Last Updated: Monday August 13, 2007
PLD 1997 Supreme Court 426
Present: Sajjad Ali Shah, C. J., Saleem
Akhtar,
Fazal llahi Khan, Zia'Mahmood Mirza, Irshad
Hasan Khan,
Raja Afrasiab Khan arid Munawar Ahmad hfirza,
JJ
MAHMOOD
KHAN ACHAKZAI ' and others---Petitioners
versus
FEDERATION OF PAKISTAN and
others---Respondents
Constitutional Petitions Nos.60, 67, 68 of
1996 and Civil Appeals Nos.397-K, 399-K of 1990 and Civil Miscellaenous
Application No.913 of 1996; heard on
Per Safad Ali Shah, C.J Fazal1lahi Khan; Irshad
Hassan Khan; Raja Afrasiab Khan and Munawar Ahtnad Mirza,JJ, aereeine; Zia
Mahmood Mirza, J. agreeine with conclusion only-
(a) Constitution of
Art. 185(3)---Provisional Constitution Order
(1 of 1981), Preamble--Referendum Order (II of 1984), Preamble---Constitution
(Eighth Amendment) Act (XVIII of 1985), Preamble---Leave to appeal was granted
to examine inter alia the question as to whether the decision of Supreme Court
rendered in Begum Nusrat Bhutto's case PLD 1977 SC 657 was violated in
promulgating and enforcing amongst others, Provisional Constitution Order, 1981
and Referendum Order, 1984? If so, its effect; whether the National Assembly
and the Provincial Assemblies elected in 1985 and their functioning thereafter
could be taken to be duly elected bodies under the Constitution of Pakistan
1973? If not, its effect and what was the validity and effect of Constitution
(Eighth Amendment) Act, 1985 approved by such a National Assembly.
(b) Constitution of
----Preamble and Art.2A---Constitution
(Eighth Amendment) Act- (XVIII of 1985), Preamble---Question as to the basic
structure of the Constitution of Pakistan (1973), is a question of academic
nature which cannot be answered authoritatively with a touch of
finality---Basic structure as such is not specifically mentioned in the
Constitution but Objectives Resolution when read with other provisions of the
Constitution reflects salient features of the Constitution highlighting
Federalism and Parliamentary form of Government blended with Islamic
provisions---Relevant provisions of Constitution of Pakistan (1973), compared
with Constitutions of a few other Countries.
Begum Nusrat Bhutto's case PLD
1977 SC 657; Saifullah's case PLD 1989 SC 166; Sankari Prasad v. Union of India
AIR 1951 SC 458; Sajjan Singh v. State of Rajasthan AIR 1965 SC 845; Golak Nath
v. State of Punjab AIR 1967 SC 1643; Kesavananda Bharati v. State of Kerala AIR
1973. SC 1461; Sint. Indira Nehru Gandhi v: Raj Narain AIR 1975 SC 2299; Kihota
Hollohon v. Zachilhu AIR 1993 SC 412; Raghunathrao Ganpatrao v. Union of India
AIR 1993 SC 1267; Thirteenth Amendment to the Constitution and Provincial
Councils Bill (1990) LRC (Const.) 1; Minerva Mills Limited v. Union of India
(1980) 2 SCC 591; Hinds v. The Queen (1977) AC 195 (PC); Government of the
State of Kelantan v. Government of the Federation of Malaya (1963) MLJ 355; Loh
Kooi Choon v. Government of Malaysia (1977) 2 MLJ 187; Phang Chin Hock v.
Public Prosecutor (1980) 1 MLJ 70; State v. Ziaur Rahman PLD 1973 SC 49; Fauji
Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Federation of
Pakistan v. United Sugar Mills and others PLD 1977 SC 397; Golaknath's case AIR
1967 SC 1943; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar
PLD 1989 SC 26; Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC
738; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57 and
Federation of Pakistan v. Saeed Ahmad Khan PLD 1974 SC 151 ref.
(c) Constitution---
---- Making
of ---Esssentials to be kept in view---Amendment of Constitution--Procedure---Constitutions
are always made and promulgated keeping in view objective conditions and
socio-economic requirements and sometimes in such Constitutions is provided
specifically as to what the basic structure is and what is allowed to be
amended or not amended on the ground that it would be contrary to the basic
structure---Normally, in the Constitution provision is made for amendment of
the Constitution and procedure is also provided therein for the purpose.
Hawke v. Smith (1919) 253
(d) Constitution of
---Art. 2A---Objectives Resolution is very
important and is the sheet-anchor of the Constitution, for it reflects
aspirations of the people of
(e) Constitution of
----Art. 239 [as substituted by Revival of
the Constitution of 1973 Order (14 of 1985)]---Constitution Amendment
Bill---Freedom bestowed upon the Parliament in Art.239(6) of the Constitution
of Pakistan does not include power to amend those provisions of the
Constitution by which would be altered salient features of the Constitution,
namely, Federalism. Parliamentary Form of Government blended with Islamic
provisions ---As long as such salient features reflected in the Objectives
Resolution are retained and not altered in substance, amendments can be made as
per procedure prescribed in Art.239 of the Constitution.
(f) Constitution of
----Arts. 188 & 189---Contention was that
in the judgment of Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC
657, inter alia, Supreme Court should not have validated the actions of Chief
Martial Law Administrator which were outside the Constitution and should not
have given him powers to amend the Constitution and instead of validating, the
Court should have condoned the actions at the most---After surveying the
Constitutional history of Pakistan in details it was held that no exception
could be taken to ratio decidendi laid down in the judgment of Begum Nusrat
Bhutto v. Chief of the Army Staff PLD 1977 SC 657 since it had satisfactorily
covered all aspects.
Begum Nusrat Bhutto's case PLD
1977 SC 657; State v. Dosso PLD 1958 SC (Pak.) 533; Asma Jillani v. Government
of Punjab PLD 1972 SC 139 and Federation of Pakistan v. Moulvi Tamizuddin Khan
PLD 1955 SC 240 ref.
(g) Constitution of
----Art. 58(2)(b) [as inserted by Constitution (Eighth Amendment) Act
(XVIII of 1985)]---Object of Art. 58(2)(b) of the Constitution.
Provision of Article 58(2)(b)
of the Constitution of Pakistan has only brought about balance between the
powers of the President and the Prime Minister in Parliamentary Form of
Government as is contemplated under parliamentary Democracy. There is nothing
unusual about it and such provisions enabling the President to exercise such
power can be found in various Parliamentary and Democratic Constitutions like
(h) Constitution of
----Arts. 58(2)(b), 239 & 2A [as inserted
by Constitution (Eighth Amendment) Act (XVIII of 1985)]---Constitution (Eighth
Amendment) Act, 1985, including Art.58(2)(b) of the Constitution of Pakistan
(1973), has come to stay in the Constitution as permanent feature and it is
open to the Parliament to make amendment in the Constitution of any provision
of the Constitution (Eighth Amendment) Act, 1985 as contemplated under Art-239
as long as basic characteristics of the federalism, Parliamentary democracy and
Islamic provisions as envisaged in the Objectives Resolution/Preamble to the
Constitution which now stands as substantive part of the Constitution in the
shape of Art.2A, are not touched.
Per Saleem Akhtar J.- Fazal Ilahi Khan Irshad
Hasan Khan and Munawar Ahmad irza JJ. a reein Ra'a Afrasiab Khan J. a reein
with result onl --
(i) Constitution of
----Preamble---Basic structure of Constitution of Pakistan
(1973)---Nature--- Constitutional history of
(j) Constitution of
----Preamble---Basic features on which
Constitution was to be framed--Constitution of Pakistan was to be
based on Islamic principles of democracy, equality, freedom, , justice and
fairplay---Constitution as framed in 1973 was Parliamentary in form but it was
Prime Ministerial in character.
Politics in
(k) Constitution of
----Preamble and Art.2A---Basic structure of
the Constitution---Theory of basic structure
of the Constitution having completely been rejected by the Constitution of
Pakistan---Constitutional provision cannot be struck down on the ground of
being violative of any prominent feature, characteristic or structure of the
Constitution ---Obectives Resolution is not the basic structure of the
Constitution of Pakistan.
There are some characteristic,
features in every Constitution which are embedded in the historical, religious
and social background of the people for whom it is framed. It cannot be denied
that every Constitution has prominent features, characteristics and
picture-frame studded with public aspiration, historical inspiration,
geographical recognition, political formulations and people's expectations.
These winding paths which roll into the stream, with the passage of time and
tide do affect the flow in their own perspective which to the rigid
theory would amount to unpardonable change but to a flexible theory it would be
a natural result of such confluence and influence. Doubtless,
Rigidity is one of the main
features of a written Constitution. But this rigidity is often tuned to
flexibility by the provisions of the Constitution itself and interpretation
made by the Court. Rigid Constitution may provoke violence.
The historical experience in
In all the Constitutions, the
Objectives Resolution has been the pervading spirit. It spells out broad
principles for the governance of the country. The common factors throughout
have been Federal democratic form of Government guaranteeing all the freedoms,
equality, tolerance and social justice, as enunciated by Islam and fully
securing the independence of Judiciary. The other aspect singularly unique is
that "Sovereignty over the entire universe belongs to Almighty Allah and
the authority to be exercised by the people of
Constitutional provision
cannot be struck down on the ground of being violative of basic structure or
the framework of the Constitution.
