itself a basic right and the benefit of this salutary constitutional remedy could not be denied to a citizen on the assumption that this was "an extraordinary power which should be used with circumspection as was done by this Court even earlier when a similar concurrent jurisdiction was vested in Supreme Court under Article 22 of the Constitution of 1956". If I may say‑ so with respect, a reading of the judgment does not show that this Court felt hesitant to exercise this power merely on the consideration that it was co‑terminus with that of the High Court and that being itself a basic right there could not be any insistence for invoking the concurrent jurisdiction of a Court of lower hierarchy on the basis of the practice that ordinarily "in matters of concurrent jurisdiction the lowest Court or tribunal must be approached in the first instance" . This practice could not control a higher norm such as the basic right itself. In K.K. Koochunni v. Stat@ of Madras (AIR 1969 S C 725), a question arose as to whether an adequate alternative legal remedy was sufficient to deny the relief under Article 32, the Supreme Court held that the mere existence of an adequate alternative remedy cannot per se be good and sufficient ground for throwing out a petition under Article 32 (which is in pari materia with Article 22 of the 1956 Constitution), if the existence of a fundamental right and a breach, actual or threatened, of such right is alleged and is prima facie established on the petition. In Daryao and others v . State of U .P. and others A I R 1961 S C 1457, it was held that granting of an appropriate relief under Article 32 of the Constitution is not discretionary once it is shown that the citizen's fundamental right has been illegally and unconstitutionally violated. There was, therefore, no element of discretion involved in Article 22 of the 1956 Constitution in exercising the judicial power without first approaching the Court of concurrent jurisdiction in the lower hierarchy. In Manzoor Elahi v . Federation of Pakistan P L D 1975 S C 66, it was the incarceration of Ch. Zahoor Elahi which was challenged in the High Court of Sind and Baluchistan through Writ Petition No.1143 of 1973 in which the High Court being seized of the dispute had, on a preliminary point relating to the jurisdiction, held it to exist, to issue writs in relation to Tribal Areas of Quetta Division in the Province of Baluchistan against which order the Province of Baluchistan and Assistant Commissioner, Kohlu, had filed an appeal in this Court. At about the time the appeal was pending in the Court a petition was filed by Ch. Nlanzoor Elahi under Article 184(3) seeking the same relief. It was, therefore, that the principles of practice were invoked in more than one respect to enable the High Court to decide the dispute. But what is of significance to notice is that this Court while deciding the appeal had resolved the constitutional and legal issues and directed the High Court to pass the order in the light of those observations which, in effect, amounted to resolving the dispute which the High Court was itself enjoined to do while keeping in abeyance the petition filed in this Court. The principle of election and the vested right of an appeal, which was then pending in this Court, were invoked to allow the High Court to decide the question and, therefore, the practice must be taken to have been invoked in the particular circumstances of that case. The facts of the reported case and that of this petition are distinguishable as in the petition pending in the Lahore High Court, the High Court did not exercise its judicial power and consequently it was not seized of the dispute. Till then no question of any appeal could arise as this right of the opposite‑party is prospective and contingent on the happening of the event that, it. is a loser. As to the choice of the forum, it is no doubt correct that ordinarily the forum of the Court in the lower hierarchy should be invoked but that principle is not inviolable and genuine exceptions can exist to take it out from that practice such as in the present. case where there was a denial of justice as a result of the proceedings being dilatory.
As the human right norm is higher than the law then any violation and its consequent enforcement can only be controlled by an inbuilt limitation in the provision itself. A rule of practice which has received recognition as a principle of law is not higher than the norm and the machinery for its enforcement, and, therefore, it cannot control judicial power so as to stultify it until, of course, the petitioner has herself, in the strict sense, elected to seek her remedy from a Court of lower hierarchy exercising concurrent jurisdiction which is not the case here. The reason is salutary that at one and the same time the petitioner cannot be allowed to invoke the two forums in regard to the same relief. She has to choose one or the other. However, there can also be an abuse of this practice if there is an indiscriminate filing of petitions by persons motivated to stultify the exercise of judicial power under Article 184(3) of the Constitution. I do not see how then the practice can be strictly adhered to deny to the citizen the remedy under this Article for seeking the enforcement of his fundamental rights. The measure of applicability of tt.e practice has to be judged in the light of the particular facts and circumstances of each case.
There is another way of looking at this problem if it only be the choice of forum without there being anything further. The practice, which has the status of a rule of law, is merely regulatory to control the exercise of discretion in regard to the exercise of judicial power. And, therefore, like a preeedent under Article 189 of the Constitution, the principle of stare decisis is also not rigidly applicable to the practice in constitutional interpretation if it leads to or is likely to lead to injustice. In this connection I would refer to the following observations of Hamoodur Rahman, C.J., in Asma Jillani v . Government of the Punjab (P L D 1972 S C 139 at p. 149):
"In spite of a Judge's fondness for the written word and his normal inclination to adhere to prior precedents one cannot fail to recognise that it is equally important to remember that there is need for flexibility in the application of this rule, for, law cannot stand still nor can the Judges become mere slaves of precedents. The rule of stare decisis does not apply with the same strictness in criminal, fiscal and constitutional matters where the liberty of the subject is involved or some other grave injustice is likely to occur by strict adherence to the rule. "
This principle was invoked to overrule Dosso's case reported as (PL; 1958 S C 533).
In Pir Bakhsh v . Chairman, Allotment Committee (P L D 1987 S C 145), this dictum is followed at page 160 of the report, and it is further observed:
" . too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the prope In development of the law . "
Concluding, therefore, for the reasons given above, the salutary practice of long standing as applied to the particular facts and circumstances of Ch. Manzoor Elahi's case cannot be invoked with any force to stultify the hearing of this petition.
Here I would like to dispose of an argument raised by Mr. Yahya,Bakhtiar, learned, counsel, for the petitioner, as regards the continuance of the texts of the amendments introduced by Ordinances Nos. XLII of 1979 (Political Parties (Amendment Ordinance) and LII of 1979 (Political Parties (Second Amendment) Ordinance) in the Political Parties Act which were repealed by Ordinance No.XXVII of 1981 (Federal Laws (Revision and Declaration) Ordinance, 1981). It was stressed that the texts of the amending Ordinances in the parent Act did not survive the repeal of the amending Ordinances and accordingly section 7 of the repealing Ordinance could not save their continuance. In reply to it, the learned Attorney‑General urged that Article 270‑A not only protects the repealing Ordinance but also the textual insertions achieved by the amending Ordinances in the Political Parties Act. He further contended that textual amendments are not a separate entity by themselves but are part of the parent Act and take effect from the date on which they were inserted in the absence of any express provision as to their retrospective operation. In this connection, he relied on section 6‑A of the General Clauses Act, Ram Narain v. S.B. & I. Co. (A I R 1956 S C 614), 59 Corpus Juris Secundum, pp. 1181‑1189, Bindra's Interpretation of Statues, 7th Edition, pp. 694 and 700 and Crawford on Interpretation of Laws, 1940 Edn., 621 and 622.
Section 7 of the repealing Ordinance No. XXVII of 1981 saves the continuance of the textual amendments in the parent Act in the absence of any contrary intention expressed in the amending Ordinances. The texts having become a part of the Act, the repeal of the amending Ordinances would not have 'the effect of disturbing the textual amendments in the parent Act as even otherwise their continuance stands protected not only by the repealing Ordinance itself but also section 8‑A of the General Clauses Act which in clear terms enacts that "the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal". The learned Attorney‑General is correct in stating that the textual amendments having become a part of the Political Parties Act, 1962. are saved by Article 270‑A. Tile above‑cited decision arid the texts on Interpretation of Statutes support the view point of the learned Attorney‑General. I do not, therefore. think it necessary to refer to them individually. As to whether the textual amendments stand on a higher footing than the Political Parties Act itself is a question which concerns the interpretation of Article 270‑A (1) the Constitution and I will not express any opinion at this stage.
As to the scope, content and meaning of Article 270‑A(1) of the Constitution, the formulation of the learned counsel for the petitioner has been stated earlier and in a nutshell is that beyond giving competence and validity to the legal instruments and laws it does not preserve or continue the effect of the laws repealed. And as for those, saved they are open to attack on the ground of being violative of the Fundamental Rights or being inconsistent with any other provision of the Constitution. On the other hand, the learned Attorney‑General contended that the validity granted under Article 270‑A(1) is not merely confined to removing the taint in the maker of the law but also validated the contents of the law itself so as not to be amenable to any attack on the ground of its being violative of the Fundamental Rights or inconsistent with any provision of the Constitution.
Before I dwell on this contention, 1 would like to give a short iogislative background of this Article for a better understanding of the indemnity of law available in the constitutional provision. By the Second Martial law imposed by General Yahya Khan, the 1962 Constitution then in force was abrogated and in the interregnum the Legal Framework Order which provided the framework for the enacting of the Constitution held the field and during the continuance of Martial Law this Court in Miss Asma Jilani v. Government of the Punjab (P L D 1972 S C 1 39) overruled State v . Dosso (P L D 1958 S C 5:33), and held General Yahya Khan to be an usurper, his regime to be illegal and not competent to enact laws. As regards the validation of illegal acts of the usurper, the principle of condonation and not legitimisation was applied ac under:
"(1) all transactions which are past and closed, for, no useful purpose can be served by re‑opening them,
(2) all acts and legislative measures which are in accordance with, or could have been made under, the abrogated Constitution or the previous legal order,
(3) all acts which tend to advance or promote the good of the people,
(4) all acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment of, the objectives mentioned in the Objectives Resolution of 1954."
It was emphatically stated that there was no condonation of any act which intended to entrench the usurper more firmly in his power or to directly help him to run the country contrary to its legitimate objectives or anything done which seriously impaired the rights of the citizens except in so far as they may be designed to advance the social welfare and national solidarity.
A day after the announcement of the judgment in this case, the Interim Constitution of the Islamic Republic of Pakistan, 1972, was enacted which by its Article "81(1) gave validation to the laws made during the specified period in the following terms:
" ......... notwithstanding any judgment of any Court, to have been validly made by competent authority, and shall not be called in question in any Court."
Obviously the expression "notwithstanding any judgment. of any Court" was referable to the decision in Asma JillanPs case where only a limited condonation was given.
Since this would have also led to bringing up of specific cases before the Court according to their established procedure, and would have taken a great deal of time for their disposal, it was contended by the then Attorney‑General in State v. Zia‑ur‑Rehman (P L D 1973 S C 49), that the only authority which could have validated the laws was the Constitution‑making body, and, therefore, it decided to give blanket validation to all such legislative measures which were void ab initio as appear from the expression "notwithstanding any judgment of any Court" with the further protection that such legislative measures shall not be "called in question in any Court" on the ground that they were not validly made by the competent authority. This Court upon a consideration of sub‑Article ( 1) of Article 281 held that it "was intended to give a blanket validation to all legislative measures enacted on and from the 25th day of March, 1969, when General Yahya Khan usurped power, to the 21st of April, 1972, when the Interim Constitution came into force. This clause not validates alt such measures but also nullifies the effect of the judgment of this Court in Asma Jillani's case by using the words 'notwithstanding any Judgment of any Court' and further completely ousts the jurisdiction of the Courts to question either the validity of these measures or the competence of the authorities enacting them. As a result of this clause, it is no longer possible for any Court to declare any , legislative measure enacted or promulgated between the 25th day of March, 1969 to the 21st of April, 1972, to be void or invalid, on account of it having been made or enacted by a person or authority having no power to do so. From this dictum it is clear that the validity had nexus with the maker of the laws who was held to be a usurper and his regime illegal which rendered all legislative measures void ab initio.
After the decision in Zia‑ur‑Rehman's case, Article
281(2) was amended by the Constitution (Sixth
Amendment) Order, 1973, promulgated on 3rd of April, 1973. By this
Order after the words "be deemed"
the commas and words,
"notwithstanding any judgment of any Court", and further after the
word "done", the words "and
shall not be called in question in any Court" were added and it was declared that they shall be deemed always to have been so inserted. There was, however, no amendment of Article 281(1). Thereafter, the Interim Constitution of 1972 was repealed by the 1973 Constitution. These amendments were carried in Article 269(2) and in Article 269(1) the words "on any ground whatsoever" were added after the word "Court". In both the sub‑Articles there existed the expressions "shall not be called. in question in any Court on any ground whatsoever". Both these Articles came to be considered in Federation of Pakistan v . Saeed Ahmad (P L D 1974 S C 151). It was contended that after the decision of the Supreme *Court in Zia‑ur‑Rahman's case, the validity of Martial Law Regulations could not be called in question for the reasons given in that judgment and as to the meaning of the expression "shall not be called in question in any Court on any ground whatsoever", it was urged that the ouster of jurisdiction was complete and the Courts could not on any ground whatsoever call in question such actions as are enumerated in Article 269(2) notwithstanding the judgments of this Court in the cases of Asma Jillani and Zia‑ur‑Rehman. This Court while interpreting the scope of the expression "notwithstanding any judgment of any Court" held that it was introduced to take away the effect of the decision in the case of Asma Jillani under which these acts would have been invalid but this expression did not affect the decision in Zia‑ur‑Rehman's case as the ouster clause could not, upon the accepted principles of construction, save from scrutiny by the Courts the acts which are done, taken or made without jurisdiction, mala fide or coram non judice. It was further held:
"We are not unmindful of these provisions but after our decision in Zia‑ur‑Rehman's case we are no longer in a position to say that the Martial Law Regulations, under which the executive actions impugned in the present cases were taken, have not acquired the status of a "law" within the meaning of these Articles. In any event it is not possible for us to declare that a provision of the Constitution is not law because it seems to oust the jurisdiction of the Courts with regard to certain subjects without affecting the judicial power itself. We cannot strike it down. We can only interpret it, according to the accepted rules of interpretation and define its nature and scope. "
This is again a reiteration of what this Court earlier said in Zia‑ur‑Rehman's
case. "But it does claim and has always claimed that it has the right to
interpret the Constitution and to say as to what a particular 'provision of the
Constitution means or does not mean, even if that particular provision is a
provision seeking to oust the jurisdiction of this Court. This is a right which
it acquires not de hors the Constitution but by virtue of the fact that it is a
superior Court set up by the Constitution itself, as a result of the system of
division of power. It is not necessary for this purpose to invoke any divine or
supernatural right but this judicial power is inherent in the Court itself. It
flows from the fact that it is a
Constitutional Court and it can only be taken
away by abolishing the Court itself."
Next to follow is the case reported as Karamat Ali v . The State (P L D 1976 S C 476), where again the observations in Zia‑urRehman's case, namely that sub‑Article (1) of Article 281 is a blanket protection against any challenge to the validity of the law mentioned therein, were repeated. Fauji Foundation and another v. Shamimur Rahman (P L D 1983 S C 457) is the last case in the series which followed the earlier decisions on the interpretation of Article 281(1). It was held on the argument raised as to the vires of Martial Law Regulations and Martial Law Orders as under:
"By giving the constitutional protection, the intention was to keep intact the validity of those Martial Law Regulations and Martial Law Orders which were saved and now became the Acts of appropriate Legislatures. There is, therefore, consistent view that those Martial Law Regulations and Martial Law Orders which were saved acquired the status of law and their validity was protected by Article 281(1) of the Interim Constitution and on its repeal by Article 269 of the 1973 Constitution. It was for this reason that despite an argument raised against the validity of the Martial Law Regulations and Martial Law Orders, the Court in Saeed Ahmad's case refrained from examining the vires of these legal measures because of the bar (ouster clause) in Article 281(1) which was a constraint on the judicial power itself under Article 201. As for Martial Law Regulations and Martial Law Orders repealed under clause (3) of Article 280, the effect of repeal was covered by Article 295 . ......
It is true that this Court in Zia‑ur‑Rehman's case did observe that those Martial Law Regulations or Orders which were saved were subject to judicial review, but in Saeed Ahmad's case it held that the impugned Martial Law Regulations were "laws", and no furthter examination was undertaken as to their vires qua the constitutional provisions because of the validity given to them. This is also manifest from Sh. Karamat Ali's case in which both the cases of Zia‑ur‑Rehman and Saeed Ahmad were considered. There is another reason why the laws saved were not open to judicial review and that is because of the constitutional validity given to them which was not so under the 1962 Constitution as there was no like provision in it, and all that Article 223‑A provided for was the authority given to the Legislature to enact a law for indemnifying any person in respect of any act done in connection with the maintenance or restoration of order while the Martial law was in force or validating sentences, punishments inflicted or other acts done pursuant to Martial Law. Accordingly, the conclusion of the High Court which ostensibly rested on the paragraph of the judgment at page 85 in Zia‑ur‑Rehman's case cannot be sustained."
In Begum Nusrat Bhutto v. Chief of Army Staff etc. (P L D 1977 SC 657), the Full Court held:
"(i) That the 1973 Constitution still remains the supreme law of the land subject to the condition that certain parts thereof have been held in abeyance on account of State necessity;
(ii) That the President of Pakistan and the superior Courts continue to function under the Constitution. The mere fact that the Judges of the superior Courts have taken a new oath after the Proclamation of Martial Law, does not in any manner derogate from this position, as the Courts had been originally established under the 1973 Constitution, and have continued in their functions in spite of the proclamation of Martial Law;
(iii) That the Chief Martial Law Administrator, having validly assumed power by means of an extra‑Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognised by judicial authorities as falling within the scope of the law of necessity, namely:‑
(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;
(b) All acts which tend to advance or promote the good of the people;
(c) All acts required to be done for the ordinary orderly running of the State; and
(d) All such measures as would establish or lead to the establishment of the declared objectives of the proclamation of Martial Law, namely, restoration of law and order, and normally in the country, and the earliest possible holding of free and fair election for the purposes of restoration of democratic institutions under the 1973 Constitution;
(iv) That these acts, or any of them, may be performed or carried out by means of Presidential Orders, Ordinances, Martial Law Regulations, or Orders, as the occasion may require; and
(v) That the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Martial Law Authorities, if challenged, in the light of the principles underlying the law of necessity as stated above. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to. the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance. "
It is worthy to note that the judgment in Asma Jilani's case was rendered after the de facto abrogation of the 1962 Constitution while the Martial Law was in force, and, accordingly, by declaring General Yahya Khan to be a usurper all his legislative measures were declared to be void ab initio except those which stood the test of condonation. In Begum Nusrat Bhutto's case the position was different as the 1973 Constitution was held to be the supreme law of the land subject to certain parts thereof to have been held to be in abeyance on account of State necessity. This being so the power to promulgate legal measures within the scope of the law of necessity was conferred on the Chief Martial Law Administrator including the power to amend the Constitution. This power was exercised from time to time to amend the Constitution.
Those amendments which need specific mention are: firstly, the power of judicial review which was saved in Begum Nusrat Bhutto's case was eroded by the insertion of Article 212‑A by the Constitution
(Second Amendment) Order, 1979 (P. O. 21 of 1979) with effect from 5th of July, 1977; and, secondly by the Constitution (Amendment; Order, 1980 (P.0.1 of 1980), promulgated on 27‑5‑1980, Article 19! was amended by inserting Article 3‑A in it which not only neutralized the effect of the judgment of this Court in Begum Nusrat Bhutto's case but also placed further restrictions on the exercise of judicial power. This Order also provided for the creation of the Federal Shariat Court; the powers, jurisdiction and functions to be execised by it and also the persons to be appointed as members of tt a Court including the Chairman and their qualifications.
Next to follow was the Provisional Constitution Order, 1981 (C.M.L.A.'s Order 1 of 1981) which was promulgated on 24th of March, 1981 as an interim measure as the President and the Chief Martial. Law Administrator felt satisfied "that it is necessary to make adequate interim provisions for governing Pakistan in accordance with the provisions contained in this Order and for the removal of doubts and for consolidating and declaring the Law and for effectively meeting the threat to the integrity and sovereignty of Pakistan and its Islamic Ideology." By Article 2 of this Order certain Constitutional provisions including Article 4 were saved and became part of the Order but their operation was made subject to this Order or any other Order made by the President or the Chief Martial law Administrator. Significantly Article 238 which gave power to the President to amend the Constitution was kept in abeyance and not included in the Provisional Constitution Order. However, by Article 16 of this Order, the President gave to himself the power to amend the Constitution while nullifying the effect of the judgment in Begum Nusrat Bhutto's case in Article 15 of the Order.
The most important legal instrument which follows hereafter is the Revival of the Constitution of 1973 Order, 1985 (P.0.14 of 1985), which was promulgated on 2nd of March, 1985. Although this Order came into force at once but by Article 4, its revival was deferred to such dates on which the President was authorised, by notification, to revive its different provisions. Again by Article 5 of this Order, the President was authorised to make such provisions and pass such orders in case any difficulty arose in giving effect to any of the provisions of this Order. However, by Article 2 of this Order extensive amendments were made in the 1973 Constitution, including the insertion of Article 270‑A. By notification issued under Article 4 of the Order on 10th of March, 1985, provisions other than Articles 6, 8 to 28, clauses (2) and 2(A) of Article 101, Articles 199, 213 to 216 and 270‑A were revived. By Constitution (Second Amendment) Order, 1985 (P.0.20 of 1985), promulgated on 17‑3‑1985, amongst certain other amendments clause (6) of Article 270‑A was substituted for the following: "(6) The President's Orders referred to in clause (1) shall not be altered, repealed or amended without the previous sanction of the President." The earlier text of this clause was: "Any of the President's Orders referred to in clause (1) may be amended in the manner provided for amendment of the Constitution." On the 19th of March, 1985, Constitution (Third Amendment) Order, 1985 (President's Order 24 of 1985) was promulgated. Thereafter on 11th of November, 1985, Constitution (Eighth Amendment) Act, 1985, was promulgated which came into force at once except section 19 which was to take effect on the date on which the Proclamation of the fifth day of July, 1977, was revoked. This Article related to the substitution of Article 270‑A of the Constitution as enacted by the Majlis‑e‑Shoora for that earlier inserted by the President in the Revival of the Constitution of 1973 Order, 1985 (President's Order 14 of 1985) and a new Schedule called the Seventh Schedule was added by section 20. Article 270‑A reads as under:
"270‑A. Affirmation of President's Orders, etc. ‑‑
(1) The Proclamation of the fifth day of July, 1977, all President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, including the Referendum Order, 1984 (P. O. No.ll of 1984), under which, in consequence of the result of the referendum held on the nineteenth day of December, 1984, General Muhammad Zia‑ul‑Haq became the President of Pakistan on the day of the first meeting of the Majlis‑e‑Shoora (Parliament) in joint sitting for the term specified in clause (7) of Article 41, the Revival of the Constitution of 1973 Order, 1985 (P.0.14 of 1985) the Constitution (Second Amendment) Order, 1985 (P.0.20of 1985), the Constitution (Third Amendment) Order, 1985 (P.O. No. 24 of 1985), and all other laws made between the fifth day of July, 1977, and the date on which this Article comes into force are hereby affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever:
Provided that a President's Order, Martial Law Regulation or Martial Law Order made after the thirtieth day of September, 1985, shall be confined only to making such provisions as facilitate, or are incidental to, the revocation of the Proclamation of the fifth day of July, 1977.
(2) All orders made, proceedings taken and acts done by any authority or by any person, which were made, taken or done, or purported to have been made, taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation, President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye‑laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever.
(3) All President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye‑laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority.
Explanation.‑‑In this clause, "competent authority" means,‑‑
(a) in respect of President's Orders. Ordinances. Martial
Law Regulations, Martial Law Orders and enactments, the appropriate Legislature; and
(b) in respect of notifications, rules, orders and bye‑laws, the authority in which the power to make, alter, repeal or amend the same vests under the law.
(4) No suit, prosecution or other legal proceedings shall lie in any Court against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.
(5) For the purposes of clauses (1), (2) and (4), all orders made, proceedings taken, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby.
(6) Such of the President's Orders and Ordinances referred to in clause (1) as are specified in the Seventh Schedule may be amended in the manner provided for amendment of the Constitution, and all other laws referred to in the said clause may be amended by the appropriate Legislature in the manner provided for amendment of such laws.
Explanation.‑‑In this Article, "President's Orders" includes "President and Chief Martial Law Administrator's Orders" and "Chief Martial Law Administrator's Orders."
By the proviso to Article 270‑A(1) ex post facto validity was given to those Martial Law Orders or Martial law Regulations which were made to facilitate or were incidental to the revocation of Proclamation of the fifth day of July, 1977. Those legislative measures which fell within this category are mentioned hereunder.
The Chief Martial Law Administrator on 29th of December, 1985, promulgated the Martial Law (Pending Proceedings) Order, 1985. Amongst others, clause (3) of this Order enacted that all those Martial Law Regulations and Martial Law Orders which were not specified in the Schedule to this Order "shall stand cancelled on the appointed day" . On 30th December, 1985, the Chief Martial Law Administrator lifted the Martial Law by a Proclamation and repealed the Laws (Continuance in Force) Order, 1977, the Provisional Constitution Order of 1981 and revoked the Proclamation of the fifth day of July, 1977 and also declared by clause (3) that not only the power of the Chief Martial Law Administrator but also that of any Martial Law authority subordinate to him to issue Martial Law Regulations, Martial Law Orders and Constitutional Orders lapsed. Article 212‑A of the 1973 Constitution was omitted from the Constitution on 29‑12‑1985 by the President in exercise of the powers conferred by entry 45 in the Schedule to the Revival of the Constitution of 1973 Order (P.O. No.14 of 1985). Articles 6, 8 to 28, clause (2) and clause 2(a) of Articles 101, 199, 213 to 216 and 270‑A (as amended) of the Constitution were enforced from the date on which the proclamation of the fifth day of July, 1977, was revoked, i.e. , 30‑12‑1985.
Apart from these important constitutional amendments other legislative measures were made in pursuance of the proclamation of the fifth day of July, 1977 read with the Laws (Continuance in Force) Order, 1977. One such order which needs mention is President's Order No.20 of 1978 (the Freedom of Association Order, 1978) promulgated on 17th of October, 1978.
In Asma Jilani's case since the maker of the legislative measures was held to be the usurper, condonation was given in particular to all acts and legislative measures which were in accordance with or could have been made under the abrogated Constitution or the previous legal order. Similarly Begum Nusrat Bhutto's case authorised the Chief Martial Law Administrator not only to promulgate Presidential Orders, Ordinances, Martial Law Regulations or Orders but also to enact legislative measures which were in accordance with or could have been made under the 1973 Constitution including the power to amend it in the background that the 1973 Constitution continued to be the supreme law of the land subject to its certain parts having been held to be in abeyance on account of State necessity. In the first case the criterion was principle of condonation and in the second case, State necessity. However, upon the promulgation of the Provisional Constitution Order, the judgment in the case of Begum Nusrat Bhutto was nullified and a new order came in the field. However, the pattern of legislation was that the power was derived from the proclamation of the fifth day of July, 1977 read with the Laws (Continuance in Force) Order, 1977. By the proviso to Article 270‑A(1) (Constitution Eighth Amendment Act, 1985), the President and the Chief Martial Law Administrator was authorised only to enact such legal measures which served the purpose mentioned therein. Therefore, protection had to be given firstly, to the legal measures including the Martial Law Regulations and Martial Law Orders which followed the pattern of legal measures in Zia‑ur‑Rehman's case. Secondly, to such Constitutional amendments as were made on the touchstone of State necessity. Thirdly, such amendments as were made after the promulgation of the Provisional Constitution Order which superseded Begum Nusrat Bhutto's case and rendered it ineffective. And fourthly, to the legal measures made for the purpose mentioned in the proviso to Article 270‑A(1). However, the added feature here is that the constitutional amendments also needed protection for which a different procedure is prescribed by Article 238 of the 1973 Constitution. Therefore, not only the effect of the judgment in Begum Nusrat Bhuttos case had to be nullified but also constitutional validity had to be given to the legal measures both as regards their content and the power exercised in enacting them. In this respect I find no distinction between this case and that of Zia‑ur‑Rehman. But as no constitutional amendment was involved which needed protection, therefore, there was no mention of the expression "notwithstanding anything contained in the Constitution" in Article 280(1) and all that was needed to be cared for was the judgment in Asma Jilani's case in regard to which the expression "notwithstanding any judgment" was used.
Now comparing the earlier Articles namely Article 281(1) of the Interim Constitution and Article 269(1) of the 1973 Constitution with Article 270‑A(1) of the 1973 Constitution, the change in terminology is in respect: firstly, that in the earlier two constitutional provisions the word "declared" was used before the words "notwithstanding any judgment of any Court" but in Article 270‑A(1) the additional words "affirmed" and "adopted" are added after the word "hereby" and before the word "declared"; and secondly, the expression namely "notwithstanding anything contained in the Constitution" is inserted before the expression "shall not be called in question in any Court on any ground whatsoever". These specific words and expression were not hitherto interpreted by this Court owing to the terminology being different in this respect. Reading Article 270‑A(1), I find that it is in two parts joined together by the conjunctive "and". The first part deals with the proclamation of the fifth day of July, 1977, legal instruments and all legal measures including Martial Law Regulations and Martial Law Orders made between the specified dates which are "hereby affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made by competent authority" and the second part deals with the ouster of the jurisdiction of Courts in terms: "notwithstanding anything contained in the Constitution, shall not be called in question in any Court or. any ground whatsoever."
Adverting to the first part, it will be necessary to examine the meaning of the specific words used in the constitutional provision. In Ballentine's Law Dictionary, Third Ed. , page 36, the word "adopt" is defined to mean "to approve, to take as one's own that which was not so before". In Black's Law Dictionary, Fifth Edition, page 45, it means "to make that one's own act which was not so originally, to accept; consent to, and put into effective operation; as in the case of constitutional amendment, ordinance, Court rule, or by‑law". In Chamber's Twentieth Century Dictionary at page 16, "adopt" means "to take as one's own, to endorse, approve". The word "affirm" in the Chamber's Twentieth Century Dictionary is defined at page 20 to mean: "to assert confidently or positively, to ratify (a judgment); toy confirm or stand by". In Black's Law Dictionary, Fifth Edition at page 55, this word is defined to convey the meaning: "to ratify, make firm, to make a solemn and formal declaration". In Ballentine's Law Dictionary, Third Edition at page 46, this word carries the same meaning, i.e., "to declare solemnly, to confirm or ratify a statement, belief, opinion, decision or judgment". The word "declared" was also used in the earlier constitutional provisions and also in this provision. It means "to make known, manifest..; to announce clearly some opinion or resolution" . (Black's Law Dictionary, Fifth Edition at page 368).
Having regard to the meanings which the words "affirm", "adopt" and "declare" convey, it is manifest that the legislature owned the legal instruments and legal measures made between the specified dates as if enacted by itself so as to give validity and competency to those legal instruments and measures. The principle of ratification was here adopted and such validity and competency was proclaimed. This principle belongs to the realm of the law of agency: "In the law of principal and agent, the adoption and confirmation by one person with knowledge of all material facts, of an act or contract performed or entered into in his behalf by another who at the time assumed without authority to act as his agent. Essence of "ratification" by principal of act of agent is manifestation of mental determination by principal to affirm the act, and this may be manifested by written word ...." (See Black's Law Dictionary, Fifth Edition, p.1135). In this respect there was a departure from the protection earlier given by the two constitutional provisions, namely Article 281(1) of the Interim Constitution and Article 269(1) of the 1973 Constitution.
The next expression in this part which needs consideration is "notwithstanding any judgment of any Court". Obviously this expression could not have any reference to Asma Jilani's case as its effect was taken away by Article 281(1) of the Interim Constitution (see Zia‑ur‑Rehman's case) and it could only refer to Begum Nusrat Bhutto's case in which the 1973 Constitution was held to be the supreme law of the land subject to certain portions having been held in abeyance and the Chief Martial Law Administrator to have validly assumed power by means of extra‑Constitutional steps in the interest of the State and for the welfare of the people. But subsequently this judgment was superseded by the Provisional Constitution Order and its effect was therein nullified. It was, therefore, to avoid the effect of that judgment after the lifting of the Martial Law and the revocation of the Provisional Constitution Order and the Laws (Continuance in Force) Order, 1977, that the expression "notwithstanding any judgment of any Court" was again used.
Coming now to the second part, the non obstante expression "notwithstanding anything contained in the Constitution" in the context in which it occurs is equivalent to saying that the provisions of the Constitution shall not be an impediment in ousting the jurisdiction of the Court qua the validity and competency of the legal measures. While on the one hand by this device the legislature has chosen to give wholesale validity and competency to the said legal measures as if it had enacted them and on the other by neutralising the constitutional impediments so as to render them immune from any attack on their validity and competency on any ground whatsoever. Having held so, the dictum laid down in Saeed Ahmad's case will be fully applicable. The ouster of jurisdiction is accordingly complete and the Court is left with no jurisdiction to strike off the laws without, in any way, affecting the judicial power to interpret the constitutional provision, which cannot be denied so long as the Court exists. Here I would add the admirable words of Chief Justice Hughes of the Supreme Court of United States of America: "We are under a Constitution, but the Constitution is what the judges say it is ...." (Columbia Law Review, Volume 49, p.201).
It is difficult to confine the expression "notwithstanding anything contained in the Constitution" only to the maker of the legal measures as contended by the learned counsel for the petitioner as this constitutional provision has to be read as a whole and both its parts have to be harmonised to give full meaning and effect to it.
The further argument of the learned Attorney‑General is that the validation also cures the violation of the Fundamental Rights or any other constitutional norm not only in the past operation of such laws but also in their future continuance "notwithstanding anything contained in the Constitution". In support of this contention, he relied firstly, on the non obstante expression "notwithstanding anything contained in the Constitution" and secondly, in the absence of the words "subject to the Constitution" in sub‑Article (3) of Article 270‑A by comparison of these words existing in sub‑Article (1) of Article 280 of the Interim Constitution and sub‑Article (1) of Article 268 of the 1973 Constitution. This brings me to the consideration of the scope of what is validated in the context of the principle of validation or curing defects in the laws. During the specified period, the' Constitution was in abeyance and so were the Fundamental Rights. Therefore, the power to enact the legal measures which was derived from the proclamation of the fifth day of July, 1977, and the Laws (Continuance in Force) Order was without any limitation as to the subject of legislation. There was no occasion, however, for any conflict of the legal measures in the state of things then existing with any constitutional norm.
The constitutional validity given by Article 270‑A(1) is retrospective as it achieves to give validity to laws enacted between a specified period. This validity is, therefore, of a pattern of a curative or validating statute and must be understood and be operative in that context. In Black's Law Dictionary, Fifth Edn., p.1390, validating statute is stated to be: "A statute, purpose of which is to cure past errors and omissions and thus make valid what was invalid, but it grants no indulgence for the correction of future errors". In Pandit Ram Parkash v . Smt. Savitri Devi (A I R 1958 Punjab 87) * it was held that curative and validating statutes operate on conditions already existing and can have no prospective operation." In Moti Ram v. Bakhwant Singh (A I R 1968 Punjab and Haryana 141), it was held: "A curative act is a statute passed to cure defect in a prior law and has prospective operation". In Sutherland on Statutory Construction, Vo1.II, 3rd Edn., p.243. it is stated: "Retroactive operation will more readily be ascribed to legislation that is curative or legalising than to legislation which may be disadvantageously though legally, affect past relations and transactions". In Amalgamated Coalfields, Calcutta v. State (A I R 1967 M.P. 56), it was held:
"An invalid Act can be validated by subsequent statute of the competent legislative authority, if the validating statute authorises the doing of the act at the time when it was done. In the absence of such authorisation, the validation will be futile as that will only amount to an attempt to exercise a power exhypothesis which does not exist."
Having regard to the purpose of validation, the defects in the legal measures when enacted during the specified dates had to be cured in the state of things as they existed which, of course, did not include any violation of .a constitutional norm; and validity in this context could not be said to have achieved anything more than this. This is not all.
The learned Attorney" General relied on the non obstante expression "notwithstanding anything contained in the constitution" to extend the validity to the covering of the violations of constitutional norms. This expression only occurs in Article 270‑A(1), which I have already held to be referable to the ouster of the jurisdiction of the Court. It has not been used in sub‑Article (3) nor can it be read into it as this would amount to re‑writing the Constitution which is not the purport of interpretation. If the Legislature itself did not consider it appropriate to give protection to the existing laws against violations of Fundamental Rights then this cannot be achieved by taking aid of this expression from Article 270‑A(1). This legislative intention is clear from the progress of the Bill of the Constitution (Eighth Amendment) Act, 1985 Bill (N.A. Bill No.13 of 1985) in the National Assembly until it become an Act of the Legislature:
"The Constitution (Eighth Amendment) Act, 1985 Bill (N.A. Bill No.13 of 1985) was introduced in the National Assembly on 8th September, 1985. It consisted of eight clauses and its 7th clause, inter alia, was to the following effect:‑
"7. Amendment of the First Schedule to the Constitution.‑
In the Constitution, in the First Schedule, in Part I, under the sub‑heading "III FEDERAL ACTS",‑
(a) the following new entry shall be added, namely:
"1. The Political Parties Act, 1962 (III of 1962), and any Act by which it is amended or repealed and re‑enacted."