In
Article 2A was added to the
Constitution of Pakistan (1973), which has made the Objectives Resolution a
substantive part of the Constitution, but to say that it is the basic structure
does not hold force.
It is not open to the Court to
hold that a provision of the Constitution can be struck down on the ground of
its being violative of the Objectives Resolution or of national aspirations or
of higher ethical notions or of philosophical concepts of law or of the basic
structure.
Kesavanda Bharti v. State of
Kerala AIR 1973 SC 1461; Sajjan Singh v. State of Rajasthan AIR 1965 SC 845;
Fazlul Quader Ch. v. Muhammad Abdul I-I,aq PLD 1963 SC 486; L.C. Gokalnath v.
Punjab AIR 1967 SC 1643; Smt. Indira Gandhi v. Raj Narain AIR 1975 SC 2299;
Minerva Mills' case AIR 1980 SC 1789; Kihota Hallohon v. Zachilhu AIR 1993 SC
412; Raghonathrao Ganpatrao v. Union of India AIR 1993 SC 1267; 1990 LRC 1;
State v. Zia-urRehman PLD 1973 SC 49; Secretary Ministry of Interior and.
Kashmir Affairs v. Abdul Wali Khan PLD' 1976 SC 57; Federation of Pakistan v.
United Sugar Mills Ltd. PLD 1977 SC 397; Federation of Pakistan v. Ghulam
Mustafa Khar PLD 1989 SC 26; Fouji Foundation and another v. Shamimur Rehman
PLD 1983 SC 457; Dewan Sugar Mills's case PLD 1976 Kar. 1386; Kh. Muhammad
Sharif v. Federation of
(1)
Constitution of
--Arts. 239 & 238---Amendment of
Constitution ---Constitution Amendment Bill---Principles---Provisions of
Art.239 of the Constitution though confer unlimited power to the Legislature to
amend the Constitution, yet it cannot, by sheer force of morality and public
opinion make laws amending the Constitution in complete violation of the
provisions of Islam, nor can it convert democratic form in completely
undemocratic one---Likewise by amendment Courts cannot be abolished which
perish only with the Constitution.
The provision to amend the Constitution seems
to be provided in most of the Written Constitutions. It is only question of
degrees and to what extent it operates.
In all the written Constitutions, provision
for amendment has been made. The object being to keep the Constitution alive
and in line with the pace of progress, aspiration, will, needs and demands of
the people. Constitution cannot be made static and stoic. It must progress,
blossom and flower. A rigid Constitution having no provision for amendments is
likely to suffer crack by violence or Constitutional deviation. Perhaps it is
the historical experience that political Philosophers and Jurists favour
provision for amendment in a written Constitution. Such provisions may restrict
the power of amendment specifically. But where an unrestricted power is given
to the Legislature then Court will see whether an amendment to the existing
Constitution has been duly proposed, adopted and assented in the manner
required by the Constitution so as to become a part thereof. However, there are
factors which restrict the power of the Legislature to amend the Constitution.
It is the moral or political sentiment, which binds the barriers of Legislature
and forms the Constitutional understandings. The pressure of public opinion is
another factor which restricts and resists the unlimited power to amend the
Constitution. In Pakistan although Article 239 confers unlimited power to the
Legislature, yet it cannot by sheer force of morality and public opinion make
laws amending the Constitution in complete violation of the provisions of
Islam. Nor can it convert democratic form in completely undemocratic one.
Likewise by amendment Courts cannot be abolished which can perish only with the
Constitution. It seems to be an emerging legal theory that even if the
Constitution is suspended or abrogated, the Judiciary continues to hold its
position to impart justice .and protect the rights of the people which are
violated and impinged by the actions of the powers and authorities which saddle
themselves by unconstitutional means. Such actors are usurpers and the Courts
had only condoned their action without approving it. The provisions of the
Constitution cannot be suspended except as provided by the Constitution itself.
The concept . of abrogation of the Constitution is alien to the Constitution.
The fact that whenever there occurred Constitutional deviation, it was
legalised by condonation or validation granted by the Supreme Court, clearly-
demonstrates that such deviations and actions were void ab initio and
unconstitutional. The validation or condonation was granted merely to avoid any
disruption of civil and personal rights, to maintain continuity of
administration and governance and to bring the polity and system of government
on democratic and constitutional rails. But such situation, with reference to
Article 6 of the Constitution has to be viewed with greater seriousness.
Significantly by employing the
words "any law", the intention of the Constitution seems to be that
Article 8 will apply to all laws made by the Majlise-Shoora (Parliament) be it
general or any law to amend the Constitution. Likewise no enactments can be
made in respect of the provisions of the Constitution relating to Judiciary by
which its independence and separation from Executive is undermined or
compromised. These are in-built limitations in the Constitution completely
independent from political morality and force of public opinion.
(m) Interpretation of Constitution---
----Two provisions of Constitution
conflicting with each other -Principles to resolve such conflict.
If two provisions conflict with each other
the Courts should first resolve the same by reconciling them. But if
reconciliation seems difficult, then such interpretation should be adopted
which is more in consonance or nearer to the provisions of Constitution
guaranteeing fundamental rights, independence of judiciary and democratic
principles blended with Islamic provisions. Thus it is the lesser right which
must yield in favour of higher rights.
Shahid Nabi Malik v. Chief Election
Commissioner PLD 1997 SC 32; Halsbury's Laws of
(n) Constitution of
----Art. 8---Application and scope of Art. 8
of the Constitution of Pakistan (1973)---Words "any law" employed in
the Article-Significance---Provision of Art.8 will apply to all laws made by
the Parliament be it general or any law to amend the Constitution---No
enactment can be made in respect of the provisions of the Constitution relating
to Judiciary by which its independence and separation from Executive is
undermined or compromised, for such are the in built limitations in the
Constitution completely independent from political morality and force of public
opinion.
(o) Constitution of
----Art. 270-A---Provision of Art.270-A,
Constitution of Pakistan (1973), has provided a legal cover for deviation by
President from the mandate given by Supreme Court in Begum Nusrat Bhutto v.
Chief of Army Staff PLD 1977 SC 657---Validity of Art.270-A, Constitution of
Pakistan (1973), having been determined consistently, competence of Parliament
and the laws enacted up to 30-12-1985 which had been validated and protected,
could not. be questioned--Actions under such laws, however, could be
challenged on grounds of coram non judice, mala fides and lack of jurisdiction.
Nazar Muhammad v.
(p) Constitution of
----Art. 51---Election---National Assembly
elected on non-party basis was Constitutional and legal.
Federation of
(q) Constitution of
----Arts. 50, 51 & 222---Constitution
(Eighth Amendment) Act (XVIII of 1985), Preamble---Elections---Assemblies
elected in 1985 were validly and legally constituted---Parliament having been
validly constituted, Constitution (Eighth Amendment) Act, 1985 introduced in
and passed by such Parliament was competently enacted piece of legislation.
Ms. Benazir Bhutto v.
Federation of Pakistan and others PLD 1988 SC 416; Malik Ghulam Mustafa
Khar and others v.
(r) Constitution of
----Arts. 184 & 199 [as amended by
Constitution (Eighth Amendment) Act (XVIII of 1985)]---Power and jurisdiction
of judicial review by Superior Courts---Scope---Contention that the Judges of
the superior Courts having taken oath under the impugned Amended Constitution
(by Constitution (Eighth Amendment) Act, 1985) and had been receiving salary which
had been increased from time to time could not strike out the impugned
Constitutional amendment (Constitution (Eighth Amendment) Act, 1985, was
repelled---Held, such limitation placed on the power of judicial review
of superior Courts or any Court was without any legal basis---Power and
jurisdiction of judicial review could not be controlled and fettered on such
basis---Judges of the Superior Courts had taken oath to defend, preserve and
protect the Constitution---If any illegal amendment was made or had been made
in the Constitution, the Courts were competent to examine the same and make
interpretation to reconcile its provisions in which inferior rights must yield
to higher rights---Salary paid to the Judges was not a bounty-or favour, it was
a Constitutional duty to provide salary and benefits to the Judges by which
independence of Judiciary was guaranteed---Courts while striking down any
illegal and unconstitutional provision or interpreting the Constitution defend,
protect and preserve the Constitution.
(s) De facto, doctrine of--
---- Concept and application.
The doctrine of de facto is a
well recognized doctrine embedded in our jurisprudence. Under this doctrine
bona fide acts in public interest performed by persons assuming authority,
which turns out to be illegal, are assumed to have been performed by a de jute
authority/person and binding. This doctrine is intended to avoid dislocation,
instability and confusion while declaring a de facto authority illegal. In
order to create stability, regularity and to prevent confusion in the conduct
of public business and in security of private rights the acts of the officers
de facto are not suffered to be questioned because of want of legal authority
except by some direct proceeding instituted for the purpose by the State or
someone claiming office de jute.
The doctrine of de facto is
based on considerations of policy and public interest. For good order and peace
of- society the title of persons in apparent authority is to be respected and
obeyed until their title is investigated in some regular mode prescribed by
law.