In relation to this amendment, the following was observed in the Statement of Objects and Reasons:
"7. First Schedule.‑Amendment of this Schedule is aimed at exempting Political Parties Act, 1962, and the law by which it is amended or repealed, re‑enacted, from the application of Article 8 of the Constitution."
(Gazette of Pakistan, Extraordinary, pp. 4023‑4026)
On 30th September, 1985, the Minister for Justice and Parliamentary Affairs sought leave to withdraw the aforesaid Bill, which was introduced on 8th September, 1985, with a view to presenting a new Bill which had, in the meanwhile, been prepared by consensus of the members.
(Debate Vol. IV, No.12, 30 Sep. 1985)
Leave for withdrawal of the aforesaid Bill was given and a new Bill (N.A. Bill No.15 of 1985) called the Constitution (Eighth ' Amendment) Act, 1985, introduced on the 30th September, 1985.
(Gazette, Extraordinary, 4080)
This Bill consisted of 22 clauses and its 20th clause was, inter alia. in the following terms:
"20. Amendment of the First Schedule to
the Constitution.‑‑‑
In the Constitution, in the First Schedule, in Part II, under the sub‑heading "III FEDERAL ACTS",‑‑
(a) the following new entry shall be added, namely:‑‑
"1. The Political Parties Act, 1962 (III of 1962)."
Para. 20 of the Statement of Objects and Reasons was to the following effect
"20. Amendment of the First Schedule is aimed at exempting the Political Parties Act: 1962. from the application of Article 8 of the Constitution."
(Gazette of Pakistan, Extraordinary, pp.4073‑4084)
In the debate of the adoption of clauses of the Bill, when the clause in question (i.e, clause 20) came up for consideration before the House on 16th October, 1995, the following proceedings took place:‑
'Mr. Speaker: Clause 20: There is an amendment in the name of Shahzada Jan Muhammad Yousaf.
Shahzada Jan Muhammad Yousaf: Sir, on behalf of my colleagues I beg to move:
"That clause 20 of the Bill be omitted."
Mr.Iqbal Ahmad Khan: Sir, I accept this amendment.
(Vol. IV, No.26, 16th Sept. 1985, p.3483)"
The deletion of the Political Parties Act manifestly shows the intention of the Legislature not to give validity against constitutional violations to the laws except those which are specified in the Seventh Schedule. I This was because of the Legislature's awareness of the constitutions limitation on its power to make laws which take away or abridge the Fundamental Rights (Article 8(2) and‑the‑ validity, therefore, grant could not violate this limitation. l0RW
In regard to the second limb of the argument as to the absence of the words "subject to the Constitution" in sub‑Article ($) of the 1973 Constitution, I would like to point out that there is material difference between Article 270‑A of the 1973 Constitution, Article 281 of the Interim Constitution and Article 269 of the 1973 Constitution. The latter constitutional provisions follow the same pattern while in Article 270‑A there is insertion of sub‑Articles (3) and (6). Sub‑Article (3) continues in force all laws which survived the repeal until altered, repealed or amended by the competent authority while sub‑Article (6) categorises these laws into two categories: those specified in the Seventh Schedule and those not so specified. Those so specified could only be amended in the manner provided for amendment of the Constitution while the others could be amended by the appropriate Legislature in the manner provided for amendment of such laws. In effect, therefore, a constitutional status was given to the specified laws while the others were treated as ordinary laws. There was no such distinction in Articles 281 of the Interim Constitution or 269 of the 1973 Constitution. However, it will be here convenient to refer to sub‑Articles (1) and (3) of Article 280 of the Interim Constitution. While sub‑Article (1) continues in force all existing laws until altered, repealed or amended by the appropriate Legislature, sub‑Article (3) repeals all Martial Law Regulations and Martial Law Orders except those which are specified in the Seventh Schedule and deemed to have become an Act of the appropriate Legislature. By the proviso to this sub‑Article, it was provided that no Bill. to amend or to repeal any of the Martial Law Regulations or the Martial Law Orders so specified shall be introduced or moved without the previous sanction of the President. Sub‑Article (1) of Article 268 of the 1973 Constitution further provides that "subject to the Constitution" all existing laws shall continue in force until altered, repealed or amended by the appropriate Legislature. Sub‑Article (2) of this Article, however, gives protection to those laws which are specified in the Sixth Schedule in terms that they cannot be altered, repealed or amended without the previous sanction of the President. None of these constitutional provisions are alike sub‑Article (3) and sub‑Article (6) of Article 270‑A of the 1973 Constitution. While sub‑Article (3) of Article 280 of the Interim Constitution gives protection to the Martial Law Regulations and Martial Law Orders specified in the Schedule by curtailing the power of the Legislature to amend it without the previous sanction of tt.e President, sub‑Article (6) of Article 270‑A makes no mention of Martial Law Regulations or Martial Law Orders but only President's Orders and Ordinances, which cannot be amended or repealed except as by the procedure prescribed for amendment of the Constitution.
The textual changes of Article 270‑A of the 1973 Constitution cannot be ignored while considering the argument of the learned Attorney‑General which clearly reflect the intention of the Legislature not to treat the laws not specified in the Schedule immune from attack on the ground of violation of the constitutional norm. The words "subject to the Constitution" which makes the laws subordinate to the Constitution even if they were not used in sub‑Article (3) of Article 270‑A of the 1973 Constitution will not make any difference because of the textual changes in this Article which clearly makes a distinction between laws which are amenable to attack and those which are not. Even otherwise without these words the ordinary laws are subordinate to the Constitution. It will also serve no useful purpose if this sub‑Article is read in conjunction with Article 270‑A as the latter deals with conferring validity on the legal measures and ouster of jurisdiction of the Court while the former concerns itself with the continuance of the survived laws. In construing constitutional provisions the expression used in one provision cannot be lifted and superimposed on the other provision which is not only against the canons of interpretation but also makes the reading of tl a provisions as a whole discordant.
However, to justify his proposition, the learned Attorney General urged that if the words used in earlier enactments on the same subject are omitted in the subsequent enactments, the omission is to be given due effect to and it is presumed by the change of language that the law‑giver intended to bring about the change and relied on Pakistan Tobacco Co. Ltd. v. Karachi Municipal Corporation, (P L D 1967 S C 241) and Chairman, District Council v. Ali Akbar, (1970 S C M R 105). In the case of Pakistan Tobacco Co. Ltd., the point of challenge was the validity of the terminal tax imposed by the Karachi Municipal Corporation during the years 1962 and 1963 on goods imported into and used in the factory of the appellant‑company situate within the Sin d Industrial Trading Estate at Maripur, Karachi. Although the SITE was outside the territorial limits of Karachi Municipal Corporation, nonetheless the tax was imposed in the exercise of the powers conferred on the Municipal Corporation by a rule sanctioned by the Chief Commissioner of Karachi on the 19th of March, 1957 and incorporated in the Terminal Tax Rules contained in Chapter V of the Schedule VIII of the Municipal Rule Book, 1947, as rule 5‑B. On its repeal by section 4 of the Municipal Administration Ordinance, 1960, there was omission of section 96 of the Municipal Act relating to the imposition of the terminal tax and its deliberate exclusion from the Third Schedule appended to the Ordinance. It was on these facts that this Court held that the deliberate omission of the previous provision relating to the imposition of terminal tax in the repealing Act showed manifest intention to effect a change in the law. In the case of Chairman, District Council, there was again conscious deletion of the words "employment" in the repealing Act and relying on the principle of interpretation laid down in Pakistan Tobacco Co. Ltd., it was held that a Legislature is deemed to be aware of the previous state of the law and if knowing this it makes a change when repealing it and re‑enacting some of its provisions the intention is clearly to effect a change.
There is, however, no repeal and re‑enactment of the repealed Act to make the intention as proposed to be manifest. Article 270‑A is a new provision which is differently worded in many respects from the earlier provisions giving constitutional, validity. The principle of omission from the repealed Act cannot be applied here particularly in the context of sub‑Article (6) which manifests a clear intention to bifurcate the existing laws into two categories; one set getting constitutional protection by being specified in the Seventh Schedule and the other left over as ordinary laws amenable to correction by the ordinary procedure applicable to the amendment or repeal of the law by Legislature.
The next question which arises for consideration is whether the legal measures to which validity has been given by Article 270‑A (1) of the 1973 Constitution can be construed to be prospective in operation by reference to its language as contended by the learned Attorney‑General. While considering this question it should be borne in mind that the legal measures which have been given validity were enacted during the specified period and not all have survived so as to continue in force until altered, repealed or amended by the competent authority as enacted by sub‑Article (3) of Article 270‑A. If the legal measure is not itself in existence how can it operate prospectively. The test of the legal measures being prospective must be equally applicable to those which have survived and those which have not survived which 'is not the case here. In this connection sub‑Article (3) of Article 270‑A is itself a clue to the prospective operation of laws which are saved as it gives to them a continuity but not to those which are repealed. This is also against the principle of validation which only remedies the defect retrospectively but does not care for any future operation of the law.
The learned Attorney‑General, however, to substantiate his argument relied on para. 10 of the Martial Law (Pending Proceedings) Order, 1985 (Martial Law Order No.107), which reads as under:
"The provisions of this Order shall have effect notwithstanding the repeal of Martial Law Regulations or Martial Law Orders."
The language of this Order and that of para. 9 of President's Order No.26 of 1962 and para.7 of President's Order No.14 of 1972 is in pari materia. In his view, the words "the provisions of this Order shall have effect" meant that in spite of the repeal of Martial Law Regulations and Martial Law Orders, they continued to operate in future on being validated by Article 270‑A(1). In other words they survived the repeal and were continued as laws under sub‑Article (3) of the 1973 Constitution. This contention hits at the proviso to Article 270‑A(1) which limits the power of the President and the Chief Martial Law Administrator to make only such Martial Law Regulations and Martial Law Orders after the thirtieth day of September, 1985, which would facilitate or were incidental to the revocation of the Proclamation of the fifth day of July, 1977. Therefore, the Legislature only gave validity to this extent and if they were to survive and operate as Martial Law Regulations and Martial Law Orders it would be against the purpose of legislation for in that event it would entrench the Martial Law rather than to facilitate the revocation of the proclamation of the Martial Law. There is also the further reason that if the Martial Law Regulations and Martial Law Orders were to survive then they would be in conflict with some of the paragraphs of this Order and in particular paragrpah 5 which could not be the intention of the maker.
In my view, in the expression "the provisions of this Order shall have effect", the key words are "shall have effect", which mean: "shall have legal effect." (See Venkataramaiya's Law Lexicon, Second Ed. , Volume 3, p .2217) . The purport of using these words is to give legal protection to the several provisions of the Order as a result of the change‑over from Martial Law to rule of law under the Constitution. This device was earlier adopted for the same purpose so as not to leave a vacuum. Accordingly, this submission of the learned Attorney‑General is untenable.
The learned Attorney‑General strongly relied on certain passages at pages 584, 591 (para. 47), 592 (para. 48), 593, 680 (para. 60) and 692 and the opinions of Zaffar Hussain Mirza, J. and M.S. H. Quraishi, J. , at p.692, in the case of Fauji Foundation v . Shamimur Rehman (P L D 1983 S C 457), to augment that the validity extended to the curing of defects including all constitutional violations. The observations in this case are confined to the status of Martial Law Regulations and Martial Law Orders in the context of the constitutional provisions, namely Article 280(3) of the Interim Constitution and Article 281(1) of the Interim Constitution and sub‑Article (1) of Article 268 and Article 269(1) of the 1973 Constitution. The important feature while determining the status was that they were repealed by the constitutional provisions and the effect of repeal alongwith validation were the factors considered while determining the status of those which survived and were protected. The conclusions drawn from the arguments raised in the case were based on the cases of Zia‑ur‑Rehman, Saeed Ahmad and Karamat Ali, which I have followed subject to the textual changes in Article 270‑A. And if the word constitutional status was used, it was used in the context of the protection gives to them. The distinguishing feature here is that Article 270‑A only given constitutional protection to President's Orders and Ordinances and not to Martial Law Regulations and Martial Law Orders which were repealed by the Martial Law (Pending Proceedings) Order, 1985 (Martial Law Order 107).
One important distinction while applying the observations in the case of Fauji Foundation should be kept in mind and, that is, that it was the National Assembly which as the Constituent body enacted the Interim Constitution of 1972 and the 1973 Constitution. The observations at page 593 were made in the context of this distinction as it was in the exercise of the constituent power that the Constitution was enacted which is not the case here as the amendments in the Constitution were made and so was it revived (President's Order 14 of 1985) in the exercise of the powers derived from the Proclamation of the Fifth day of July, 1977 and the Laws (Continuance in Force) Order, therefore, the validity has to be construed in the context of the content of the power exercised and the language of the indemnity' clause enacted by the Legislature (Majlis‑e‑Shoora) in exercise of the derivative power subject to the limitation imposed by the prescribed procedure. This was essentially a revival of the old order and not the creation of a new order. The National Assembly while enacting the Constitution (Eighth Amendment) Act, 1985, made its intention evident that no validity was given under sub‑Article (1) of Article 270‑A of the 1973 Constitution against constitutional violations as the Bill itself which by clause (20) proposed to add a new entry namely, "the Political Parties Act, 1962", and any Act by which it is amended or repealed or re‑enacted in the First Schedule in para. 1 under the sub‑heading "III Federal Acts" was omitted. Again so far as the ouster of jurisdiction of the Court' is concerned, I have held it to be absolute and complete and in that in context there is no distinction between this case and that of Philip v . Eyre, (1868) 4 KB 225.
‑ In the milieu of this discussion, I would like to point out that Mr.Yahya Bakhtiar, learned counsel for the petitioner while contending that the validity could not extend to the curing of the constitutional defects, did not raise the point as to how if such validity is assumed, will it be sustainable if it was against the injunctions of the Holy Quran and Sunnah. Since this question has not been debated, we would leave it open for consideration in some other appropriate case.
The thrust of the argument of the learned Advocate‑General, Sind, was that the second part of Article 270‑A (1) namely, "and, notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever" which was not available either in Articles 280 and 269 of the 1973 Constitution, cumulatively had the effect to continue the protected laws including the repealed laws as well. His further submission was that some of the ingredients of Article 199 such as "subject to the Constitution", the requirement of the person invoking Article 184 to be "an aggrieved party" and any other constraint in Article 199 should be read in Article 184(3) by reference to the words "order of the nature" mentioned in the said Article and "without prejudice to the provisions of Article 199". I have dealt with these contentions while dealing with the similar arguments of the learned Attorney‑General and I need not say any more.
Having dealt with the argument of the learned Attorney‑General on the extent and scope of the validity given to the legal measures under Article 270‑A(1), I would now deal with the argument of the learned counsel for the petitioner in regard to the vires of certain provisions of the Political Parties Act, 1962, on the score of being inconsistent with Article 17(2) of the 1973 Constitution and for that reason void.
A political party has its significance in the context of they political system provided by the Constitution. Our Constitution is of, the pattern of Parliamentary democracy with a Cabinet system based on party system as essentially it is composed of the representatives of a party which is in majority. Bagehot called it "a hyphen that joins, a buckle that fastens, the executive and legislative together" , It formulates the general policy of the Government and is collectively responsible to the Parliament for that. Apart from this general function of coordination and leadership, it exercises actual executive and legislative functions. (Basu's Commentary on the Constitution of India, Third Edn. , Volume 1, page 459).
Our Constitution envisages democracy as ethos and a way of life in which equality of status, of opportunity, equality before law and equal protection of law obtains. It has its foundation in representation; it is not a system of self‑government, but a system of control and the limitations of government. A democratic polity is usually identified by the manner of selection of its leaders and by the fact that the power of the government functionaries is checked and restrained. In a democracy the role of the people is to produce a government and, therefore, the democratic method is an institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people's vote. Fundamentally democracy rests upon the idea of freedom.
Parliamentary Government is a government of the party and a party government is a vital principle of a representative government. The political party is a connecting link between the Executive and the Legislature, between the Cabinet and the Parliament. It is also a connecting link between the Cabinet and the people and between the Parliament and the people For this reason the political parties are necessary and important features in a Parliamentary democracy. They ere important because the group victorious at a general election becomes the government. In a nutshell a Parliamentary democracy depends for its success on the organization of political parties and its disciplined support of Parliamentary majority is sine qua non of Cabinet Government composed of the Prime Minister and the Ministers from the majority party. They thus provide leadership to public offices through the elections. They are now necessary part of a democratic government. Rival parties make elections meaningful by giving voters a choice among candidates who represent different interests and points of view. The party or parties that are out of power serve as a "loyal opposition" as understood in Parliamentary democracy. That is, they criticise policies and actions of the party in power. In this way the party in power is called on to justify its actions and is made responsible to the people.
In American system: "A political party is a voluntary association, formed of the free will and unrestrained choice of those who compose it. No man is compelled by law to become a member of a political party, or, after having become such, to remain a member, He may join such a party for whatever reason seems good to him, and may quit the party for any cause, or without cause. It has been said that political parties originated in the United States with the adoption of the Federal Constitution.
Political parties are institutions of very great importance under our form of I are, in fact, the effective instrumentalities by which the will of the people may be made vocal, and the enactment of laws in accordance therewith made possible. So potent have they become in determining the measures and in administering the affairs of government that they are now regarded as inseparable from, if not essential to, a republican form of
government.
The people have an inherent right to form, organize and operate political parties and to reorganize an old political party. This is included in the right of suffrage. It has been characterised as "an inalienable right guaranteed by the Constitution." (25 Am Jur 2d 800‑8010) .
About 100 years back Edmund Burke in his book on "Thoughts on the Cause of the Present Discontents" defined the political party "as a body of men united, for promoting by their joint endeavours, the national interest, upon some particular principles in which they are all agreed. Parties are defined in terms of commonly held ideas, values or stands on national and social issues. A political party is distinguished from other political organizations by its concentration on the contesting of election."
"Political party" in section 2(c) of the Political Parties Act, 1962, is defined as including a group or combination of persons who are operating for the purpose of propagating any political opinion or indulging in any other political activity.
In this definition there is no elaboration of what political opinion or political activity means. Cornelius, C.J., however, spoke of it in the case of Abul A'la Maudoodi v. Government of West Pakistan, (PLD 1964 S C 673) at page 692 in these words:
"The ordinary conception of a political party includes a right within the framework of the Constitution to exert itself through its following and organization, and using all available channels of mass communication, to propagate its views in relation to the whole complex of the administrative machine, including the Legislature, in respect of matters which appear to it to require attention for the amelioration of conditions generally throughout the nation, for improvements particularly in administrative procedures and policies, as well as in the legislative fields, even to the extent of proposing and pressing for amendment of the Constitution itself."
The role of political parties is also recognized in other judicial opinions. S.A. Rahman, J., in his separate opinion in the case of Abul A'la Maudoodi said:
"In a democratic set‑up such as is visualised by our present Constitution, the presence of political parties is regarded as an essential feature so that it is conceivable that the opposition of today may be the Government of tomorrow."
Fazl‑e‑Akbar, J. , in his opinion in the same case expressed:
"Indeed the very foundation of a constitutional government is healthy opposition. Progress of a country depends to a certain extent by the opposition of the new to the old, and in so far as it is within the law, such opposition is recognized as a symbol of independent though containing the promise of progress. "
Elections are a recognized means of providing succession in leadership. The problem of political succession is common to all Parliamentary democracies. At a minimum an election provides a legal means for 1 validating a claim to govern. It is a party system that converts the results of a Parliamentary election into a government. The opinion of the individual voters is further curtailed and controlled by the working of the party which has an organization which controls the elections, educates its members in the policies and professions of the party and exercises discipline over its members so as to prevent defection.
Having highlighted the importance of political parties in a Parliamentary democracy such as envisaged in the Constitution, the framers of the Constitution while guaranteeing the right to every citizen to form associations or unions also provided separately "to form or be a member of a political party", as its existence is essential for the maintenance of other rights guaranteed to the individuals by the Constitution. To impress its importance, I may here quote the words of Lord Denning in his book "Road to Justice", at page 98:
"If men are ever to be able to break the bonds of oppression or servitude, they must be free to meet and discuss their grievances and to work out in unison a plan of action to set things right."
While dealing with the legislative amendments in the Political Parties Act I have also dealt with the amendments in Article 17 and also reproduced sub‑Article (2) of Article 17 but not sub‑Articles (1) and ( 3). As it would be necessary to consider Article 17 in its entirety, I would reproduce it as in its present form:
"(1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.
(2) Every citizen not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.
(3) Every political party shall account for the source of its funds in accordance with law."
While the rights guaranteed under sub‑Article (1) were subject to "any reasonable restrictions imposed by law in the interest of morality or public order", sub‑Article (2) guaranteed "the right to form or be a member of a political party" with the further obligation to "account for the source of its funds in accordance with law". The words "sovereignty or integrity of Pakistan" were added in sub‑clause (1) after the words "in the interest of" and before the words "public order and morality" by the Constitution (Fourth Amendment) Act, 1975 (71 of 1975). Earlier by the Constitution (First Amendment) Act, 1974 (33 of 1974), sub‑Articles (2) and (3) were amended ink its present form.
This
Court in Islamic Republic of Pakistan v. Abdul Wali Khan (P L D 1976 S C 57), while being conscious of sub‑Article
(1) of Article 17 observed:
"The Constitution, therefore, guarantees to every citizen, who is not in the service of Pakistan, the right to form a political party or to be member of a political party and this right is subject only to reasonable restrictions imposed by law_in the interest of the sovereignty or integrity of Pakistan."
Further it held:
"It will be further noticed that in the original Article 17, the only power given to the State was to impose reasonable restrictions by law on the right of association in the interest of morality or public order and the right to form a political party was only hedged in with the condition of accounting for the source of its funds, but now it has been further provided that reasonable restrictions may also be imposed by law in the' interest of the sovereignty and integrity of Pakistan:"
In the Indian Constitution, the right to form association is .guaranteed by clause (1) (c) of Article 19 which was amended in 1963 to include the words "sovereignty and integrity of India" before the words "public order or morality" but no law has so far been enacted for making any specific or special provision for political parties. Action is taken there, when necessary, under the emergency powers of the Government or other existing laws which are protected by this clause.
Sub‑Articles (2) and (3) are, therefore, exceptional features of the 1973 Constitution. Freedom of association is one of the pillars of democracy. As such the international community gave recognition to it in Article 22 of the International Covenant on Civil and Political Rights, 1966, and so also this right is recognised by Article 11 of the European Convention on Human Rights, 1950. Article 22 of the International Covenant on Civil and Political Rights provides:
"1. Everyone shall have the right to freedom of . association with others, including the right to form and join trade unions for the protection of his interests.
2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the‑ protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right."
Article 17(2) visualises plurality of political parties and so does the definition of the "Political Party" in the Act as plurality has a direct bearing to the Parliamentary system of Government. This right has a positive and a negative aspect. The words "right to t form" in this sub‑Article is not only confined to the commencement of association but the right includes the right of continuance of the association as well. (See State of Madras v. U. G. Row, A I R 1952 S C 196). It also includes a right not to alter by law its composition soy as to allow members other than those who have voluntarily joined toy form the association without the consent of the members nor can any member be compelled to withdraw from the membership of the association. The right also implies the right to refuse to belong to any political party if a person so desires. Here it is also necessary to emphasise that the conjoined rights of an association if it is formed cannot be different from the rights which can be claimed by individual citizens with which the association is composed. (See Balakottah v. Union of India, A I R 1958 S C 232). Thus while the right to form political party is guaranteed under sub‑Article (2) of Article 17, the right of the members to meet is guaranteed by Article 16, the right to move from place to place is guaranteed by Article 15, the right to freedom of speech and expression is guaranteed by Article 19 and so on. This is so because the fundamental rights are guaranteed to the citizens as such and the association can lay claim to the fundamental rights guaranteed by the different Articles solely on the basis of their being an aggregate of citizens composing the party. However, by forming a political party its members do not acquire any higher footing as regards other Fundamental Rights which as individuals they could not claim. Further the political party while exercising its freedom under different Articles is subject to reasonable restrictions imposed thereunder.
B. Z. Kaikaus, J., in Abul A'la Maudoodi's case, held, in relation to Article 7 of the 1962 Constitution: "It may be pointed out here that though the words used in Article 7 refer only to forming of associations they necessarily imply carrying on the activities of an association for the mere forming of association would be of no avail." Similarly Cornelius, C .J. , in his opinion in the same case expressed that where a party is formed, its functioning is implicit and it comes to an end when a contingency occurs.
Our Constitution has provided auto‑limitations or in‑built restraints on the exercise of Fundamental Rights guaranteed in Chapter I, Part II. These auto‑limitations or inbuilt restraints not only provide protection to the rights themselves but also further the interest of social solidarity sought to be achieved by the makers of the Constitution. Therefore, there has to be mutuality even in liberty and for that matter the attainment of maximum opportunities for the orderly pursuit of happiness as a goal of progress itself which is linked with the availability of restraints on individual's liberty. This is illustrated from what an American Chief Justice, Charles Evans, Hughes, said:
"Liberty is today a broader conception than even before, for it increasingly demands protection, it demands protection against infection, against the spread of disease, it requires preventive measures and the segregation of those afflicted. It demands protection on the public highways against those frequent abusers of liberty who have subjected the peripatetic philosophers of our day' and other simple‑minded pedestrians to perils which in frequency and deadlines are of a sort formerly known only to soldiers in a battlefield."
Speaking of reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, it was said in Abdul Wali Khan's case:. "Indeed no country in the world gives such a right in the. unlimited form." Further as was held in the case of Abul A'ala Maudoodi: "Reasonableness itself is a relative term. What is unreasonable in one given set of circumstances may well be reasonable in another different set of circumstances." And:
"In order to test the reasonableness of such restrictions, therefore, no general standard exists. It will depend upon a
variety of circumstances including the interest and urgency of the action proposed and the nature of the safeguard, if any, provided to prevent possibilities of abuse of power. The investment of arbitrary power in the executive to put to an end to the existence of a political party on the basis of its own satisfaction which may or may not be capable of being proved in a Court of Law may well be an unreasonable restriction having regard to the importance of the right of association guaranteed by the Constitution." (at p.103).
At page 100 of the said report, it is said: "It is no doubt true that the power to impose reasonable restrictions cannot be interpreted so as to include even the power of total abolition or prohibition as pointed out by the Court in the case of East and West Steamship Co. v . Pakistan (P L D 1958 S C (Pak.) 41)" until the concerned law is so interpreted as to make it consistent with Article 17 of the 1973 Constitution. "
In construing the terminology of the expression "sovereignty or integrity of Pakistan", in Abdul Wali Khan's case, Hamoodur Rahman, C.J. , in his conclusions at page 165 said:
"We find on the material produced before us no difficulty in holding that the N.A.P. and its leaders are not reconciled to Pakistan's existence, integrity and sovereignty, that they have consistently been attempting to create doubts about people's belief in the Ideology of Pakistan with a view to destroying the very concept which formed the basis of the creation of this country, that they have always been preaching the doctrine of four‑five nationalities/ nations to prepare the ground for the ultimate secession of N.‑W.F.P. and Baluchistan on the pretext of demanding the right of self‑determination for the different nationalities/ nations inhabiting those Provinces and advocating a policy of subversion of the Constitution, rule of law and democratic institutions in the country, that they have for this purpose resorted to large scale acts of terrorism, sabotage and subversion within Pakistan to undermine the security, solidarity and sovereignty of the State in the areas of N.‑W.F.P. and Baluchistan and that the N.A.P. and its loaders had actually organized a large scale rebellion or insurgency in Baluchistan in order to coerce the Central Government and the people of Pakistan to submit to the wishes of the N.A.P. leaders in Baluchistan and N.‑W.F.P."
Muhammad Gul, J. , while agreeing with him at pp.175‑176 held:
"On the other hand the judgment of my Lord the Chief Justice refers to a number of later speeches underlining the "two‑nation theory" as the raison d'etre for the creation of Pakistan which is also a sine qua non Torts_for its preservation."
To suggest that that Hindu and Muslim inhabitants of pre‑Independence India were at any time united as one nation is to turn a blind eye to the stark facts of Indian history. Centuries ago Ashoka, the tolerant Maurvian Emperor tried to unite Hindus and Budhists to form an empire based on justice and tolerance. The attempt failed. Later the great Moghal Emperor Akbar similarly tried to unite Hindus and Muslims.
Again the attempt failed. Still later after the British Crown took over the administration of British India from British Indian Company in 1858, until Independence, made sedulous efforts to unite Hindu and Muslims. These efforts again failed: indeed `the story of British failure is the story of Pakistan's emergence.
Richard V. Weeks in his book "Pakistan" printed in 1964 in the opening paragraph of Chapter 2 writes:
"No single element in the lives of Pakistanis plays a more pervasive role than religion. It affects the way they work, their adjustment to hardship, the course of their Government. Religion helps to determine what they eat, whom they marry, what they learn in school and how they develop their society. For millions, religion is the very reason they are Pakistanis at all, rather than Indians.
Religion was responsible for the creation of Pakistan and contributed greatly to its success in remaining independent and united. Economics played a . part as did the personal ambitions of some politicians. But religion lay at the heart of the Pakistan movement in the years before 1947, creating the drive and longing necessary to tear apart the popular dreams of a united Indian sub‑continent."
Similar observations by contemporary writers and historians can be multiplied _ad infinitem."
The learned Judge further relied on the preambles of the four Constitutions which were an eloquent testimony of the affirmation of Pakistan Ideology. Therefore, there cannot be any doubt that the Ideology of Pakistan is based on Muslim nationhood and includes Islamic Ideology which in clear terms in the Constitution means Injunctions of Holy Quran and Sunnah and was the principal factor in the concept of Muslim nationhood. It is this Pakistan Ideology which resulted in the partition of the sub‑continent and is known as a two‑nation theory.
Quaid‑e‑Azam in his speech on the Pakistan Resolution of the All‑India Muslim League on 24th March, 1940, said:
"Mussalmans are a nation according to any definition of opinion and they must have their home and their territory and their State. We wish our people to develop to the fullest spiritual, cultural, economic, social and political life in a way that we think best and in consonance with our own ideas according to the genius of our people."
This is in my view an affirmation of a two‑nation theory. The concept of Islamic Ideology is interwoven with the Ideology of Pakistan. and is inseparable as it is the foundation of two‑nation theory. Therefore, "integrity of Pakistan" not only includes Ideology of Pakistan but also Islamic Ideology. Any invasion of "integrity of Pakistan" will inevitably lead to an invasion of its sovereignty and vice versa. I may here state that maintenance of public order is an aspect of exercise of sovereignty. (Encyclopaedia Britannica, Vol. 17, Ed. 15, p.309). As will appear from the conclusions of Hamoodur Rahman, C .J. , "public order" must be regarded to be included in the expression "sovereignty or integrity 'of Pakistan". This is not all. Any attempt to create doubts in the people's belief either vocally or by force against the comprehensive concept of Ideology of Pakistan which is the basis of the creation of the country will also be an invasion of the sovereignty or integrity of Pakistan as it would undermine the security and solidarity of the State by destroying the legal order.
It was contended by the learned counsel for the petitioner that the Partition Agreement which guaranteed the safeguards of the minorities in Pakistan should also be regarded as a part and parcel of the expression "Ideology of Pakistan". I do not see how it can be included within it as this was a special creed which led to the Partition of India and has its own meaning and significance and even today preserves the sovereignty and integrity of Pakistan. The safeguards have been duly implemented in the Constitution in the shape of Fundamental Rights where there is no discrimination and so also in the Principles of Policy and elsewhere. The agreement stands apart and cannot be read as a constituent of the Ideoloogy of Pakistan.
Having explored the meaning of the terminology, I would now examine how far the provisions of the Political Parties Act, 1962, are inconsistent with Article 17(2) of the Constitution.
In Abdul Wali Khan's case, this Court emphatically said that the right guaranteed under Article 17(2) is subject only to reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan. It excludes all other constraints. This restrictive clause is exhaustive and has to be strictly construed. (See Sakal Papers (P) Ltd. v. Union of India (A I R 1962 S C 305). The exercise of this right, therefore, cannot be curtailed on any ground outside the restrictive clause. (See U . K. Ghosh v. E. X. Joseph,
AIR 1963 S C 812). In the light of this principle, the provisions of the Political Parties Act have to be seen as to how far they are consistent with Article 17(2) of the Constitution. But before I dwell on it, I would like to dispose of certain submissions urged by the learned counsel for the parties.
The learned counsel for the petitioner stressed that President's Order 20 of 1978 being an existing law will yield to President's Order 14 of 1985 which revives Article 17 of the Constitution without any modification hence it cannot override Article 17 of the Constitution upon the enforcement of Constitution. His further submission was that President's Order 14 of 1985 being the later will of the legislature has to be given effect to and that Article 17 of the Constitution as revived cannot co‑exist with President's Order 20 of 1978 as it should be regarded to have been repealed by implication. As against it, it was urged by the learned Attorney‑General that the President's Order No.20 of 1978 is saved by Article 270‑A. Accordingly, it can co‑exist with Political Parties Act, 1962. While raising this submission the learned Attorney‑General failed to notice that this Order was an existing law under sub‑Article (3) of Article 270‑A and was not protected either under sub‑Article (6) of this Article nor was it specified in the First Schedule under Article 8(3) (b) of the Constitution. Article 2 of this Order places it higher than the Constitution by the use of the words "shall have effect" which mean shall have legal effect, while Article 3 is worded so as to make it a substitute of Article 17(2) of the Constitution. It provides additional constraints apart from sovereignty or integrity of Pakistan. Upon the revival of the Constitution the Fundamental Rights were also revived including Article 17 without any amendment. Article 17(2) was, therefore, a higher norm than this Order which could not prevail as against it in spite of the enacting words "notwithstanding anything contained in the Constitution." It can only co‑exist as a subordinate legislation if it is consistent with the Fundamental Right. Abdul Wali Khan's case has confined the restrictive clause to sovereignty or integrity of Pakistan. This being so other specified constraints are outside the purview of Article 17(2) and cannot operate to override the fundamental norm; and as President's Order No.20 cf 1978 is existing law under sub‑Article (3) of Article 270‑A, no question of any repeal by implication arises. What I find is that this Order is the basis for extensive amendments in section 3 and the other provisions of the Act by Ordinance 41 of 1978. Before the amendment of this section the only words which found place in it were "sovereignty or integrity of Pakistan" which were inserted in the light of the constraints in Article 17(2) of the 1973 Constitution. Sections 3‑A and 3‑B of the Political Parties Act, 1962, were inserted by Ordinance 42 of 1979 on 30‑8‑1979 and 3‑C by Ordinance 53 of 1979 dated 8‑10‑1979. Section 3‑B was further amended by Ordinance 52 of 1979 promulgated on 27‑9‑1979. President's Order 20 of 1978 by its status as being an ordinary law cannot give any protection to the impugned provisions of the Political Parties Act as against Fundamental Right 17(2). Therefore, even if it co‑exists with the Political Parties Act, 1962, it is of no effect although it remains on the statute book.
The next contention of the learned Attorney‑General is that the restrictions in the Constitutional provisions and in other Fundamental Rights should be read in Article 17 as limitations. In this context he referred to Articles 2‑A, 16, 17(1), (2) and (3); 19, 31, 63(g), 63(m) and 260. In other words, this Article has not to be read in isolation but in conjunction with other Articles containing other limitations. 1 may here point out that when the right guaranteed under Article 17(2) is exercised in the context of the other Fundamental Rights, it is then that those limitations would be applicable but not otherwise. . But the right standing alone cannot be subject to other limitations apart from what is prescribed therein.
As already held Article 17(2) of the Constitution contains the declaration of the right and the restriction in its exercise as authorised by the Constitution. Thus it is not an absolute or uncontrolled liberty and is accordingly limited in order to be effectively possessed. The restrictive clause is exhaustive and is to be strictly construed as earlier pointed out in Sakal Papers (P) Ltd. v. Union of India (AIR 1962 S C 3 05)
"To repeat. the only restrictions which may be imposed on the right of the individual under Article 19(1) (a) are those which clause (2) of Article 19 permits and no other."
Abdul Wali Khan's case is also to this effect as earlier held. Therefore, restrictions imposed by law must confine to the constraints set out in Article 17(2).
The learned Attorney‑General next contended that the term "public order or morality" as occurring in sub‑Article (1) of Article 17 should also be read as individual limitations in Article 17(2). In A sub‑Article (1) of Article 17, the words "public order" is mentioned in addition to the expression "in the interest of sovereignty or integrity of Pakistan." I have already held that the above expression includes public order when it undermines or is likely to undermine the security and solidarity of the State. I may also add here that it will also include prejudicial activities such as:
(a) Agitating for secession of the Provinces from Pakistan;
(b) disrupting or threatening to disrupt the sovereignty, integrity, unity or security of the nation; the harmony between different sections of the people;
(c) any scheme to overthrow the Government by force or to create internal disturbance or the disruption of public forces.