The acts of the officers de facto performed
by them within the scope of their
assumed official authority in the interest of the public or third persons and
not for their own benefit are generally as valid and binding as if they were
the acts of officers de jute. This doctrine can be applied if the Parliament is
declared to be illegally constituted and Enactment passed by such Parliament is
declared unconstitutional. It is only in such situation that to preserve
continuity, prevent disorder and protect private rights, this doctrine can be
pressed in service.
Farzand Ali v . Provitwe of
(t) Constitution of
----Arts. 48, 58, 91 & 92 [as amended by
Constitution (Eighth Amendment) Act (XVIII of 1985)]---Constitution of Pakistan
(1973) had vested supreme power to the Prime Minister and though democratic in
form it was Prime Ministerial in character---Amendments
made in Arts. 48, 58, 91 & 92 of the Constitution by Constitution (Eighth
Amendment) Act, 1985 had curtailed the power of the Prime Minister and had
strengthened the hand of the President---Provision of Art.58(2)(b) (as
introduced) prevented Constitutional deviation.
The Constitution of 1973 had vested supreme
power to the Prime Minister and though democratic in form it was Prime
Ministerial in character. Amendments made by Constitution (Eighth Amendment)
Act, 1985 in Articles 48, 58, 91 and 92 have curtailed the power of the Prime
Minister and have strengthened the hand of the President. In a democratic
system check and balance is provided to avoid autocratic rule and to provide
balance of power for a proper functioning of the Government according to the
Constitution. No doubt the amendments particularly Article 58(2)(b) have tilted
the balance in favour of the President, yet Supreme Court has structured and
circumscribed the discretionary power of dissolution. One reason given in
favour of Article 58(2)(b)is that it prevents Constitutional deviation. This
seems to be plausible because when Government of the Federation cannot be
carried on in accordance with the provisions of the Constitution and
an appeal to the electorate is necessary, the President may exercise his power
before any person, agency or authority taking advantage of such situation
strikes not at the Assembly but at the Constitution. One may , comment that to
save the Constitution, Assembly is dissolved. The exercise of power. under
Article 58(2)(b) or Constitutional deviation can be avoided not by the letters
of the Constitution but by political ethics, morality and maturity. Unless a
responsible Government exists which has respect for law, opportunity shall
continue to be provided for constitutional strike.
(u) Constitution (Eighth Amendment) Act
(XVIII of 1985)---
----Preamble---Validity---If Constitution (Eighth Amendment) Act, 1985 is
struck down, some protection and validation will have to be provided to protect
against chaos, confusion, uncertainty and instability and also to provide
continuity in all walks of life.
(v) Constitution of
----Arts. 184 & 199---Judicial
review---Political question, doctrine of--Concept---Fact that any questions a
political question will not deter the Court from determining it provided the
same involves the interpretation of Constitution or the validity of such
question is to be determined on the touchstone of the Constitution---Court
should not adopt "political question doctrine" for refusing to
determine difficult and knotty questions having political overtones which would
amount to abdication of judicial power which neither the Constitution permits
nor the law allows---Any action taken, act done or policy framed which violates
the provisions of the Constitution or is not permissible under the Constitution
or law, the Court, irrespective of the fact that it is a political question,
must exercise powers of judicial review---Abuse, excess or nonobservance of
the provisions of the Constitution has to be checked by the Court unless its
jurisdiction is barred by the Constitution or law.
Question of balance of power between the
President and the Prime Minister is a political question to be decided by the
Constituent Power. It therefore, requires determination of what is a political
question. A political question is one which, because of its political
sensitivity, is not fit for adjudication by the Court or the Constitution
requires it to be determined finally by any other organ of the State. This
'political question doctrine' is based on the respect for the Constitutional
provisions relating to separation of power among the organs of the State. But
where in a case the Court has jurisdiction to exercise power of judicial
review, the fact that it involves political question, cannot compel the Court
to refuse its determination.
It is .not easy to define the phrase
'political question', nor to determine what matters fall within its scope. It
is frequently used to designate all
questions that lie outside the
scope of the judicial power. More properly, however, it means those questions
which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the Government. A political
question encompasses more than a question about politics, but the mere fact
that, litigation seeks protection of a political right or might have political
consequences does not mean it presents a political question.
The doctrine is based on Constitutional
provisions relating to the distribution of powers among the branches of
Government, and it is as a function of the separation of powers that political
questions are not determinable by the judiciary. Thus, the limitations on
judicial review imposed by the political question doctrine apply only when the
Court is faced with a challenge to action by a coordinate branch of the
Government, and not where the issue involved falls within the traditional role
accorded to Courts to interpret the law or the Constitution.
In determining whether a question is
political, one has to advert to the facts and controversy which controls it.
Political question is one determination of
which is a prerogative of the legislative or executive branch of the
Government, so as not to be appropriate for judicial inquiry or adjudication.
Under the Constitution, Legislature,
Executive, and Judiciary are the organs of the State having specific power,
jurisdiction and defined role. In its own field each one is supreme and none is
subordinate to the other. These three organs function and exercise their power
as provided by the Constitution. The Judiciary is the custodian of the
Constitution. It is its function to adjudicate and see that all acts done and
actions taken by any organ of the State do not violate the provisions of the
Constitution. The fact that any question is a political question will not deter
the Court from determining it, provided it involves the interpretation of
Constitution or the validity of such question is to be determined on the
touchstone of the Constitution. The Court should not adopt 'political question
doctrine' for refusing to determine difficult and knotty questions having
political overtones. This would amount to abdication of judicial power which
neither the Constitution permits nor the law allows.
The circumstance that the impugned action has
political overtones - cannot prevent the Court from interfering therewith, if
it is shown that the action taken is violative of the Constitution. The
Superior Courts have an inherent duty, together with the appurtenant power in
any case coming before (hem, to ascertain and enforce the provisions of the
Constitution and as this duty is derivable from the express provisions of the
Constitution itself the Court will not be deterred from performing its
Constitutional duty, merely because the action impugned has political
implications.
With political decisions on questions of
policy, the judiciary is not concerned. Its function is to enforce the
Constitution and to see that the other organs of the State confine themselves
within the limitations prescribed therein.
It is not easy to draw line of demarcation
between political and nonpolitical questions. This has to be determined by the
Court on the facts of each case. The Courts' function is to enforce, preserve;
protect and defend the Constitution. Any action taken, act done or policy
framed which violates the provisions of the Constitution or is not permissible
under the Constitution or law, the Court, irrespective of the fact that it is a
political question, must exercise power of judicial review. The abuse, excess
or non-observance of the provisions of the Constitution has to be checked by
the Courts unless its jurisdiction is barred by the Constitution or law.
Corpus Juris Secundum, Vol. 16; Ballentine's
Law Dictionary; Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC
166; Fazlul Quader Chowdhry and others v. Muhammad Abdul Haque PLD 1963 SC 486
and Muhammad Nawaz Sharif v. Federation of Pakistan PLD 1993 SC 433 ref.
Per Sajiad Ali Shah, C.J., Saleem Akhtar. Fazal
Ilahi Khan„ Zia Mahmood Mirza Irshad Hasan Khan, Raia Afrasiab Khan and Munawar
Ahmad Mirza, JJ.--
(w) Constitution of
----Preamble---Prominent characteristics of
the Constitution of Pakistan (1973) as reflected in the Objectives Resolution
is Federalism and Parliamentary Form of Government blended with Islamic
provisions.
What is the basic structure of
the Constitution is a question of academic nature which cannot be answered
authoritatively with a touch of finality but it can be said that the prominent
characteristics of the Constitution are amply reflected in the Objectives
Resolution which is now substantive part of the Constitution as Article 2A
inserted by the Eighth Amendment.
The Objectives Resolution was
Preamble of the Constitutions made and promulgated in the Constitutions of
1956, 1962 and 1973. Perusal of the Objectives Resolution shows that for scheme
of governance the main features envisaged are federalism and parliamentary form
of government blended with Islamic provisions.
(x) Constitution of
----Preamble---Constitution (Eighth
Amendment) Act (XVIII of 1985), Preamble---Constitution (Eighth Amendment) Act,
1985 has been ratified by implication so as to stay in the Constitution unless
amended in the manner prescribed in Art. 239 of the Constitution of
The Eighth Amendment to the
Constitution of Pakistan (1973) was inserted in the Constitution in 1985, after
which three elections were held on party-basis and the resultant Parliaments
did not touch this Amendment, which demonstrates amply that this Amendment is
ratified by implication and has come to stay in the Constitution unless amended
in the manner prescribed in the Constitution as contemplated under Article 239.
(y) Constitution of
----Art.58(2)(b) [as brought in the
Constitution by Constitution (Eighth Amendment) Act - (XVIII of 1985)]---Object
of Art.58(2)(b) of the Constitution---Provision of Art.58(2)(b) of the
Constitution which maintains Parliamentary Form of Government has provided
checks and balances between the powers of the President and the Prime Minister
to let the system work without let or hindrance to forestall a situation in which
Martial Law could be imposed.
Article 58(2)(b) of the
Constitution of Pakistan (1973) brought in the Constitution by the Eighth
Amendment, which maintains Parliamentary Form of Government has provided checks
and balances between the powers of the President and the Prime Minister to let
the system work without let, or hindrance to forestall a situation in which
Martial Law could be imposed.
Per Raia Afrasiab Khan J agreeing with Saiiad
Ali Shah, C.J. and Saleem Akhtar, J.
(z) Constitution of
----Arts. 178 & 194 read with Third
Sched.---Oath of Office of Judges of Supreme Court and High Courts---Expression
"to preserve", "to protect" and "to defend" used
in Arts. 178 & 194 of the Constitution of Pakistan ---Meaning--Constitutionally,
legally and morally speaking, every Judge is duty bound to uphold the
Constitution in letter and spirit---Judges, therefore, cannot act contrary to
the specified oath; their sacred duty as such is to do justice evenhandedly
according to the Constitution and the law without fear or favour, [Words and
phrases].
(aa) Constitution of
----Art. 51---Election---National Assembly
elected on non-party basis under the Martial Law Umbrella (1985) was popularly
elected by the people in free and fair elections---Members of said Assembly
were de facto and de jute Members of the National Assembly, for they had been
performing their functions with bona fide belief that they had been lawfully
elected by the people in the free general elections while people had also
believed that Members so elected were their rightful and true representatives.
Farzand Ali v.
(bb) Constitution of
--Arts. 141 & 175--Ligislation is not
function of judiciary.
State v. Zia-ur-Rahman PLD
1973 SC 49 and Asma Jillani v Government of the Punjab PLD 1972 SC 139 ref.
(cc) Constitution of
----Arts. 184, 185, 239 &
238---Constitution (Eighth Amendment) Act (XVIII of 1985), Preamble---Validity---Constitution
(Eighth Amendment) Act, 1985 having been competently passed by the Parliament,
Supreme Court was not competent to strike down the same.
State v. Zia-ur-Rahman PLD 1973 SC 49 ref,
(dd) Constitution of
----Arts. 184 & 199---Judicial review-
-Political question cannot be subjected to judicial review.
Khawaja Muhammad Sharif v.
Federation of
(ee) Constitution of
----Art. 2A---Article 2A is not a
supra-Constitutional provision inasmuch as it has become an essential and
integral part of the Constitution possessing the same weight and status as the
other Articles of the Constitution which are already substantive part thereof.
Hakim Khan v. Government of
(ff) Constitution of
----Preamble---Constitution (Eighth
Amendment) Act (XVIII of 1985) Preamble---Amendments introduced by Constitution
(Eighth Amendment) Act 1985 have not changed the basic structure of the
Constitution of Pakistan (1973)
(gg) Constitution of
----Art. 184---Constitutional
jurisdiction---Laches---Constitutional question involved---Delay per se may not
be the only ground to refuse relief where question of Constitutional importance
is involved---Nevertheless, the delay and laches shall have to be considered
alongwith other grounds in refusing to give the relief.
(hh) Constitution of
----Preamble---Constitution (Eighth
Amendment) Act (XVIII of 1985), Preamble---Parliamentary system of Government
is still in force even on the basis of amendments introduced by Constitution
(Eighth Amendment) Act, 1985.
(ii) Constitution of
----Preamble---Constitution (Eighth Amendment)
Act (XVIII of 1985), Preamble---Substantial powers have been given to the
President under the amendments introduced by Constitution (Eighth Amendment)
Act, 1985 to create a balance of powers between the Prime Minister and the
President of Pakistan to run the affairs of the Federation smoothly and
successfully.
(jj) Constitution of
----Preamble & Art.239---Constitution
(Eighth Amendment) Act (XVIII of 1985), Preamble---Controversy, if any, over
the Constitution (Eighth Amendment) Act, 1985 is pure political in nature,
which may be raised, if so desired, for its final settlement at the forum of
Parliament in an appropriate manner having been provided under Art.239 of the
Constitution.
(kk) Constitution of
----Preamble---Constitution (Eighth
Amendment) Act (XVIII of 1985), Preamble---Constitution (Eighth Amendment) Act,
1985, is, undoubtedly the de facto and de jure constitutional provision and no
successful challenged could be thrown to its validity before the courts. facto
and de jure Constitutional provision and no successful challenge could be
thrown to its validity before the Courts.
(il) Constitution of
----Preamble---Every substantive
Constitutional provision is equal in status and position-wise and has to be
acted upon and followed by all the Courts.
(mm) Interpretation of Constitution---
---- Courts are bound to interpret the
Constitution as it is and have no powers to change or re-write it.
Qazi Muhammad Jamil with Raja
Abdul Ghafoor, Advocate-on-Record for Petitioner (in C.P. No.60 of 1996).
Abdul Hafeez Pirzada, Senior
Advocate Supreme Court, Abdul Mujeeb Pirzada, Advocate Supreme Court and A.
Aziz Khan, Advocate-on-Record (absent) for Appellant (in C.A. No.397-K of
1996).
Nemo for Appellant (in C.P.
No.399-K of 1990).
Petitioner in person (in C.P.
No.67 of 1996).
Dr.A. Basit, Advocate Supreme
Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner (in C.P. No.68
of 1996).
Khalid Anwar and Mian , Saqib
Nisar, Advocates Supreme Court and M.A. Zakir, Advocate-on-Record for Respondent
No. l (in all Cases).
Ali Ahmed Fazeel, Senior
Advocate Supreme Court and M.S. Ghauri, Advocate-on-Record for Respondent No.24
(in C.A: 397-K of 1990).
Remaining Respondents: Ex parte.
M. Ismail Qureshi, Senior
Advocate Supreme Court for Applicants (in C.M.A. No.913 of 1996 in
Shehzad Jehangir, A.-G. for
Sharifuddin Pirzada, Senior
Advocate Supreme Court with Anwar Mansoor Khan, Advocate and Ch.
Fazal-e-Hussain, Advocate Supreme Court: Amicus curiae.
Dates of hearing: 14th to
18th, 21st to 23rd
JUDGMENT
SAJJAD ALI SHAH, C J.---On
(1) That provisions of Article 58(2)(b) of the
Constitution being legally non-existent having ceased to be operative with the
party-base election to the Parliament on the revival of the Constitution of
1973 and demise of the Chief Martial Law Administrator be declared as no more
part of the Constitution.
(2) Provision
of Article 58(2)(b) and .the action taken thereunder be declared violative of
the Fundamental Rights of the petitioner.
(3) The impugned provisions of the
Constitution and the action taken thereunder be declared as against the basic
structure of the Constitution and ultra vires of the Constitution.
. (4) The impugned provisions of the Constitution
having been incorporated by the Chief Martial Law Administrator and his
Assembly elected under his dispensation prior to the lifting of martial law are
no amendments to the Constitution of Pakistan and hence, may kindly be declared
so.
(5) The action taken under the aforesaid
provisions of the Constitution may also kindly be declared without lawful
authority, hence of no legal effect and the status of the Constitutional
dispensation as it existed prior to the impugned action be restored.
(6) Any
other relief considered appropriate in the circumstances may also kindly be
granted.
Since in all the three petitions mentioned
above challenge was made to the validity of the Order of Dissolution dated 5th
November, 1997 passed by the President, they had to be heard together. ,
On 3-12-1996 during the
hearing Qazi Muhammad Jamil counsel for the petitioner in C.P. 60' of ,1996
submitted that in all the three petitions mentioned above Dissolution Order
dated 5th November, 1996 `is challenged and in his petition the
constitutionality of Article 58(2)(b) is also called in question and to that
extent validity of Eighth Amendment is also challenged. At that stage response
of members of the Bar, present in the Court, was ascertained, whether it would
be in the fitness of things and proper to take up the issue of Eighth
Amendment. Mr. A.H. Pirzada and Mr. Khalid Anwar were in favour of proposition
that issue of Eighth Amendment was very important and should be decided
finally.
3. - With regard to the question of challenge
to the Eighth Amendment, office of this Court informed that on the same
subject-matter some petitions were filed in this Court way back in the year
1990 and some petitions were filed in the year 1996 which could also be taken
up together for hearing. In two such cases, there is decision of Sindh High
Court arising from writ petition to which two Hon'ble Judges of this Court,
namely Mr.Justice Ajmal Mian and Mr. Justice Saiduzzaman Siddiqui are party. In
such circumstances, Bench of seven Judges was constituted for hearing of cases
relating to the validity of Eighth Amendment in the Constitution so that on the
subject all these cases should be heard and disposed of together.
4. It therefore appeared that Civil Appeal
No.397-K of 1990 titled Abdul Mujeeb Pirzada v. Federation of Pakistan and
others and Civil Appeal No.399-K of 1990 titled Haji Ahmad v. Federation of
Pakistan and others were pending against the decision of Sindh High Court in
which leave granting order was passed on 25-3-1990 for examination, inter alia,
of thefollowing questions:--
.
(1) Whether the decision of this
Court rendered in Begum Nusrat Bhutto's case (PLD 1977 SC 657) was violated in
promulgating and enforcing amongst others Provisional Constitution Order, 1981
and Referendum Order of 1984? If so, its effect?
(2) Whether
the National Assembly and the Provincial Assemblies elected in 1985 and their
functioning thereafter can be taken to be duly elected bodies under the
Constitution of 1973? If not, its effect?
(3) What
is the validity and effect of Eighth Constitutional Amendment approved by such
a National Assembly.