As the phrase "public order" is separately used,. it has to be construed in the ordinary context as being synonymous with public peace, safety and tranquillity. Public order is an elemental need in any organized society, and no association can flourish in a state of disorder. In Cantwell v. Connecticut, (1940) 310 US 296 at page 308, it was held by the American Supreme Court:
"The offence known as breach of the peace embraces a great variety of conduct destroying or menacing public order and transquillity. It includes not only violent acts but words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order appears, the power of the State to prevent or punish is obvious. "
The word 'public order' is accordingly referable to public order of local significance as distinguished from national upheavals such as revolution, civil strife and war. Equally it is distinguishable from' the popular concept of law and order and of security of State. Law and order represents the largest circle, within which is the next circle representing public order and the smallest circle represents security of the State. Hence an activity which affects law and order may not necessarily affect public order and an activity which may be prejudicial to public order may not necessarily affect security of the State. (See Ram Manohar v . State of Bihar, (1966) S C A 709). It has not been incorporated as a separate limitation apart from being a constituent of the expression "sovereignty or integrity of Pakistan" in Article 17(2) of the Constitution. Therefore, it cannot he read into it as it would amount to re‑writing the limitation in the Constitution. Here I may point out that in the Madras Maintenance of Public Order Act, 1949, instead of the words "public order" the expression "security of the State" was mentioned although this Act had for its object the maintenance of public order and safety. The vires of this Act was challenged in Romesh Thappar v. State of Madras, (1960) S C R 59 4. The Supreme Court of India declared it to be invalid as the expression "security of the State" was held to refer to those aggravated forms of prejudicial activities which endangered the very existence of the State but did not include ordinary breaches of the peace. As such the above expression was held to be outside the protection of clause (2) of Article 19. The Constitution was accordingly amended and the word "public order" was inserted in clause (2). This decision is an illustration of the fact that the limitation cannot be enlarged to admit other grounds on any theory of police power.
In common parlance the word "morality" occurring in Article 17(1), is far more vague than the word decency. The difficulty of determining what would offend against morality is enhanced by the fact that not only does the concept of immorality differ between man and man, but the collective notion of society also differs amazingly in different ages. All that can be said is that the antonym of the word "morality" according to the existing notion depends upon acts which are regarded as acts of immorality by the consensus of general opinion. However, it may be pointed out that owing to ethnic, cultural. and even physiological differences, it is not possible to formulate a' universal standard of morality. Thus notions of morality vary from country to country and from age to age and the international community has not yet been able to settle any common code of morality. This is because like all other social ideas, ethical ideas are largely shaped or influenced by the exigencies of a particular society. In Crown v. Saadat Hassan Minto (P L D 1952 Lah. 384), Muhammad Munir, C.J., while considering the meaning of the words morality and obscenity at page 386 held: "Morality and obscenity are comparative terms and what is obscene or immoral in one society may be considered to be quite decent and moral in another. While considering the question whether certain words or represenations are obscene or not, one has to apply standards that are current in the society in which those words have been uttered or representations made."
It is difficult to accept how the word "morality" can be read as a separate limitation in Article 17(2) when there is a conscious omission of it as a limitation in the sub‑Article and on the same rule as stated earlier it will be outside the scope of limitation unless the expression "sovereignty or integrity of Pakistan" itself includes it as its constituent.
In this context the learned Attorney‑General referred to the Legal Thesaurus by William C.Burton, which defines "integrity" at page 291 to mean: "moral soundness; morality; sound moral principle" and on its basis argued that morality is included in the expression "Integrity of Pakistan".
In my view the Holy Quran itself is the guide for eliciting the meaning of the word "morality". In Ayat 152, Sura A1‑Anam (VI), it is ordained:
(Draw not near to shameful deeds, that which be apparent and that which be concealed‑‑English, Translation by S.V. Mir Ahmed Ali, R.M.T.Publications, Karachi, 1977, p. 319). This being the moral code, every Muslim is enjoined to obey it. This verse is the touchstone of what is moral and what is immoral. Necessarily, morality is part and parcel of Islamic Ideology of Pakistan and included in the expression "Integrity of Pakistan". Therefore, not only individually but also collectively Muslims have to live within an exclusively moral framework as enjoined by the Holy Quran and the Sunnah. No civilised society can deny this standard of morality. The concept of democracy in our Constitution should, therefore, be regarded to be imbued with individual and collective morality as according to Islam (Holy Quran and Sunnah). It goes without saying that morality provides the basis for the society's spiritual values and in terms of democracy‑‑freedom, equality, tolerance and social justice. Collectively the political parties are now expected to protect public morals in the same way as other legal institutions protect public truthfulness and public symbols of authority. To leave the political parties entirely free to do as they please is to suggest that morality does not matter. A situation like this might prove ultimately subversive to the fabric of the State in the maintenance of the law and order. Therefore, political parties should conform to stringent obligations of high ethical standard.
Article 17(3) as worded requires every political party to account for the source of its funds in accordance with law. The direction is mandatory. The purpose obviously is to seek out foreign‑aided parties or others whose activities are prejudicial to the interest of sovereignty or integrity of Pakistan as the source of finds provides a guideline amongst others, in determining the true character of a political party and the nature of its activities. The source of funds also gives a clue as to the manner in which the funds are collected and also identifies those who subscribe to it so as to assess not only the financial position of the political party but also that the funds are not collected in an unlawful manner.
The learned counsel for the petitioner contended that as the direction is only to account for the source of its funds any other limitation, such as the auditing of the accounts and finances is outside the purview of Article 17(3) and, therefore, void. The learned Attorney‑General or, the other hand contended that the words "account for" mean, according to Chamber's Dictionary at page 8, "to give reasons for explanation, to give statement of money dealings, to answer as one responsible, a descriptive report". He also referred to Ballentine's Law Dictionary, Third Edition, p.13, where these words are defined to mean: "to make an account, to render the account in respect of specific transaction or transactions and expenses." In this context, lie further urged that the information about the source of funds cannot be verified unless a statement of expenditure is made available, as the source alone will not be sufficient.
In my view the words "account for the source of its funds "I would also include the expenditure as that provides a check fort determining actual amounts received and disbursed in the context of the political activities carried on as to whether the funds are being utilised for lawful political activities or for promoting prejudicial activities against the sovereignty or integrity of Pakistan. The rendition of accounts for audit, therefore, cannot be regarded as an unreasonable restriction or outside the ambit of this sub‑Article.
The learned Attorney‑General next contended that the restrictions in other Fundamental Rights namely, Articles 2‑A, 16, 17(1),19, 31, 63(g) and 63(m) and 260 should be read as reasonable restrictions by enlarging the scope of the expression "sovereignty or integrity of Pakistan". I have earlier held that the limitations are to be strictly construed and by no process of interpretation can the ambit of the limitations be enlarged. It is for the Legislature to amend the Article to provide for other limitations. The expression sovereignty or integrity of Pakistan" has been judicially interpreted by this Court and its scope has been determined in Abdul Wali Khan's case, and I do not propose to go beyond it. Accordingly this contention is untenable.
The learned Attorney‑General farther contended that "things" ancillary and incidental to sovereignty or integrity of Pakistan which fall under Item 58 of the Fourth Schedule can be included within these words by taking aid of Item 59 of the Fourth Schedule which refers to legislation on matters incidental or ancillary to any matter enumerated in this Part. By so urging, the attempt of the learned Attorney‑General is to bring other constraints even though not strictly falling within the concept of expression "sovereignty or intergrity of Pakistan". While raising this contention, the learned Attorney‑General omitted to notice that Article 17(2) as framed was amended by the Constitution (First Amendment) Act, 1974, in the exercise of the derivative power to amend the Constitution as given by Article 238 of the Constitution and this sub‑Article itself provides for enacting law in the context of reasonable restrictions. It was not an ordinary legislation in regard to Item No.58 of the Fourth Schedule so as to attract the aid of Item No.59 for legislating incidental or ancillary matters in regard to this enumerated Item. The approach is thus misconceived. However, he relied on certain decisions to substantiate his point which I now propose to consider.
In Haider Automobile Ltd. v. Pakistan (P L D 1969 S.C.623), as the disqualification in the President's Order No.21 of 1962, stood removed, late Mr. Manzoor Qadir, practised in the High Court after resigning his office as Chief Justice. Thereafter on the promulgation of the Legal Practice (Disqualifications) Ordinance (II of 1964) on 31st of January, 1964, a question arose as to whether the late Chief Justice could still practise in the High Court. In this milieu the vires of Ordinance II of 1964 was considered. The High Court held that Ordinance No.II of 1964 was ultra vires qua the petitioner including Mr. Z. H. Lari, Mr. S. AkhlaqueHussain and Sheikh Muhammad Shafi, and that notwithstanding its provisions, they were entitled to practise in the High Court and subject to the provisions of clauses (b) and (c) of section 14(1) of the Bar Councils Act, before the Courts and authorities mentioned in the said clauses. The High Court in this context was of the view that the Ordinance II of 1964 being in the nature of subordinate legislation, could not override the intention of the 1962 Constitution which, according to it, was clearly to the effect that retired Judges should not be disqualified from practising. In this context, this Court was of the view that both under the Government of India Act, 1935 and the 1956 Constitution, the terms and conditions of service of Judges could be prescribed either by Act of Parliament or by Orders of His Majesty‑in‑Council or of the Governor‑General‑in‑Council; and after Independence, this could be done by the Governor‑General by Orders which were in the nature of Legislative measures. The matter which required consideration was whether that scheme was radically changed by the 1962 Constitution. In this context it was observed that the mere omission in the Constitution to mention that the remuneration and other terms and conditions of service of Judges of the Supreme Court and High Courts can be determined by the Act of Parliament as under Article 177 of the Constitution of 1956, does not, in any way, take away the power of the Central Legislature to legislate with regard to the terms and conditions of service of. such Judges if such power is to be found aliunde in the Constitution. Having said so, this Court relied on Item No.38 of the Third Schedule to the 1956 Constitution as it was in exactly the same terms as Item 16 of the Fifth Schedule to the 1966 Constitution as providing the Legislature to legislate on this subject. It was next held that despite the fact that the language of Article 124 of the 1962 Constitution was not in pari materia with Article 177 of the 1956 Constitution, it did not mean that the power given to the Legislature by Article 131 of the 1962 Constitution to legislate in respect of the matters .enumerated in the Third Schedule becomes non‑existent. Accordingly, it was held that the Central Legislature was competent to legislate with regard to a terms and conditions of service of Judges of the Supreme Court notwithstanding Article 124 and the Second Schedule to the Constitution‑ A similar power was also found under the residuary powers given by Article 132 in regard to the High Court Judges. The Supreme Court held that such power was also available to make laws with regard to the High Court Judges under clause (2) of Article 131 of the 1962 Constitution. The question involved in this case is altogether different as it rested on the competency of the legislation by the Legislature under Article 131 of the 1962 Constitution with regard to Item No.38; and further to the similar power available under clause (2) of this Article to make laws with regard to, High Court Judges. It was, therefore, that this Court observed that under Item 38 of the Third Schedule Central Legislature was fully competent to legislate all ancillary and subsidiary matters which could fairly and reasonably be said to be comprehended within it. The ratio decidendi of this case was confined to ordinary legislation which cannot be extended to a Constitutional amendment such as the Constitution (First Amendment) Act, 1974, which was not confined to any item of the Fourth Schedule so as to attract the aid of Item No.59. Hence the rule of decision in this case does not help to advance the argument of the learned Attorney‑ General.
In Ghulam Ali Shah v. State (P L D 1970 SC 253), the question before the Supreme Court was as to the vires of West Pakistan Control of Goondas Ordinance (XXXV of 1959), and it was held to be valid as the subject‑matter was relatable to an Entry in the Concurrent L4 ~ and further that its provisions were not repugnant to any provision of the existing law or an earlier Act of Parliament with respect to the same subject‑matter. In effect, therefore, the statute was examined to ascertain its "pith and substance" or its true nature and character for the purpose of determining the real field of legislation within which the subject‑matter of the statute lies. This authority has, therefore, no bearing on the argument raised.
In F.B. Ali v. State (P L D 1975 SC 506), the vires of the Defence Services Laws (Amendment) Ordinance (III of 1967) and the Defence Services Laws (Second Amendment) Ordinance (IV of 1967) was challenged on the ground that at the relevant time the President had no power to promulgate these Ordinances which he could do only during an emergency. In pith and substance these Ordinances sought to amend Pakistan Penal Code and the Criminal Procedure Code. In the Constitution of 1962 there was only one list of subjects which was within the exclusive field of the Central Legislature and all other subjects were within the legislative field of the provinces under Article 131 of the Constitution. Both these Ordinances were promulgated by the President in the exercise of his power under Article 29(i) of the Constitution with the object to further amend the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953 and. the Pakistan Navy Ordinance, 1961, which were existing Central Laws and could not have been amended by the Provincial Legislature. This Court held that if incidentally the provisions of the Ordinances entrenched upon the Criminal Procedure Code it did not mean that in substance these were a legislation for amending the Criminal Procedure Code, and under the "pith and substance" rule they were valid legislations within Items Nos.l, 48 and 49 of the Third Schedule to the 1962 Constitution. As the field of legislation had to be determined with regard to the legislative subject, therefore, the rule laid down in the case of United Provinces v. Atiqa Begum (1940 ECR 110) was invoked. But I do not see how this decision could be of any assistance to the learned Attorney‑General to support his argument.
In Fauji Foundation v . Shamimur Rehman (P L D 1983 S C 457), the question was whether acquisition or requisition was a subject on which the President could legislate in exercise of his powers under Article 30 of the 1962 Constitution when none of them was mentioned in the Third Schedule of the said Constitution, and, therefore, this power was exclusively with the Provincial Legislature, and in this context the items were examined including item No.59. Here the question is of Me competency of the Legislature to legislate in regard to a subject and I find no parallel with the case under consideration.
Having examined this contention I find no force in it.
The learned Attorney‑General invited our attention to the words "in the interest of" occurring before the expression "sovereignty or integrity of Pakistan" in Article 17(2) of the Constitution, and contended that they have a wider connotation than the words "for the maintenance of" to urge that "public order" should be construed in a wider context and not to be confined to only one aspect of it, that is, incitement to violence or tendency to violence. It should also refer to acts creating disaffection, hatred or contempt towards the Government established by law even though they may not have any tendency or incitement to violence. In support of his contention, he referred to Debi Soran v. The State (AIR 1954 Patna 254) and in particular to the grounds at page 259; Ramji Lal v. State of U.P. (AIR 1957 SC 620) and Virendra v. The State of Punjab (AIR 1957 SC 896) to substantiate his viewpoint.
In the first case it was held that sections 124‑A and 153‑A of the Penal Code impose reasonable restrictions in the interest of public order which was susceptible to a fair and reasonable wide meaning. Here "public order" is separately mentioned in Article 19(2) of the Constitution which is not in the case of Article 17(2) of the 1973 Constitution. And if reference is made to the expression "sovereignty or integrity of Pakistan" then "public order" stands duly considered in the earlier part of the judgment.
In the second case section 295‑A of the Penal Code was held to fall within the protection of Article 19(2) as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression. Again in this case it was held that the expression "in the interest of" public order has much wider connotation than "for maintenance of public order" in order to judge whether the prejudicial activity was covered by the expression "public order". The same remarks also apply to the application of this case as earlier stated .
In the third case, the vires of the Punjab Special Powers (Press) Act, 1956, was challenged as certain notifications were issued thereunder prohibiting the printing and publishing of any article, report, news item, letter or any other material of any character whatsoever relating to or connected with "save Hindu agitation" and also imposing a ban against the entry and the circulation of the said papers published from New Delhi in the State of Punjab as imposing a total prohibition against the exercise of the said fundamental rights. It was in this context that the expression "in the interest of" was considered by the Supreme Court of India and it was held that this expression is of a great amplitude and much wider than the expression "for the maintenance of" . Accordingly, it made the ambit of protection of law very wide in respect of "public order". Again in this case the test of reasonableness was applied to the individual statute in the context of the protection available to "public order" in clause (2) of Article 19 and clause (6) of Article 19. This case is also of the same category and the words "public order" occurring in the protection clauses have been construed alike in the context of the expression "in the interest of". Similarly this case will also not be of any assistance.
There cannot be any doubt as to the meaning of the words "in the interest of" and the words "public order" but as the words "public order" were not separately mentioned as a limitation in Article 17(2) as was the case in the above‑cited decisions, the words "public order" are only referable to aggravated forms of national upheavals which endanger the very existence of the State.
Coming now to the vires of the legislation namely, the Political Parties Act, it was contended by the learned Attorney‑General that there are two facts of the Act, one is "formational" and the other is "operational”. The former is governed by Article 17(2) while the latter by the force of the Act itself and Article 63(g) and (m) of the 1973 Constitution. In other words, according to the learned AttorneyGeneral, the right is static and requires some other force to make it operative and this is achieved by the Political Parties Act, 1962.
Reading Article 17(2) of the Constitution as a whole it not only guarantees the right to form or be a member of a political party but also to operate as a political party. As earlier held, the words "right to form" is not only confined to its formation but to its function as a political party. The political party, according to its texture, of being an aggregate of citizens composing the party can exercise the other rights guaranteed under the Constitution like an individual citizen. Again the forming of a political party necessarily implies the carrying on of all its activities as otherwise the formation itself would be of no consequence. In other words the functioning is implicit in the formation of the party. (See the opinions of B.Z. Kaikaus, J., and Cornelius, C .J. , in Abul A'la Maudoodi's case). This being so, the Political Parties Act not being a higher law than the Fundamental Right itself, cannot override or prevail over or be superimposed to make the right operational. The functioning is also explicit from the limitation itself which makes prejudicial activities against sovereignty and integrity of Pakistan actionable. This being so, I fail to comprehend as to how the Political Parties Act which not being a higher law than the Fundamental Right itself can override or prevail upon or be superimposed to make the right operational. It is the guarantee of the right itself which gives it the authority to exercise it. In formulating this argument the learned Attorney‑General omitted to notice that the Political Parties Act was enacted on 16th July, 1962, under Article 173 of the 1962 Constitution before the insertion of the Chapter relating to the Fundamental Rights and there was no such provision like Article 17(2) even when these Fundamental Rights were incorporated in that Constitution. It was, therefore, that this Act provided for the definition of political party, the constraints, the remedial provision and the scope of the activities of a political party. Article 17(2) was inserted for the first time in the 1973 Constitution and came in its present form by the Constitution (First Amendment) Act, 1974. This sub‑Article now authorises the formation of a political party or any person to be its member and provides constraints to control its activities. In this context , it cannot be argued that it is the Political Parties Act which makes the exercise of this right operational.
The right to form or be a member of a political part‑ is not an absolute right but is subject to reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan. The State can, therefore, by law impose reasonable restrictions in the exercise of this right in the interest of sovereignty or integrity of Pakistan. The Political Parties Act is the law falling in this category and the question for consideration is as to how far its provisions can be regarded as reasonable restrictions in the exercise of this right. Therefore, if the right is infringed the only thing which can save the impugned law from constitutional invalidity is its reasonable restrictions in the exercise of the right. Equally this law cannot curtail the exercise of the right on any ground outside the scope of reasonable restrictions. This much is also clear that the presumption is always in favour of the constitutionality of an enactment and the burden is upon the person who attacks it to show that there has been a clear transgression of the constitutional principles. Once the person succeeds in showing that the impugned law prima facie violates the right being outside the scope of reasonable restrictions the onus shifts on the State to show that the legislation comes within the permissible limits of reasonable restrictions.
The learned counsel for the petitioner contended that section 3 of the Act is violative of Article 17(2) of the Constitution as some of the restrictions not being mentioned in Article 17(2) were mentioned therein, and, accordingly, it violated the Fundamental Right. Those constraints are "Islamic ldeology" "security of Pakistan", "morality" and "maintenance of public order'. These constraints were inserted in the Act by‑Ordinance 41 of 1978. Now morality is included in the concept of Islamic Ideology which is part and parcel of Ideology of Pakistan which in turn is a constituent of the expression "integrity of Pakistan". "Public order" is also included in it.
Here it is necessary to notice the apprehension that "Islamic Ideology" or "morality" or "maintenance of public order" in the context of sections 3(1) and 6(1) of the Act are liable to be‑ misused. One in‑built safeguard against misuse is that, as being interpreted and held in this judgment, no scope would be left for the penalty, interim or otherwise, to be imposed except by the highest judicial forum‑‑the Supreme Court itself. Yet need has been felt for strictly co‑relating them with "sovereignty" and "integrity" of Pakistan as used in Article 17(2). It is, therefore, held and provided as a very important rider, that "Islamic Ideology", "morality" and "maintenance of public order", in so far as they affect the "sovereignty" or "integrity" of Pakistan, would form part of section 3(1) and in no other sense. Their use is only thus upheld in the said section. Same shall be the position of their use in section 6(1). Unless a political party has been formed of is operating in a manner contrary to "Islamic Ideology" or "morality" or "maintenance of public order", so as to be prejudicial to the "sovereignty" or "integrity" of Pakistan, it would not be actionable in that context under section 6(1). The expression "Ideology o Pakistan" also in the context, if need be, shall be construed accordingly and mutatis mutandis, in the foregoing sense only.
The remaining provisions of sections 3 and 6 have to be dealt with separately. Therefore, I now proceed to examine the remaining parts of section 3.
"Security of State" is mentioned as a constraint in the Indian Constitution, but not in our Constitution. It is, however, defined in Article 260 of the 1973 Constitution to mean as including "the safety, welfare, stability and integrity of Pakistan and of each part of Pakistan, but shall not include public safety as such." It is an expression of wide connotation and includes integrity of Pakistan although this expression has not been used in Article 17(2) itself and cannot also be read into it. The framers of the Constitution being alive to the meaning of the word "security of Pakistan" did not think it proper to insert it as a constraint in Article 17(2). Therefore, while considering it as a constraint in section 3 of the Act it could not have been inserted on the principle that the Legislature cannot disobey the constitutional prohibitions by employing an indirect method as its legislative power is subject to the Fundamental Right. What the Legislature cannot do directly it cannot do indirectly.
Accordingly, this constraint is beyond the scope of Article 17(2). To this extent, the constraint is violative of Article 17(2) of the 1973 Constitution and is void. The learned Attorney‑Genera justified the existence of this constraint occurring in the impugned provisions of the Act in the context of the other provisions of the Constitution, but I fail to see how they can be read to justify its separate existence. Additionally, I may here refer to the observations of Cornelius, J., as he then was, in Abdul Aziz v. Province of West Pakistan (P L D 1958 S C (Pak.) 499) at page 506:
"If what is meant is that constitutional provisions may be stretched by interpretation with the object of saving the validity of statutes which x facie contravene the Constitution, it must be said at once that this view cannot be accepted."
Clause (2) of section 3, however, is a reasonable restriction 'in the interest of sovereignty or integrity of Pakistan" and is accordingly protected.
Next is section 3‑A which provides for rendition of accounts but does not provide any consequence if the accounts are not rendered.
As earlier held the provisions of this section do not offend against sub‑Article (3) of Article 17 for the reasons given earlier at page 151 of this judgment. The rendition of accounts by a political party is not an unusual feature. It is also an obligation in other countries. In the laws of the United Kingdom, there is also the requirement of political parties and the candidates to submit a detailed report showing sources of their funds, disbursement thereof and the purposes for which the same were made. In the United States, a law namely the
Corrupt Practices Act was enacted which required the treasurer of every political committee to file periodical statements of receipts and expenditure giving names and addresses of those contributing more than $100 or receiving $ 10 through disbursement. The Hatch Act laid down that no political committee could receive or spend more than $1000 in a year. In the law on Political Parties of the Federal Republic of Germany, there is legal obligation of rendering accounts which includes Annual Reports, Auditing, Naming of Donors,
Individual Types of Receipts, an Obligation to keep Books of Account, Audit of the Annual Report, Audit Report and Audit Certificates.
Accordingly, section 3‑A of the Act cannot be regarded as an unreasonable restriction and it stands protected. as sub‑Article (3) of Article 17 itself authorises such rendition in accordance with law.
This brings me to the consideration of section 3‑B of the Act which requires compulsory Registration of Political Parties. If the political party fails to apply for its registration, it ceases to be eligible to participate in an election to a seat in a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such election. Again if the political party applies for registration then its registration is subject to the satisfaction of the Election Commission upon consideration of the matters mentioned in clauses (a), (b) and (c) of subsection (3) of section 3‑B of the Act. Further where the party is registered and if it then violates clauses (a) to (e) of subsection (4) of this section, then without prejudice to any action that may be taken in respect of a political party under section 6 of the Act, the Election Commission has power to cancel its registration after giving to it an opportunity to show cause against R the action proposed to be taken in which case it will be open to R dissolution and at the same time will be disabled from participating in an election.
Section 3‑B is into two parts. The first part deals with the obligation to register (subsections (1), (2) and (3) of this section), and the second part deals with the cancellation of the registration. Within the ambit of the first part, non‑application for registration and application for registration which is refused are explicit. In both the cases the consequences that follow are that the political party is debarred from participating in an election. However, as for the second part there is the further consequence provided in subsection (4) that it would be liable to dissolution under section 6 of the Act. I may here point out that clause (c) of subsection (4) of section 3‑B goes further in the matter of constraints apart from the "Ideology of Pakistan", "security of Pakistan", "morality" or "maintenance of public order" as mentioned in section 3. The further constraints are: the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan. I would at the outset say that these additional constraints apart from sovereignty or integrity of Pakistan as interpreted in relation to sections 3(1) and 6(1) are inconsistent with Article 17(2) of the 1973 Constitution as they are not mentioned in the Fundamental Right itself, and, therefore, outside the scope of that sub‑Article. Clause (d) of subsection (3) further requires the submission of accounts as a condition prerequisite for registration.
I have earlier dealt with the importance of the political party and its role for providing leadership for public offices through elections. If the political party is disabled to participate in an election it loses its political texture and to all intents and purposes it will suffer extermination or in other words its functioning as a political party will come to an end. If this be so then the result will not be different from dissolution as provided in section 6 of the Act.
As for the "satisfaction" of the Election Commission in subsection (3) as being a prerequisite for registering a political party, it is silent as to the compliance with the rules of natural justice, and is per se discriminatory constituting a denial of equality based, as it is, on its own opinion as to the belief of the party. It cannot but be an unreasonable restriction as it also fails to provide a remedy against the exercise of discretion in putting to an end the existence of a political party in the context of the right guaranteed by the Constitution. As regards the consequence provided in subsection (4), i.e. 'cancellation of registration", again it is left to the discretion of the Election Commission which is not subject to any safeguard as .to further redress and on the same principle the exercise of this discretion is also an unreasonable restriction.
Coming now to the effect of non‑registration or cancellation although the consequence is the same as dissolution nonetheless there is no safeguard available against it as in the case of dissolution. This is clearly violative of the remedial provisions of Article 17(2) and the result accordingly is that it is an unreasonable restriction in the exercise of the right of a political party to carry on its political activities. In this connection I would refer to the observations of Hamoodur Rahman, C.J. in Abdul Wali Khan's case in regard to the remedial provisions in Article 17(2) at page 101: "It was intended to assure all political parties that the right so essential for the
establishment of parliamentary democracy would not be interfered with except upon the decision of a Court of law and that too the highest Court of the country." This function, could not be, by law, entrusted to the Election Commission. Compulsive registration, therefore, under S section 3‑B is violative of Article 17(2) as it places unreasonable restrictions in the exercise of a right by superimposing itself on the S Fundamental Right.
The learned Attorney‑General attempted to justify that clauses (a) to (d) of subsection (3) of section 3‑B were not arbitrary, and, therefore, not unreasonable. But what is here challenged is the compulsive registration of a political party dependent upon the T "satisfaction" of the Election Commission on the fulfilment of the T conditions laid down by clauses (a) to (d) of subsection (3) which 7 basically amounts to a permission to function as a political party and as such a constraint superimposed on Article 17(2) and, therefore violative of the right itself. It cannot be regarded as a reasonable restriction in the exercise of the right.
Again it was stressed by the learned Attorney‑General with reference to the consequences provided in subsection (6) of section 3‑B of the Act that the right to participate in the election is not a fundamental right, but is controlled by the statute and if a political party is debarred from participating in the election, there is no conflict with Article 17(2) of the Constitution. There is no cavil with this legal proposition, but what the disability achieves is that the political party loses its texture as a political party and suffers extermination as it cannot then function as such. In effect, it amounts to the dissolution of the party as held earlier.
In regard to subsection (4) of section 3‑B of the Act, the learned Attorney‑General contended that it was wrong to assume that the power to deregister given to the Election Commission was unguided and, therefore, arbitrary. But it is a grant of power itself to the Election Commission which has been impugned, and I have already held it to be an unreasonable restriction and violative of the right guaranteed under Article 17(2). I fail to see how the learned Attorney General advanced the argument under subsection (5) of section 3‑B of the Act, that the deregistration is not the deformation of the political party and, therefore, there was no conflict between the Fundamental Right and this subsection. If a party is not allowed to function as a political party then its functioning comes to an end. This being so, the deformation is a necessary consequence which is violative of the Fundamental Right.
The learned Attorney‑General, next contended that the registration is, in fact, a recognition of the right to participate in election "and no fundamental right can be claimed regarding recognition of an organisation", and relied for this submission on M/s. Raghubar Dayal v. Union of India, (AIR 1962 SC 263). The facts of this case are entirely different as it related to the Forward Contracts (Regulation) Act, 1952. Chapter III of the Act contained sections 5,6 and 7 relating to the recognition of the association on an application being made to the Central Government furnishing such details as were specified in section 5(2) of the Act. It were these provisions which were challenged and the contention raised was that the restrictions in Chapter III not having been dictated on grounds of "public order" or "morality", the right guaranteed was not limited to form an association but also included the functioning of the association without any restraint not dictated by the need for preserving order or the interests of morality. It was in this context that the observations in para. 12 at page 270 were made which are wholly inapt as the functioning under the enactment was a voluntary act on the part of the association and if the statute imposed restrictions subject to which alone recognition could be accorded or continued, it was difficult to see how the freedom to form association was affected unless, of course, the freedom implied or involved a guaranteed right to recognition also. Here under the Act there is compulsory registration with certain penal consequences and the question is whether it is violative of Article 17(2) of the Constitution as it overrides it qua the functioning of the political party. That case is accordingly distinguishable and has no application.
The learned Attorney‑General next relied on a passage at page 143 of M.Munir's Commentary on the Constitution of Pakistan, 1973, Ed n.1975:
"But regulation is not always restriction and it seems that the law governing the registration or incorporation of associations for statistical and administrative purpose will be protected."
There can be no cavil with this statement provided the registration is confined to the purpose stated therein. But such is not the case here.
The learned Attorney‑General, next referred to the meaning of the word "registration" in Ballentine's Law Dictionary, 3rd Ed., p.1078 and Black's Law Dictionary, Fifth Edition, p.1153, but I do not see how that is relevant in the context of the submissions raised. It is not a registration simpliciter here but is accompanied by penal consequences. Therefore, the meaning will hardly have any bearing on the dispute.
The learned Attorney" General further submitted that the attainment of the objectives of a political party or otherwise is not guaranteed by the Fundamental Right. In this behalf he relied on All India Bank Employees Association v.. National Industrial Tribunal (Bank Disputes), Bombay, A I R 1962 S C 171. In paragraph 17 of this report, the argument formulated is that the right guaranteed to form "a union" carries with it a concomitant right that the achievement of the object for which the union is formed shall not be restricted by legislation unless such restrictions were imposed in the interest of public order or morality. The answer to this argument is given in the negative in paragraph 18 of the judgment at page 179. It was held:
"an affimative answer would be contradictory of the scheme underlying the text and the frame of the several fundamental rights which are guaranteed by Part III and particularly by the scheme of the seven freedoms or groups of freedoms guaranteed by sub‑clauses (a) to (g) of clause (1) of Article 19. "
It is not the case of the petitioner that the attainment of the objectives of a political party is also a right guaranteed by the Fundamental Right, and, therefore, this case has no application.
In the result, for the reasons stated above, I am of the opinion that section 3‑B of the Act is not only inconsisent with Article 17(2) but is also an unreasonable restriction as it seeks to permit the functioning of a political party which is implicit in the right guaranteed, and, accordingly, reaches the stage of prohibition.
Coming now to section 3‑C of the Act, I have already held that this section had outlived its purpose and nothing need be said about it. Section 4 of the Act has not been challenged. Section 5 of the Act has been omitted by the Political Parties (Amendment) Act, 1975.
Next follows section 6 of the Political Parties Act, 1962, which relates to the dissolution of a political party. In regard to it, the learned Attorney‑General contended that under this section the ultimate redress is given by the Supreme Court, and, therefore, anything which could be objected to regarding the requirement of section 6(1) of the Act could be remedied. In Abdul Wali Khan's case this section was considered, and it then was worded as under:
"6.‑(1) Where the Federal Government is satisfied that a political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, it shall make such direction and publish the case in the official Gazette, and upon such publication, the political party concerned shall, subject to the provisions of subsection (2) stand dissolved, and all its properties and funds shall be forfeited to the Federal Government.
(2) Within 15 days of making a declaration under subsection (1) , the Federal Government shall refer the matter to the Supreme Court whose decision on such reference shall be final. "
The constraint was then consistent with Article 17(2) of the Constitution as this section was earlier amended to bring it in conformity with this Article. This was construed in the context of Article 17(2) and validity of this provision was upheld although in regard to the word "dissolved", the majority opinion of the Supreme Court was:
"The only possible interpretation, therefore, that can be given to the provisions of subsection (1) of section 6 of the Political Parties Act is that the dissolution there referrred to, having been made specifically subject to the provisions of subsection ( 2) thereof was only in the nature of suspension of the political party in the interest of State necessity, to prevent greater harm being done to the sovereignty and integrity of Pakistan if the party concerned was in fact so operating, pending the decision of the Supreme Court. What was done, therefore, was in the nature of placing an ad interim bar on the operation of the party till such time as the Supreme Court could give its final decision."
Subsequent to this decision, other constraints apart from the sovereignty or integrity of Pakistan have been inserted in section 6, namely, (i) "is a foreign‑aided party", or (ii) "Islamic Ideology" or (iii) "security of Pakistan" or (iv) "morality" or (v) "maintenance of public order" or (vi) "has contravened the provisions of section 3‑A". Except for the constraints: "is a foreign‑aided party"; "maintenance of public order"; "Islamic Ideology"; "morality" as already interpreted and upheld, the others (iii and vi) cannot be separately inserted as then it would be inconsistent with the constraints in Article 17(2) of the Constitution. A foreign‑aided party is not expected Y to function within the framework of the Constitution and in the milieu of sovereignty or integrity of Pakistan it cannot be allowed to operate Y as it would then lead to undermining the security, solidarity and sovereignty of Pakistan as was held in Abdul Wali Khan's case. In this case there was evidence to suggest that the political party had started a large‑scale guerilla campaign and insurrection with the material help and support of a neighbouring country which fact was taken into consideration while reaching the conclusion as stated above. The right which is guaranteed to a citizen to form a political party or be a member of a party necessarily connotes one whose activities are lawful and within the framework of the Constitution. Necessarily, therefore, the activities of such a foreign‑aided party being prejudicial to the sovereignty or integrity of Pakistan will be covered by the expression sovereignty or integrity of Pakistan.
As for the constraint, "has contravened the provisions of section 3‑A" of the Act there is a constitutional compulsion of Article 17(3) to render accounts explaining the source of the funds in accordance with law. The law namely, section 3‑A of the Act and the rules framed in this behalf provide for the rendition of accounts and its audit. This provision does not provide any consequence for non‑rendition of accounts but in this section the contravention is a ground for the dissolution of the political party which is a serious consequence for the political party as it suffers extermination. The gravity of dissolution outweighs the contravention simpliciter of the requirement to render accounts under section 3‑A of the Act, and, therefore, cannot be regarded as a reasonable restriction as it is disproportionate to the contravention sought to be penalised. This can be remedied by penalising the party with appropriate penalty to an extent to render the accounts, considering the judicial opinions recognising the importance of a political party in the constitutional framework. This could be achieved by amending section 3‑A of the Act. The provision regarding penalty, however, will have to be enacted in such a manner so as to keep the imposition thereof within the jurisdiction of the Supreme Court only, as the same clearly is the underlying intention of Article 17(2).
Last but not the least is the question of immediate dissolution of a political party and other consequences, upon the publication in the official Gazette, of the declaration by the Government under section 6(1). As already noted, Article 17(2) provides that the penalty can be imposed by the Supreme Court only and by no other functionary or forum. No doubt it was examined and held in Abdul Wali Khan's case that the penalty provided in section 6(1) is of interim nature and is also subject to subsequent control by the Supreme Court; yet, its initial source, power and timing has been left by this provision only to the Government. Sometimes, it can be very well visualised, this interim penal action, can prove to be the final and fatal action for the party concerned, before the Supreme Court is able to act Thus, this part of section 6(1) also contravenes the intent, purpose and content of Article 17(2) and is void. In order to rectify the mischief, similar provision can be made, for the Supreme Court, to pass an interim order in cases of real emergency.