5. C.P. No.67 of 1996 is filed
by Mr. Habibul Wahab-al-Khairi in which he-has prayed firstly for a declaration
that under the Constitution of the Islamic Republic of Pakistan Westminster
Style of Parliamentary Democracy is not contemplated and laws are to be framed
which are consistent with Islamic Injunctions as are laid down in the Holy
Qur'an and Sunnah. Secondly, that basic structure as contemplated in our
Constitution of 1973 is same as is stated in paragraph 10 of the petition and
the same could not be changed or altered by any Constitutional amendment nor
any law-making can be taken in hand which is not in conformity with the basic
structure. It is mentioned in paragraph 10;
firstly, that sovereignty belongs to Allah,
against which no law making can be done; secondly, Islami Jamhuriat is to be
established through real, good, religious-minded and educated representatives
of the people; thirdly, security of Fundamental Rights; fourthly, Federal
Structure, and fifthly, complete independence of judiciary are to be provided.
6. C.P. No.69 of 1996 is filed
by Wukala Mahaz Barai Tahafuz Dastoor in which it is prayed firstly, that
Eighth Amendment be declared to be void as it is not a part of the Constitution
in the absence of proper validation. Secondly, Proclamation dated
7. Hearing on the questions relating to the
basic structure and the validity of Eighth Amendment in the Constitution in ail
the cases mentioned above was taken in hand and commenced from 14th December,
1996 by a Bench of seven Judges. On that day before the commencement of
proceedings Mr. Aitzaz Ahsan, learned counsel for petitioner, Benazir
Bhutto, in C.P. No.59 of 1996 appeared and stated that since
hearing relating to Eighth Amendment would take, some tune, hence he apprehended that when his petition would be taken up for
hearing observation in Saifullah's case PLD 1989 SC 166 may come in his. way
refusing discretionary relief of restoration in writ jurisdiction on the ground
that Election Schedule has been announced and Governmental machinery is to full
gear. He was assured that this position would be kept in view at
the time of hearing of this petition.
8. Mr. Iftikhar Hussain Gillani, counsel for
petitioners in C.P. No.63 of 1996, in which dissolution of Provincial Assembly
was questioned, stated that he wanted to withdraw that petition in order to
file it in the High Court of Balochistan first, hence in the result the
petition was dismissed as withdrawn.
9. In C.Ps. Nos.67 and 68 of 1996 notices
were issued to the respondents and Attorney-General for
10. On
"For reasons to be recorded later, we
pass following short order:
(2) What is the basic structure of the
Constitution is a question of academic nature which .cannot be answered
authoritatively with a touch of finality but it can be said that the prominent
characteristics of the Constitution are amply reflected in the Objectives
Resolution which is now substantive part of the Constitution as Article 2A
inserted by the Eighth Amendment.
(3) The Objectives Resolution was Preamble of the
Constitutions made and promulgated in our country in 1956, 1962 and 1973.
Perusal of the Objectives Resolution shows that for scheme of governance the
main features envisaged are Federalism and Parliamentary Form of Government
blended with Islamic provisions. The Eighth Amendment was inserted in the
Constitution in 1985, after which three elections was held or, party-basis and the resultant Parliaments did nut touch this
Amendment which demonstrates amply that thin Amendment is ratified by
implication and has come to stay in the constitution
unless amended in the manner prescribed in the Constitution as contemplated under Article 239. Article 58(2)(b) brought in the
Constitution by the Eighth Amendment, which maintains Parliamentary Form of
Government has provided checks and balances between the powers of the President
and the Prime Minister to let the system work without let or hindrance to
forestall a situation in which martial law could be imposed.
(4) In the result the two Civil Appeals
Nos.397-K/90 (Abdul Mujib Pirzada v. Federation of Islamic Republic of
Pakistan), 399-K/90 (Haji Ahmed v: Federation of Pakistan and others), and
three Constitutional Petitions Nos. 60/96 (Mahmood Khan Achakzai v. President
of Pakistan and others), 67/96 (Habibul Wahabul Khairi v. Federation of
Pakistan and others) and 68/96 (Wukala Mahaz Barai Tahafuz Dastoor v.
Federation of Pakistan and others) are dismissed.
All the seven Judges on the Bench subscribed
to the short order reproduced above but Mr. Justice Zia Mahmood Mirza expressed
his desire to write his reasons separately while agreeing with conclusions and
his note is reproduced as under:--
"I only agree with the conclusion that
the appeals and Constitutional petitions mentioned in para.4 merit dismissal
for which I shall separately record my reasons in detail."
11: Now we propose to give detailed reasons
by this judgment in support of the short order reproduced above. First we shall
deal with the issue of basic structure of the Constitution of 1973. Qazi
Muhammad Jamil, counsel for petitioner in C.P. No.60 of 1996, submitted that in
his petition Proclamation of Dissolution dated
12. Mr. Abdul Mujeeb Pirzada, appellant in
Civil Appeal No.397-K of 1990, submitted that basic structure of 1973
Constitution is Objectives Resolution. .1973 Constitution contemplates Federal
Character and Parliamentary Dorm of Government. He further stated that before
1973 Constitution, Interim Constitution of 1972 was promulgated which
contemplated Presidential Form of Government but 1973 Constitution envisages
Parliamentary Form of Government as both Presidential and Parliamentary Forms
of Government are included in the Objectives Resolution. He further submitted
that Objectives Resolution is to some extent different from 1940 Resolution
which talks about
constitutional plan to provide for units with
majority of Muslims to be independent states safeguarding rights of minorities
.Objectives Resolution served as preamble the to Constitutional
plan to provide for units with majority of Muslims to be independent States
safeguarding rights of minorities. Objectives Resolution served as preamble to
the Constitutions of 1956, 1962 and 1973.
13. Mr. Abdul Hafeez Pirzada
on the question of basic structure of 1973 Constitution submitted that it
envisages Parliamentary Form of Government and rather super Parliamentary Form
of Government and before Eighth Amendment powers were concentrated in the hands
of the Prime Minister. He further submitted that- Pakistan People's Party was
not committed either to the Parliamentary Form of Government or Presidential
Form of Government but believed in republican type of democracy with one ruler
at the head. He further submitted that after loss of
14. The whole discussion
revolves around Me fact as to what is contemplated in 1973 Constitution in its
original form to be the basic structure or anything close to it. There is no
dispute about the fact that basic structure as such categorically and
specifically is not mentioned in the Constitution. of 1973 but it can be
presumed from reading the Articles in the Constitution as a whole and also
preamble to find out the intention of Constitution-makers as to what ,type of
system of governance .was contemplated in the Constitution. In order to find
out the basic structure of 1973 Constitution, comparison cannot be made with
the Indian Constitution for the reason that Indian Constitution provides for
Sovereign Socialist Secular Democratic Republic. The other factors mentioned in
the preamble of the Indian Constitution are:
Justice, social, economic and political;
Equality of status and opportunity; and to
promote among them all
Fraternity assuring the dignity of_ the
individual and the units and integrity of the Nation;
In the Indian Constitution two provisions are
very important for discussion on the subject of basic structure of the
Constitution.' Fundamental Rights are contained in the Indian Constitution in
Part III from Articles 12 to 35. Article 13 in the original form before
amendment declares laws void if found inconsistent with fundamental rights and
further defines "law" including ordinance, order. bye-law, rule,
regulation and so on and "laws in force". Article 368 in its original
form before amendment provided, procedure for amendment of the Constitution to
be initiated by the introduction of Bill and further required ratification by
the Legislatures of not less than one-half of the States specified in Parts A
and B of the First Schedule, if amendment was sought to bring a change in Articles 54, 55, 73, 162, 241 or Chapter IV of Part V,
Chapter V of Part VI or Chapter I of Part XI or any of the lists in the Seventh
Schedule and so on. While interpreting relevant provisions of the Constitution,
Supreme Court of India held that an act of Parliament duly passed under Article
368 would be valid even if it curtailed any of fundamental rights conferred by
Part III of the Constitution on the ground that such act would come under the
expression "law" in Article 13(2). For such view reference can be
made to the cases of Sankari Prasad v. Union of India AIR
1951 SC 4,58 and Sajjan Singh v. State of
. In
the case of Smt. Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299 validity of
Constitution (Thirty-Ninth Amendment) Act, 1975, was challenged on the ground
that a number of members of Parliament did not attend the session as they were
in detention. It was held by the majority that the impugned Act is
unconstitutional as it violates the principle of free and fair
elections which is
essential postulate of democracy as it does not provide forum for resolution of
election disputes and also denies remedy to challenge the validity of such
elections. In the case of Kibota Hollohon v. Zachilhu AIR 1993 SC 412,
Constitution (Fifty-Second Amendment) banning floor-crossing was challenged.
Impugned amendment was upheld on the ground that freedom of speech of the
members of the Assembly was not an absolute freedoms, In the case of
Raghunathrao Ganpatrao v. Union of India AIR 1993 SC 1267 Twenty Sixth
Amendment in the Constitution was challenged which removed Article 291,
relating to privy purse sums of rulers and 362 relating to rights and
privileges of rulers of Indian States, which amounted to change in the basic
structure of the Constitution. It was held that impugned amendment has not made
any change in the personality of the Constitution neither in its scheme nor in
its basic features nor in its basic form nor in its character.
15. Question came up for consideration before
the Supreme Court of Sri Lanka in the case of In re: the Thirteenth Amendment
to the Constitution and the Provincial Councils Bill (1990).LRC (Const.) 1,
whether scope of amendment contemplated by Articles 82 and 83 is limited and
that there are certain basic principles or features of the-Constitution which
can in no event be altered even by compliance with Article 83. Reliance was
placed for this proposition on the decisions of the Supreme Court of India in Kesavananda v. State of Kerala AIR 1973 SC 1461 and Minerva Mills
Limited v. Union of India (1980) 2 SCC 591 and those decisions of the Supreme
Court of India were based on Article 368 of the unamended Indian Constitution
which provided that an amendment of the Constitution may be initiated only by
the introduction of a Bill for the purpose of either House of Parliament.
Supreme Court of Sri Lanka held that it would not be proper to be guided by
concepts of amendment found in the Indian judgments which had not to consider
the statutory definition of the word "amendment". It was further held
that fundamental principles as basic features of the Constitution have to be
found in some provisions which reflect fundamental principles or incorporate
basic features are immune from amendment. It was held by Supreme Court of Sri
Lanka that they do not agree with the contention that some provisions of the
Constitution are unamendable.
16. Likewise in
"A Constitution on the Westminster model represents the final step
in the attainment of full independence by the peoples of a former colony or
protectorate, the Constitution provides machinery whereby any of its
provisions, whether relating to fundamental rights and freedoms or to the
structure of Government and the allocation to its various organs of
legislative, executive or judicial powers, may be altered by those peoples through
their elected representatives in the Parliament acting by specified majorities,
which is generally all that is required, though exceptionally as respects some
provisions the alteration may be subject also to confirmation by a direct vote
of the majority of the peoples themselves." (Emphasis added).
Even the Malaysian Courts have declined to follow the Kesavananda
doctrine (see Government of State of Kelantan v. Government of the Federation
of Malaysia (1977) 2 MLJ 187; Phang Chin Hock v. Public Prosecutor (1980) 1
ML.J 70. In Loh Looi Choon a Constitutional amendment was considered which had
the effect of abridging a Fundamental Right. The amendment was effected by
Malaysian Act A-354 of 1976, which provided in effect that the right of an
arrested person to be produced before a Magistrate within 24 hours (under
Article 5(4) of the Malaysian Constitution) should not apply to arrests or
detentions under the Restricted Residence Enactment. Raja Azlan Shaj FJ (as he
then was) held that any provision of the Constitution could be amended under
Article 159. He pointed out that Article 159 was subject to no proviso making
fundamental rights inviolable. Referring to the doctrine of implied
restrictions on the powers of Constitutional amendment he said, at p.190:
"A short answer to the fallacy of this doctrine is that it
concedes to the Court a more potent power of Constitutional amendment through
judicial legislation than the organ formally and clearly chosen by the
Constitution for the exercise of the amending power. "
17. In the Supreme Court of Pakistan the
question with regard to the validity of amendment in the Constitution has been
raised on several occasions and examined in the light of the fact whether it
runs counter to the basic structure of the Constitution. It is held in the case
of State v. Ziaur Rahman PLD 1973 SC 49 that a Constitutional provision cannot
be challenged on the ground of being repugnant to what are some times stated as
"national aspirations" or an abstract concept so long as the provision
is passed by the competent Legislature -in accordance with the procedure laid
down by the Constitution or a supra-Constitutional instrument. In the case of
Fouji Foundation and another v. Shamimur Rehman PLD 1983 SC 457 the same
question was examined again in the light of the Indian case-law on the subject
and the following two paragraphs from the judgment at page 627, which speak for
themselves are reproduced hereunder:--
"201. For all these reasons it appears to me to be difficult to
follow what the Supreme Court held in Smt. Indira Nehru Gandhi's case AIR 1975
SC 2299 as the conclusion rested eminently on the interpretation of the
amending provision which had no Constitutional restrictions, the moreso when
its view was not consistent with that in the earlier two cases, namely, Shankri
Prasad v. Union of India AIR 1951 SC 458 and Sajjan Singh v. State of Rajasthan
AIR 1965 SC 845, wherein it was held that the amending power was without any
limitation.
202. Moreover the effect of the decision in Smt. Indira Nehru Gandhi's
case was done away with by clauses 4 and 5 inserted in Article 368 by the
Constitution (Forty-Second Amendment) Act, 1976, Clause (4) debars the Court of
the jurisdiction to call in question any of the amendments made in the Constitution.
Clause (5) declares that there shall be no limitation whatsoever on the
constituent power of the Parliament to amend any provision of the Constitution
either by way of addition, variation or repeal. So what is now left is only a
theory of basic structure or framework of the Constitution evolved by the
Constitutional interpretation of the provisions having no legal compulsion as a
Constitutional principle. Reliance was placed by the learned counsel for the
respondent on Darvesh M. Arbey v. Federation of Pakistan PLD 1980
18. In the case of Federation of Pakistan v.
United Sugar Mills and others PLD 1977 SC 397 clause (4-A) of Article 199 of
the .Constitution inserted by section 8 of the Constitution (Fourth Amendment)
Act, 1975, was examined in the light of contention as propounded in the
case-law from Indian jurisdiction.
Reliance was placed on Golaknath's case AIR
1967 SC 1943, and it was held in that case that a narrowly divided Supreme
Court rules that the Indian Parliament lacked the power to amend Part III of
the Indian Constitution which provides for Fundamental Rights. It was further
held by this Court relying upon the finding in Ziaur Rahman's case that so long
as the provision is passed by the competent Legislature in accordance with the
procedure laid down by the Constitution or a
supra-Constitutional instrument, amendments in the Constitution cannot
be questioned for want of competency or any other formal defect.
19. In the case of Federation of Pakistan and
another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26, Article 270-A(2)(5) of the
Constitution came up for examination and interpretation. Contention was
raised that acts, actions or proceedings which suffer from excess or lack of
jurisdiction or were coram non judice or mala fide could not be saved and
covered by the provisions of the Constitution mentioned above as the Parliament
had not intended to validate such acts, actions or proceedings or to put them
beyond the reach of Courts or to deprive ,the persons who had suffered
thereunder of any remedy or relief whatsoever. It is held by this Court that if
the law is made for implementation of a policy or reforms and that law, though
of doubtful validity has been subsequently validated, then all acts,
legitimately and honestly taken in the exercise of powers given by those laws
will also be valid; but if an authority concerned has taken action in fraud of
that law, that is to say mala fide, there is no legitimate reason why the
Government should be anxious to protect such a dishonest officer or authority.
The cause of the reform will not be advanced by such dishonest exercise of
power by individuals out of personal malice or for personal gain. Indeed, if an
officer has so acted, Courts would expect the Government to see that the
officer concerned is appropriately punished and the injustice done to the
unfortunate victim righted. Courts would not appreciate the anxiety of the
Government to protect such mala fide actions. In the case of Pir Sabir Shah v.
Federation of Pakistan and others PLD 1994 SC 738 contention was raised
challenging validity of a provision of the Constitution on the ground that it
was against the basic structure. Relying upon the Indian case-law on the subject
and it was observed by this Court as under:
"The distinction made by the Indian Supreme Court between a Dar of
the jurisdiction provided by the original Constitution of India and a bar of
jurisdiction subsequently incorporated by amending the Constitution highlighted
by Mr. Sharifuddin Pirzada has not been pressed into service by the superior
Courts in
Additionally, in support of the proposition that amendment in the
Constitution cannot be challenged on the ground that it is contrary to the
basic structure, particularly when such amendment is made in accordance with
the procedure laid down in the Constitution, reference can be made to the cases
of Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57 at 100 and
Federation of Pakistan v. Saeed Ahmad Khan (PLD 1974 SC 151 at 165 placitum
'A').
20. Study of Constitutions of different
countries shows that Constitutions are always made and promulgated keeping in
view objective conditions and socio-economic requirements and sometimes in such
Constitutions is provided . specifically as to what the basic structure is and
what is allowed to be amended or not amended on the ground that it would be
contrary to the basic structure. Normally, in the Constitution provision is
made for amendment of the Constitution and procedure is also provided therein
for such purpose. In the Constitution of United States certain amendments to
the Constitution are regarded to be within the exclusive .purview of the
Congress and the Supreme Court has refused to interfere with them on the ground
that doing so would amount to entering into political questions as in respect
of such matters the Court has no power of judicial review. In support of the
proposition reference can be made to the cases of:
(1) Hawke v. Smith (1919) 253
(2)
(3) Dillon
v. Gloss (1921) 256
(4) Lesser v. Garmet, (1922) 258
(5)
. (6) Coleman v. Miller (1939) 307
21. Constitution of Germany is called the
basic law of Federal Republic of germany of which Article 1 covers basic rights
and Article 20 provides that Federal Republic of Germany is a Democratic Social
Federal State, Both these Articles are reproduced as under:--
"Article 1.--(1) The dignity of man is inviolable. To respect and
protect it is the duty of all State authority.
(2) The German people therefore acknowledge
inviolable and inalienable human rights as the basis of every community, of
peace and of justice in the world.
(3) The
following basic rights bind the Legislature, the executive and the judiciary as
directly enforceable law.
Article
20.--(1) The Federal Republic of Germany is a Democratic and Social Federal
State.
(2)
(3) Legislation
is subject to the Constitutional order: the executive and the judiciary are
bound by the law."