In the result, therefore, the remaining constraints in section 6, excepting those found justified in the foregoing discussion, are inconsistent with Article 17(2) of the Constitution, I would declare them to be void while keeping section 6 of the Act alive.
There was no specific challenge to sections 7 and 8 of the Act and all that was said was that these sections provide consequences which flow from the dissolution of the political party under section 6 of the Act and that they also need modification if his submissions for striking down sections 3, 3‑A, 3‑B and 3‑C are accepted. In the absence of any specific challenge to the vires of these sections, it is for the Legislature to amend the sections and nothing need be said in regard to their vires. Nonetheless, exception was taken in the Z written arguments to the second proviso to section 8(1) but that has been omitted vide Ordinance VI of 1985 promulgated on 17th of January, 1985. Again the vires of subsection (5) of section 8 of the Act was challenged on the ground that it gave an absolute and arbitrary discretion to the President to remove the disqualification without any guidelines which, according to him, is per se discriminatory. But this provision is not related to a political party or its activities or in any way violates any reasonable restriction imposed by law. It is a residuary power given to the President and is no different from the statutory prerogative to pardon the offenders. Accordingly, this plea is untenable.
We called upon the learned Advocates‑General of the Provinces to give their viewpoints but they all adopted the arguments advanced by the learned Attorney‑General. The Deputy Attorney‑General who appeared for the Election Commission also adopted the arguments of the learned Attorney‑General and stated that the Election Commission will follow the law declared by this Court.
In the light of what has been held in this judgment, the following provisions of the Political Parties Act, 1962, are declared and held to be void to the extent stated; on account of being inconsistent with the Fundamental Right, enshrined in Article 17(2) and (3) of the Constitution:
(1) Section 3(1) in so far as it relates to and includes therein the disability regarding "security of Pakistan" is void. However, "Islamic Ideology"; "morality"; and, "maintenance of public order" have been upheld in the manner explained in the relevant parts of the judgment.
The remaining part of section 3 is upheld.
(2) Section 3‑A has been upheld at the place and in the manner explained in that context. But the penalty under section 6(1) arising therefrom by its insertion therein is void and it has been held so accordingly.
(3) Section 3‑B has been declared void in its entirety.
(4) Section 3‑C as explained, having outlived its purpose, is no more the subject‑matter for any further order.
(5) Section 6(1) in so far as it relates to and includes therein, the references to: "security of Pakistan" and "the contravention of the provisions of section 3‑A, is void.
However "Islamic Ideology"; "morality"; and, "maintenance of public order" have been upheld; in the manner explained in the relevant parts of the judgment.
(6) The remaining parts of section 6 including subsection (2) thereof have been upheld.
Except that the provision regarding the dissolution of a political party upon the "publication" referred in subsection (1) has been held as void; subject of course, to the possibility of the re‑enactment of a provision regarding the same subject, which as indicated in the relevant part of the judgment, should not offend against Article 17(2).
(7) Regarding, sections 7 and 8, it has been held that in view of the decision in respect of the other provisions of the Act, it is for the Legislature to amend them and nothing need be said about their vires, except for the comment made.
Before parting with this judgment, I would extend my appreciation for the industry shown by the counsel for the parties in assisting us in coming to the above conclusions.
In the result, to the extent indicated above, the provisions of the Political Parties Act, 1962, are declared as void and of no legal effect.
The petition is allowed. Costs to follow the event.
(Sd.)
(MUHAMMAD HALEEM, C.J.)
(Sd.)
(ASLAM RIAZ HUSSAIN, J.)
MUHAMMAD AFZAL ZULLAH, J.‑‑I agree and have added my note of concurrence.
NASIM HASAN SHAH, J.‑‑I agree and am adding a note of concurrence, herewith.
ABDUL KADIR SHAIKH, J.‑‑I agree as per separate note.
SHAFIUR RAHMAN, J.‑‑I agree as per separate note.
ZAFFAR HUSSAIN MIRZA, J.‑‑I agree as per my note separately annexed.
Sd.)
(JAVID IQBAL, J)
(Sd.)
(SAAD SAOOD JAN, J)
(Sd.)
(ALI HUSSAIN QAZILBASH, J)
(Sd.)
( USMAN ALI SHAH, J)
MUHAMMAD AFZAL ZULLAH, J.‑‑1 add this note of respectful concurrence, with emphasis on some facts of only one aspect of the controversy regarding the Fundamental Right in question‑‑Article 17(2) of the Constitution. It provides a basic guarantee to the citizen against usurpation of his will to freely participate in the affairs and governings of Pakistan through political activity relating thereto. In addition, it also seeks to protect Pakistan against the misuse of this right. It is significant to note that instead of the word "State", "Federation", or "Republic" which could easily be used in Article 17, the concept (and/or movement) itself, of Pakistan has been projected in the selection of the word "Pakistan" for use in this Article. It is no rhetoric. Article 1 of the Constitution mentions Pakistan in this very context‑‑as a Federation and a Republic only of one type; namely, Islamic. If it is so, there can be no escape from the accountability indicated in Article 17(2) and (3), amongst others, in the Islamic sense also‑‑ whether of the citizen or the political parties or the Government in the context of the political activity and the protection of the right to exercise it. That is why Article 17(2) besides the exposition of this "Right" makes provision for the accountability. It is not surprising that this second part speaks of what the Federal Government could do against a political party in the foregoing context. But what prima facie appears anomalous is that in the practical politics the Government would not ordinarily move against a party which has formed the Government. Theoretically though, it would be possible. I need not dilate upon the dire consequences of the afore‑indicated practical aspect in the realm of possibilities‑‑ in situations which can very well be visualised, this practical unfortunate reality can lead to deadlocks, extra‑Constitutional interventions and God forbid irreversible catastrophy. Many of those who closely watched historical /political events in Pakistan would not ignore it; rather would seek answers.
2. It was in 1972 when considering similarly visualised situation during the hearing of the well‑known case of Ziaur Rehman in the Lahore High Court, Full Bench, I then as a Judge of that Court asked a question from Mr. Yahya Bakhtiar the then Attorney‑General of Pakistan and now the chief counsel appearing for the petitioner herein. The answer in the context of relevant. discussion in my judgment in the said case of Ziaur Rehman P L D 1986 Lah.428, is reproduced below: (Originally published in P L J 1976 Lah. 307).
"On the one hand, it has been contended that the National Assembly, as at present constituted, has limited power and has to be controlled, amongst other limitations, by grund norm of Pakistan, Objectives Resolution, Constitution of 1962 and the L.F.O. On the other, the learned Attorney‑General went on to the extent of claiming for this Assembly an unlimited power of enacting anything it liked in the form of a Constitution. He asserted that it can lay down that in future the State of Pakistan shall be governed by an autocrat, say another Military Commander, and further that it could also lay down order of succession to such a ruler. The only limitation, according to him which would prevent the Assembly making such a revision, is political and not constitutional and if (God forbid) it did ordain so, the remedy of the people would be through a revolution and not through h Courts.
3. As there was no agreement then on. the solutions suggested by Mr. Yahya Bakhtiar I made the following comment in that behalf:
"To be fair to the Attorney‑General, I must note that the position taken by him was only an assumption in theory. On practical side, according to him, the question did not arise. I, however, do not agree with him. Sub‑Articles (1) and (2) of Article 281 of the Interim Constitution, as interpreted by him and the learned Advocate‑General, leave no doubt in my mind that the National Assembly, if that interpretation is accepted, has already made such a provision, though retrospectively."
4. As is apparent from the above I had not then agreed with the answer. Further experience has shown that the remedy suggested is almost impracticable in a country like ours passing through the stage of development; political, socio‑economic and educational. The electorate or for that matter the people at large, after having thrown up a party/government/leader even in a well‑organized impartial elections remains so aloof and remote in time, space and thought, that it I would be difficult to imagine that they would find an organized opportunity to control the activity or direction of a party/ government which decides to go astray.
5. More than sixteen years have passed. Since then every side has had opportunities of testing ideas, revolutionary and otherwise ‑some of them well availed of. But at what cost! nobody knows yet: except that experimentation at very high speed with human material involves high stakes as well as the fate of the posterity of national magnitude. God has always been merciful. It is correct that he would not lose patience. But we may not always be so blessed. Therefore, it is high time that apart from this experimentation it might be in our national interest that tried and trusted methods should be sincerely adhered to for a reasonable time so as to see their results. It was in this context that now (after many years) during the hearing of this case I asked Mr. Yahya Bakhtiar two questions similar to the one mentioned above; this time in the context of Article 17(2), the subject matter of controversy before us. His answers were not recorded in verbatim but were somewhat as follows:
Questions Answers
(a) Whether it was in line with It was a mistake. But the
constitutional spirit to empower the Supreme Court corrected
Federal Government, by amendment the error in the case of
of 1975 in the Political Parties Act, Abdul Wali Khan.
to dissolve a political party, "upon"
the publication of a declaration
referred in Section 6 to be made
by the Government immediately and
before the Supreme Court could take
any remedial action under Article
17(2)?
(The mischief pointed out was
that the political party in power
through its Government or a
Government without the
support of a political party,
could, by a simple declaration
made under section 6 of the
Act, dissolve a political party
which was not of its liking
within a few days of the
general elections, with the
knowledge that subsection (2)
of section 6 gave 15 days to
the Government for making
reference to the Supreme Court
on
which alone the Supreme
Court could interfere.)
(b) What is the remedy if a fully Theoretically the Govern
entrenched political party itself in ment could make
power through Government reference against its own
constituted by it, has to account party but practically it
for what is provided in Article 17(2) might never happen. For
relating to its accountability? such eventuality it might
be possible for the
Supreme Court to act suo
motu, if it holds so.
6. I do agree with the first answer but with a further addition that the ultimate repository of the power to take any final punitive action against a political party under the Constitution, by virtue of Article 17(2) is the Supreme Court and not the Federal Government. Although, it is correct that the Supreme Court while assuming this constitutional responsibility overcame for the time being, the difficulty created by the power of the Federal Government conferred under section 6(1) of the Political Parties Act to dissolve a party as an interim measure, in the case of Abdul Wali Khan; but the error in the Act as indicated by Mr. Yahya Bakhtiar, is in contravention of the underlying intention of the Constitutional provision ‑ Article 17(2). The power to suspend even for a very short time, it has now been held in the judgment proposed to be delivered by the Honourable Chief Justice with which I have concurred, is with the Supreme Court.
7. Regarding the second question also the need for an amendment in the Political Parties Act in that behalf always existed. Article 17(2) does not prohibit the making of an appropriate law or necessary provisions in the Political Parties Act so that a party in power, if its conduct fails within the accountability part of Article 17(2), could be proceeded against in accordance with the spirit of the said Constitutional provision. Thus, technical hurdle as felt in the answer rendered at the bar once removed, there should be no difficulty in treatment of all political parties including the party in power, equally in accordance with the Constitution together with well‑recognized) principles of Islamic Jurisprudence/ justice. Any criticism on the basis! of imaginary dichotomy involving the highest Court in the country, is only to betray ignorance about the make‑up, and internal workings of this Court; in the light of which the apprehension, if any, would be absolutely unfounded. One high mark of this institution is an immense devotion to the cause of national progress, fitness and survival.
8. The foregoing observations are for the implementation of a very important part of the mandate of Article 17(2). It might help avoid any large scale national effort to overthrow a fully entrenched political party which otherwise falls within the mischief of Article 17(2) ‑ by unorganized force or by organized one which might be projected as right. In either case the Courts including the superior ones are the worst‑hit, besides other consequences. For example, superior Courts, in such situations are made to lose their effectiveness; which in ordinary course, in a case of normal Government, can and do exercise checks through the balancing process, in eventualities of undue acquisition or use of State power. Our code of conduct, when left free to operate ordains as follows:‑‑
"The Constitution, by declaring that all authority exerciseable by the people is a sacred trust from Almighty Allah, makes it plain that the justice of this nation is of Divine origin. It connotes full implementation of the high principles which are woven into the Constitution, as well as the universal requirements of natural justice. The oath of a Judge implies complete submission to the Constitution, and under the Constitution to the law .....On equiponderance stand the heavens and the earth. By equiponderance, oppression meaning unjust and unequal burdens is removed. The Judge's task is to secure that such equality should prevail in all things."
9. The suggestion made by Mr. Yahya Bakhtiar for resolving this difficulty of omission in the legislation, regarding an action by the Supreme Court suo motu, without the enactment of appropriate provisions of law by virtue of Article 17(2) does not seem to be the best possible solution. It should not be difficult for the law‑makers in a civilised country to supply the necessary omission.
10. With the foregoing observations and remarks I would add a clarification regarding this note of concurrence by further observation that it (note) represents the obvious concurrence; and it is further clarified; the note itself does not in any sense even attempt to express any shade of difference. The subject dealt herein was only mentioned during the arguments, therefore, apart from the remarks and observations at places, it is in the nature of suggestion/ proposal and not as a verdict. Nevertheless, the same is not intended to be ignored by those who are otherwise concerned with the legislative machinery at the Federal level.
11. Before closing this note, while joining with the Honourable Chief Justice in thanking all the learned counsel from both the sides, I would add that the questions asked from Mr. Yahya Bakhtiar a leading lawyer of this country, were with a view to elicit assistance on ‑the basis of his experiences in various capacities regarding the subject‑matter of this note, in the light of his further experience and involvement in the relevant Constitutional cases. I further record a note of appreciation of the candidness with which he met the responsbility to the apparently difficult questions, the answer to which might have involved embarrassment. Thus further appreciation would be due to him for‑the fairness with which he rendered these answers.
NASIM HASAN SHAH, J.‑‑I agree with the judgment and order proposed to be delivered by my Lord the Chief Justice but in view of the importance of the issues debated and the extensive arguments addressed before us I would venture to add a few words of my own.
Miss Benazir Bhutto has prayed in this petition under Article 184(3) of the Constitution that the amendments made in the Political Parties Act (III of 1962) made after 5th July, 1977, particularly those made by Ordinance XLI of 1978, Ordinance XLII of 1979, Ordinance LII of 1979, Ordinance LIII of 1979, Ordinance III of 1985 and Ordinance VI of 1985 and Political Parties (Amendment) Act, 1985 (Act XXII of 1985) be declared as void and of no legal effect as they are violative of and repugnant to Articles 17 and 25 of the Constitution of 1973.
The facts, which form the background to this petition, are al part of our national history.
It was with great enthusiasm that on 7th March, 1977, the people of Pakistan went to the polls to elect their representatives for the National Assembly. By mid‑night, however, on the same 7th March, 1977, a heavy gloom had descended upon them and a sense of bitterness and resentment pervaded the land. The results of tie elections being announced after the close of the polls, by the official media, belied all their justified expectations and all the surrounding circumstances showed that the candidates of the then ruling party had acted in an extremely highhanded manner and resorted to terrifying tactics to secure their election. The reaction was spontaneous and the public rose in mass protests, demanding fresh elections and action against those responsible for rigging the elections. All the opposition groups, under tie banner of the Pakistan National Alliance (PNA) called for a countrywide protest movement against the said rigging. The movement of protest continued to grow in magnitude resulting in widespread disturbances. As the ruling Pakistan People's Party was unable to control the situation in the country, the law and order situation was assuming alarming proportions. The armed forces, therefore, decided to intervene. In the early hours of 5th July, 1977, they moved in: Martial Law was proclaimed; the Constitution of 1973 put in abeyance; the National Assembly and the Senate dissolved and the Prime Minister and other Ministers dismissed from their offices. However, the day to day governance of the country was ordered to continue in accordance with the provisions of 1973 Constitution subject, of course, to any Order issued by the President and Martial Law Regulations issued by the Chief Martial Law Administrator. This manner was assumed by issuing. same evening the Laws (Continuance in Force) Order, 1977.
General Muhammad Zia‑ul‑Haq, who was the Chief of the Army Staff, assumed the office of the Chief Martial Law Administrator and in a broadcast to the Nation he explained the reasons for the action by him. He, inter alia, said:‑
"The elections were held in our beloved homeland on March 7 last. The election results, however, were rejected by one of the contending parties, namely, the Pakistan National Alliance. They alleged that the elections had been rigged on a large scale and demanded fresh elections. To press their demand for re‑elections they launched a movement which assumed such dimensions that people even started saying that democracy was not workable in Pakistan. But I genuinely feel that the survival of this country lies in democracy and democracy alone. It is mainly due to this belief that the Armed Forces resisted the temptation to take over during the recent provocative circumstances in spite of diverse massive political pressures"
. I would like to point out here that I saw no prospects of a compromise between the People's Party and the PNA, because of their mutual distrust and lack of faith. It was feared that the failure of the PNA and PPP to reach a compromise would throw the‑country into chaos and the country would thus be plunged into a more serious crisis. This risk could not be taken in view of the larger interests of the country. The Army had, therefore, to act as a result of which the Government of Mr. Bhutto has ceased to exist; Martial Law has been imposed throughout the country; the National and Provincial Assemblies have been dissolved and the Provincial Governors and Ministers have been removed."
However, the sole purpose of the military intervention, he went on to say, was to pave the way for the holding of a fair and free election and added that these would be held in October of that year (1977).
On the 28th July, 1977, in pursuancce of the above objective "The Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 [President's (Post‑Proclamation) Order No.5 of 1977] was issued and Article 3 thereof provided that elections would be held in October, 1977:
"3. Time of elections:‑ Elections to the two Houses and the Provincial Assemblies shall be held in the month of October, 1977 on dates to be notified by the Commission under the Representation of the People Act, 1976 (LXXXV of 1976), or, as the case may be, under the Senate (Election) Act, 1975
with the prior approval of the President."
(Underlining is mine).
In pursuance of the above provision, the date for elections to the National Assembly and to the Provincial Assemblies of the N.‑W.F.P., the Punjab, Sind and Baluchistan was, thereafter, fixed as 18th October, 1977.
A limited right of public meetings and participation in political activities [which was totally banned on the imposition of Martial Law
(vide M .L. R.11 issued on 5th July, 1977) ] was thereafter authorised by issuance of M.L.R. ' No.19 which was to take effect from 1st August, 1977.
This Regulation was followed by M.L.R. 22 issued on 4th September, 1977, which, inter alia, laid down:‑
"Subject to the provisions of paragraphs 2, 3 and 4 for the purposes of elections to be held in the country under the provisions of the‑Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 [President's (Post‑Proclamation) Order No.5 of 1977], bona fide political activity within the limits of decency, morality and good order shall be allowed with effect from the date notified in this behalf by the Chief Martial Law Administrator and may continue until 48 hours before the day on which elections are held.
Explanation:‑ 'Political Activity' shall include organising any political party or canvassing or campaigning in public or in private in respect thereof or propagating the cause of any political party or holding meetings, but does not include taking out of processions of political nature."
The provisions of this Regulation were further supplemented and elucidated by M .L. R. 24, which was issued on 1st" October, 197 7.
However, on the same evening of lst October, 1977, an important announcement was made in a broadcast to the nation by General Muhammad Zia‑ul‑Haq, namely, that he was postponing the elections scheduled for 18th October, 1977, because it was necessary that before the elections were held the process of accountability of holders of public office in the previous regime was finalised. Accordingly, on 4th October, 1977, an amendment was made in the Houses of Parliament and Provincial Assemblies (Elections) (Fourth Amendment) Order, 1977 and Article 2 of the amending Order provided as follows: ‑
"2. Amendment of Article 3, P(P.‑P.)
0. No.5 of 1977 ‑
In the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 [President's (Post‑Proclamation) Order No.5 of 1977] in Article 3, the words, commas and figures "in the month of October, 1977" shall be omitted."
(Underlining is mine)
As the elections were merely postponed and not cancelled, a limited degree of political activity was still permitted under the Martial law Regulation and indeed on 17th October, 1978, President's Order 20 of 1978 called the "Freedom of Association Order, 1978", was issued and sub‑Article (3) of Article 1 of the Order provided that it was to be deemed to have taken effect on 5th July, 1977. Articles 2 and 3 thereof are also important and they laid down:‑
112. Effect of Order.‑‑This Order shall have effect notwithstanding anything contained in the Constitution."
"3. Freedom of association.‑‑(l) Every citizen, not being in the service of Pakistan shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the Islamic Ideology, the sovereignty, integrity or security of Pakistan, public order or morality, and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the Islamic Ideology, the sovereignty, integrity or security of Pakistan, public order or morality, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such a reference shall be final."
On the same day, namely, 17th October, 1978, a Political Parties Act, 1962, was also amended by promulgating Ordinance X11 of 1978 ‑ entitled "Political Parties (Amendment) Ordinance, 1978" and Sections 2 and 3 thereof are relevant for our purposes and may, therefore, be reproduced below with advantage:
"2. Substitution of section 3, Act III of 1962:‑‑In the Political Parties Act, 1962 (III o 1962), hereinafter referred to as the said Act, for section 3, the following shall be substituted, namely: ‑
"3. Formation of certain
political parties prohibited:‑
(1) No political party shall be formed with the object of propagating any opinion or acting in any manner prejudicial to the Islamic Ideology, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order.
(2) No person shall form, organise, set up or convene a foreign‑aided party or in any way be associated with any such party.
Explanation. ‑‑In subsection (2) , "foreign‑aided party" means a political party which ‑
(a) has been formed or organised at the instance of any Government or political party of a foreign country; or
(b) is affiliated to or associated with any Government or political party of a foreign country; or
(c) receives any aid, financial or otherwise, from any Government or political party of a foreign country, or any portion of its funds from foreign nationals."
"3. Amendment of section 6, Act III of 1982.‑‑
In the said Act, in section 6, in subsection (1):‑
(a) after the words "political party", occurring for the first time, the words "is a foreign‑aided party or" shall be inserted; and
(c) for the words "sovereignty or integrity of Pakistan" the words and commas "Islamic Ideology, or the sovereignty, integrity or security of Pakistan, or morality, or maintenance of public order" shall be substituted."
On Pakistan Day, namely, the 23rd March, 1979, General Muhammad Zia‑ul‑Haq, while addressing the Pakistan Day Parade made another important announcement in connection with the holding of the elections informing the gathering that it had been decided to hold the next elections on 17th November, 1979, on which day, he added, "the voters would elect their representatives both to the National and the Provincial Assemblies" .
Pursuant to this announcement, some further amendments were made to the Political Parties Act, 1962. These were brought about by promulgating Ordinance No.XLII of 1979. Under this Ordinance, after Section 3 two new sections; one providing for submission of accounts etc. and the other providing for registration of political parties were inserted, to be numbered as sections 3‑A and 3‑B. These were important amendments and indeed it is the validity of these two sections which has mainly been challenged in this petition. It will be appropriate, therefore, to reproduce the provisions of these two sections below, in extenso:
"2. Insertion of new sections 3‑A
and 3‑B, Act III of 1962.‑‑
In the Political Parties Act, 1962 (III of 1962), hereinafter referred to as the said Act, after section 3, the following new sections shall be inserted, namely:‑
"3‑A. Political
Parties to submit accounts etc.‑
Every political party shall, in such manner and form and at such times as may be provided by rules made by
the Federal Government, account for the source of its funds to, and submit its finances and accounts to audit by, an officer or authority authorised by the Election Commission in this behalf:
Provided that every political party in existence at the commencement of the Political Parties (Amendment) Ordinance, 1979, shall account for the source of its funds, and submit its finances and accounts to audit, within fifteen days of the publication of the rules made under this section.
Explanation.‑‑In this section and in section 3‑B, "Election Commission" means the Election Commission constituted under Article 218 of the Constitution or under the Election Commission Order, 1977 [P.(P.P.) O.No.4 of 1977].
3‑B. Registration of Political Parties.‑‑( 1) Every political party in existence at the commencement of the Political Parties (Amendment) Ordinance, 1979, shall, within one month of such commencement, and every political party formed after such commencement shall, within one month of its being formed, apply to the Election Commission for registration.
(2) An application under subsection (1) shall be made on behalf of a political party by such person and in such form, and shall be accompanied by such documents besides a copy of its constitution, a list of the names of its office‑bearers at the national level and a statement of its total membership in each Province, as the Election Commission may, by notification in the official Gazette specify.
(3) The Election Commission shall register a political party applying for registration in accordance with subsection (2) if the Commission is satisfied that the political party ‑
(a) has published a formal manifesto, that is to say, the party's foundation document or constitution giving its aims and objectives and provided therein for elections of its office‑bearers being held annually;
(b) has undertaken to publish any amendmenx to any document referred to in clause (a) as and when such amendment is made; and
(c) believes in the Ideology of Pakistan and the integrity and sovereignty of Pakistan;
(4) If a political party which has been registered under subsection (3)‑
(a) fails to submit its accounts within the period specified in section 3‑A or the rules made thereunder;
(b) fails to hold election of any of its office‑bearers within the time allowed by, and in accordance with its constitution and rules;
(c) propagates any opinion, or acts in any manner, prejudicial to the Ideology of Pakistan, or the sovereignty, integrity .or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan;
(d) receives any aid, financial or otherwise, from the Government or any political party of a foreign country, or any portion of its funds from foreign nationals; or
(e) does or omits to do any such act or thing as would have resulted in registration being refused to it in the first instance;
then, without prejudice to any action that may be taken in respect of the political party under section 6, the Election Commission may, after giving the political party an opportunity of showing cause against the action proposed to be taken, cancel its registration.
(5) The cancellation of the registration of a political party under subsection (4) shall be notified by the Election Commission in the official Gazette.
(6) A political party which has not been registered under subsection (3), or the registration of which has been cancelled under subsection (4), shall not be eligible to participate in an election to a seat in a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such election."
Section 6 of th a Act was also amended, as follows:‑
"Amendment of section 6, Act III of 1962.‑‑In the said Act, in section 6, in subsection (1), a her the words "public order", the words, figure and letter "or has contravened the provisions of section 3‑A" shall be inserted.
It may be mentioned that two new Ordinances to further amend the Political Parties Act, 1962, were also issued thereafter, namely., Ordinance LII of 1979 and Ordinance LIII of 1979 (issued on 27th September; 1979 and 7th October, 1979, respectively). By the first Ordinance, some changes were made in the newly inserted Section 3‑B, while the latter Ordinance inserted a further section 3‑C, whereby certain political parties were made eligible to participate in the forthcoming elections, who had complied with the provisions of section 3‑A but not of Section 3‑B if they answered a questionnaire published by the Election Commission.
Meanwhile, the Election Commission notified the programme for the proposed elections and issued two notifications on 25th September, 1979, namely, Notification No.F.3(4)/79 Cord(I) detailing the programme for the National Assembly Election and Notification No.F.3(4)/79‑Cord(2) containing the programme for the Election to the Provincial Assemblies; according to both the notifications the polling' day for the National and Provincial Assemblies elections was tc be 17th November, 1979.
This, however, was not, in fact, to be. On 16th October, 1979, the President General Muhammad Zia‑ul‑Haq again addressed the nation over Radio and Television and announced that certain important and fundamental decisions had been taken on review of the situation existing in the political, economic and other sectors of tt e society in the country. These decisions included:‑
(i) The indefinite postponement of elections; and
(ii) Banning of political activities of all kinds throughout the country.
To provide legal cover for these measures a number of Martial Law Regulations and Orders were also issued on the same day. These included M.L.R. No.48 (dated 16th October, 1979) which provided, inter alia, that‑
1`3. (1) Notwithstanding anything contained in the Laws (Continuance in Force) Order, 1977 (C.M.L.A.'s Order No.l of 1977), or in any other law or legal instrument for the time being in force including Martial Law Regulations or Orders, all political parties in Pakistan with all their groups, branches and factions, hereinafter referred to as the parties, shall cease to exist and no person shall henceforth ‑
(a) be a member or call himself a member of any of the parties or be an office‑bearer thereof;
(b) by words either spoken or written or by signs or visible representation, propagate the manifesto of or any matter in support of any of the parties;
(c) operate the accounts of any of the parties in his own name or in any bank, or spend or transfer any amount therefrom.
(Underlining is by me).
The President's Order No‑22 of 1979 issued on November 4, 1979, rescinded all notifications issued by the Election Commission on or after the 25th of September, 1979. This closed the chapter of elections for the time being.
Instead on March 24, 1981, the Provisional Constitution Order, 1981 (CMLA Order No.l of 1981) was promulgated which, inter alia, made provision for a nominated Majbs‑e‑Shura. The provisions of this Order, relevant for our present purposes, provided that:
(a) There shall be a Federal Council (Majlis-e‑Shura) consisting of such persons as the President may, by order, determine.
(b) When the political activity is permitted by the President, only such of the defunct political parties shall be entitled to function as were registered with the Election Commission or were declared by the Commission to be eligible to participate in election, by Order 11, 1979.
(c) All political parties other than those referred to at (b) above, shall stand dissolved and all their properties and funds shall be forfeited to the Federal Government. No political party shall be formed after the commencement of this Order except with the previous permission in writing of the Chief Election Commissioner.
(d) If the President is satisfied that a political party has been formed or is operating in a manner prejudicial to the Islamic Ideology or the sovereignty. integrity or security of Pakistan, the President may dissolve the political party in consultation with the Chief Election Commissioner.
The ban imposed on the activities of political parties under the M.L.R. 48 continued to remain in force under the Provisional Constitution Order, 1981.
In pursuance of this new dispensation, a Federal Council (Majlis‑e‑Shura) was constituted on January 11, 1982, by promulgating the Federal Council (Majlis‑e‑Shura) Order, 1981 (P.O. No.15of 1981). The main function of the Council was to make recommendations to the President in connection with the enactment of laws and the amendment of existing laws.
However, some two years later, steps towards the holding of countrywide General Elections were resumed and on August 12, 1983, the President while addressing the Seventh Session of the Federal Council outlined a comprehensive plan for the resurrection of democratic institutions. This plan visualised‑
(a) holding general elections to the National Assembly, the four Provincial Assemblies and the Senate;
(b) forming new Federal and Provincial Governments, after the said elections; and
(c) ultimately the lifting of Martial Law.
According to the above plan, elections were to be held in two stages. In the first stage, elections of local bodies were to be held and completed during the current year 1983. In the second stage, elections to the Provincial and National Assemblies and the Senate were to be held and this stage was to be completed by March 23, 198 5.
When these stage‑wise elections were over and the democratic process restored, Martial law was to be lifted.
The political plan announced by the President on August 12, 1983, as also Article 3 of the Referendum Order, 1984, envisaged that the process of holding general elections to the National Assembly, the Provincial Assemblies of the Punjab, Sind, . N.‑W.F.P. and Baluchistan and the Senate shall be completed by March 23, 1985. In order to exclude office‑bearers of the political parties dissolved under subsection (2) of section 6 of the Political Parties Act, 1962, or of the parties which had not got themselves registered with the Election Commission Ordinance III of 1985 was promulgated on January 12 1985 to further amend the Political Parties Act, 1962 and section 2 thereof provided as follows:‑
"2. Amendment of section 8, Act III of 1962:‑ In the Political Parties 11 1! t, 1 62 (III o 1962), in section 8‑
(a) in subsection (1), for the full‑stop after the words "as the case may be" a colon shall be substituted and thereafter the following proviso shall be inserted, namely:‑
"Provided that, in respect of a person who has, at any time on or after the twentieth day of December, 1971, and before the fifth day of July, 1977, been an office‑bearer of a political party as aforesaid, this subsection shall have effect as if for the words "five years" the words "twelve years" were substituted" and
(b) after subsection (2) the following new subsections shall be added, namely‑
"(3) A person who has, at any time after the first day of December, 1971, been an office‑bearer or member of the executive committee at the National
or Provincial set‑up, by whatever name called, of . a political party which was neither registered with the Election Commission nor declared by the
Commission, by the eleventh day of October, 1979, to be eligible to participate in elections, shall not be qualified for a period of seven years to be elected or chosen as a member of Parliament or a Provincial Assembly:
Provided that the disqualification in this subsection shall not apply to a person who has, at any time since the fifth day of July, 1977, been a member of the Federal Council (Majlis‑e‑Shoora) or a Provincial Council or a Federal Minister, a Minister of State, an Adviser or a Provincial Minister.
(4) A person who has, at any time after the first day of December, 1971 and before the fifth day of July, 1977 been a Federal Minister, a Minister of State, an Adviser or a Provincial Minister shall not be qualified for a period of seven years to be elected or chosen as a member of Parliament or a Provincial Assembly.
(5) The President may, at any time, either of his own motion or on the application of any person who is disqualified under subsection (3) or subsection (4), by order in writing, remove the disqualification.
The above Ordinance, after five days only, was again amended by issuing Ordinance VI of 1985 entitled the Political Parties (Second Amendment) Ordinance, 1985, whereby section 8, as amended by Ordinance II of 1985, was further amended by adding a proviso to subsection (1) thereof. The relevant part of the Ordinance is reproduced below: ‑
"2. Amendment of section 8, Act III of 1962.‑‑In the Political Parries Act, 1962 (III o 1962), in section 8‑‑
(a) (a) in subsection (1), in the proviso, for the fullstop at the end a colon shall be substituted and thereafter the following further proviso shall be added, namely‑‑
"Provided further that the disqualification in this subsection shall not apply to a person who has, at any time, since the fifth day of July, 1977, been a member of the ,Federal Council (Majlis‑e‑Shoora) or a Provincial Council or a Federal Minister, a Minister of State, an Adviser or a Provincial Minister."
The Political Parties Act was now in shape for the Elections which were then held within its framework on 25th February, 1985; and with effect from 23rd March, 1985, the elected National Assembly and the Senate started functioning as envisaged in August 12, 1983.
A further amendment in the Political Parties Act was then made by the newly‑elected Parliament (Majlis‑e‑Shoora) on 24th December, 1985. It adopted Act XXIII of 1985 to provide a deterrent against defection by members elected on the ticket of one political party or having become ‑a member of a political party after such election. The relevant part of the amending Ordinance laid down:
"3. Insertion of new section 8‑B, Act III of 1962.‑‑ In the said Act, a ter section 8, the following new section shall be inserted namely:
"8‑B. Disqualification on ground of defection, etc.‑‑
(1) If a member of a House‑
(a) having been elected as such as a candidate or nominee of a political party, or
(b) having been elected as such otherwise than as a candidate or nominee of a political party and having become a member of a political party after such election ;
defects or withdraws himself from the political party he shall, from the day of such defection or withdrawal, be disqualified .from being a member of the House for the unexpired period of his term as such member, unless he has been re‑elected at a bye‑election held after his disqualification.
(2) If any question arises whether a member of a House has become disqualified under subsection (1) from being a member, the question shall, on a reference by the Leader of the Parliamentary party concerned, be determined by the Election Commission.
(3) An appeal against a decision of the Election Commission under subsection (2) shall lie to the Supreme Court, within thirty days of the decision."
A few days later, on 30th December, 1985, Martial Law was lifted and Proclamation of Withdrawal of Martial Law issued. This read as follows:
"Whereas Martial Law was imposed throughout Pakistan by the Proclamation of the fifth day of July, 1977;
And whereas the Chief of the Army Staff and the Chief Martial Law Administrator promised to lift Martial Law after the revival of democracy, and restoration of representative institutions.
And whereas the Chief of the Army Staff and the Chief Martial Law Administrator declared that the Constitution will be restored after making therein certain amendments so as to include inter alia Islamic provisions in the substantive part of the Constitution;
And whereas after a General Elections held as promised, the Majlis‑e‑Shoora (Parliament) and the Provincial Assemblies consisting of the elected representatives of the people have been duly installed and are functioning;
And whereas the Majlis‑e‑Shoora (Parliament) has passed the Constitution (Eighth Amendment) Act, 1985, to facilitate orderly transfer of power;
Now, therefore, in pursuance of the Proclamation of the fifth day of July, 1977, and in exercise of all powers enabling him in that behalf, the Chief of the Army Staff and the Chief Martial Law Administrator is pleased to make the following Proclamation:
1. The Laws (Continuance in Force) Order, 1977 (C.M.L.A. Order No.l of 1977), the Provisional Constitution Order, 1981 (C . M.L. A. Order No.l of 1981) are hereby repealed, and the Proclamation of the fifth day of July, 1977, is hereby revoked.
2. The offices of the Chief Martial Law Administrator, the Martial Law Administrators and all other Martial Law authorities and Military Courts appointed in pursuance of the aforesaid Proclamation are hereby abolished.
3. The power of the Chief Martial Law Administrator to issue Martial Law Regulations and Martial Law Orders and Constitutional Orders lapses, and there lapses also the power of any Martial Law authority subordinate to the Chief Martial Law Administrator to issue any orders or to take any action whatsoever. "
Actually the enforcement of the Constitution of 1973 and making it applicable in its entirety was effected in two stages. In the first instance, an Order was issued on March 10, 1985, called the "Enforcement of Constitution Order" which stated:
"In exercise of the powers conferred by Article 4 of the Revival of the Constitution of 1973 Order, 1985 (P.O. No.14 of 1985), the President is pleased to appoint the tenth day of March, 1985, to be the day on which the provisions of a Constitution, as amended by the said Order, other than those specified below, shall come into force:
Articles 6, 8 to 28 (both inclusive) clauses (2) and 2(a) of Article 101, Articles 199, 213 to 216 (both inclusive) and 270‑A".