Both Articles 1 and 20 reproduced above indicate basic structure of
German Constitution and further Article 79 envisages that basic law can be
amended only by a law which expressly amends or supplements the text thereof
and in clause (3) provides that amendment of Articles 1 and 20 is inadmissible
which means that these two provisions are unamendable.
22. Before coming to the conclusion of basic
structure of our 1973 Constitution, it would be pertinent to briefly
recapitulate the Constitution making history which may have influenced the
minds of the Constitution makers of 1973 Constitution.
23. It therefore, appears from what is stated
in the above paragraph that within a period of 50 years history of
Whereas sovereignty over the entire universe
belongs to Allah Almighty alone and, the authority which He has delegated to
the State of Pakistan through its people for being exercised within the limits
prescribed by Him is a sacred trust;
This Constituent Assembly representing the people of
Wherein the State shall exercise its powers and authority through the
chosen representatives of the people;
Wherein the principles of democracy, freedom, equality, tolerance and
social justice as enunciated by Islam shall be fully. observed;
Wherein the Muslims shall be enabled to order their lives in the individual
and collective spheres in accordance with the teachings and requirements of
Islam as set out in the Holy Qur'an and the Sunnah;
Wherein adequate provision shall be made for the minorities to profess
and practise their religion and develop their cultures;
Wherein the territories now included in or in accession with Pakistan
and such other territories as may hereafter be included in or accede to
Pakistan shall form a Federation wherein the units will be autonomous with such
boundaries, and limitations on their powers and authority as may be prescribed;
Wherein shall be guaranteed fundamental rights including equality of
status, of opportunity before law, social, economic and political justice and
freedom of thought, expression, belief, faith, worship and association, subject
to law and public morality;
Wherein adequate provision shall be made to safeguard the legitimate
interest of minorities and backward and depressed classes;
Wherein the independence of the judiciary shall be fully secured;
Wherein the integrity of the territories of the Federation, its
independence and all. its rights including its sovereign rights on land, sea
and air shall be safeguarded;
So that the people of
.
24. In the Pakistan Resolution passed on
23-3-1940 at Lahore it was resolved that regions with Muslim majority should be
grouped together to constitute 'Independent States' in which constituted units
shall be at antonomous and sovereign and rights of minorities to be protected.
After partition
Constituent -Assembly of
"In any event, if a grund norm is
necessary,
25. This question with regard to grund norm
was examined again in the case of State v. Ziaur Rehman PLD 1973 SC 49 and the
same learned C.J. has clarified the position and the relevant portion of page
54 of the report is produced as under:-- '
"In Asma Jillani's case PLD 1972 SC 139 it has not been laid down
that the Objectives Resolution is the grund norm of
The 'grund norm' referred to by the Supreme
Court was something even above the Objectives Resolution which 'embodies the
spirit and the fundamental norms of the Constitutional concept of
26. It is not necessary to dilate upon the case
of Ziaur Rahman any further for the reason that at present we are concerned
only with Objectives Resolution in the Constitution appended as preamble. Even
in that capacity it invariably has remained preamble in all the four
Constitutions including the Interim Constitution of 1972 and therefore, it has
to be read for the purpose of proper interpretation in order to find out as to
what scheme of governance has been contemplated. Let us assume that it does not
authoritatively provide grund norm and also it does not describe specifically
the basic structure of the Constitution, even then also it does help in
interpreting and understanding the scheme of governance and salient features of
the Constitution which are described therein including Islamic provisions,
federalism and parliamentary form of Government and fully securing independence
of judiciary. Islamic provisions are very much embedded in the Constitution of
1973 as Article 2 thereof envisages that Islam shall be the State, religion of
27. In the Constitution of 1973 in its
original form Article 238 provides for amendment of the Constitution and
Article 239 lays down the procedure for such amendment and is composed of seven
clauses. Clause (7) provided that a Bill to amend the "Constitution which
would have effect of altering the limits of a Province could not tie passed by
the National Assembly unless approved by resolution of Provincial Assembly of
that Province by votes of not less than two thirds of total membership of that
Assembly. This shows anxiety of the Constitution-makers of that time not to
make it easy to alter the limits or boundaries of a Province unless Assembly of
that Province consented with votes of not less than two-thirds of the total
membership of that Assembly. This anxiety was justified in the aftermath of
loss of
28 Having disposed of the question with
regard to the basic stricture of
tile Constitution as stated above, now I advert to the second important issue with regard to the Eighth Amendment inserted in 1985 in
the Constitution of 1973. Before I go into the arguments and contentions of the
learned counsel appearing on behalf of appellants and petitioners, it would be
pertinent to recapitulate late the history very briefly. It was done so very
succinctly -by Mr, Abdul hafeez Pirzada, who supported the stance of Mr. Abdul
Mujeeb Pirzada, who is appellant in C.A. 397-K of 1990.
29. With such tragic background in the
remaining West Pakistan General Yahya
Khan who was C.M,.L.A., handed
over power to Mr. Zulfikar Ali' Bhutto, who was leader of Pakistan People's
Party, which was the majority party in West Pakistan. Mr. Zulfikar Ali Bhutto
took over as President of Pakistan and first Civilian Chief Martial Law
Administrator. Session of the Assembly of elected representatives in
30. In the process Interim, Constitution of
1972 was framed envisaging therein Presidential Form of Government as Pakistan
People's Party headed by Mr. Zulfikar Ali Bhutto was in favour of Republican
Forth of Government headed by one person at the top and was not-in favour of
Parliamentary Form .of Government with two heads. This move was resisted by
other political parties including Mian Mahmood Ali Kasuri who was then Federal
Law Minister, acid ultimately Pakistan People's Party agreed to Parliamentary
Form, of Government. In such circumstances accord on the Constitution was
signed by the representatives of all the parties on.
31. Finally, Constitution of 1973 was
promulgated and enforced on
32. .-Constitution of 1973 operated smoothly
and in the meantime some amendments were made therein and general elections
were held prematurely on 7th of March, 1977 under, the orders of the Prime
Minister Mr. Zulfikar Ali Bhutto. The results of the elections were not
accepted by Opposition parties, which had joined together and contested
election on common platform as Pakistan National Alliance. .It was alleged by
the Opposition parties that the elections were rigged on a massive scale.
Against such backdrop there was law and order situation resulting in riots and
damage to the life and property. Pakistan People's Party having won the
election started dialogue with the Opposition parties to break the deadlock to
find a solution. It is claimed by PPP that. while the talks were going on and
were about to be completed, and before such conclusion, Chief of, the Army Staff
took over administration, held the Constitution. in abeyance and imposed
Martial Law. Consequently the Government of Mr. Zulfikar Ali Bhutto was
dismissed and he and other leaders of the Pakistan People's Party were taken in
custody. In such circumstances, Begum, Nusrat Bhutto, wife of Mr: Zulfikar Ali
Bhutto filed directly in the Supreme Court: Constitution petition claiming in
question detention of her husband, and, other leaders of the Pakistan People's
Party and validity of Martial Law which is reported as the case
of Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657. It was held
in that case that Kelsen's theory was open to criticism but takeover was
validated on the basis of State necessity attracting sociological factors or
morality and justice treating the same as Constitutional deviation justifying
it to be for a short period to enable holding of general elections.
Consequently, even after the judgment Martial Law continued and Provisional
Constitution Order came into force in 1981. Referendum was held in 1984 and
elections for National Assembly were held, on non-party basis on
33. In order to appreciate as to what is the
Kelsen's theory and what is the correct import and scope of the case tit
Beguan Nusrat Bhutto it would lie
pertinent to go biter, to the cases of State v. Dosso PLD 1958 SC
(Pak.) 533 and Asma Jillani v. Government of Punjab PLD 1972 SC 139 which cover
the same subject-matter. The facts to the case of Dosso are that by
Proclamation on october 7, 1958 President Sikander Mirza annulled Constitution
of 1956 and dissolved National Assembly and Provincial Assemblies, dismissed
Central and Provincial Cabinets, declared Martial Law throughout the country
and appointed General Muhammad Ayub Khan, Commander-in-Chief of Pakistan Army as chief Martial Law Administrator. Three days later Laws (Continuance in Force) Order was
passed providing that Courts. including Supreme Court and High Court shall
continue to function and the country shall be governed as nearly as may be in
accordance with the late Constitution. Later C.M.L.A. dislodged President and
took himself over as President. Validity of Martial Law was not challenged
directly but writ petitions were filed in the High Courts questioning the
orders of referring case to a Council of Elders and conviction recorded under
section 11 of the Frontier Crimes Regulation III of 1901, which were disposed
of against which petitions were filed in the Supreme Court for leave which was
granted. Common question involved in appeals before Supreme Court was whether
writs issued by the High Courts had abated under clause (7) of Article 2 of the
Laws (Continuance in Force) Order promulgated by the President. Delivering the
majority judgment of the Court, Muhammad Munir, C.J. held that as Article 5 of
the late Constitution itself had disappeared from the new legal order, the
Frontier Crimes Regulation as by reason of Article 4 of the Laws (Continuance
in Force) Order, 1958, still in force and all proceedings in cases in which
validity of that regulation had been called in question having abated, the
convictions recorded by Council of Elders were good. It was held that it
sometimes happens that a Constitution and the national legal order under it was
disrupted by an abrupt political change not within the contemplation of the
Constitution. Any such change is called a revolution, and its legal effect is
not only the destruction of the existing Constitution but also the validity of
the national legal order. A revolution is generally associated with public
tumult, mutiny, violence and bloodshed but from a juristic point of view the
method by which and the person by whom a revolution is brought about is wholly.
immaterial. The change may be attended by violence or it may be perfectly
peaceful. It may take the form of a coup d' etate by a political
adventurer or it may be effected by person already in public positions. Equally
irrelevant in law is the motive for a revolution, inasmuch as a destruction of
the Constitutional structure may be prompted by a highly patriotic impulse or
by the most sordid of ends. If the revolution is victorious in the sense that
the persons assuming power under the change can successfully require the
inhabitants of the country to conform to the new regime, then the revolution
itself becomes a law-creating fact because thereafter its own legality is judged
not by reference to the annulled Constitution but' by reference to its own
success. On the same principle the validity of the laws to be made thereafter
is judged by reference to the new and not the annulled Constitution.