This was followed, on 29th December, 1985 ‑‑ only one day before the withdrawal of Martial Law ‑‑ by a notification issued by the Ministry of Justice providing as follows:‑
"In exercise of the powers conferred by Article 4 of the Revival of the Constitution of 1973 Order, 1985 (P.O. No.14 of 1985), the President is pleased to appoint the day on which the proclamation? of the fifth day of July, 1977, is revoked to be the day on which the following provision of the Constitution, as amended by the said Order, shall come into force, namely;‑
Articles 6, 8 to 28 (both inclusive), clause (2) of Article 101, Articles 199, 213 to 216 (both inclusive) and 270‑A."
In this way, Martial law stood withdrawn with effect from 30‑12‑1985 and the Constitution of 1973, as amended by the Constitution (Eighth Amendment) Act, 1985, which was adopted in the meanwhile, became the governing instrument for Pakistan. By the same token, the Fundamental Rights Chapter (comprising cf Article 8 to Article 28) also became fully operative. Taking advantage thereof, the petitioner has moved this petition to get the amendments made in the Political Parties Act, 1962 by Ordinance XLI of 1978, Ordinance XLII of 1979, Ordinance LII of 1979, Ordinance LIII of 1979, Ordinance III of 1985, Ordinance VI of 1985 and Act XXII of 1985 (relevant parts of which have been reproduced above) declared as void and of no legal effect on the ground that these are violative of Articles 17 and 25 contained in the Chapter o n Fundamental Rights of the Constitution of 1973.
The grievance of the petitioner, who is the Co‑Chairperson of the Pakistan's Peoples Party (hereinafter referred to as the PPP) is that the PPP is a national political party (formed in 1967) and has contested the elections as a political party and put up candidates to the Houses of Parliament and the Provincial Assemblies in the years 1970 and 1977 General Elections. It also claims to have nominated candidates for the general elections scheduled first for October 18, 1977 and then for November 17, 1979 which were not held. Being the Co‑Chairperson of the PPP she has a personal interest in the eligibility of the PPP to contest the elections to the Parliament and Provincial Assemblies; that her own eligibility as a party candidate and of ti e various candidates of her party, to contest elections will depend upon the eligibility of the PPP and that her own personal prospects of representing the people of her own constituency and of Pakistan also hinge upon this issue. However, according to her, with a view to excluding her and the PPP from the electoral process, the Political Parties Act, 1962, was drastically amended by the purported introduction of sections 3‑A, 3‑B and 3‑C, and by amendments in sections 6, 7 and 8. Cumulatively these amendments provide for the compulsory registration of the political parties and prescribe a requirement to submit accounts. These insertions and amendments, it is asserted, violate her Fundamental Rights enshrined in the Constitution of Pakistan 1973 particularly Article 17 thereof which gives every citizen the right to form or be a member of a political party subject only to reasonable restrictions imposed by law so as to ensure that‑‑
(i) such party shall not act against the interest of the sovereignty and integrity of Pakistan; and
(ii) it shall account (only) for the source of its funds in accordance with law.
No other restriction is valid under the Constitution.
According to the petitioner, the provisions of the Act, as amended by the impugned Ordinances, are violative of, and "ultra vires" the Constitution, particularly of Article 17 thereof in so far as: ‑
(a) Sections 3‑A and 3‑B purport to compel political parties to submit their finances and accounts to audit, and also to submit themselves for registration;
(b) Section 6 permits the dissolution of a political party on grounds extraneous to the scope of Article 17;
(c) Section 7 provides a penalty for the violation of those provisions of section 6 which are "ultra vires" the Constitution;
(d) Section 8 of the Act provides for disqualification on the grounds contained in section 6 (which are "ultra vires" the Constitution);
(e) The Political Parties Rules, 1986, provide for requirements beyond the scope of Article 17;
(f) The above amendments permit respondent No.l to impose a penalty upon a political party, without reference to the Supreme Court of Pakistan (as envisaged by Article 17).
Hence it is prayed that the impugned amendments be declared ultra vires the Constitution.
The prayers made in the petition are vehemently opposed by the respondents who even question its very maintainability. The objection raised is indeed serious as it raises the question whether a petition can be maintained by a person at a point of time when no adverse action has yet been taken against him under the provisions of the impugned law. Normally, the wires of a law can be questioned not in the abstract but only in its application to a person in relation to an action taken against him. This question, therefore, requires attention.
An apposite precedent is, however, available incidentally from an action brought before this Court some 10 years ago by the mother of the present petitioner. This action was responsible for one of the most important decisions ever given by this Court, namely, in "Begum Nusrat Bhutto v.. The Chief of the Army Staff and another (P L D 1977 S C 657). In this case too, Begum Nusrat Bhutto had instituted a petition under Article 184(3) of the 1973‑Constitution and herein the detention of Mr. Zulfikar Ali Bhutto, former Prime Minister of Pakistan and 10 other leaders of the PPP, who stood detained since 17th September, 1977, shortly after the take‑over and promulgation of Martial Law under Martial Law Order No.12 of 1977 was challenged.
Mr. A. K. Brohi, learned counsel, who appeared for the Federation of Pakistan in that case, objected to the maintainability of the petition, inter alia, on the ground that tt:e petitioner was not an aggrieved person in terms of Article 184(3) of the Constitution read with Article 199 thereof, as she did not allege the violation of any fundamental right guaranteed to her but only the fundamental rights of the detenus.
This objection was overruled in these words:‑
"The second objection is that the petitioner, namely, Begum Nusrat Bhutto is not an aggrieved person in terms of Article 184(3) of the Constitution read with Article 199 thereof, as she does not allege any violation of her own fundamental rights, but only those of the detenus. Clause (3) of Article 184 of the Constitution gives a concurrent power to the Supreme Court to make an order for the enforcement of fundamental rights in the same terms as could be made by a High Court under the provisions of Article 199.
Clause (1) (c) of Article 199 does indeed contemplate that an application for the enforcement of fundamental rights has to be made by an aggrieved person. Now, it is true that in the case before us, the petitioner is not alleging any contravention of her own fundamental rights, but she has moved the present petition in two capacities, namely, as wife of one of the detenus and as Acting Chairman of the Pakistan People's Party, to which all the detenus belong. In the circumstances, it is difficult to agree with Mr. Brohi that Begum Nusrat Bhutto is not an aggrieved person within the meaning of Article 199. In more or less similar circumstances in Manzoor Elahi v . State (P L D 1975 S C 66) this Court entertained a petition under Article 184(3) of the Constitution although it was not moved by the detenu himself but by his brother. "
According to Mr. Yahya Bakhtiar, learned counsel for the petitioner, the petitioner is an aggrieved person in so far as by virtue of the provisions of subsection (6) of section 3‑B inserted into the Political Parties Act, 1962, by one of the impugned Ordinances a political party which is not registered becomes ineligible to participate in an election to a seat in a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such election despite the absence of any such restriction under the Constitution. He submits that Article 17 does not require a political party to get itself registered, before it can start functioning as a political party ‑‑ which includes the right to nominate or put up candidates at the elections. Hence the PPP, which is not a registered party, is being prevented from functioning as a political party on account of the unconstitutional and unwarranted restriction imposed in this regard by the provisions of section 3‑B. Her fundamental rights to form a political party (conferred under Article 17(2) of the Constitution), which includes the right to function fully and carry out its objectives, are infringed and adversely affected. In this connection, he submitted that the petitioner was considering to nominate candidates of her party for the elections to the Senate (held in March, 1988) but could not do so, on account of the provisions of Section 3‑B. She is undoubtedly, therefore, an "aggrieved" person and is clearly entitled to maintain this petition.
I a m inclined to agree.
Any restriction, which frustrates or impedes the pursuit of a legal activity in the exercise of a right conferred on a person by the Constitution„ would result in making him or her as an "aggrieved" person and furnish him with a locus standi to challenge the said restriction.
But, according to the learned Attorney‑General, no Fundamental Right of the petitioner is impeded, even on the hypothesis raised by her. Under Article 17(2) every citizen shall have the right to form, or be a member of a political party, subject to reasonable restrictions in the interest of sovereignty or integrity of Pakistan. The right conferred is thus only to form a political art or to be its member, None of the impugned provisions o the Political Parties Act, 1962 places any restriction on the petitioner to form a political party or to be its member. He adds that Article 51 of the 1973‑Constitution, inter alia, provides:
"51. (1) The National Assembly shall consist of two hundred and seven Muslim members to be elected. by direct and free vote in accordance with law.
( 2) A person shall be entitled to vote if‑
(a) he is a citizen of Pakistan,
( b) he is not less than twenty‑one years of age;
(c) his name appears on the elected roll; and
(d) he is not declared by a competent Court to be of unsound mind.
And it is pointed out that the said Article provides for elections in accordance with law and is not an Article contained in the Chapter of Fundamental Rights. The submission is that a right to vote at elections is merely a statutory right and not a Fundamental Right. Since the right to contest and vote at an election is not a fundamental right but only a statutory right, any law regulating its exercise cannot be tested on the touchstone of Article 17(2) of the Constitution.
In this connection, attention is also invited to Article 63 of the Constitution which provides for disqualification for being elected as member of the Parliament. Clause (p) of sub‑Article (1) of Article 63 reads as under:‑
"He is for the time being disqualified from being elected or chosen as a member of the Majlis‑e‑Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force."
And the submission is that according to above Article 63 a law can be framed specifying disqualifications from being elected as a member of a Parliament. One of the disqualifications now provided in the Political Parties Act is that a member of an unregistered political party or party which has been de‑registered cannot contest elections. Since such a provision of law is clearly within the contemplation of the Constitution, namely, Article 63(p) no possible exception can be taken to it.
These submissions would necessitate an examination of the ampleur of the Fundamental Right conferred by sub‑Article (2) of Article 17 with a view to ascertaining whether the impugned provisions of the Political Parties Act can be held to have violated it.
But the learned Attorney‑General objects to our doing so, on the ground that the impugned amendments in the Political Parties Act having been made between 5‑7‑1977 and 30‑12‑1985 stand validated by Article 270‑A of the Constitution introduced by the Constitution (Eighth Amendment) Act, 1985 and these provisions are immune from challenge on any ground whatsoever, including their alleged repugnancy to any Fundamental Right.
It, therefore, appears appropriate to attend to this latter submission first.
Article 270‑A, to the extent relevant, provides:.
"270‑A. Affirmation of President's Orders, etc.‑‑(1) The Proclamation o the fifth day o July, 1977, al President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, including the Referendum Order, 1984 (P.O. No.ll of 1984), under which, in consequence of the result of the referendum held on the nineteenth day of December, 1984, General Muhammad .Zia‑ul‑Haq became the President of Pakistan on the day of the first meeting of the Majlis‑e‑Shoora (Parliament) in joint sitting for the term specified in clause (7) of Article 41, the Revival of the Constitution of 1973 Order, 1985 (P.O. No.14 of 1985), the Constitution (Second Amendment) Order, 1985 (P. 0. No.20 of 1985), the Constitution (Third Amendment) Order, 1985 (P.O. No.24 of 1985), and all other laws made between the fifth day of July, 1977, and the date on which this Article comes into force are hereby affirmed, adopted and declared, notwithstanding any judgment of any, Court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution shall not be called in question in any Court on any ground whatsoever:
Provided that a President's Order. Martial Law Regulation or Martial Law Order made after the thirtieth day of September, 1985, shall be confined only to making such provisions as facilitate, or are incidental to, the revocation of the Proclamation of the fifth day of July, 1977.
(2) All orders made, proceedings taken and acts done by any authority or by any person, which were made, taken or done, or purported to have been made, taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation, President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, , enactments, notifications, rules, orders or bye‑laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment‑ of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever.
(3) All President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye‑laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority.
Explanation.‑‑‑ In this clause, "competent authority" means‑‑
(a) in respect of President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders and enactments, the appropriate legislature; and
( b) in respect of notifications, rules, orders and bye‑laws, the authority in which the power to make, alter, repeal or amend the same vests under the law."
According to the learned Attorney‑General, the effect of sub‑Article (1) of Article 270‑A is that not only are the laws made during the period 5th July, 1977 to 30th December, 1985 alongwith their contents deemed to have been competently made and enacted but also that the jurisdiction of all Courts has been taken away to question the validity of the said laws on any ground "whatsoever". This blanket validation and complete immunity, to any scrutiny thereof is further reinforced by the provisions of sub‑Article (3) of Article 270‑A, which saves their future operation and renders them immune from scrutiny in the like manner.
On the other hand, according to Mr. Yahya Bakhtiar what has been saved from all challenge by the provisions of Act 270‑A is the entertainment of any plea to the effect that the laws made during this period were not made by a competent authority and the liability to be struck down on that ground. In any case, the jurisdiction of the Courts to see whether such a law, in its future continuance, constitutes a violation of any of the Fundamental Rights, which have now been restored is not ousted.
While considering the scope and effect of the provisions of Article 270‑A it is not without interest to refer to the background and history of the enactment of this important provision. It will be 1 recalled that this provision was inserted into the 1973‑Constitution by the Constitution (Eighth Amendment) Act, 1985 which was passed into law o n l It h November, 198 5.
The Bill for adopting the aforesaid Constitution (Eighth Amendment) Act, 1985 (N.A. Bill No.13 of 1985) was introduced in the National Assembly on 8th September, 1985. It consisted of eight clauses and its 7th clause was to the following effect:‑
"7. Amendment of the First Schedule to the Constitution.‑‑‑
In the Constitution, in the First Schedule, in Part under the sub‑heading "III FEDERAL ACTS".‑‑‑
(a) the following new entry shall be added, namely: ‑
"1. The Political Parties Act, 1962 (III of 1962), and any Act by which it is amended or repealed and re‑enacted."
In the statement of Objects and Reasons in relation to this amendment, it was said:
"7. First Schedule.‑‑Amendment of this Schedule is aimed at exempting. Political Parties Act, 1962, and the law by which it is amended or repealed or re‑enacted, from the application of Article 8 of the Constitution" [Gazette of Pakistan, Extraordinary, pp.4023‑4016].
It may be stated in passing that according to Article 8 of the Constitution any law inconsistent with or in derogation of Fundamental Rights shall be void.
On 30th September, 1985, the Minister for Justice and Parliamentary Affairs, however, sought leave to withdraw the above Bill with a view to presenting a new Bill which had, in the meanwhile, been prepared by consensus of the members. [Debate, Vol. IV, No.12, 30th Sept. 85]. Accordingly, leaveeowithdrawal of the aforesaid Bill was given and a new Bill (N.A. Bill No.15 of 1985) called the Constitution (Eighth Amendment) Act, 1985, was introduced on the 30th September 1985 [Gazette, Extraordinary, p.4080].
The new Bill consisted of 22 clauses and its 20th clause was in the following terms: ‑
"20. Amendment of the First Schedule to the
Constitution.‑‑‑
In the Constitution, in the First Schedule, in Part 11, under the sub‑heading "III, FEDERAL ACTS".‑‑‑
(a) the following new entry shall be added, namely:‑
"1. The Political Parties Act, 1962 (III of 1962)" .
The statement of Objects and Reasons relevant to this clause said: ‑
"20. Amendment of the First Schedule is aimed at exempting the Political Parties Act, 1962, from the application o Article 8 of the Constitution" of Pakistan, Extraordinary,
pp.4‑07.‑4084 j.‑
(Underlining is mine).
However, during the debates on the Bill a new consensus on this clause seems to have emerged amongst the members of the House and when this clause (i.e. clause 20) came up for adoption before the House on 16th October, 1985, it was not adopted. A reference to the proceedings that took place in relation to it shows how this occurred:
"Mr. Speaker: Clause 20: There is an amendment in the name o S ah za a Jam Muhammad Yousuf.
Shahzada Jam Muhammad Yousuf: Sir, on behalf of my colleagues
I' eT'g to move:
"That clause 20 of the Bill be omitted"
Mr. Iqbal Ahmad Khan: Sir, I accept this amendment"
Vol. IV, No.26, 16th October, 1985, p. 3483.
In the result, clause 20 was not included in the Act, as passed. Thus, so far as the members of the House who passed the Constitution (Eighth Amendment) Act, 1985 they did not adopt the clause whose object was to exempt the Political Parties Act, 1962 from the application of Article 8 of the Constitution.
The question, however, still remains whether the Courts can act merely on this circumstance for interpreting the provisions of Article 270‑A?
In the United Kingdom, .reference to the proceedings of the Parliament for interpreting the provision of an Act passed by it is not favoured, though examples exist of resort to the proceedings as an aid to the construction while examining the "surrounding circumstances" in which the legislation came to be passed; see Macmillan v. Dent (1907) Ch.107 at p.120; and River Wear Commissioner v. Adamson ( 1877) 2 A C 743 wherein at p. 763 the following observations by Lord Blackburn are instructive:‑
"But from the imperfection of language it is impossible to know what that intention is without inquiring further and seeing hat the circumstances were with reference to which the words were used and what was the object appearing from those circumstances which the person using them had in view. For the meaning of words varies according to the circumstances with respect to which they are used."
However, Courts in Pakistan, India and the United States have taken a broader view and have often referred to the proceedings of the legislature when the words of the statute were ambiguous as an aid to construction of a statute for discovering the real intention of the law‑makers.
The Federal Court of Pakistan in Federation of Pakistan v Moulvi Tamizuddin Khan (P L D 1954 F C 240) referred to the replies given by the Attorney‑General to the queries raised by Members of tire Parliament, for explaining the purport of the provisions of sections 6 and 8 the Indian Independence Act, 1947 (see pages 287 and 288 of the Report wherein the replies given by the Attorney‑General occurring at p. 440 H.C. Deb, 5th Series 1946‑47, Column 122 and Column 118, are reproduced). Similarly, the learned Judges of the Dacca High Court in A.K.M. Fazlul Quader Chowdhury v. Government of Pakistan and another (P L D 1957 Dacca 342‑) while examining and construing Article 145 of the 19;16‑Constitution observed, at p. 361 of the Report:‑
"In some instances the Courts have referred to debates of the members of Legislatures particularly where such debates are available when the law is being construed. Reference may be made to Tamizuddin Khan's case (P L D 1955 F C 240). In that case, the Hon'ble the Chief Justice of Pakistan referred to the debates in the House of Commons on the Indian Independence Act. Thus, in the interpretation of Article 145, it is permissible to refer to the opinions and motives of the legislators before the Electorate Bill was passed by the Legislature."
In this connection they went on to add:
"We were referred to the official report of ‑tithe' Constituent Assembly of Pakistan debates, dated the 21st February, 1956. The Hon'ble Mr. Abdus Sattar, one of the Ministers at the Centre, who moved the amendment to the original Article 153 of the Constitution, an amendment which is Article 145 now, stated in the Constituent Assembly.
"Sir, as I have stated this gives the National Assembly an opportunity of ascertaining the views of a more representative House directly elected and also it can get an opportunity of deciding whether there should be different systems in the two parts of the country. Thus, the opinion and motive of the legislators at the time when the original Article 153 was amended was whether there should be different systems of electorates in the two parts of the country if the Provincial Assemblies so decide."
Thus, the Court took into consideration the statement made in the House by the mover of the amendment, while deciding the matter.
The view of the Indian Courts on this subject appears to be similar. In this connection, it will be useful to refer to the following passage from Bindra's "Interpretation of Statutes" (8th Edition) at p.381:
"Whether or not it is permissible to have recourse to the debates in the Legislature for the purpose of understanding a statute, it is certainly permissible to look into the legislative history of the enactment. Mathew, J. observed in Kesvananda
Bharati v. State of Kerala (A I R 1973 S C 146 ): " the purpose of construction is the ascertainment of meaning, nothing that is logically relevant should, as a matter of theory, be excluded. The rigidity of English Courts in interpreting language merely by reading it, disregards the fact that enactments are, as it were, organisms which exist in their environment. It is, of course, difficult to say that Judges who profess to exclude from their consideration all extrinsic sources are confined psychologically as they purport to be legally. A Judge who deems himself limited to reading the provisions of the Constitution without the awareness of the history of their adoption in it would be taking a mechanical view of the task of construction."
The rule followed by the Courts in United States is not also as strict as obtains in the United Kingdom. A reference to the observations made by its Supreme Court in United States of America v. America Trucking Associations (1940) 310 U S 534 would bear this out. Herein it was observed:‑
"Legislative debates have been frequently asserted to be of little worth in the interpretative process. This conclusion finds some support in the reasoning that the view expressed by a few members of the Legislature may or may not have been entertained by others who gave no expression. It would appear that the force of this conclusion is lessened and the value of such an aid increased in instances where statements in debate are made by chairmen of standing committees by which the Bill in question had been considered, or by the floor leaders of either House in matters of party legislation. To one who understands the legislative process, the statement in debate of the Chairman of the Committee that had charge of the Bill may be highly significant in understanding the law enacted. Legislative bodies place great reliance upon the work and judgment of their Committee; a very high percentage of all Bills enacted into law are passed in the identical form in which they are reported out of Committee. The Courts have excepted from the operation of the general rule with respect of statements of the members of the Committee that had charge of the Bill."
In the case in hand it was the ;Minister‑in‑charge of the Bill who accepted the amendment moved seeking withdrawal of the clause exempting the Political Parties Act, 1962 from the operation of Article 8 of the Constitution and is clearly indicative of the intention of the law‑makers in this regard and is a fact which can be taken into consideration for understanding the meaning of the law as finally enacted.
On a careful consideration of the various provisions of Articles 270‑A I have reached the conclusion that none of them has the effect of giving immunity to all the laws made between 5th June, 1977 to 30th December, 1985, from being tested on the touchstone of the inconsistency with the Fundamental Rights. Full reasons for this view's have been given by my Lord the Chief Justice with which I respectfully agree. This interpretation moreover gets support from the history of the legislation noticed above.
I now come to the question whether any of the Fundamental Rights of the petitioner is infringed by the provisions of the impugned amendments made in the Political Parties Act, 1962, providing for the compulsory registration of the Political Parties and the prescription to submit accounts. In this connection, according to the petitioner her fundamental right to form a Political Party (conferred under Article 17(2)) is frustrated as her political party, the PPP not being a registered party is prevented from functioning and participating in the elections as a party. However, according to the other side, the right conferred under Article 17(2) is only to form a political party or to be its member and that none of the impugned provisions of the Political Parties Act, 1962 places any restriction on the petitioner from forming a political party or from being ‑its member. So far as participation in the elections is concerned, even if her Party is not registered she would be entitled to vote at the elections and can also stand in the elections in her personal capacity.
I cannot agree with the learned Attorney‑General. The term "right to form" a party not only merely means the right to form or start an association, but includes therein the right of continuing it. The word "form" is not confined only‑ to the initial formation of an association but also implies its continuation, namely, that the association shall have the right to continue its activities and propagate its political: opinions without any restriction which could result its suspension err', discontinuance of its activities. Any legislation, therefore, which' provides for restricting, suspending or terminating the activities of an association (political party) during its existence would be in violation
of Fundamental Right No.17. The only limitation to this right can be the reasonable restrictions, which the law imposes in the interest of l the sovereignty or integrity of Pakistan. Kaikaus, J. in Maulana Maudoodi's case (P L D 1964 S C 673) explains this aspect as follows (at p. 7 64) : ‑
"But there is another aspect of tie matter which it appears to me is conclusive. Every person has now the right of formation of associations. This right can be exercised subject only to reasonable restrictions. The members of the Jamaat‑i Islami can contend that now they have the right to form an association or to carry on the activities of an association and that this
present right cannot be limited by any order that may have been passed in the past. When Fundamental Rights are granted to citizens to do a particular act not only all legislation that
prevents such action disappears but all orders in particular cases placing any restriction on the exercise of act must also be wiped out."
The importance of the political parties in a democractic set‑up has been highlighted by S.A. Rahman, J. In Maulana Maudood's case (already cited at p. 734) in the following words:‑
"In a democractic set‑up such as is visualised by our present Constitution, the presence of political parties is regarded as an essential feature so that it is conceivable that the opposition of today may be Government of tomorrow. To place an instrument in the hands of the party in power by which they can effectively eliminate from the political scene any opposition, without let or hindrance, cannot be held to be consistent with healthy functioning of the body politic on democractic lines."
The argument raised by the learned Attorney‑General that deregistration of a political party does not put an end to its functioning as it can still continue to function like any other political party subject merely to the limitation that it will only not have the right to contest elections as a party, cannot be accepted. Persons elected to, the legislature in their personal capacities have hardly any importance. l They just toss around on the political scene, rudderless and without a destination. It is only when they band themselves into a group, as a party, that they become a force exercising some influence by their activities. It is onh as members of a political party and not as individual members of the legislature; can they achieve their objectives. As observed by Cornelius. C.A. in Mniflana ylatidoodi's case (aforecited at p. 692) a "political party has a right to exert itself using all available channels of mass communication to propagate its views in relation to the whole complex of the administrative machine including the legislatures, in respect of matters which appear to it to require attention for the amelioration of conditions generally throughout the nation, for improvements particularly in administrative procedures and policies, as well as in the legislative field, even to the extent of proposing and pressing for amendment of the Constitution itself."
Indeed, our very State of Pakistan itself could never have come into existence if a political party (the Muslim League) was not allowed to function as a party, without let or hindrance. As early as in 1942 in a speech made by the Quaid‑i‑Azam at a reception in Delhi on the occasion of his birthday on 25th December, he said:
"The position of Muslim India during the last 200 years has been that of a ship without a rudder and without a captain, floating on the high seas full of rocks. For 200 years it remained floating, damaged, disorganised, demoralised, still floating. In 1936 with the cooperation of many others we salvaged the ship. Today the ship has a wonderful rudder and a captain who is willing to serve and always to serve. Its engines are in perfect working order, and it has got its loyal crew and officers. In the course of the last five years it has turned into a battleship."
If members of the Muslim League were allowed to contest elections only in their individual capacities and not as a "loyal crew" i.e. as members of the Muslim League Party, there would have been no battle, no victory, no Pakistan.
Thus, the provisions of Section 3‑B of the Political Parties Act, 196 2, which require compulsory registration for a political party cannot be sustained. The conditions laid down in the said section are not warranted by Article 17 of the Constitution. By this Article the citizens of Pakistan have been conferred the fundamental right to form political parties subject to two limitations only viz. that their party will not act against the sovereignty and integrity of the country and that it will disclose the sources of its funds. Limitations other than the said two limitations are ultra vires of the right conferred by Article 17. The requirement of compulsory registration contained n section 3‑B of the Political Parties Act stultifies this right and hampers the holding of elections wherein every party can freely participate by creating a sense of insecurity in the political party, not knowing when its registration may be cancelled and it thrown out ;,f the contest. In view of the guarantee of freedom of association including the right to form a political party, conferred' by the Constitution in Article 1 7, such a restriction cannot be sustained.
As for the other points arising in the case and dealt with by my Lord the Chief Justice I am in complete agreement therewith and having nothing to add.
ABDUL KADIR SHAIKH.. J.‑‑] have had the benefit and the privilege of reading the judgments proposed to be delivered by my Lord the Chief Justice and my brethren Shafiur Rahman, 3. and Zaffar Hussain Mirza, J .
I respectfully agree with the conclusions recorded by my Lord the Chief Justice as further explained by my brethren Shafiur Rahman, J. and Zaffar Hussain Mirza, J. on the various aspects mentioned by them. However due to the importance of the Constitutional issues involved, I am tempted to add a few words of my own.
The first question that arose related to the extent and the scope of the jurisdiction conferred by the Constitution on this Court under Article 184(3) which reads as follows:
"Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
Since reference has been made in the above to Article 199, it may also be reproduced in its relevant parts as follows:
"199. Jurisdiction of High Court.‑‑(1) Subject to the Constitution; a High Court may, if it is satisfied that no other adequate remedy is provided by law,
(a) ..........................
(b) ..........................
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II.
My Lord the Chief Justice after a detailed discussion with historical background of the Constitutional provisions has rightly held that the language of Article 184(3) is "open ended", and the Framers p of the Constitution did not intend any rigid or ceremonious observance of the rules or usage for the enforcement of the Fundamental Rights, by an individual or a group or class of persons.
It is obvious from the language of Article 184(3) that it provides a direct access to the highest judicial forum in the country for the enforcement of Fundamental Rights. It caters for an expeditious and inexpensive remedy for the protection of the Fundamental Rights from Legislative and Executive interference. It gives the Court very wide discretion in the matter of providing an appropriate order or direction including declaratory order to suit the exigencies of particular situations. There can be no doubt that declaration of Fundamental Rights is meaningless unless there is an effective machinery for the enforcement of the rights. It is the 'remedy' that makes the right real. It is often said that without 'remedy' there is no right. It is for this reason that Constitution‑makers provided a long list of Fundamental Rights and the machinery for their enforcement. That machinery is the Superior Courts, namely, the High Courts so far as the Provincial territory is concerned, and the Supreme Court at the apex having jurisdiction over the entire length and breadth of Pakistan.
Unlike in Article 199. the Framers of the Constitution placed no limitation nor prescribed any condition or stipulation for obtaining relief and redress under Article 184(3). No strait‑jacket formula was prescribed for the enforcement of the Rights, the obvious reason that can be spelled out is that in case the Supreme Court was itself of the view in a given case that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, it should directly interfere, and any rigid formula or strait‑jacket formula prescribed for enforcement of the Rights would be self‑defeating.
I think it is unnecessary for me to dwell upon the arguments advanced with regard to the affirmation, the adoption, the declaration and the validation of laws under Article 270‑A of the Constitution, for this aspect of the case has elaborately been dealt with by my Lord the Chief Justice and my brother Zaffar Hussain Mirza, J. I therefore, feel no hesitation in respectfully agreeing with their views that these laws cannot, in any manner, affect or prejudice the superamacy of the Fundamental Rights guaranteed by the Constitution,I and are, indeed, subordinate to them.
As to the argument regarding the vires of certain provisions of the Political Parties Act, 1962 on the ground of being inconsistent with the provisions of the Fundamental Right under Article 17(2), I may firstly reproduce Article 17 in its entirety. It reads:
"17. Freedom of association.‑‑(1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.
(2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer tte matter to the Supreme Court whose decision on such reference shall be final.
(3) Every political party shall account for the source of its funds in accordance with law."
It would be seen from above, that apart from the right tot form associations or unions, the Constitution has granted to every citizen, except for those in service of Pakistan, the right to form or be a member of a political party. These rights are of great significance in all democratic societies, for, human liberty which is inherent in the very concept of democracy would remain incomplete if man is denied the right to associate with others and discuss corporate problems with colleagues and participate in social life. The right to form, and be member of, a political party, is an indispensable political tool for the effective use of the process of a democratic government. Besides, the right is vital for the maintenance of other democratic rights like the right to practice one's profession etc. It is often said that Government by public opinion involves the right to create and organize opinion with a view to influence the conduct of Government, or to I bring about a change in the Government.
The right to form associations or unions or political parties, like all other Fundamental Rights, is not at solute. Article 17 explicitly authorises the State to impose reasonable restrictions on the exercise and enjoyment of this right. The restrictions which the State is empowered to impose on the right to form or be a member of a political party will have to satisfy criteria embodied in Article 17(2), firstly, that these restrictions should have a statutory sanction which means that the executive cannot, without the backing of law, impose any restriction on the exercise anti enjoyment of the right. Second, the restrictions imposed should pass the test of reasonableness before they can validly restrict the exercise of the right. Third, these restrictions in order to he constitutional will have to have a clear nexus with one of the grounds i.e., sovereignty or integrity of Pakistan. These requirements are implicit in the expression "in the interest of" sovereignty or integrity of Pakistan.
Since Legislature alone is empowered to restrict the exercise of the right by the imposition of reasonable restrictions, a pertinent question may arise as to what is the scope of the test of reasonableness. The scope of the criteria of reasonableness has been examined by the Superior Courts in several cases involving the validity of numerous legislative provisions restricting various Fundamental Rights guaranteed under the Constitution. It is now well‑settled that there is always a presumption in favour of the constitutionality of a statute and the onus to rebut the same, lies on the person who challenges it .
It is also well‑settled that it is not possible to formulate any immutable test with general application to all situations, and, therefore, each individual statutory provision has to be judged on its own merits and in the light of all the attendant circumstances obtaining in the case. In order to satisfy the test of reasonableness there must be a direct and proximate nexus or a reasonable connection between the restriction imposed and the object which is sought to be achieved.
So far as Article 17(2) is concerned, the object which it seeks to achieve by providing for reasonable restrictions to be imposed by the law is to ensure that no political party is formed or operates in a manner prejudicial to the sovereignty or integrity of Pakistan. This Court in Islamic Republic of Pakistan v . Abdul Wali Khan (PLD1 1976 SC 57) observed with regard to Article 17(2) as under:
"The Constitution, therefore, guarantees to every citizen, who is not in the service of Pakistan, the right to form a political party or to be a member of a political party and this right is subject only to reasonable restrictions imposed b law in the interest o the sovereignty or integrity o Pakistan. "
(Emphasis provided).
In the light of the Constitutional provision which guarantees the Fundamental Right to every citizen (not being in the service of Pakistan) to form or be a member of a political party subject, however, to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan, the question that arose before us was whether the provisions of section 3 of the Political Parties Act, which undoubtedly is a law envisaged under Article 17(2), must f be declared as void in so far as it prohibits formation of a political party with the object of propagating any opinion or acting in a manner prejudicial to the "Islamic Ideology" or "Security of Pakistan" or "Morality" or "the Maintenance of Public Order", apart from what is envisaged under Article 17(2) of the Constitution, namely, "sovereignty or integrity of Pakistan".
It will be useful to reproduce sections 3 and 6 of the Political Parties Act, 1962 at this stage. These read as under:
"3. Formation of certain political parties prohibited.‑‑(1) No political‑party shall be formed with the object o propagating any opinion or acting in any manner prejudicial to the Islamic Ideology, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order.
(2) No person shall form, organise, set up or convene a foreign‑aided party or in any way be associated with any such party.
Explanation. ‑‑In subsection (2) , "foreign‑aided party" means a political party which‑‑
(a) has been formed or organised at the instance of any Government or political party of a foreign country; or
(b) is affiliated to or associated with any Government or political party of a foreign country; or
(c) receives any aid, financial or otherwise, from any Government or political party of a foreign country, or any portion of its funds from foreign nationals."
"6. Dissolution of political parties.‑‑(1) Where the Federal Government satisfied that a political party is a foreign‑aided party or has been formed or is operating in a manner prejudicial to the Islamic Ideology, or the sovereignty, integrity or security of Pakistan, or morality, or maintenance of public order or has contravened the provisions of section 3‑A it shall make such a declaration and publish the same in the official Gazette, and upon such publication, the political party concerned shall, subject to the provisions of subsection (2) , stand dissolved, and all its properties and funds shall be forfeited to the Federal Government.
(2) Within fifteen days of making a declaration under subsection (1), the Federal Government shall refer the matter to the Supreme Court whose decision on such reference shall be final."
Obviously, the expressions: (1) Islamic Ideology, (2) Security of Pakistan, (3) Morality and (4) Maintenance of Public Order, do not find any place in Article 17(2) of the Constitution. On the present language of sections 3 and 6 of the Political Parties Act there can be no doubt that the unqualified addition of the restraints of (1) Islamic Ideology, (2) Security of Pakistan, (3) Morality, and (4) Maintenance of Public Order, offends against the Fundamental Rights guaranteed under Article 17(2) and therefore attracts the consequences provided under Article 8 of the Constitution.
But there is an important point of view that cannot be ignored, and it is highlighted by my Lord the Chief Justice in his judgment, which gives meaning to the concepts of (1) Islamic Ideology, (2) Morality and (3) Maintenance of Public Order, as closely relevant to "Integrity or Sovereignty of Pakistan" in a likely situation in a given case. My Lord the Chief Justice with historical background of the creation of Pakistan has rightly held that the concept of Islamic Ideology is the corner‑stone of Pakistan itself. Pakistan is an Islamic Republic, and Islam, as envisaged in Article 2 of the Constitution, is the State Religion of Pakistan. It is also the mandate of the Constitution that the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed and the Muslims shall be enabled to order their lives in their individual or collective affairs in accordance with the teachings and the requirements of Islam as set out in the Holy Qur'an itself.
Mr. Yahya Bakhtiar, learned counsel for the petitioner himself found it difficult in making a sweeping statement that the concepts
of (a) Islamic Ideology, (b) Morality, and (c) Maintenance of Public order, have no reference to sovereignty or integrity of Pakistan. Indeed, in Part III, of t1 re Paper Book under the title "Relief claimed and Reasons in brief for the same" he has stated as under:
"Section 3 of the Political Parties Act, 1962 (as amended to‑date) to be considered void to the extent and for the reasons set out below:
(1) "Islamic Ideology" or "Security of Pakistan" or "Morality" or "the Maintenance of Public Order" be considered inconsistent with Article 17(2) and void.
(2) reasons‑‑Concepts of "Islamic Ideology" and Security of Pakistan" are either already included‑ in the expression "sovereignty and integrity o Pakistan" therefore need not be mentioned in this section."
Again at page 2 of the same Part III, paragraph 4 reads as under:
"(4) Analysis of Amendments.‑‑
(i) Apart from sovereignty and integrity of Pakistan which are understandable words and can be interpreted and have been interpreted by this Hon'ble Court (N.A.P. case) (P L D 1975 S C 463) a Political Party cannot be allowed to be formed or act in a manner prejudicial to‑‑
(a) Islamic Ideology
( b) Security of Pakistan
(c) Morality and
(d) Maintenance of Public Order.
(ii) Of course no political party in its constitution or manifesto will declare that it would propagate opinions or act in a manner prejudicial to Islamic ‑Ideology, Security o Pakistan, Morality or Maintenance of Public Order but even otherwise expressions are very vague and ‑are not capable general objective definitions. "
Learned counsel emphasised the arguments of vagueness of the concepts of Islamic Ideology, Morality and the Maintenance of Public Order on the ground that not having been defined in the Political Parties Act, nor otherwise judicially dealt with in case‑law, these would lead to the confusion to an extent as would make the functioning of a political party impossible. In this regard, he pointed out that since "Islamic Ideology" has not been defined and a Political Party which may declare in its manifesto that it would bring about socialistic system in our economy, or introduce more drastic land reforms with a view to establish welfare state in Pakistan may not be allowed to be judged by the people, but stopped from functioning on the ground that Islam, according to them, does not permit any kind of socialistic economy, or that Islam allows a person to acquire and hold unlimited wealth and land and so forth. Learned counsel further highlighted the argument in that it is superfluous for the law dealing with the functioning of political parties to put restrictions in the interest of "public order" or "morality" because the ordinary laws of the land can effectively deal with a situation in which a political party causes public "disorder" or acts against "morality", whatever that might mean.
These arguments cannot be said to be without force. But for the fears of the misuse on account of the vagueness of these concepts, there is more than sufficient safeguard and assurance in the fact that it is this Court that has to render the verdict whether a Political Party is liable to dissolution on the ground that it has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan. This Court is the court of final resort, and the repository of the nation's faith and confidence that it shall discharge its duties and perform its functions in accordance with the Constitution and the law. That the case against a Political Party will be dealt with and decided by this Court should allay any fears apprehended by the learned counsel for the petitioner.
As " stated earlier, it is only in the limited context, and no other, that there is relevancy to the concepts of "Islamic Ideology". "Morality" or "Maintenance of Public Order" in sections 3 and 6 of the Political Parties Act in so far as these are closely inter‑linked with the expression "Sovereignty or Integrity of Pakistan". But in order to incorporate the aforesaid concepts, namely, "Islamic Ideology" or "Morality" or "Maintenance of Public Order" in sections 3 and 6 of the Political Parties Act, the language of these sections has got to be suitably amended in a manner that the aforesaid three expressions are so closely inter‑linked that in the ultimate analysis, action of dissolution of a political party cannot be taken on any ground other than what the language of Article 17(2) permits, namely, that the Political Party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan.
This is the clarification that I wished to make by recording this note of my own, in addition to what my Lord the Chief Justice has expressed on various Constitutional issues involved in the case.
SHAFIUR RAHMAN, J.‑‑I had the benefit and the privilege of reading the draft judgment prepared by my Lord the Chief Justice. I am in general agreement with the reasoning and the conclusions recorded by my Lord. However, I have thought it proper to summarize the conclusions drawn by me .and provide my own short reasons therefor. The conclusions are as hereunder:‑‑
(1) The pendency of the Constitutional Petition filed by persons other than the petitioner before us under Article 199 of the Constitution in the High Courts of Sind at Karachi and that of Lahore does not, on the facts of the case, bar or limit, either in law or in propriety, the jurisdiction of this Court under Article 184(3) of the Constitution to entertain and deal) with this petition.
(2) The affirmance, the adoption, the declaration and the validation of laws specified in Article 270‑A(1) of the Constitution coupled with the clause ousting sweepingly the jurisdiction of all the Courts has not the effect of either effacing, eclipsing or of subordinating the Fundamental Rights guaranteed by the Constitution to the citizens of the country.
(3) Tested on the ground of their inconsistency with the Fundamental Rights (Article 17(2)) the following provisions of the Political Parties Act, 1962 as amended uptodate are held to be void under Article 8 being inconsistent with this Article;
(i) The whole of section 3‑B in so far as it prescribes for registration of all Political Parties, makes Election Commission the sole arbiter of it, and disqualifies from participation in the election those Political Parties which are either not registered or whose registration is cancelled.
(ii) Section 6 in so far as the mere making of the declaration by the Federal Government, without a decision on it, accomplishes the dissolution of the Party and forfeiture of its funds and C punishes to the same extent for violating section 3‑A.
(4) The following provisions, prima facie appear to be inconsistent with fundamental rights but they are not being held to be so, because the power of finally interpreting the provisions is, as provided in the Constitution reserved for the Supreme Court and these provisions are necessarily to be read alongwith the Constitutional limitations contained in Article 17(2) within which they legally operate:
(i) The unqualified additions of (a) Islamic ideology, (b) security of Pakistan, (c) morality, (d) maintenance of public order in, sections 3 and 6 of the Political Parties Act.
However, as we have held that Government alone has the power to initiate and the Supreme Court finally to adjudicate in the matter we would wherever finding the expressions (a) Islamic Ideology, (b) Security of Pakistan, (c) Morality, (d) Maintenance of Public Order, (e) foreign‑aided Party in Political Parties Act read, where it relates to formation of Political Party, as confined only to that aspect of these concepts which affect the integrity or sovereignty of Pakistan. Similarly in the matter of punitive action as confined to that aspect
which is prejudicial to the sovereignty or integrity of Pakistan. The facts and reasons to supplement these already recorded are as under:‑
Effect of the
Pendency of Constitutional
Petitions in the High Court.
The objection of the Federation to the competence and maintainability of a petition in the Supreme Court under Article 184(3) is based on the observations of Mr.Justice Hamoodur Rahman in the case of Mr. Manzoor Elahi v . Federation (P L D 1975 S C 66) which are in the following words:‑‑
"It is no doubt correct that the jurisdiction of this Court under clause ( 3) of Article 184 can be invoked when a question of public importance with reference to the enforcement of any of the fundamental rights is involved but, I would like to add, since this is the first application of its kind, that it does not follow from that this Court is bound to exercise these concurrent powers even where these conditions are fulfilled for this is only an enabling provision. If the jurisdiction of any of the High Courts has already been invoked under Article 199 of the Constitution and the matter is pending adjudication there then two further well‑established principles become attracted. The first is that where two Courts have concurrent jurisdiction and a petitioner has already elected to invoke the jurisdiction of one of such Courts then he should be bound by his election and must pursue his remedies in that Court. The second is that if one of the Courts having such concurrent jurisdiction happens to be a superior Court to which an appeal lies from the other Court of concurrent jurisdiction then the superior Court will not normally entertain such an application after a similar application on the same facts has already been filed and is pending adjudication in the lower Court, because, that would deprive one of the parties to the litigation in the lower Court of his vested right of appeal conferred by another provision of the Constitution, namely, Article 185."
In order to pass judgment on this issue it is necessary to take a stock of the nature of those proceedings, the progress they made and the stage at which they stood.
The First Constitutional petition in point of time on the subject (Writ Petition No.476 of 1986) was filed by Ghulam Fareed Meerani and Mrs. Rafia Tariq, both then members of the National Assembly, on 2‑2‑1986 in the Lahore High Court claiming that the Political Parties Act, 1962 as amended by the Political Parties Act, 1985 is ultra vires the Constitution and violative of the Islamic injunctions; that sections 8 acid 8‑B of the Political Parties Act, 1962 as amended are ultra vires the Constitution being in derogation of the fundamental rights; that the rules framed under the Political Parties Act travel beyond the scope of the Act and the Constitution and as such are invalid. It was first taken up on 3‑2‑1986 when none appeared to prosecute it. It was next heard on 10‑2‑1986 and after noting in detail the grounds taken in the Petition, the respondent‑Federation of Pakistan was directed to enter appearance at the limine stage by deputing a Law Officer to assist the Court. On the adjourned date i.e. 8‑3‑86 a learned Standing Counsel appeared and sought adjournment of a month in view of the pre‑occupation of the learned Attorney‑General. On the next date 14‑3‑86, enquiry was made from Attorney‑General about his availability for appearance in the matter. The Deputy Attorney General on 24th of April, 1986 requested for the fixation of the Petition on 21st June, 1986.
The case was taken up by the Court on 7th of June, 1986 and it was adjourned to 1‑7‑1986 when the Attorney‑General was likely to appear in some other case. The Petition has not been taken up by the High Court thereafter so far.
The next in point of time is the Constitutional petition of Rana Shaukat Mahmood, who claiming to be Secretary‑General Pakistan People's Party (Punjab) and to be acting under the direction of the Chairperson of the Party, instituted a Constitutional Petition (Writ Petition No.951 of 1986) on 1‑3‑1986, in the Lahore High Court. His prayer was that the "Political Parties Act, 1962 as amended, is as a whole, an invalid piece of legislation and militates against Constitutional guarantees and also falls short of a reasonable legislative measure, being inconsistent with fundamental rights and void in terms of Article 8 of the Constitution of the Islamic Republic of Pakistan, 1973.
This Constitutional petition was placed before the High Court on 2‑3‑1986 and the order recorded is as fbllows: ‑‑
"Mali‑ Saeed Hassan, Advocate.
Heard partly. The Court time is over. To be re‑fixed at the request of the learned counsel. "
It came up next on 18‑3‑1986 when the following order was passed: ‑‑
"Malik Saeed Hassan, Advocate.
The learned counsel states that he had not requested the office to fix this case.
2. Adjourned. Office is directed to fix this case only when the learned counsel makes a request."
The next order recorded on 21‑9‑1986 is as follows: ‑‑
"Malik Seeed Hassan, Advocate, for petitioner.
to be re‑fixed within one month. "
Next it came up on 13‑6‑1987 and the following order was recorded: ‑‑
"Mr. Aitiza2 Ahsan, Advocate vice Malik Saeed Hassan, Advocate for petitioner.
The case to come up on 15‑6‑1987."
For the last time it was taken up on 15‑6‑1987 when the following order was passed: ‑
"Malik Saeed Hassan, Advocate.
We have heard the preliminary submissions. Learned counsel prays that this case be taken up in the month of October 1987. Adjourned as requested."
It has not come thereafter before the Court.
Ali Muhammad Aziz, President and Muhammad Hanif Khan, VicePresident, Pakistan Peoples League filed on 7‑5‑1987 a Constitutional Petition (Writ Petition No.473 of 1987) under Article 199 of the Constitution of Pakistan in the High Court of Sind praying that an order declaring provisions of Political Parties Act of 1962 and the Political Parties Rules, 1986 void be made on account of their inconsistency with the Fundamental Rights under Article 17(2) and (3) of the Constitution and being in excess of powers conferred by its Articles 2‑A, 33, 169, 219: This petition was withdrawn on 30th September, 1987 with permission of the Court to file fresh petition according to law.
The two pending ,proceedings show that none of them has been filed by the Petitioner before us, that none of them has been admitted to hearing so far, that one of them is pending only because the High Court considered it proper not to admit it without hearing the Federation at the pre‑admission stage and the Federation has not been able so far to ensure its effective representation to satisfy the requirement of the Court. With such a conduct of the Federation, such a state of the proceedings in the High Court, such an interest and seriousness shown by those petitioners how can one bar the meaningful prosecution of this petition by another petitioner and its entertainment and adjudication before us which has come for final hearing and disposal within four months cf its institution. Neither the Constitutional provision nor the legal propriety stands in the, way or bars the entertainment of the petition by this Court.
Validation of
laws under Article 270‑A(1) and ouster of the jurisdiction of all Courts
The language used in Article 270‑A(1) of the Constitution is of the widest amplitude. The framers of it profess in express words to ratify (by affirmance) to own, (by adoption), to signify (by declaring) (a) the competence and (b) the validity of not only the enumerated instruments but of all laws made during the specified period, in retrospect, and proceed to do just the same to a host of such instruments and laws which had not even seen the light of the day, which were to come into existence at a future date and it is mandated to be so notwithstanding "any judgment of any Court". Then follow the most crucial words, words fully loaded against all the Courts of the Country, reaching and according to one view, F transcending and subordinating the Court's power to interpret by reference to the Constitutional provisions. The words are "notwithstanding anything contained in the Constitution" these "shall not be called in question in any Court on any ground whatsoever."
This exceptionally wide language has a background, a context and corresponds to the extensive departures, massive repudiations, rejections, revocations of law laid down by the Supreme Court in Begum Nusrat Bhutto v. Chief of Army Staff etc. (P L D 1977 S C 657). In that case the law laid down by the country's highest Court was in the following words (ad seriatim):‑‑
110) It is also clear that this sincere and unambiguous declaration of his objectives by the Chief Martial Law Administrator was a major factor in persuading the people of Pakistan to willingly accept the new dispensation as an interim arrangement to bridge the gap between the breakdown of the previous administration and the induction of the new elected Government under the terms of the 1973 Constitution. The new arrangement, therefore, acquired its effectiveness owing to its moral content and promise of restoration of democratic institutions. I may add here that the willingness of the judges of the superior Courts to take the new of after the proclamation of Martial Law was also founded upon the same consideration." (p.704).
(ii) "That the 1973 Constitution still remains the supreme law of the land, subject to tte condition that certain parts thereof have been held in abeyance on account of State necessity." (p.715).
(iii) "That the Chief Martial Law Administrator, having validly assumed power by means of an extra‑Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognised by judicial authorities as falling within the scope of the law of necessity, namely:
(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;
(b) All acts which tend to advance or promote the good of the people;
(c) All acts required to be done for the ordinary orderly running of the State; and
(d) All such measures as would establish or lead to the establishment of the declared objectives of the proclamation of Martial Law, namely, restoration of law and order, and normalcy in the country; and the earliest possible holding of free and fair elections for the purpose of restoration of democratic institutions under the 1973 Constitution." (p. 716).
(iv) "That these acts, or any of them, may be performed or carried out by means of Presidential Orders, Ordinances, Martial Law Regulations, or Orders, as the occasion may require." (Page 716).
(v) "That the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Martial Law Authorities, if challenged, in the light of the principles underlying the law of necessity as stated above. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance. (Page 716) .
This last point needs explanation. In the body of this judgment opinions of certain text‑book writers and contemporary jurists have been quoted in support of the proposition that the Courts established under the pre‑existing Legal Order continue to have the power and jurisdiction to adjudicate upon the validity and effectiveness of the new Legal Order. As I have held that the new Legal Order is only for a temporary period, and for a specified and limited purpose, and does not seek to destroy the old Legal Order but merely to hold certain parts thereof in abeyance or to subject it to certain limitations on the ground of State necessity or on the principle of salus populi suprema lex, the superior Courts continue to remain the judges of the validity of the actions of the new regime in the light of the doctrine of necessity, for the new regime then represents not a new Legal Order, but only a phase of constitutional deviation dictated by necessity." (Page 716).
(vi) "The necessity which justified the Proclamation of Martial Law did not arise owing to the failure of the Courts to adjudicate on these matters. Such matters must, therefore, continue to fall outside the purview of the Martial Law Authorities, and the only remedy to the citizens against any such encroachment can be by way of judicial review in the superior Courts." (P.717).
(vii) "The Court would like to state in clear terms that it has found it possible to validate the extra‑Constitutional action of the thief Martial Law Administrator not only for the reason that he stepped in to save the country at a time of grave national crisis and constitutional breakdown, but also because of the solemn pledge given by him that the period of constitutional deviation shall be of as short a duration as possible, and that during this period all his energies shall be directed towards creating conditions conducive to the holding of free and fair elections, leading to the restoration of democratic rule in accordance with the dictates of the Constitution. The Court, therefore, expects the Chief Martial Law Administrator to redeem this pledge, which must be construed in the nature of a mandate from the people of Pakistan, who have, by and large, willingly accepted his administration as the interim Government of Pakistan." (P. 723).
The Provisional Constitution Order was enacted in March, 1981, with the professed object, inter alia, of removal of doubts which had "arisen as to the effect of" the Laws (Continuance in Force) Order, 1977 (C . M . L . A . Order 1 of 197 7) and "as regards the powers and jurisdiction of the superior Courts thereunder". The main features of this Provisional Constitution Order touching the matters dealt with by the judgment referred to were as ‑follows: ‑‑
0 Enumerated provisions of the Constitution were incorporated in the Provisional Constitution Order and even the incorporated provisions of the Constitution were made subject to the provisions of the Provisional Constitution Order and also to any Order made by the President or the Chief Martial Law Administrator.
(ii) Article 15 conferred validity on certain laws, denuded the superior judiciary of its power of judicial review of matters specified in clause (5) of Article 15 and annulled earlier decisions and abated all pending proceedings concerning these matters.
(iii) It was provided in Article 17 that Judges of the superior Courts and of Federal Shariat Court "shall not continue to hold office if he is not given, or does not make oath in the form set out in the Schedule before the expiration of such time from such commencement as the President may determine or within such further time as may be allowed by the President.
(iv) A Judge who has made the oath as required by that clause shall be bound by the provisions of this Order and, notwithstanding the judgment of any Court, shall not call in question or permit to be called in question the validity of any of the said provisions". Article 17(2).
(v) The President as well as the Chief Martial Law Administrator shall have, and shall be deemed always to have had, the power to amend the Constitution'. (Art.16).
The inconsistency, the contradictions, the departures and the repudiation of the law laid down in the judgment off' Begum Nusrat Bhutto's case and the provisions made in Provisional Constitution Order are too obvious and too numerous. On the revival of the Constitution the repudiations, the rejections and the laws had to be protected ex post facto by constitutional amendment both with regard to the authority making them, as also the contents and operation thereof. To that extent, competency and validity of those and such laws has been achieved and the ouster clause appears to be a replica of Article 17(2) of the Provisional Constitution Order. It is the competence and the validity alone which cannot be challenged by invoking any provision of the Constitution. It cannot on any principle of Constitutional interpretation concerning distribution of State power and jurisdiction of superior Courts be asserted that all these manifold. laws and amendments made during the specified period acquire a supra‑Constitutional status, coexisting with the Constitution subordinating by their own existence even the Fundamental Rights and in case of inconsistency it is not these laws which yield and get eclipsed but the Fundamental Rights themselves yield and get eclipsed. It is not without significance that originally, Political Parties Act with all its amendments now under challenge was sought to be placed in First Schedule of the Constitution thereby exempting it from the rule of repugnancy under Article 8 of the Constitution. By an amendment, and as finally passed this protection was net given to the Political Parties Act, thereby making the intention, purpose and object doubly clear.
Political
Parties. Repugnance of the Provisions of Political Parties Act to
Fundamental Rights and its effect
In order to understand fully and completely the language and the purpose of Article 17(2) as it stands today, one has necessarily to go briefly into the constitutional history of our country.
In the first Constitution of this country guaranteeing the fundamental rights there was enshrined the comparable Fundamental Right of Freedom of Association (Article 10), there being none specifically dealing with Political Parties. Its language was as follows:‑‑
"Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of morality or public order."
Antecedent to it, and contemporaneously with it, existed the Criminal Law Amendment Act, 1908 which by its section 16 empowered the Provincial Government in the following words:‑‑
"If the Provincial Government is of opinion that any association interferes or has for its object interference with the administration of the law or with the maintenance cf law and order, or that it constitutes a danger to the public peace, the Provincial Government may, by notification in the official Gazette, declare such association to be unlawful."
Certain penal consequences followed once such a declaration under section 16 was made.
The President's Proclamation of 7th October, 1958 abrogated the Constitution of 1956, imposed Martial Law in the country accusing those involved of "Prostitution of Islam for political ends" (P L D 1958 Central Statutes 577). The Political Parties were abolished.
A Constitution Commission, headed by late Mr. Justice Muhammad Shahabuddin was set up on 17th February, 1960. The official delegation stated before the Commission as follows:
"All the need then to provide is that there should be no such thing as a political party demanding loyalty from its members. Of course, like‑minded persons would get together and discuss political problems. They would find similarities in their approaches. They might associate with each other in exercise of their basic right of freedom of association. All that would need to be said would be that the election will not be held on party basis with party tickets but that the people will not be prohibited from associating with each other."
The Commission made the following comments on it:‑‑
"We are unable to understand this proposal of banning political parties and allowing people, who find similarities in their approach, to exercise their basic right of freedom of association. Are we to understand that they can assemble and discuss amongst themselves as to who should be preferred in their particular locality, but are not bound to act in accordance with that decision? If that is so, there will be no organized expression of opinion as in the absence of a party, there will be no preliminary selection of the candidates, limiting the choice to be made. There may well be a hundred candidates in a constituency and any one of them succeeding at the polls would not, in any sense, be a real representative of the whole or even of a majority of that constituency. Parties carry on the processes of discovering, sifting, testing and choosing candidates. It is true that, in a country like ours, where the sense of political responsibility has yet to be developed fully, parties, for some time to come, will be formed not on principles but on the basis of adherence to a known personality, but,, as long as it is the representative form of government that has to be worked, we fail to see how political parties can be avoided. "
When the Constitution of 1962 was enforced not only it was devoid of Fundamental Rights and the guarantees thereof, there was Article 173 in the following words:‑‑
"Except as permitted by Act of the Central Legislature, any person who, in connection with an election required to be held under this Constitution, holds out himself or any other person as being a member of, or as having the support of, a political party or any similar organisation shall be punishable in such a manner as may be prescribed by Act of the Central Legislature, but provision shall be made by law for ensuring‑‑
(a) that each candidate at an election has the opportunity, and so far as is practicable, equal opportunity with other candidates, of addressing the persons who are entitled to vote at the election; and
( b) that the persons entitled to vote at the election have the opportunity of questioning each candidate, face to face.
Explanation.‑‑In clauses (a) and (b) of this Article, "election" does not include an election to the Electoral College."
In order to satisfy the requirement of Article 173 of the Constitution of 1962, Political Parties Act of 1962 was enacted and enforced on 16‑7‑1962. Its statement of Objects and Reasons (Gazette of Pakistan, dated 30th June, 1962, Ext.P.1150) is as hereunder:‑
"There is a ban on the setting‑up of political parties in the Political Organisations (Prohibition cf Unregulatpd Activity) Ordinance, 1962 (X V III of 1962) , unless permission of the Central Legislature exists for this purpose. There is also prohibition in Article 173 of the Constitution against a person holding himself out as a member of a political party or seeking support from such political parties at the time of election, unless the Central Legislature permits him to do so.
It has been decided to remove these bans by granting permission, through an Act of the Central Legislature, to people to form political parties and to seek election with the support of political parties.
But political parties with foreign affiliations and political parties the activities of which are prejudicial to the security and integrity of Pakistan will continue to remain under the ban. Certain classes of persons have also been prohibited from joining political parties.
This Bill, if passed into law, will allow political parties to function with the restrictions imposed by clause 3, and thereafter the prohibition contained in Article 173 of the Constitution and in the aforesaid Ordinance will disappear."
Sections 3 and 6 of this Act are relevant for our purposes and are reproduced hereunder:‑‑
"3. Formation of certain political parties prohibited.‑‑( 1) No political party shall a formed with the object o propagating any opinion, or acting in a manner, prejudicial to the integrity or security of Pakistan.
(2) No person shall form, organise, set up or convene a foreign aided party or in any way be associated with any such party."
"6. Reference to Supreme Court regarding certain parties.‑‑(l) Where the Central Government is o the opinion that any political party has been formed or is operating in contravention of section 3, it shall refer the matter to the Supreme Court and the decision of the Supreme Court on such question, given after hearing the person or persons concerned, shall be final.
(2) Where the Supreme Court, upon a reference under subsection (2), has given a decision that a political party has been formed or is operating in contravention of section 3, the decision shall be published in the official Gazette and upon such publication, the political party concerned shall stand dissolved and all its properties and funds shall be forfeited to the Central Government.
(3) Where a reference has been made to the Supreme Court under subsection (1), the Central Government may, until the Supreme Court has determined the question, suspend the party, take possession of its assets, and impose on the activities of its members and office‑bearers such restrictions as it may consider necessary."
When an occasion arose to take action against a Political Party on 6th January, 1964, it was taken not under the Political Parties Act, 1962, but under section 16 of Criminal Law Amendment Act of 1908. The East Pakistan High Court and the West Pakistan High Court passed contradictory orders with respect to such orders. Both the cases came to the Supreme Court as Saiyed Abul A'la Maudoodi v. Govt. of West Pakistan and Govt. of East Pakistan v. Tamizuddin Ahmed (P L D 1964 S C 673). By that time, actually on the 16th January, 1964, Constitution (First Amendment) Act of 1963 was enforced and with it came into existence once again the Fundamental Rights. Comparable Article 7 was in the following words:‑‑
"Freedom of Association.‑‑Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of morality or public order."
There are certain observations, well‑considered findings, the conclusions recorded in this judgment which are extremely relevant to the question under examination. These are ad seriatim as follows (in the very words of the respective learned Judges themselves):‑‑
(i) "The ordinary conception of a political party includes a right within the framework of the Constitution to exert itself through its following and organization, and using all available channels of mass communication, to propagate its views in relation to the whole complex of the administrative machine, including the Legislatures, in respect of matters which appear to it to require attention for the amelioration of conditions generally throughout the nation, for improvements particularly in administrative procedures and policies, as well as in the legislative field, even to the extent of proposing and pressing for amendment of the Constitution itself."
(Chief Justice A.R. Cornelius, page 692).
(11) "After considering the matter in all its aspects I have reached the conclusion that the impugned Act of 1908 imposes restrictions on the exercise of the fundamental right of forming associations, which cannot be described as reasonable. In this context, a strong contrast is presented by the provisions of Act III of 1962. Even where a political party is created such as would endanger the security or integrity of Pakistan, the Legislature in its wisdom has thought it fit to provide in this Act that no action should be taken unless the highest tribunal in the country has first delivered its verdict on the questions raised. Judged in the light of this criterion, the 1908 Act confers a naked arbitrary power on a Provincial Government to put an end to all activities of a political party and thus to virtually kill it, on an ex parte and one‑sided view of its activities. This unguided discretion is subject to no check, judicial or otherwise, and has the potentialities of becoming an engine of suppression and oppression of an opposition political party, at the hands of an unscrupulous party in power. That such a party may succeed in assuming power at sometime, cannot be regarded as an impossibility. In a democratic set‑up such as is visualized by our present Constitution, the presence of political parties is regarded as an essential feature so that it is conceivable that the opposition of today may be the Government of tomorrow.
To place an instrument in the hands of the party in power by which they can effectually eliminate from the political scene any opposition, without let or hindrance, cannot be held to be consistent with healthy functioning of the body‑politic on democratic lines would hold therefore that the impugned notification stands condemned alongwith the Act of 1908, and cannot be allowed to negate the fundamental right of formation of an association solemnly assured by the Constitution."
(Justice S.A. Rahman, pages 734 and 736).
(iii) "An order under this Act which is purely of an executive character is not open to objective judicial test. It condemns without trial. There is also no express provision for judicial review. Further no period for the duration of the order is laid down in the Act. Lastly, the associations against whom the order is made have no right to be heard in their defence. Nor is there any obligation on the authority to hear the association against whom the order is made. It does not contain even limited substituted procedural safeguards which have been given to one hold in preventive detention.
The provisions of the Criminal Law Amendment Act of 1908 being penal in nature cannot possibly be regarded as reasonable restriction on fundamental right. It in effect destroys the right of an association for an indefinite period without hearing or trial merely on the subjective satisfaction of the Executive. Indeed such a law can on no construction of the word 'reasonable' be described as coming within that expression. "
(Mr. Justice fazle Akbar, page 744).
(iv) "On a question of principle I would also say that discretionary remedies are no substitute for remedies to which a person has a right even though the discretion be a judicial one. Once an order is passed the High Court when moved under Article 98 may dismiss the application on the ground of delay or on the ground that substantial justice has already been done or on some other similar equitable principle, whereas if the party concerned had right to an examination of the legality of the order an illegal order would always be set aside ................When fundamental rights are granted to citizens to do a particular act not only all legislation that prevents such action disappears but all orders in particular cases placing any restriction on the exercise of the act must also be wiped out. Article 7 which grants the fundamental right to form associations does not contain any exception in respect of a case where already an order taking away such a right has been passed. It may be pointed out here that though the words used in Article 7 refer only to forming of associations they necessarily imply carrying on the activities of an association for the mere forming of association would be of no avail."
(Mr. Justice B.Z. Kaikaus, pages 761, 764).
(v) "If the intention was really to bring about an end of the Jamaat‑i‑Islami as a political party upon these grounds, action should, in my opinion, have more appropriately been taken under the Political Parties Act, particularly, since the latter Act made express provision for its dissolution and the grounds upon which action was sought to be taken really came within the mischief of section 3 thereof.
This is another aspect of the matter which does not appear to have received consideration in the High Courts, namely, as to whether where action producing the same result in pith and substance is possible under two different statutes upon the same grounds it would not be legitimate to hold that action should more appropriately be taken. under the special statute dealing specially with the subject‑matter by expressly specifying the grounds upon which action can be taken and providing a special method of action rather than under a general statute, particularly, where the special statute provides a more beneficial remedy or method of taking action. In such circumstances I would have no hesitation in holding that where a special statute dealing with a special subject created special liabilities as also provided a special remedy or procedure for the enforcement of that liability then in order to bring about the consequences contemplated by that statute for the breaches of its provisions recourse should be had to that statute and to no other statute."
(Mr. Justice Hamoodur Rahman, page 781).
(vi) "The basic principle underlying a declaration of fundamental rights in a Constitution is that it must be capable of being enforced not only against the Executive but also against the Legislature by judicial process and this is the basic principle that has been incorporated into our Constitution by the combined effects of the new Article 6, paragraph (c) of clause (2) of Article 98 and clause (3) of Article 133 of the Constitution, as amended by the Constitution (First Amendment) Act."
(Mr. Justice Hamoodur Rahman, page 783).
(vii) "It seems to me that the use of the word 'restrictions' by itself indicates that the primary and initial test is that the restriction cannot amount to a complete denial or total prohibition of the right for all times to come or for an indefinite period. By its very nature, therefore, the use of the word 'restriction' makes the extent of the encroachment a relevant factor in determining the reasonableness thereof. This again cannot be divorced from the nature of the right sought to be restricted and the nature of the restriction itself, for, under certain circumstances even the total prohibition, if it is for a limited period or. to meet a specific well‑defined mischief, may be upheld as a reasonable restriction. Thus both the nature of the restriction imposed and its extent would be relevant for determining the validity of a law encroaching upon a fundamental right."
(Mr. Justice Hamoodur Rahman, p.787).
The Supreme Court by a majority upheld the judgment of the East Pakistan High Court delcaring the impugned action of the Provincial Govt. violative of the Fundamental Rights and set aside
the judgment of the West Pakistan High Court upholding that action of the Provincial Government of West Pakistan.
Political Parties Act, 1962 governed the parties till 25th March, 1969 when meetings and processions were totally prohibited by MLR‑21 promulgated on 25th March, 1969 (P L D 1969 Central Statutes 48), which prohibition was continued in a modified form by MLR‑50 (PLD 1969 Central Statutes 122). Political Parties were subjected to certain restrictions by MLR‑60 promulgated on 21‑12‑1969 (P L D 1970 Central Statutes 173).
The Interim Constitution contained the Fundamental Right 14 in the following words:
"Every citizen shall have the right to form associations or unions subject to any reasonable restrictions imposed by law in the interest of morality or public order."
It was in the Constitution of 1973 that Political Parties were given a status and a place singularly their own. It was enacted in the following words:‑‑
"17. Freedom of association. ‑‑(1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of morality or public order.
(2) Emery citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party. Every political party shall account for the source of its funds in accordance with law."
The Constitution (First Amendment) Act, 1974 and the Constitution (Fourth Amendment) Act, 1975 brought about changes to give it the present shape‑as follows:‑‑
1117. Freedom of association.‑‑(1) Every citizen shall, have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public‑order or morality.
(2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a . manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.
(3) Every political party shall account for the source of its funds in accordance with. law."
The Political Parties (Amendment) Ordinance, 1974 was enacted with the professed object of bringing the provisions of Political Parties Act into accord with the Constitution and it was replaced by Political
Parties (Amendment) Act, 1975. Section 3 and section 6 were substituted as hereunder:‑‑
"3. Amendment of section 3, Act III of 1962. ‑‑In section 3 of the Act, ‑‑
(i) for subjection (1) the following shall be substituted, namely:‑‑
"(1) No political party shall be formed with the object of propagating any opinion or acting in any manner prejudicial to the sovereignty or integrity of Pakistan; and
(11) subsection (2) shall be omitted."
"6. Substitution of section 6, Act III of 1962.‑‑For section 6 of the Act e following shall e substituted, namely:‑‑
16. Dissolution of political parties.‑‑
(1) Where the Federal Government is satisfied that a political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, it shall make such a declaration and publish the same in the official Gazette, and upon such publication, the political party concerned shall. subject to the provisions of subsection (2). stand dissolved, and all its properties and funds shall be forfeited to the Federal Government.
(2) Within fifteen days of making a declaration under subsection (1), the Federal Government shall refer the matter to the Supreme Court whose decision on such reference shall be final."
It is not necessary to take note of various amendments pertaining to section 8 of the Political Parties Act.
In the Provisional Constitution Order enforced on 25th March, 1981, the following provision was made for Political Parties in Article 14:‑‑
"14. Political Parties.‑‑(1) When political activity is permitted by the President, only such of the defunct political parties shall be entitled to function as were registered with the Election Commission or were declared by the Commission to be eligible to participate in elections, by the 11th day of October, 1979.
(2) All political parties other than those referred to in clause (1) shall stand dissolved and all their properties and funds shall be forfeited to the Federal Government.
(3) No political party shall be formed after the commencement of this Order except with the previous permission in writing of the Chief Election Commissioner,
(4) If the President is satisfied that a political party has been formed or is operating in a manner prejudicial to the Islamic Ideology or the sovereignty, integrity or security of Pakistan, the President may dissolve the political party in consultation with the Chief Election Commissioner."
By amendments made between 1977 to 1985 (Ordinance No. XLI of 1978; Ordinance No. XLII I Gf 1979; Ordinance No.LII of 1979; Ordinance No LIII of 1979, Ordinance No.III of 1985, Ordinance No.VI of 1985, Ordinance No.XXII of 1985) the material provisions of the Political Parties Act were further amended.
In the year 1981 on a petition by a retired Judge of the Supreme Court Mr. B.Z. Kaikaus v. Federal Govt. (P L D 1981 FSC 1) the matter came up before the Federal Shariat Court and the Court held that the history cf Islam shows that Political Parties did exist in Islamic Polity.
In its Annual report for the year 1981‑1982 submitted to the President of Pakistan, the Islamic. Ideology Council noted this decision of the Federal Shariat Court but made the following recommendations:‑‑
The President directed the Islamic Ideology Council to reconsider its report and resubmit it to him.
On reconsideration the majority of the members of the Islamic Ideology Council returned the opinion as hereunder:‑‑
"In the light of the Quran and Sunnah Elections on Political Parties' basis are not valid."
The Chairman of the. Islamic Ideology Council, a Judge of the High Court this time reserved, his views in the following words:‑‑
"I am not clear in my mind whether, according to Quran and Sunnah elections may or may not be held on the basis of political parties: I therefore, reserve my opinion on this subject "
Ansari Commission submitted its report on 4th August, 1983 on the form of Government and about Political Parties made the following recommendations: ‑‑
K.C. Wheare in 'Modern Constitutions' at page 110 has the following comments on Political Parties:‑‑
"Party is perhaps the most important influence upon the working of a Constitution. So important is it indeed that one is tempted to say that the Constitution is a mere skeleton; it is party which provides the flesh and blood, which gives to the body politic its life and individuality. This may be an exaggeration, but there is a great deal of truth in it. Yet few Constitutions refer specifically to party. Their framers sometimes ignored the existence of party, or thought it undesirable; in most modern Constitutions party is assumed to exist and to be essential to free government, but it is not thought necessary or desirable to recognize or regulate it in the Constitution itself."
It is conceded on all hands and is so recognized in the Constitution that Islam confers on the people the right to choose the persons who shall govern them. To deny them the right to organize themselves for choosing such persons is to negate and destroy that right itself.
The contention on behalf of the petitioner is that the right to form or to be a member of a political party is recognized as a Fundamental Right of every citizen who is not in the service of Pakistan. This right can be subjected to reasonable restrictions in the interest of sovereignty or integrity of Pakistan alone. Howsoever laudable or well‑intentioned, high sounding, or attractive the other requirements may be, if they do not conform to these two specified then they are ex facie violative of this Fundamental Right and for that reason void. Section 3 of tte Political Parties Act in so far as it introduces (i) Islamic Ideology, (ii) Security of Pakistan, (iii) morality, (iv) maintenance of public order; is on this reasoning, void.
In the historical perspective that we have briefly noted there appears to be serious division among the learned of this country whether Political Parties are Islamic or un‑Islamic, for the purposes) of electing the Government. For those who hold that Political Parties are repugnant to Quran and Sunnah and these must be banished, totally from elections and government, it is impossible to make Political Parties survive and conform to the Islamic Ideology because for them the very formation of a Political Party is negation of Islamic Ideology. Such a polarization in the meaning and the scope of the concepts on the one hand, and an unqualified and uncircumscribed mention of Islamic Ideology which has an obvious link with the Integrity of Pakistan on the other, and the entrustment of the final, conclusive and binding adjudication to the Election Commission would manifestly appear to be violative of this Fundamental Right. Besides, these enumerated concepts of Islamic Ideology, security of Pakistan, morality, maintenance of public order, foreign‑aided Party in Political Parties Act, happen to be generic, wider in scope and more extensive, than the constitutional limitations contained in the aforesaid Fundamental Right mandating a nexus of all these and such other factors finding a place in the law to sovereignty of Pakistan or integrity‑of Pakistan. If the whole concept, in all its extensiveness is imported in the law then undoubtedly the Fundamental Right would stand greatly abridged. There are three reasons which call for restraint in adjudicating finally at this stage and in these proceedings on any one of these concepts and holding them to be per se violative of Fundamental Right. The first is that the Political Party which is petitioner before us is not immediately and directly aggrieved by any of these concepts. They have not been invoked to its detriment. It has only an apprehension. To that extent the grievance is in the abstract and anticipatory. The real immediate grievance of the petitioner which is operating to its recurring detriment is the requirement of registration, its failure to get itself registered with the Election Commission, thereby incurring the disability of participating in the elections whenever they are held. We are attending to that grievance fully and squarely. Secondly, this Court is keeping to itself the final power of interpreting and applying these provisions of the Political Parties Act and not leaving it to any authority not provided for in Article 17(2). So in a given case, on more concrete facts when this Court is called upon to apply and interpret these provisions it will do so. Thirdly, we are here laying down a rule of interpretation culled out from this Fundamental Right itself for the guidance of all concerned with the matter. Clause ( 2) of Article 17 is in two parts, the first deals with the formation and membership of a Political Party, the second part deals with the punitive action against the Political Party. The Constitution authorises for the first "reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan". For the purposes of
section 3 of the Political Parties Act such ar. interest of sovereignty or integrity of Pakistan must be reflected and covered and only to that extent and not beyond Islamic Ideology etc. will be within the scope and consistent with this Fundamental Right. The second requirement for the purposes of section 6, for punitive declaration is more restrictive and imperative. It is mandated that the law shall provide that where the Federal Government declares that any Political Party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall within fifteen days of such declaration, refer the matter to tile Supreme Court whose decision on such reference shall be final". So the law relating to formation and membership of Political Party has necessarily to be "in the interest of the sovereignty and integrity of Pakistan". For authorising the punitive declaration the law has to concern itself with the formation or operation of a Political Party only to the extent it is "prejudicial to the sovereignty or integrity of Pakistan." At the moment the law does not accomplish any of these requirements. All the same, as all law is to be read subject to Constitutional limitations governing it within which it legally operates, this Court will look for such a nexus in individual cases and actions to determine its wires. The law has to be declared void only where per se it cannot co‑exist, is destructive of or opposed to the Fundamental law. This principle was recognized in Abdul Wali Khan's case P L D 1976 S C 57 in the words that "before a law is struck down as being unconstitutional every effort must be made to read it in such a manner as to bring it, if possible, into conformity with Constitution" (p.100).
The objection to section 3‑B of Political Parties Act is extensive, more fundamental, and somewhat concrete. The Fundamental Right 17(2) prescribes that the question of formation, operation and dissolution etc. of a Political Party shall be dealt with by law reserving the initiation of punitive action for the Federal Government and its final adjudication by the highest Court in the country. By leaving the question of registration to the satisfaction of the Election Commission, entrusting the matter of cancellation of registration to the same authority and debarring the Political Party not registered or whose registration is cancelled from participating in the elections the entire scheme of guarantees and allocations of functions contained in aforesaid Fundamental Right stands destroyed and subverted. The two cannot coexist. The law must, therefore, yield to the Fundamental Fight. The whole of section 3‑B and its consequential provision is void.
The Constitution authorizes the Federal Government to make a declaration and within fifteen days of it to refer the matter to the Supreme Court whose decision on such reference has been made final. What section 6 accomplishes is that such a declaration itself leads to dissolution and forfeiture and the Supreme Court has to adjudicate in the matter ex post facto and the result of the adjudication substitutes the declaration. The dissolution and the forfeiture not being provided in the Constitution as concommitants of declaration by the Federal Government, they cannot be so provided. These have to await the final adjudication of the Supreme Court with regard to the declaration itself. To that extent the provision in section 6 is violative of Fundamental Rights and hence void. In Abdul Wali Khan's case two views with regard to this provision were advanced. The one which prevailed with the majority was expressed in the following words:‑
"The only possible interpretation, therefore, that can be given to the provisions of subsection (1) of section 6 of the Political Parties Act is that the dissolution there referred to, having been made specifically subject to the provisions of subsection (2) thereof was only in the nature of suspension of the political party in the interests of State necessity, to prevent greater harm being done to the sovereignty and integrity of Pakistan if the party concerned was in fact so operating, pending the decision of the Supreme Court. What was done, therefore, was in the nature of placing an ad interim bar on the operation of the party till such time as the Supreme Court could give its final decision." (page 102).
The other view supported by certain principles of interpretation was expressed in the following words:‑
"Another good reason, against dissolution would be that it is now conceded that the statute does not in terms empower the Federal Government to order dissolution of a party or forfeiture of its assets. What the Federal Government cannot do directly can hardly procure to be done by indirect method viz. the publication of declaration in the Gazette." (page 174)
As regards the invocation of the ground of imminent threat and danger the learned Judge in his dissenting view expressed himself as hereunder: ‑
"Incidentally, I have also considered the question, whether in the event of an imminent danger to the sovereignty or integrity of Pakistan, the Federal Government will be without a remedy to avert the danger by immediate preventive action pending a proceeding under section 6(2) of the Act, which, as in the instant case, is likely to be long drawn out. In my opinion the Federal Government have ample powers to take immediate remedial action under section 10(11 of the Security of Pakistan Act: 1952. The section reads:
"(1) Notwithstanding anything contained in the Political Parties Act, 1962, or in any other law for time being in force, where the Central Government is satisfied with respect to any association that there is danger that the association may act in a manner or ire used for purposes prejudicial to the defence or external affairs of the security of Pakistan, or of any part thereof, it may, by written or notified order, direct the association to suspend its activities for such period not exceeding three months as may be specified in the order "
It overrides the provisions of the Political Parties Act and specifically empowers the Federal Government to take immediate steps of interim nature. The word "association" has been used in a generic sense and in the absence of any qualifying words will in my view, cover a political party. The Legislature must be presumed to be fully aware of this provision when enacting Act XXI of 1975. It is highly improbable that in the face of this express provision directly bearing on the situation, the Legislature had intended to invest the Executive with the like power and that too by implication. Besides, Article 187(1) of the Constitution gives plenary power to this Court to meet a particular situation once it is seized of the reference. " (P.174).
It is, therefore, necessary now to review on this subject the law laid down in Abdul Wali Khan case and to hold that section 6 in so far it accomplishes dissolution and forfeiture as and when the declaration is gazetted by the Federal Government impinges on thefundamental right guaranteed to the party and must, therefore, be declared void. The mere contravention of section 3‑A cannot be by itself a ground for dissolution of the Party under section 6 and we would strike it down as an available ground for taking such a punitive action.
ZAFFAR HUSSAIN MIRZA, J.‑‑I have had the advantage of perusing the elaborate judgment proposed to be delivered by my Lord the Chief Justice. I respectuflly agree with the conclusions arrived at by my Lord as to the true scope and nature of the powers of this Court, under the ouster of jurisdiction clause contained in Article 270‑A of the Constitution and the masterly exposition of the ambit of the jurisdiction of this Court, under Article 184(3). I also respectfully agree with the reasons and conclusions whereby the preliminary objections taken by the Federation of Pakistan have been rejected. Lastly I also concur with the conclusions arrived at by my Lord in respect of repugnancy of the impugned provisions of the Political Parties Act, 1962, with Article 17 of the Constitution and the proposed order in respect of this petition. However, in view of the great Constitutional importance of the question relating to the interpretation of Article 270‑A, I would like to add somewhat different reasons which according to my light further support the conclusions arrived at by my Lord.
Upon analysis of the various clauses of Article 270‑A it will appear that broadly speaking clause (1) deals with the validation oft the proclamation of 5th July, 1977, whereby the country was placed under Martial law and all Laws, whether of Constitutional nature or of ordinary kind made between 5th July, 1977 and the date on which the Article comes into force (30th December 1985). Clause (2) is confined to the validity conferred on actions taken in exercise of; powers derived from the legal instruments and laws, not only those mentioned in clause (1) but all laws and orders passed by any authority, during the period mentioned in clause (1). Clause (3) makes provision for continuance of all laws which were in force
immediately before the date on which the Article comes into force, namely, 30th December, 1985. Clause (4) is the usual indemnity clause for protection of authorities and persons for actions taken during the relevant period. Clause (5) is an unusual and unprecedented Constitutional deeming provision declaring all measures and actions taken as referred to in clauses (1), (2) and (4) to have been taken in good faith and for purpose intended to be served thereby. Lastly clause (6) provides for the manner of amendment of certain specified laws as included in Seventh Schedule out of those mentioned in clause (1) by adopting the manner for the amendment of the Constitution.,
The learned Attorney‑General's contention is that the unambiguous and express language of clause (1) places the matter beyond controversy that the laws protected therein were provided blanket validity and all grounds of attack were excluded as foundation for calling in question the said laws by the said Constitutional provision. His main emphasis was on the non obstante clause viz. "notwithstanding any provision of the Constitution" which according to him, has the clear effect of removing the limitations contained in the Chapter on the Fundamental Rights which is a part of the Constitution within the ambit of the excluding provisions of the non obstante clause. Once this is conceded, his argument is, it follows that the future operation of such protected laws is likewise immune from all challenges and thus they have overriding effect over other provisions of the Constitution. I will now consider this argument in the light of the language employed in the various provisions of the Article.
As already observed Mr. Yahya Bakhtiar, without conceding the validity cf Article 270‑A itself, has urged that even on the assumption that the Constitution (Eighth Amendment) Act was a valid piece of legislation, according to its true construction clause (1) thereof removed the infirmities of Constitutional nature as to competency only and the clause was merely intended to exclude all manner of challenges in that regard. The submission, in other words was that the inhibitory force of Article 17 as a constitutional limitation on an otherwise competently enacted law was not destroyed. The question for consideration, therefore, is as to what were the legal challenges excluded by clause (1) of Article 270‑A and whether this provision is a conclusive declaration clause. Now much emphasis was laid on the words "affirmed", "adopted and declared" and "notwithstanding anything contained in the Constitution". Clause (1) is as argued divisible into two parts. The first part proclaims that the laws in question "are hereby affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made by competent authority and the second part, consists of the words "notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever". Both parts are linked up with the conjunction "and" . In order to ascertain the intention of the B legislature and the legal effect of the provision, it will be necessary to determine the meaning of the crucial terms employed.
According to Black's Law Dictionary (1979 Edn.) the word "affirm", inter alia, means to ratify, whereas the word "adopt" means to make that one's own (property or act) which was not so originally. And the word "declare" is defined as "to make known, manifest, or clear". The word "ratify" has been defined in the same dictionary as‑‑to approve and sanction; to make valid; to confirm; to give sanction to. Reading the crucial words in the light of these judicial meanings, the effect of the wording of clause (1) of the Article, toy my mind is that the specked laws were validated and although they were not enacted by any law‑making authority known to the Constitution were adopted as though made by the appropriate legislature under the Constitution and were pronounced by the force of the Constitutional provision to have been made by the competent law‑making authority established by the Constitution. Thus, the provision in question is a constitutional device to confer validity upon the specified laws by the exercise of constituent power and to give them the status of competently enacted laws, to remove the taint, in the words of the learned Attorney‑General, as to their maker. This was necessary in order to overcome the unconstitutionality of the laws for lack of legislative power because under the Constitution legislative power resides in the organs institutionalized by the Constitution, and not in an authority like the Martial Law Administrator outside the contemplation of the Constitution. The non obstante clause in the first part of clause (1) excluding the effect of a judgment of any Court was obviously inserted to nullify the effect of the judgment in Begum Nusrat Bhutto v. Chief of Army Staff P L D 1977 S C 657 which placed the constraints of the rule of necessity, inter alia, upon all the legislative measures promulgated during the period the Procalamation of Martial law was in force. The overall effect of the first part of the provision under consideration, in the premises, is that the protected laws shall have to be regarded as competently enacted by the appropriate authority under the Constitution. The words "notwithstanding anything contained the Constitution" are significantly omitted from this part and have been placed as the non obstante clause in the second part of clause (1). Therefore, reading it in isolation for the time being and deferring the consideration of the effect of the second part of the clause, if we pause here, all' that the first part achieved was that the laws would have force subject to the inhibitory effect of other constitutional limitations, as they operate qua other laws competently made. In this perspective, it appears to me quite plain that the wording of the first part brings about the effect of bringing the protected laws to the same status and footing as the laws made by means of ordinary exercise of legislative power under the Constitution.
The affirmation, adoption and declaration of validity conferred upon the specified laws in the first part of clause (1) of Article 270‑A, in my view, was as urged by the learned Attorney‑General, both as to the lack of legislative authority as well as to the content of the laws, inasmuch they are to be regarded as validly enacted laws, on par with other laws which are passed by the legislatures constituted under the Constitution. I would uphold the contention to this extent and in this sense.
But even by achieving this result, can the protected laws be given a supra‑Constitutional status by virtue of the blanket validation granted to them by the constitutional provision, as‑claimed by the learned Attorney‑General? In support of this claim reliance has been placed on the second part of clause (1) of Article 270‑A, particularly the words "notwithstanding any provision in the Constitution". It may be pointed out that not only the protected laws that were repealed before the date on which Article 270‑A came into force but even the other laws that were in force immediately before that date and were continued in force by virtue of clause (3) of the Article, were claimed to be outside the pale of all constitutional limitations and to be standing on a higher pedestal beyond the reach of those limitations. According to the learned Attorney‑General the all‑pervading validity conferred upon the laws, attached to them in the future course of their operation until they were altered, repealed or amended by a competent authority. In the premises it was urged that if the protected laws enjoyed immunity qua their inception from the inhibitions upon the legislative power contained in Article 8 of the Constitution, such immunity continued to protect the laws during their entire life in future.
In order to assess the soundness of this argument it seems first expedient to refer to some relevant principles of construction peculiarly applicable to the interpretation of the Constitution. While interpreting provisions of the Interim Constitution of 1972 of similar nature this Court in State v. Zia‑ur‑Rahman P L D 1973 S C 49 affirmed and approved some well‑recognised rules. While conceding that the source of the jurisdiction of Courts must, in the case of written Constitutions, be traced to the Constitution as its fountainhead, Hamoodur Rahman, C.J. , who wrote the judgment for the Court quoted from his earlier judgment in Fazlul Quader Chowdhry v. Muhammad Abdul Haque P L D 1963 S C 486 as under:
"I would venture to point out that the cardinal principle that in every system of Government operating under a written Constitution the function of finally determining its meaning must to located in somebody or authority and the organ of Government which is normally considered most competent to exercise this function is the judiciary. This is, of course, subject to the provisions of the Constitution itself which may well provide otherwise. _In such event, however, the contrary provision must be either express or one which can be derived as a necessary implication of the provisions the Constitution. But such a departure is not to be readily inferred, or, the consistent rule of construction adopted b all Courts is that provisions seeking to oust the jurisdiction o superior Courts are to be construed strictly with a pronounced leaning against ouster.
(Emphasis provided)."
The next principle enunciated by this Court in regard to the interpretation of a Constitutional provision for total ouster of jurisdiction of the Court was stated thus:
"But this must, in my opinion, depend /upon the nature of the jurisdiction sought to be ousted and the nature and extent of the ouster itself."
Having pointed out the broad principles I would now come to the issue raised before us in this case. The underlying scheme of the argument advanced by the learned Attorney‑General as stated, was that the corpus of the protected laws was inherently infused with the quality of absolute validity transcending the limitations of the Constitution, including the inhibitory force of the Fundamental Rights. Ex hypothesis, therefore, according to him, as long as the corpus of such laws remained intact, no provision of a Constitution can rob the same of said qualitiative content except by removing them from the statute book in the manner provided. The question arises whether the language of the provisions in question discloses such intent.
This question, I may repeat once again, is to be examined or the assumption that the validation provisions are not themselves subject to question. Additionally the question has to be determined in the limited context of the challenge offered to the effect that upon the revival of the Fundamental Rights, the protected laws yield to the overriding effect of these rights to the extent of inconsistency. It is, therefore, necessary to see what was the legal milieu at the time of the enactment of Article 270‑A. A further point to be noted at ~ this juncture is that in the group of laws protected under clause (1) of the Article are two categories of laws, namely, laws of constitutional nature and laws of sub‑constitutional nature. The instances of the first category are the Revival of the Constitution of 1973 Order, 1985 (P.O. 14 of 1985), the Constitution (Second Amendment) Order, 1985 (P.0. 20 of 1985), the Constitution (Third Amendment) Order, 1985 (P.O. 24 of 1985), and the examples of the second category of laws are the amending Ordinance impugned in this case. For the present it may be stated that the first category of laws standing as they do ex facie on a higher level partake of the quality of fundamental law on par with the Constitution. Indeed some of them are explicitly directed to amend the Constitution itself. The moment it is conceded that the effect of the first part of clause (1) of Article 270‑A is to give them the status and effect of validly enacted legislation by the competent legislative body under the Constitution, it logically follows that they would become an integral part of the Constitution and subject to the rules of interpretation of the Constitution, particularly that the different provisions of the Constitution are to be harmoniously construed, they would stand together with the provisions contained in Chapter I of Part 11 of the Constitution, relating to Fundamental) Rights, and not under or subservient thereto.
But the question presently for scrutiny is whether the laws in the second category also stand on the higher pedestal and indeed virtually on a supra‑Constitutional, level as contended for, In the case ef Zia‑ur‑Rehmar, (Supra) this Court was considering the scope of validation clause contained in Article 281(1) of the Interim Constitution of 1972; and as analysed above the similar part of that Article is at par with the first part of clause (1) of Article 270‑A, considering the net effect achieved by the two compared provisions. It is the second part of the clause in question, which has deliberately employed different phraseology and the learned Attorney‑General has put great deal of stress on this change in the wording of the clause. However, it may be pointed out that by his own token, the two parts were intended to achieve different legal objects. The second part according to him is intended to oust the jurisdiction of the Court in totality (although he fairly conceded that it does not affect
the judicial power inherent in this Court to interpret its true meaning), excluding all manner of challenges even on the basis of the limitations imposed to preserve the supremacy of Fundamental Rights. The argument in its final analysis logically implies that even if an objection as to the constitutionality of a law is available by construing the first part so as to leave any constitutional limitation uncovered, the all‑pervading sweep of the ouster clause in the second part disables the Court for want of jurisdiction to give effect to it by judicial intervention.
It will be convenient to first deal with the effect and extent of the validation conferred upon the laws in the second category (which may be called the ordinary laws) by the first part of clause (1), which indeed was its subject‑matter. In Zia‑ur‑Rehman's case, the learned Chief Justice, upon examining the three clauses of Article 281 of the Interim Constitution of 1972, observed:
"The result, therefore, that has, in my view, been achieved by Article 281 is that the legislative measures themselves have been validated and Courts have been debarred from questioning their validity. •'
The matter was not, however, left at that but the effect of tt e validity clause and the ouster of jurisdiction was pursued further in the light of the other provisions of the Constitution. Referring to Article 280, the learned Chief Justice went on to observe:
"It will &.us, be seen that, even though clause (1) of Article 281 has validated all those legislative measures enacted during the period beginning from the twenty‑fifth day of March, 1969, clause (2) of Article 280 has actually revoked the proclamation of the 25th of March, 1969, itself and all Orders specified in the Sixth Schedule to the Interim Constitution including all orders amending those orders. Similarly clause (3) of Article 280 has repealed all Martial Law Regulations and Martial Law Orders except those specified in the Seventh Schedule to the Interim Constitution and even those so specified have been kept alive merely as acts of the appropriate Legislatures and are to have effect as such. Therefore, notwithstanding the blanket validation given by clause (1) of Article 281, the net result, if the provisions of this clause are read together with the provisions of clauses (2) and (3) of Article 280, is that the proclamation of the 25th of March, 1969, under which General Yahya Khan assumed powers and the orders specified in the Sixth Schedule stand repealed and all Martial Law orders and Regulations are repealed except the few specified in the Seventh Schedule. Even those so preserved are to take effect only as sub‑ Constitutional legislative measures and not as supra‑Constitutional measures.
The consequence of the repeal is to attract the provisions of Article 295 cf Interim Constitution itself which provides as follows: ‑
"295. Where a law (including a President's Order, a :Martial Law Regulation or a Martial law Order) is repealed, or is deemed to have been repealed, by, under, or by virtue of this Constitution, the repeal shall not, except as otherwise provided in this Constitution,‑‑‑
(a) revive anything not in force or existing at the time at which the repeal takes effect;
( b) affect the previous operation of the law or anything duly done or suffered under the law;
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law;
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; or
(f) affect the continuance of any body or authority constituted by or under such law; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed, and such body or authority continued as if the law had not been repealed."
Reading these provisions together, as we are entitled to do, for, the Constitution has to be construed like any other document reading it as a whole and giving to every part thereof a meaning consistent with the other provisions of the Constitution, the net result of clause (1) of Article 281 is merely to bring about a notional validation, for, immediately clause (1) of Article 281 came into effect, clauses (2) and (3) of Article 280 also became operative simultaneously. As a result thereof, in respect of the Martial Law Regulations and Martial Law Orders repealed by Article 280(3), the provisions cf Article 295 became attracted, and even the few Martial Law Regulations and Martial Law Orders, specified in the Seventh Schedule, which are to continue, have to be treated as and to have effect as sub‑Constitutional legislative measures which will be open to the judicial scrutiny of the Courts, for, their validity will always be open to scrutiny and capable of being tested on the basis of the provisions of' the Constitution itself, the Supreme or Organic Law."
It will thus, appear that even when a provision of the Constitution confers and is held to bestow blanket validity upon laws enacted during the period in which the constitutional machinery provided by the Constitution is wiped off by the operation of Martial Law, the effect of such validity qua the future operation of the protected laws. continued in force, was examined by the Court notwithstanding the ouster clause, in the light of other provisions of tte same Constitution. The final result of the exercise undertaken by the Court was that although the validity of a protected laws granted ex post facto was found to have placed them above reproach in their operation during the protected period, their future operation was held subject to all the limitations contained in the Constitution.
The distinction between the laws of Constitutional and sub-Constitutional nature is peculiar to the present case, as in the cited case at the relevant time there did not exist a Constitution, the 1962 Constitution having been abrogated, whereas in the case in hand we are dealing with a situation in which the Constitution of 1973 was merely kept in abeyance to be subsequently revived so that it was possible to effect amendments in that Constitution by laws of constitutional nature. Therefore, this distinction is inherent in and dictated by the prevailing situation.
The next question is whether the proposition deduced from the decision of this Court in Zia‑ur‑Rehman's case is applicable to the present controversy. It will apply if it can be demonstrated that in the present case also the proclamation of Martial Law, and all Martial Law Regulations and Martial Law Orders except a few were repealed and those that were kept alive were merely to survive as acts of the appropriate legislature, having effect as such. In this connection it is now necessary to refer to the relevant legislative measures adopted in regard to the revocation etc. of similar laws. By Martial Law Order No.107 called the Martial Law (Pending Proceedings) Order, 1985, promulgated on 29th December, 1985, vide paragraph 3(11 it was provided as under:
"3(1). All Martial Law Regulations and Martial Law Orders, made and promulgated on or after the fifth day of July, 1977, by the Chief Martial Law Administrator and all Martial Law Orders made and promulgated by the Martial Law Administrators of Zones A, B, C, D and E as mentioned in MLO‑3 notwithstanding its cancellation on or after the said day, other than those specified in the Schedule to this Order, shall stand cancelled on the appointed day‑"
The effect of cancellation of the said Martial Law Regulations and nrae13 has been provided in paragraph 4 as under:
"The cancellation of the Martial law Regulation and Martial Law Orders, referred to in clause (1) of paragraph 3, shall not affect the previous operation thereof, and anything done, action taken, obligation, liability. penalty or punishment incurred, or proceedings commenced shall be deemed to have been properly and validly dope, taken, incurred or commenced, as the case may be."
The important point to note is that the cancellation provided for by paragraph 3 was to come into effect on the "appointed day" which according to paragraph 2(a) means the day on which the proclamation of the 5th day of July, 197 7, is revoked. The said proclamation was revoked by the Proclamation of Withdrawal of Martial Law on 30th December, 1985. Paragraph 1 ;,f the latter proclamation reads as under: ‑
"1. The Laws (Continunace in Force) Order, 1977 (C . M.L. A. Order No.l cf 1977). the Provisional Constitution Order, 1981 (C.M.L.A. Order No.t of 1981) are hereby repealed, and the Procalamation of the fifth day of July, 1977, is herehy revoked."
Therefore, the cancellation of the Martial Law Regulations and Order became effective on 30th December, 1985.
The Constitution, as amended b‑,• the Revival of the Constitution of 1973 Order, 1985 (P.O.No.14 of 1985), was brought into force on 10th March, 1985, except Articles 6, 8 to 98. clause (2) and 2(A) of Article 101, Articles 199, 213 to 216 and 270‑A (in its unamended form). The Constitution (Eighth Amendment) Act, 1985, was enacted by the Parliament and became law on 11th November, 1985. This Act also provided by its section 1(2) that it will come into force at once "except section 19 which shall come into force on the day on which the Proclamation of 5th July, 1977, is revoked." Section 19 enacted the amended Article 27 0‑A by substituting the existing Article of the same number inserted in the Constitution by P. 0. ' No.14 of 1985. Reading these provisions together it will appear that the aforesaid Martial Law Regulations and Orders, as well as the C.M.L.A. Orders, were either repealed or cancelled simultaneously on 30th December, 1985. It may be observed that the use of the word "cancelled" in paragraph 3 of Martial Law Order No.107, makes no material difference, if it is read in conjunction with paragraph 4 thereof. In this manner the legal effect of cancellation was that the cancelled legal instruments in substance were repealed. Even otherwise in the context in which the term is used it means and denotes repeal of the laws specified. According to Black's Law Dictionary (5th Edition) the word "cancel" , inter alia, means to revoke or recall and the word "repeal" also means to revoke, to rescind or abrogate by authority. It is, therefore, reasonable to construe paragraph 3 to have repealed the Martial Law Regulations and Orders. This conclusion is further fortified by paragraph 10 of MLO 107 itself where the law‑maker speaks of the "repeal'" ‑ of Martial Law Regulations and Martial Law Orders by the said MLO.
The only other question to be decided in this behalf is whether the laws that were not repealed and were continued in force had effect as acts of the appropriate legislature. In this connection the relevant provision to be looked into is clause (3) of Article 270‑A as reproduced above. On a plain reading of this clause it appears clear that President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders and enactments etc. which were in force immediately before 30th December 19E5, were continued in force and the appropriate legislature was authorised to alter, repeal or amend the same, except that some of the laws which were specified in the Seventh Schedule were to be capable of amendment in the manner provided for amendment of the Constitution. The final result of this analysis is that except for the non obstante clause in the second part of clause (1) of Article 270‑A which would be examined a little later, the necessary conditions for the application of the principle (f construction applied in the case of Zia‑urRahman, are equally present in this case.
So far as the use of the words "notwithstanding anything contained in the Constitution" It may be pointed out that these words are conspicuously absent from clause (3) of the Article which specifically deals with the continuance of laws in force. As I have held that clause (1) of the Article deals with the making of the laws during 1 the specified period and conferred national validation thereon, it will be contrary to the intent of the legislature to hold that the continuance of the laws and their future operation was also on a supra-Constitutional basis, free from the constitutional limitations. In Zia‑urRahman's case pointing out the absence of the ouster provisions in clause (2) of Article 281 of the Interim Constitution, it was observed:
"It is a well‑established rule of interpretation that where in a statute there are both general provisions as well as special provisions for meeting a particular situation, then it is the special provisions which must be applied to that particular case or situation instead of the general provisions."
On a parity of reasoning, it becomes manifest that so far as the continuance in force of the existing laws was concerned, the special F provisions of clause (3) would govern their future operation and in the absence of the aforesaid words as they occur in clause (1) it follows that the laws continued in force would have effect as subConstitutional legislation subject to the Constitution. This intention is also manifested by the fact that such laws were allowed to be repealed in exercise of the legislative power under the Constitution. The argument that in Article 280(1) of the Interim Constitution the use of the words "subject to this Constitution" had the effect of expressly making the continuance of the existing laws subservient to the Constitution, but such words have not been used in clause (3) of Article 270‑A, therefore, the conclusive declaration clause in clause (1) of the Article would govern the future operation of these laws, does not advance the case of the respondent for the reasons already stated.
As pointed out in the foregoing part of this judgment the ouster of jurisdiction of the Courts must be couched in express terms or must arise by necessary implication. Besides, the scope o such provisions which seek to oust the jurisdiction of superior Courts depends upon the nature of the ouster itself. In the case of Zia‑urRahman while applying these principles of construction to the validation clause contained in sub‑Article (2) of Article 281 of the Interim Constitution, the final conclusion for maintaining the jurisdiction was arrived at by considering the intent underlying the language employed coupled with other Articles of the Constitution. Therefore, in order . to determine the extent of the validation clause the question of intent' has been upheld by this Court as a relevant consideration.
This brings me to an important aspect of this case which I propose to presently examine. It may first be stated that the amended Article 270‑A substituting the original Article of the same number, as already observed, was enacted by the Constitution (Eighth Amendment) Act, 1985. This legislative measure to amend the Constitution was initiated with N.A. Bill No.13 of 1985 published in the Gazette of Pakistan, Extraordinary, dated 9th September, 1985. It proposed amendments in various Articles of the Constitution as already amended by P.O. No.14 of 1985, and paragraph 7 of this Bill reads as under:
"7 . Amendment of the First Schedule to the Constitution. ‑‑In the Constitution, the First Schedule, in Part I, under the sub‑heading "III FEDERAL ACTS"‑
(a) the following new entry shall be added, namely:‑
"1. The Political Parties Act, 1962 (III of 1962), and any Act by which it is amended or repealed and re‑enacted"; and
(b) for entry ‑ 1 the following shall be substituted, namely:‑
1‑A. The Land Reforms (Amendment) Act, 1974 (XXX of 1974)."
While giving the statement of objects and reasons for which the Bill sought to amend the specified Articles and Schedules of the Constitution, paragraph 7 is relevant and co‑related to para. 7 of the Bill reproduced above. This paragraph may also be reproduced as under:
"7. First Schedule.‑‑Amendment of this Schedule is aimed at exempting Political Parties Act, 1962, and the law by which it is amended or ‑repealed or re‑enacted, from the application of Article 8 of the Constitution."
The perusal of the Act as finally passed by the Parliament, however, shows that the proposed amendments in the Firs t Schedule of the Constitution did not form part of the Act. Therefore, it is obvious that the Parliament was not inclined and in its wisdom did not accept the proposed amendments in the said Schedule.
The central question before us is whether Article 17 of the Constitution which forms part of Chapter I relating to Fundamental Rights controls the operation and constitutionality of the impugned legislative measures or not, in view of conclusive declaration clause of Article 270‑A. The recognized mode and practice for saving any sub‑Constitutional legislation from the inhibitory force of the Fundamental Rights is to include such legislation in the First Schedule of the Constitution by constitutional amendment, so that the saving provisions contained in clause (b) of sub‑Article (3) of Article 8 are made applicable to such legislation. By this method the law can be protected from the application of Article 8. This is precisely what the Bill attempted to achieve. While referring to these matters I am fully conscious of the general rule that debates in the legislature or legislative discussions, expressive of the views of the legislature on pending legislation, are not appropriate sources from which to ascertain the meaning of the statute as passed, but with regard to the amendments or modifications in the Bill during its passage the following observations are relevant from 82 Corpus Juris Secundum:
"Under the general rule, amendments or modifications, and changes in the frame of the bill during its passage, and the action of the legislature on amendments offered may be considered if the language of the statute is ambiguous, but not if its meaning is plain. The mere introduction of an amendment has no probative value. The Courts should not read into a statute by implication provisions which the legislature expressly rejected; and it has been held that amendments offered, but not finally incorporated in the statute as passed, cannot be considered. However, the fact that the legislature before final passage deleted language or provisions contained in the Bill as originals introduced may be considered
on determining intent where the meaning of the language used in the Act is obscure; but the fact that a bill as originally drafted contained language which was omitted from the final draft does not of necessity mean that the intent
of the omitted portion was not still embodied in the bill as passed. So, the rejection of an entire bill cannot tie taken to be a specific rejection of every feature, more especially of those features later introduced in a final draft enacted into law. (Emphasis provided)."
The Indian Supreme Court in State of Haryana and another v. Chanan Mal etc. A I R 1976 S C 1654, has also affirmed the rule with regard to the relevancy of such statement of objects and reasons attached to a bill introduced in the Parliament in the following words:
"Such statements and reasons are relevant when the object or purpose of an enactment is in dispute or uncertain."
In Kochuni v . States of Madras & Kerala A I R 1980 SC 1080, the Court while construing a constitutional amendment in order to deal with a similar argument, whether it was intended to exclude the operation of another Article of the Constitution conferring a fundamental right, had taken resort to the object of the amendment as explained in the statement of objects and reasons annexed to the bill. The purpose for doing so was explained as under:
"We are referring to it only for the limited purpose of ascertaining the conditions prevailing at the time the bill was introduced, and the purpose for which the amendment was made. "
Such matters have thus been held by the Courts to be admissible as extrinsic aids to the construction of a statute. In the present case also what has been taken into consideration is not to resolve the ambiguity regarding the meaning of a term used in the statute but in order to show that the bill having suggested protection of the Political Parties Act from the operation of the fundamental rights, by placing it in the Schedule which exempts statutes from such operation, by virtue of the saving clause in Article 8 of the Constitution, in the final text of the Act as passed by the legislature the proposed provision seas dropped. In the circumstances it is reasonable toy conclude that no such effect was intended to be achieved as reflected in the relevant part of original text of the bill and this supports the foregoing conclusions arrived at by me, on the effect of clause (3) of Article 270‑A that the non obstante clause in the second part of l the clause (1) did not extend to the future operation anti continuance of the Ordinances in question.
Even otherwise the extreme position taken by the learned Attorney‑General does not stand the test of scrutiny if the consequences flowing therefrom are taken into account. In the first place it may be pointed out that clause (3) of the Article in question seeks to continue in force not only the existing laws but also notifications, rules. orders or bye‑laws. Accepting the argument that the words 'In notwithstanding anything contained in the Constitution" would also govern clause (3), would result in giving the overriding effect to such notifications, rules, orders, or bye‑laws as against the Fundamental Rights. This in my opinion could not be the intention of the legislature. Secondly clause (3) covers not only the legislative measures adopted during the Martial Law period as specified in clause) (1), but even pre‑existing laws and there appears no rational basis for imputing to the legislature the intention to continue such preexisting laws free from all constitutional limitations in the future. It is, therefore, clear that the non obstante clause under consideration does not control clause (3) of Article 270‑A. Apparently the objectL. underlying clause (3), as in case of similar provisions in the earlier Constitutionai instruments, was to maintain the continuity of laws and to prevent interruption in the legal force of the existing laws so that legal rights are not affected by the disappearance of the laws under which the rights and obligations accrued or were incurred. It may be pointed out again that clause (3) embraces all the existing) laws including enactments which were in force at the relevant time., Such. enactments and laws included some of the laws which were in existence at the time of the enactment of Article 268(1) or even I earlier. Therefore. it will be unreasonable to attribute to the legislature an intention to convert an existing law which was to continue in force subject to the Constitution, into a law which would override the Constitutional limitations, after being continued under Article 270‑A. I find no good reason for adopting such a construction
This conclusion is further reinforced by another consideration It will be observed that clause (3) of Article 270‑A has the effect of continuing in force all the existing laws that were in force immediately before the date on which the proclamation of withdrawal of Martial Law was issued and all the provisions of the Constitution were revived. Accepting the argument of the learned Attorney‑General will mean that all the existing laws en masse would achieve supra‑Constitutional status free from every constitutional limitation or constraint. Such unbridled supremacy would mean the virtual continuation of the entire legal order existing on the date of withdrawal of Martial Law, over and above the Constitution which, in consonance with the settled principles of interpretation, is difficult to attribute to the legislature.
At this stage it will be appropriate to consider the effect of conflict between the fundamental rights conferred under Chapter I of Part 11 of the Constitution and any law which takes away or abridges the rights so conferred. Material provisions of Article 8 of the Constitution deal with this matter, which may be set out as under:
"(1) Any law, or any custom or usage having the force of law, in so far as it is inconistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void. "
This Court in Province of East Pakistan v. Md. Mehdi Ali Khan PLD 1959 S C (Pak.) 387, had, occasion to deal with the question of the scope, the extent and incidents to which the fundamental rights are subject, in connection with the Constitution of 1956 relevant provisions of which were pari materia with the aforesaid provisions. Muhammad Munir, C.J. (as he then was) in the leading judgment observed:
"On a perusal of Part II of the Constitution it would be found that these rights are not common to all persons entitled to go to Court that they do not apply to the whole of Pakistan because Special Areas are excluded from their operation; and that they 'are not of constant operation, because they are liable to suspension in accordance with the Constitution. Article 192 provides that while a Proclamation of Emergency is in operation, the President may, by order, declare that the right to move any Court for the enforcement of such of the rights conferred by Part II as may be specified in the order, and all proceedings pending in any Court for the enforcement of the rights so specified shall remain suspended for the period during which the Proclamation remains in force. The rights are, therefore,not universal in the sense that they apply to all persons and obtain for all times. Their true effect is stated in Article 4 which declares that any existing law "in so far as it is inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void"; and that if the State makes any law which takes away or abridges a fundamental right such law shall "to the extent of such contravention be void". Another instance where a law may be void is mentioned in almost identical terms in Article 110 which provides that if on a matter enumerated in the Concurrent List the Parliament and the Provincial Legislature have both legislated and there is a conflict between the two .laws, "the Act of the Provincial Legislature shall, to the extent of the repugnancy, be void". As the whole argument is based on the law being "void", the essential question to be determined is whether the law is void in the abstract or only if, and to the extent to which, it comes into collision with a paramount law. To put it in a different way, are the laws void in the sense of their ceasing, to exist once they come into conflict with paramount law or do the laws exist and are in force b.ut have to be disregarded or ignored to the extent they come into collision with paramount law in the decision of a case? The Constitution of the United States contains no such provision as Article 4 of the late Constitution and the words "void", "invalid", "not law at all", "a futile attempt at legislation", have consequently been used repeatedly by the American Judges to express situations %,,,here a law yields to a basic right guaranteed by the Constitution whenever the two come into conflict. Article 3 of that Constitution delegates to the Supreme Court "the Judicial Power" which by its express language extends only to 'cases' and 'controversies'. In the judgments delivered before what has been described as the constitutional revolution of 1937 the word "void" is used in a more general and comprehensive sense and it is in that sense that pre‑1937 constitutional writers have used it in their works. But one principle that clearly emerges from the recent decisions of the Supreme Court and the State Courts is that the Court does not veto, annul or revise legislation and that its sole function is to pronounce for or against the litigated right or liability by determination of the law applicable to the facts though its decision may have repercussions on a statute or a part of it in respect of future cases. The Courts do not, therefore, decide abstract, hypothetical or contingent questions or give mere declarations in the air. The determination of an abstract question of constitutional law divorced from the concrete facts of a case floats in an atmosphere of unreality: it is a determination in vacuo and unless it amounts to a decision settling rights and obligations of the parties before the Court it is not an instance of the exercise of judicial power."
The conclusions were summed up by the learned Chief Justice as under: ‑
"To sum up, the law described to be void by Article 4 by reason of its conflict with a fundamental right cannot be said not to have been in force merely by reason of the whole or any portion of it having been in conflict with a fundamental right. The law was in force not only because there were persons and territories to which the fundamental rights did not extend and in respect of such territories and persons the law had full operation but because it was void only on the sense that in the decision of a particular case which brought it into conflict with a fundamental right it had to be ignored or disregarded. The moment the fundamental right was taken away by an amendment of the Constitution the law again became operative without its being re‑enacted. That this was the sense in which the word 'void' was used by the framers of the Constitution becomes perfectly clear from Article 192 of the Constitution which envisages a position where by an order of the President the right to move the Court for the enforcement of a fundamental right is temporarily suspended. On such suspension being ordered the law becomes immediately operative without its being re‑enacted. If the law was void ab initio, that is to say, if it did not exist on the statute book, it would require re‑enactment on the making of an order suspending the operation of fundamental rights. 61r. Suhrawardy has gone to the extent of contending that the effect of word 'void' as used in Articles 4 and 110 of the late Constitution is that the conflicting law can never be deemed to have been in existence and that if by an amendment of the Constitution or by the making of an order by the President suspending the fundamental rights or by the repeal of the conflicting central legislation the inconsistency, repugnancy or contravention is removed the law must be re‑enacted afresh. He is driven to this result by the logic of his own argument, only to find that the position in which he thus lands himself is wholly unsustainable and directly opposed to the entire trend of authority. The contention, if given effect to, would lead to startling results and the most unmanageable situation which were far beyond the contemplation of the framers of the Constitution. The position may be, and is indeed, different where the legislature suffers from an inherent lack of power to. enact a law. Such law is void ab initio and must be deemed never to have been enacted, and if it exists on the statute book, it has no legal sanction and is essentially of the nature of an unauthorised writing on the statute book. Even if the defect of lack of jurisdiction is removed by a subsequent conferment of the requisite legislative power, the law enacted when no such power existed will continue to be void and will create no rights or obligations unless it be re‑enacted. There is thus a fundamental difference between a law that is made by an incompetent legislature and a law made by a competent legislature but which is in conflict with a fundamental right, the former being void on general principles, the latter being void only to the extent of the repugnancy, in the sense that it cannot be applied to a particular case. The former remains void unless re‑enacted by a competent legislature, the latter requires no re‑enactment and as pointed out in the Australian cases cited above, becomes fully operative when the inconsistency or repugnancy is removed by an amendment of the Constitution or the central law. It cannot, therefore, be said that the laws which were in conflict with the fundamental rights were not "in force" immediately before the proclamation of 7th October. They were void so long as they were in conflict with the fundamental rights, but the Constitution having now been abrogated the inconsistency or the repugnancy has disappeared as it would have disappeared by an amendment of the Constitution, and they regain their full operation, unaffected by any constitutional limitation or restriction except lack of power. Their validity or voidance has to be judged when a case calling for their operation arises and if the fundamental rights do not exist when a law has to be applied to a case, it must be applied as it was enacted and amended from time to time, without subjecting it to the disability of inoperativeness by a constitutional command which‑ has ceased to govern."
In some other jurisdictions where similar constitutional arrangement with regard to the fundamental rights prevails the effect of inconsistency between a law enacted by the legislature and the fundamental rights, is governed by the theory of eclipse which is based on the premise that a law which violates fundamental rights is not a nullity or void ab initio but remains uneforceable. This theory implicitly recognises the distinction between a law unconstitutional for lack of legislative power and a law void for violating fundamental rights, as expounded by this Court in the aforesaid decision.
Keeping the aforesaid exposition of law in view, to my mind, so far as laws of sub‑constitutional nature are concerned, clause (1) of Article 270‑A conferred validity to the extent that such laws acquired the status of validly enacted laws by the competent legislature, in order to cure the lack of legislative competence at their inception when they were promulgated. This validity gave them efficacy to the fullest extent during the protected period when the fundamental rights were not in operation and remained in abeyance. For achieving this. object, it was obviously not necessary to save them from the inhibitory force of the fundamental rights which ,in fact were not in operation.'; In this context it will be apparent that clause (1) of Article 270‑A is', confined to the specified period of protection for purposes of ex post facto validation. The effect of this validation would be to bring into force the protected laws and maintain them on the statute book irrespective of their possible future conflict with the fundamental rights. The ouster clause which follows the clause conferring the validation, would also be equally limited in its scope to the same extent, so that any sub‑constitutional legislation in its future operation would yield to the extent of inconsistency, to the fundamental rights as soon as and as long as they are. operative. Therefore in seeking to enforce her fundamental rights the petitioner is not in effect challenging the validity of the laws in the sense that they are non est or absolutely void, but only that the impugned Ordinances do not operate as against her rights guaranteed by Part II of the Constitution. In other words the validity of the laws in question remains intact qua all persons, to whom the particular fundamental right gives no protection and as regards every person during the period the fundamental rights are suspended or otherwise not in force. Viewed in this light it is manifest that no challenge is being offered to the laws in question within the contemplation of the ouster clause.
In support of his contention learned Attorney‑General argued that if the intention of the legislature was to remove the taint in the maker of the law, and not the validity for all purposes; it would have sufficed to use the words "made by competent authority", but Article 270‑A went further and provided that the relevant laws were affirmed, adopted and declared "to have been validly made". The thrust of the argument was to demonstrate that the content of laws was also validated. Support was sought from the opinion of my Lord the Chief Justice in the Fauji Foundation case (P L D 1983 S C 457) which interpreted the word "validly" and expression "competent authority" in the context of Article 281 of the Interim Constitution of 1972. It was held in that case that Article 281 conferred all embracing validity on the legislative measures adopted during the preceding period of. Martial Law, as the "constituents of the National Legal Order, irrespective of any constitutional or other defect."
However, it may be pointed out that in the cited case no question of conflict of such validated laws with the fundamental rights was raised and the reasoning by which the aforesaid conclusion was reached was directed to the question whether any scope was left, in view of the language of Article 281, to strike down the legislative measures taken during the Martial Law on grounds of mala fides of the maker.
I am unable to agree with the learned Attorney‑General, in view of the discussion in the foregoing part of this opinion that the validation conferred by Article 270‑A, clause (1), not only applies to the past operation of the laws in question, but also in their future continuance, so as to override the inhibitions contained in the fundamental rights. As already elucidated a perfectly valid legislative enactment, under the scheme operates subject to the provisions of Article 8 of the Constitution. The qualitative soundness of a piece of legislation on the Constitutional plane, except where it is expressly exempted from the operation of Article 8, does not qualify it to impinge upon the constraints imposed by fundamental rights. The effect of these constraints, as already discussed, is not to affect the vires of the law in question but to yield to the relevant fundamental right which is sought to be enforced, to the extent of repugnancy.
It was also argued that the proviso to Article 270‑A(1) , empowering the President to issue President's Orders, M.L.Rs. or M.L.Os. even after the 30th September, 1985, upto the revocation of the Proclamation of 5th July, 1977 lends support to the argument that the aforesaid clause of the Article was not confined to its applicability to past and closed transactions alone, but future operation of the laws validated thereby. I find no force in this argument, for the simple reason that it overlooks the fact that Article 270‑A did not come into force immediately upon its enactment. Its operation was deferred to 30th December, 1985, so that it coincided with the revocation of the proclamation of Martial Law and with that the power conferred under the proviso also ceased to be available. In this context it is easy to see that the object was to validate past and closed transactions, as by that time the legislative measures taken by the President in exercise of the power under the proviso, were past transactions.
I would also like to make some observations in respect of the question how far the impugned provisions of the Political Parties Act are repugnant to the fundamental right guaranteed under Article 17(2) and are accordingly rendered void by virtue of Article 8(2) of I the Constitution. As will appear from the text of Article 17(2) the fundamenal right to form political parties and be member thereof has been made subject to reasonable restrictions imposed by law. The point to note is that the law which was authorised by the power conferred on the legislature under this provision has been confined to certain defined limits. This part of this Article can be divided into two portions. The first portion authorises the imposition of reasonable restrictions upon the right of formation of political parties and the important words are that these restrictions are to be imposed in the interest of "sovereignty or integrity of Pakistan". The second portion of this provision deals with the question of the power conferred on the Federal Government to declare a party to have indulged in prohibited acts and refer the matter to the Supreme Court for final decision. I wish to emphasise that in this part the words "in the interest of" are conspicuously omitted and it is provided that action can be‑ taken if the "party has been formed or is operating in al manner prejudicial to the sovereignty or integrity of Pakistan."
It was pointed out that section 3 of the Political Parties Act was such a law which prescribed the restrictions, in accordance with Article 17, by providing that "no political party shall be formed with the object of propagating any opinion or acting in any manner prejudicial to the sovereignty and integrity of Pakistan". With regard to accounting for the source of its funds, it was pointed out, the Political Parties Act did not make any provision, with the result that no political party could be called upon to disclose the source of its funds.
This being the state of existing law on the eve of imposition of Martial Law in July, 1977, drastic changes were brought in the laws during the period Martial Law was in force. On 17th October, 1978, the Freedom of Association Order (P.O. 20 of 1978) which was a reproduction of clauses (2) and (3) of Article 17 of the Constitution except that the scope of the restrictions was enlarged, inasmuch as it is confined to sovereignty and integrity of Pakistan, under Article 17, new heads of restriction have been added, namely, Islamic Ideology, Security of Pakistan, Public Order and Morality.
Simultaneously Ordinance XLI of 1978 was promulgated in order to amend various provisions of the Political Parties Act, 1962. Section 3 was substituted with a new section which enlarged the restrictions on the formation of a Political Party, in accordance with P.O. 20 of 1978. It was pointed out that in clause (2) of Article 17 morality and public order were not mentioned. so that a political party was not liable to be declared illegal on such grounds or no reference could be made for such reasons to dissolve a party, to the Supreme Court. Ordinance XLI of 1978, which amended the Political Parties Act with effect from 5th July, 1977, substituted the then existing section 3 which reads as follows:
"3. Formation of certain Political Parties prohibited.‑‑
(1) No political party shall be formed with the object of propagating any opinion or acting in any manner prejudicial to the Islamic Ideology or sovereignty, integrity or security of Pakistan, or morality or the maintenance of public order."
(2) No person shall form, organize, set up or convene a foreign‑aided party or in any way be associated with any such party.
Explanation. ‑‑In subsection (2) "foreign‑aided party" means a political party which‑
(a) has been framed or organized at the instance of any Government or a political party of a foreign country; or
(b) is affiliated to or associated with any Government of Political Party of a foreign country; or
(c) receives any aid, financial or otherwise, from any Government or political party of a foreign country or any portion of its funds from a foreign national."
It was contended that P.O. 20 of 1978, in fact amended Article 17 of the Constitution but it did not expressly purport to be a constitutional amendment. In this connection reference was made to the Revival of Constitution of 1973 Order (P.O. 14 of 1985) and it was submitted that Article 17 as it existed before 5th July, 1977, was revived intact, without incorporating the amendments that were introduced on account of the enlargement of the scope of restrictions in P.O. 20 of 1978.
The next amendment in the Political Parties Act which was assailed was introduced by the Political Parties (First Amendment) Ordinance, 1979, with effect from 30th August,' 1979. It added two new sections, namely, sections 3‑A and 3‑B which was further amended by Ordinance LII of 1979, may also be reproduced as under:
"3‑A. Political parties to submit accounts, etc.‑‑Every political party shall, in such manner an form an at such times as may be provided by rules made by the Federal Government, account for the source of its funds to, and submit its finances and accounts to audit by, an officer or authority authorised by the Election Commission in this behalf:
Provided that, every political party in existence at the commencement of the Political Parties (Amendment) Ordinance, 1979, shall account for the source of its funds, and submit its finances and accounts to audit, within fifteen days of the publication of the rules made under this section.
"3‑B. Registration of political parties. ‑‑(1) Every political party in existence at the commencement of the Political Parties (Amendment) Ordinance, 1979, shall, within one month of such commencement, and every political party formed after such commencement shall, within one month of its being formed, apply to the Election Commission for registration..
(2) An application under subsection (1) shall be made on behalf of a political party by such person and in such form, and shall be accompanied by such documents besides a copy of its constitution, a list of the names of its office‑bearers at the National level and a statement of its total membership in each Province, as the Election Commission may, by notification in the official Gazette, specify.
(3) The Election Commission shall register a political party applying for registration in accordance with subsection (2) if the Commission is satisfied that the political party
(a) has published a formal manifesto, that is to say, the party's foundation document or constitution giving its aims and objectives and provided therein for elections of its office‑bearers being held (periodically);
(b) has undertaken to publish ,any amendment to any document referred to in clause(a) as and when such amendment is made;
(c) believes in the Ideology of Pakistan and the integrity and sovereignty of Pakistan;
(d) has submitted its accounts as required by section 3‑A.
(4) If a political party which has been registered under subsection (3) (a) fails, (or has failed) to submit its accounts within the period specified in section 3‑A or the rules made thereunder;
(b) fails to hold election of any of its office‑bearers within the time allowed by, and in accordance with, its constitution and rules;
(c) propagates any opinion, or acts in any manner, prejudicial to the Ideoloy of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces o f Pakistan;
(d) receives any aid, financial or otherwise from the Government or any political party of a foreign country, or any portion of its funds from foreign nationals; or
(e) does or omits to do any such act or thing as would have resulted in registration being refused to it in the first instance, then, without prejudice to any action that may be taken in respect of the political party under section 6, the Election Commission may, after giving the political party an opportunity of showing cause against the action proposed to be taken, cancel its registration.
(5) The cancellation of the registration of a political party under, subsection (4) shall be notified by the Election Commission in the official Gazette.
(6) A political party which has not been registered under subsection (3), or the registration of which has been cancelled under subsection (4), shall not be eligible to participate in an election to a seat in a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such election."
Another amendment was made in the said Act by Ordinance LIII of 1979, whereby a new section 3‑C was inserted which reads as follow s
"3‑C. Certain political parties to be eligible participate in forth coming election.‑‑ The provision this section shall have effect notwithstanding anything contained in section 3‑B.
(2) The Election Commission shall, by notification in the official Gazette, call upon the political parties which had complied with the provisions of section 3‑A but had not applied for registration under section 3‑B to furnish to the Commission, within such time as may be specified in the notification, answers to a questionnaire published therewith.
(3) Answers to a questionnaire referred to in subsection (2) shall be furnished on behalf of a political party by such person, and shall be accompanied by such documents, besides a copy of its constitution and manifesto, a list of the names of its office‑bearers at the National level and a statement of its total membership in each Province, as may be specified in the notification published under the said subsection.
(4) If, after giving a political party which has furnished answers to the questionnaire as required by subsection (2) an opportunity of being heard the Election Commission is satisfied that the party has fulfilled the requirements of subsection (3) of section 3‑B, the Election Commission shall declare the political party, by notification in the official Gazette, to be eligible to participate in an election to a seat in a House of Parliament or a Provincial Assembly and to nominate or put up a candidate at any such election.
Another provision called in question was section 6 as amended by Ordinance No.XLI of 1978 and Ordinance XLII of 1972, which is as follows:
"6. Dissolution of political parties. ‑‑(1) Where the Federal government is satisfied that a political party (is a foreign‑aided party or) has been formed or is operating in a manner prejudicial to the (Islamic Ideology, or the sovereignty, integrity or security of Pakistan, or morality, or maintenance of public order) (or has contravened the provisions of section 3‑A) it shall make such a declaration and publish the same in the official Gazette, and upon such publication, the political party concerned shall, subject to the provisions of subsection (2), stand dissolved, and all its properties and funds shall be forfeited to the Federal Government.
(2) Within fifteen days of making a declaration under subsection (1), the Federal Government shall refer the matter to the Supreme Court whose decision on such reference shall be final."
These are the main provisions which were challenged as violative of Article 17, in addition to other amendments made during the period Martial Law was in operation.
It was vehemently contended that the addition of further items of restriction. namely, Islamic Ideology, security of Pakistan, public order or morality, would make the functioning of political parties or indeed the restoration of the democratic institutions very difficult, if not impossible. By way of illustration learned counsel submitted that the term "Islamic Ideology" has not been defined anywhere and a political party which may declare in its manifesto that it would bring about socialistic system of economy or introduce very drastic land reforms with a view to establish a welfare state in Pakistan, may not be allowed to be judged by the people but stopped from functioning on the ground that Islam, according to the reckoning of the Government, does not permit the adoption of socialistic economy or that Islam places no restriction on the acquisition of wealth to an unlimited degree. Similarly with regard to the terms "public order or morality", the submission was that the ordinary laws of the land can effectively deal with the situation in which a political party causes public disorder or acts against morality whatever that might mean. Such a party, in any case, cannot be expected to win the support of the people.
As regards the requirement of registration it was argued that this restriction was unnecessary and unreasonable as it involves extensive disclosure of information particularly concerning membership, which cannot be deemed to be a formality. Particular exception was taken to the matter of registration being placed in the exclusive judgment of the Commission, which is free to take a decision on its own satisfaction adversely to a party against which there is no remedy provided before a Court or a judicial forum. The Election Commission has even been empowered to cancel a party's registration inter alia, on the grounds as enlarged by the amendments which are vague and imprecise.
As regards the furnishing of accounts, particular objection was taken to the submission of the finances and accounts to audit, which requirement was challenged as being contrary to clause (3) of Article 17 and apprehension was expressed that such a power would be used as a handle by the executive to harass and malign a political party.
Learned Attorney‑General, on the other hand maintained that P.O. 20 of 1978 having been saved by Article 270‑A as existing law can coexist with the Political Parties Act. He pointed out that the said P.O. was expressly given overriding effect by the non obstante clause which provides that the Order shall have effect notwithstanding anything contained in the Constitution. As to the enlargement of the scope of restrictions by the impugned amendments, it was submitted that Article 17(2) of the Constitution is not a complete Code which contemplates framing of law for regulation of political parties. He conceded that the said provision guarantees the right to a citizen to form a political party and be a member of the same. But at the same time he advanced a startling proposition that the Article, nevertheless, does not guarantee "political activities" or anything else beyond the formation and being a member of a political party. This proposition was attempted to be supported by a decision from the Indian jurisdiction. Expounding the meaning of terms "sovereignty" and "integrity", the learned Attorney‑General submitted that these terms are of wide connotation so as to include the concepts of Islamic Ideology and security of Pakistan; as well as morality or public order. According to him sovereignty and integrity of the State cannot exist where there is chaos and public disorder. Likewise an immoral society can neither be envisaged nor countenanced in an Islamic State like Pakistan. In the premises the argument was advanced that for interpreting Article 17(2). it would be necessary to refer to the preamble of the Constitution which has now become a substantive part thereof, as well as to the directive principles of policy contained in Articles 29, 30 and 31. It was further argued that Article 17(2) is not to be read in isolation but for its interpretation other constitutional provisions including the other, fundamental rights are •to be taken into consideration. In this connection he invited reference to Article 5(2) which enjoins obedience to the Constitution and the law upon every citizen, Article 15 relating to freedom of movement, Article 16 relating to freedom of assembly, Article 17(1) relating to formation of associations or, unions, Article 31 which speaks of Islamic moral
standards, Article 63(g) which creates a disqualification from being member of Parliament on the ground of prejudicial activities against the ideology, sovereignty, integrity or security of Pakistan or morality, or the maintenance of public order etc. As regards the requirement of registration the learned Attorney‑General submitted that this has no nexus with the fundamental right under Article 17 as the only consequence for non‑compliance with this provision provided by section 3‑B(6) is that the party cannot participate in Election, otherwise its entity remained intact. His submission was that right to participate in the Election is not a fundamental right but a statutory right. A distinction was drawn between deregistration which is for the purposes of election by the Election Commission and dissolution of a political party, which power has been vested by the Constitution in the Supreme Court.
In reply Mr. Yahya Bakhtiar, learned counsel for the petitioner, submitted that it is the right guaranteed in Article 17(2) which is fundamental and not the reasonable restrictions imposed by law subject to which the same can be enjoyed. He further submitted that Article 17 is to be read by itself as it is not subject to the other provisions of the Constitution. Referring to Article 141 he argued that cumulatively all fundamental rights are a limitation on the legislative power, consequently the restriction in one fundamental right will inhibit the power rather than enlarge it qua another fundamental right. According to the learned counsel the provision regarding "reasonable restrictions" is like a proviso to the enacting part. He also referred to Article 51 which lays down that the members of the National Assembly shall be elected by direct and free vote in accordance with law. Clause (2) of the said Article creates a right to vote if a person satisfies the conditions prescribed therein. He therefore, submitted that the right to vote is not the creature of the statute but is guaranteed in the Constitution itself.
It may at this stage be stated that Article 17(2) declares that every citizen. not being in the service of Pakistan, shall have the right to form or be a member of a political party. This Article is included in Chapter I of Part II of the Constitution which is entitled "Fundamental Rights." Article 8(2) contains a mandate to the State not to make any law which takes away or abridges the rights so conferred. The sacrosanct character and the sacredness of these rights is to be viewed in this context. In delegating respective powers to each of the three branches of Government, the legislature, the executive and the judiciary, the people of Pakistan preserved for themselves certain fundamental rights, which were kept beyond the reach of the delegated authority vested in the said branches of the Government, to destroy or curtail. The Objectives Resolution, which. has become a substantive part of the Constitution, is a historical document and represents the aspirations of the people of Pakistan, laying down the broad principles on which the Constitution was to be framed. It has stood the test of time and is generally accepted to represent the national ethos of the people of this country. A careful examination of this document will reveal the theory of delegation as its basic foundation. The following clause deals with fundamental rights:
"Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;"
The expression "political justice" is very significant and it has been placed in the category of fundamental rights. Political parties have become a subject‑matter of a fundamental right in consonance with the said provision in the Objectives Resolution. Even otherwise , speaking broadly our Constitution is a Federal Constitution based on the model of Parliamentary form of representative government prevalent in United Kingdom. It is also clear from the Objectives Resolution that principles of democracy as enunciated by Islam are to be fully observed. True and fair elections and the existence of political parties, is an essential adjunct of a functional democratic system of Government
Even our experience in the political sphere has by now demonstrated that by and large, in the course of our short history, it has been found that free interplay of political parties is indispensable for running the system we have adopted. Indeed the people of this country have right from the very inception of the independence and coming into being of Pakistan as a sovereign State, been so attuned to political activity through the means of political parties, that the two have become basic assumptions in the political sphere. The genesis of this attitude goes to the root of the struggle of Muslim India for ‑a separate homeland, achieved through the relentless efforts of a political party.
The party system prevailed in Pakistan since 1947 until the promulgation of the Constitution of 1962, when by Article 173 a person was barred from contesting election to the National and Provincial Legislature as a member of or on the support of a political party at the pain of penal consequences. But it was left open to the legislature to permit by law the formation of political parties. The Political Parties Act was enacted by the central legislature in pursuance of the power granted under Article 173. The basic scheme of the Constitution under which the Act came into existence was, therefore, that the formation of political parties was not by way of right under the Constitution but was a concession granted by a sub‑constitutional legislative enactment. The position in the Constitution of 1973 is, however, diagonally opposite to that which prevailed under the Constitution of 1962. Article 17(2), as already observed, recognized the fundamental right of the citizen to form and be member of a political party. In view of this changed position necessary amendments were made in the Political Parties Act, 1962, and the amended section 3 read as follows:
"No politicial party shall be formed with the object of propagating any opinion or acting in any manner prejudicial to the sovereignty or integrity of Pakistan."
Section 6 was also accordingly substituted and brought into conformity with Article 17 of the Constitution. The impugned Ordinances were then promulgated effecting material changes in various provisions of the Act which have been reproduced above.
As already stated the opening part of Article 17(2) spells out the fundamental right and then provides that the right can be subjected to "any reasonable restrictions imposed by law in the interest of the sovereignty and integrity of Pakistan". The second part of this Article, relating to placing reasonable restrictions by law and providing for reference to the Supreme Court, is obviously a non‑self executing provision of the Constitution. The exercise of legislative power to put into execution the constraints on the functioning of the political parties is to be confined, from the very nature of the provisions, within the para meters postulated in the Article itself. Any transgression of the limits so prescribed would obviously be violative of the content of the fundamental right and would result in defiance of the Constitutional command proclaimed in Article 8(2) of the Constitution requiring that no law shall be made which takes away or abridges the fundamental right. The Constitution demands not only that the: restrictions be reasonable. so as to permit the enjoyment of the right conferred as far as possible without let or hindrance but must have nexus with sovereignty or integrity of Pakistan. It is needless to say that any enlargement of the scope of restrictions is inversely related to freedom guaranteed by the Article. In my opinion therefore, the test whether the law has been framed so as to remain within the permissible limits is to be strictly applied. Otherwise there will be no guarantee to prevent inroads from being made upon the full enjoyment of the right the Constitution considered sacred.
It is in the light of these principles that the respective contentions of the parties are to be considered. On a bare perusal of the impugned provisions it would appear that Islamic Ideology, security of Pakistan, public order and morality have been added as the grounds on which action against a political party can be taken, which are not the grounds prescribed in Article 17(2). Accordingly the provisions are inconsistent with the fundamental right and would yield to the same to the extent of inconsistency. Learned Attorney‑General's argument that the amending law was in consonance with P. O. 20 of 1970 which has been saved by Article 270‑A as existing law is devoid of force. P. O. 20 of 1978 was a legislative measure taken during the period of Martial Law and as Article 17 was revived in its original form without effecting any amendments on the lines contemplated in the said P.O. is sufficient indication that the Constitution as amended was to remain the supreme and fundamental law of the land which cannot be subordinated to a piece of legislation outside it. In any case the Revival of the Constitution of 1973 Order (P.O. 14 of 1985) and P.O. 20 of 1978 have both been approved by the same constitutional measure by Article 270‑A. Therefore, they stand on the same level. As there is inconsistency between Article 17 and P.O. 20 of 1978, they obviously cannot stand together. P.O. 20 of 1978, being an earlier law would by implication be deemed to have been repealed by the subsequent law, namely, P.O. 14 of 1985. Consequently, the provisions of P. O. 20 of 1978, cannot save the provisions of the enactments which are hit by Article 17 of the Constitution.
I am also unable to accept the argument that the terms "sovereignty" and "integrity" include the terms Islamic Ideology, security of Pakistan, morality or public order in the unqualified manner in which they were added. Likewise the argument that restrictions mentioned in respect of other fundamental rights are to be read into Article 17. The very fact that various kinds of rights touching the different aspects of a citizen's life and pursuits have been made the subject‑matter of a separate Article demonstrates that the makers of the Constitution intended to provide restrictions relevant to the exercise of a particular right in the public interest. Therefore if the intention was to apply the restrictions on various fundamental rights to all the fundamental rights cumulatively, it was easy for the makers of the Constitution to lump together all the freedoms and provide common restrictions on the exercise thereof. An act in assertion of a particular fundamental right guaranteed under the Constitution may by itself or in connection with series of other acts, fall under the ambit of different fundamental rights and be governed in the respective sphere by the restrictions relevant thereto. That does not permit the State to import the restrictions relevant to a particular fundamental right, while enacting a law in respect of the restrictions under another fundamental right. Similarly the principles of policy prescribed in the Constitution are addressed to the organs and authorities of the State and its functionaries which cannot be invoked to save a legislative enactment from the operation of a fundamental right. To illustrate, the freedom of assembly under Article 16 is subject to reasonable restrictions imposed by law in the interest of public order. Here pubic order in its generic sense is a necessary restriction so far as the right to assembly is concerned, but it was not found necessary to put this restriction on the right to form a political party. If a political party were to call a meeting of its members all its members would then be subject to the restriction imposed by law, so far as public order is concerned, in the exercise of their right of assembly. It will be their obligation as citizens to assemble peacefully and without arms subject to other restrictions imposed by law. Here we are concerned with a right of a citizen to form and be a member of a political party, and not his right to assemble. Similarly morality is a relevant subject‑matter for restriction under Article 20 in regard to the freedom to profess religion and to manage a religious institution.
A reference to other Articles of the Constitution is, therefore, in my opinion not relevant to the issue under discussion here.
To summarize my conclusions I may state that as there is. prima facie inconsistency between the relevant parts of section 3 and section 6 of the Political Parties Act with Article 17(2), in so far as the Islamic Ideology, morality, and maintenance of public order, as well as contravention simpliciter of section 3‑A, in section 6, have been added, these provisions would attract the consequence of being void under Article 8. However, as discussed in the judgment of my Lord the Chief Justice, these terms in a given case may be attracted so as to be prejudicial to the "sovereignty" or "integrity" of Pakistan. In view of the relevance of these terms in the limited sense as expounded by my Lord the Chief Justice they need not be struck down. I would, therefore, agree with the summarization made by my brother Abdul Kadir Shaikh, J. and Shafiur Rahman, J. on this aspect of the matter.
So far as the provision regarding registration is concerned it is patently an unauthorized and unreasonable restriction for a number of reasons. The right to form a political party being guaranteed by the Constitution, it cannot be made further conditional upon
registration, or involve a procedure for a preliminary scrutiny by the Election Commission to satisfy itself whether certain conditions have been fulfilled by the party concerned. The matter whether the party be registered or not has been left to the discretion of the Election Commission and in case it decides not to register the party, the penalty provided is that the party will not be eligible to participate in an election to the Parliament or Provincial Assembly or even to put up candidates under the party ticket in such elections. No provision for an appeal has been made to call in question the decision of the Election Commission which would obviously result in far‑reaching consequences so far as the affected party is concerned. It is well established that reasonableness of the law prescribing restrictions in respect of fundamental rights is positively eroded when no right of appeal is provided to a judicial forum. Particularly in view of the importance of political parties in a democratic system, when the Constitution proclaims that formation of political parties is a fundamental right, such right cannot be made dependent upon the subjective satisfaction of an authority to deprive it of all its value. There is no justification that such discretionary power without safeguards and without appeal was necessary or reasonable under the circumstances. I do contemplate great difficulty in applying some of the standards laid down, like whether the party believed in the ideology of Pakistan, when there is no fixed and defined meaning attached to the terms. In actual practice different individuals may assign wider or narrower meaning to the term according to their individual understanding and background. In fact the power would amount to unfettered and absolute discretion exerciseable according to the subjective satisfaction. I am tempted to quote the observation of Hamoodur Rahman, C.J. in Islamic Republic of Pakistan v. Abdul Wali Khan (P L D 1976 S C 57):
"In order to test the reasonableness of such restrictions, therefore, no general standard exists. It will depend upon a variety of circumstances including the interest and urgency of the action proposed and the nature of the safeguard, if any, provided to prevent possibilities of abuse of power. The investment of arbitrary power in the executive to put to an end to the existence of a political party on the basis of its own satisfaction which may or may not be capable of being proved in a Court of law may well be an unreasonable restriction having regard to the importance of the right of association guaranteed by the Constitution. The safeguard that such a declaration by the Executive will be subject to the decision of the Supreme Court is, however, a sufficient safeguard of the interests of the political party and adequately protects it from being dealt with either arbitrarily or whimsically or out of political vengeance."
I also see force in the argument that since our Constitution contemplates a plural parties system, the elimination of the parties fpm contest in the election, in accordance with the subjective decision of an executive authority may result in disastrous consequences so far as the functioning of the body politic is concerned. I also think that the regulation of the party affairs in enforcing to publish a formal manifesto, holding of party elections periodically and .the publication of amendments in the foundation documents, is undue of interference in the internal affairs of the parties and a clog upon the free exercise of the fundamental right.
These considerations are applicable with much greater force to the penal provisions, whereby the Election Commission has been empowered to cancel its registration.
The elimination of a political party from contesting election was considered by the learned Attorney‑General as no invasion on the fundamental right conferred under Article 17(2), because despite refusal to register a party or the cancellation of its registration, it will still exist as a party until it is dissolved under section 6. This argument overlooks the very basis of the system of Government providing for parliamentary democracy, in which various parties in the country are formed with a view to capture the seat of power in order to implement the policy and programme which they consider beneficial for the progress and advancement of the country. Under the Constitution the achievement of this objective is through the means of election. Therefore, if a political party is barred and kept away from the election, its existence would hardly remain meaningful and effective. It may be pointed out that Article 17(2) does not guarantee a right to form a party but a "political" party. Consequently the right to contest the election to the National and Provincial Legislatures is inherent in the right guaranteed. Depriving a party of its right to participate in election would be its virtual dissolution.
It hardly needs to be pointed out as observed in the case of Abdul Wali Khan that the framers of the Constitution and the legislature while incorporating subsection (2) of section 6 in 1974 "intended to assure all political parties that the right so essential for the establishment of parliamentary democracy would not be interfered with y except upon the decision of the Court of law and that too the highest Court of the country." The intervention of the Election Commission, which is certainly not a judicial body, in the operation of political parties, is, therefore, unwarranted and unreasonable restriction, violative of the fundamental right in question. The scheme of the amendments impugned before us even provides for the disqualification of a political party under section 3‑C of the Political Parties Act, which does not apply for registration. Accordingly a political party can be called upon to answer a questionnaire and forced to comply with the requirements of section 3‑B. If the Commission comes to the conclusion that the party has failed to fulfill the requirements applicable to register a party such political party may also be debarred from participating in an election. This provision stands on the same footings as the provisions regarding registration. However, it was rightly conceded that the provisions of section 3‑C were in terms temporary in nature, applicable to the then forthcoming election held in 1985.
M. B . A. / M. 472 /S Petition accepted
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