34. In
the case of Asma Jillani v. Government of Punjab PLD 1972 SC 139, the, facts
are that 1962 Constitution was in the field when President Muhammad Ayub khan on 24th March; 1969, wrote a
letter to the Commander in-'chief of Army
inviting him to take over governance as
the Constitutional
authority
in the country had become ineffective. this was followed by broadcast on radio network, at 7-15 p.m. on
constitution, dissolved the National 'and provincial Assemblies and
dismissed the Councils of Ministers Malik Ghulam Jillani was detained under Rules 32(1)(b) and 213 of Defence of Pakistan
Rules, 1971. His daughter Asma jillani challenged the validity or order of
detention of her father taut Lahore High Court dismissed the petition or. the
ground that it had no jurisdiction because of bar imposed by the Jurisdiction of
courts (Removal of Doubts) Order, 1969,
promulgated by the Martial Law regime. Mr. Altaf Hussian Editor-in-Chief, Dawn,
35.
Leave was granted by the Supreme Court to consider:
(1) Whether
doctrine in Dosso's case was correct.
(2) Whether
it applied to the case in which Field Marshal Muhammad Ayub Khan transferred
power to General Yahya Khan.
' (3) Whether
power assumed by General Yahya Khan was illegal and unconstitutional hence all
legislative and executive acts including imposition
of Martial Law and promulgation of Martial Law
Regulations and Orders were illegal.
One distinguishing feature of this case was that in 1962 Constitution
there was no provision enabling or authorising Commander-in-Chief of the
Pakistan Army to take over the administration of the country and President
could resign and hand over the charge to the Speaker who could hold fresh
elections as was envisaged in the Constitution. Constitution did not permit the
President to hand over the power to the Commander-in-Chief of the Army. Hence
this action of take-over by General Yahya Khan was illegal and he had been
declared as usurper.
36. This Court did not approve the finding in
Dosso'.s case with regard to the Kelsen's theory as had been ..propounded
therein. It was held j.0 Asma
Jillani's case by this Court that Kelsen's theory was by no means a universally
accepted theory nor was it a theory which could claim to have become a basic
doctrine of the science of modern jurisprudence, nor did Kelsen ever attempt to
formulate any theory which favoured totalitarianism. Kelsen was only trying to
lay down a pure theory of law as a rule of normative science -consisting of
"an aggregate or system of norms". He was propounding a theory of law
as a mere jurist's proposition about law. He was not attempting to lay down any
legal norm or legal norms which are the daily concerns of Judges, legal practitioners
or administrators. Kelsen in his attempt to evolve a pure science of law as
distinguished from a natural science attached greatest importance to keeping
law and might apart. He did not lay down the proposition that the command of
the person in authority is a source of law. Kelsen's attempt to justify the
principle of effectiveness from the stand point of international law could not
be justified, for, it assumed the primacy of international law over national
law. In doing so he has overlooked that for the purposes of international law
the legal person is the State and not the community and .that in international
law there is no legal person is the State and not the community and that
international law there is no legal order as such. The recognition of State under
international law has nothing to do with 'the internal sovereignty of the State
and this kind of recognition of a State must not be confused with recognition
of Head of State or Government of a State. An individual does not become the
Head of a, State through the recognition of other States but through the
municipal law of his own State. The question of recognition of a Government
from the point of view of international law becomes important only when a
change in the form of Government also involves a break in the legal continuity.
of the State or where the question arises as to whether the new Government has
a reasonable expectancy of permanence so as to be able to claim to represent
the State.
37. It was held that in this case grabbing of
power and installing himself as President and Chief Martial Law Administrator
by General Agha Muhammad Yahya Khan by Proclamation of 1969 was entirely
illegal. The question arose as to what would happen to the legislative measures
and other acts which were performed during his illegal regime. It was held that
great responsibility in such circumstances rested upon Courts riot to do
anything which might make confusion worst confounded or create a greater state
of chaos if that could be possibly avoided consistently with duty to decide in
accordance with law. In such circumstances resort was made to the doctrine of
necessity, and acts of usurper were not validated but were condoned calling' it
a principle of condonation and not legitimisation or validation.
38. Coming back to the case of Begum Nusrat
Bhutto PLD 1977 SC 657 it was argued by Mr. A.K. Brohi, .counsel for Federal
Government in that case as respondent, that after promulgation of Martial Law
and issuance of the Laws (Continuance in Force) Order, new legal order had
replaced old legal order and the new legal order had become new grand norm. The
steps taken by C.M.L.A. could be treated as meta-legal or extra-Constitutional
acts on the basis of doctrine of revolutionary legality. Questions of validity
of such acts could be determined within the framework of new legal order and in
such circumstances Mr: Brohi submitted that midway had to be found between
Dosso's case and Asma Jillani's case to conclude that revolution if successful,
was legal:
39.
On the other hand, Syed Sharifuddin Pirzada, Attorney-General for
sometimes such legal order is disrupted by
abrupt political change. In this case contention that effectualness of new
regime provides its own legality Is rejected on the ground that it seeks to
exclude consideration of morality and justice from the concept of law and
legality. It was further held that de facto sovereign gets its position
confirmed by election or ratification 'by the people by habitual obedience over
a long time as is held in the case of Asma Jillani (supra). Kelsen himself
admitted that pure theory of law did not bind the Judge .'in the way in which
legal norms bind him. It was further held that Kelsen's theory is not a basic
doctrine of science of modern jurisprudence but only. a jurist's proposition.
40. Other distinguishing features of Begum
Nusrat Bhutto's case are that while in the cases of Dosso and Asma Jillani,
Constitutions were abrogated but in the case of Begum Nusrat Bhutto
Constitution was not abrogated but was herd in abeyance which shows that
the intention was that after a short time -the Constitution had to be revived
hence the old legal order continued and Proclamation of Martial Law and
Promulgation of Laws (Continuance in Force) Order, 1977 had to be treated as extra-Constitutional
acts and in this connection it is very essential to take into account the
facts in the background. On 7th March, 1977 when the result of elections was
announced it appeared that PPP had 155 seats from a total of 200 seats of the
National. Assembly. Opposition parties and Pakistan National Alliance refused
to accept the result and alleged massive rigging by Government officials under
the directions of Mr. Z.A. Bhutto. They boycotted the polling to the Provincial
Assemblies which was to be held 3 days later. PNA called for countrywide
protest movement against the rigging of elections and such agitation gained
rapid momentum and spread to all parts of the country. PNA demanded resignation
of the Prime Minister and fresh elections. As demands were not conceded
agitation became violent resulting in widespread disturbances which grew in
magnitude. It soon became apparent that situation was beyond control of civil
forces and Army had to be called out in many places. Mr. Bhutto issued
direction under Article 245 of the Constitution calling upon Armed Forces to
act in aid of civil power in
41. The learned Chief Justice while delivering
the leading judgment in this case has incorporated some portions front the
speech of the Chief Martial Law Administrator which was made otf the evening of
5th of July, 1977 explaining the reasons .for the action he had taken to
overthrow the Government. Salient features of the speech appear at page 703 of
the report which are reproduced as under:--
"The Army take-over is never a pleasant act because the Armed
Forces of Pakistan genuinely want that the administration of the country should
remain in the hands of the representatives of the people who are its real
masters. The people exercise this right through their elected representatives
who are chosen in every democratic country through periodic elections.
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
of
time. The Government needed time to hold these talks. The Armed Forces bought
them this valuable period of time by maintaining law and order in the country. The Armed Forces were subjected to
criticism from certain quarters for
their role in aid of the civil administration, but we tolerated this criticism and ridicules in
the hope that it was passing phase.
We hoped that when this climate of agitational frenzy comes to an end, the
nation would be able to appreciate the correct and
Constitutional
role of the Armed Forces and all fears would be allayed.
I have just given you a very broad-outline picture of the situation
obtaining in the country. It must be quite clear to you now that when. the
political leaders failed to steer the country out of a crisis, it is an
inexcusable sin for the Armed Forces to sit as silent spectators. It is
' primarily
for this reason, that the Army, perforce had to intervene to save the country.
I would like to point out here that I saw no prospects of a compromise
between the People's Party and the P.N.A. because of their mutual distrust and
lack of faith. It was feared that the failure of the P.N.A. and P.P.P. 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.
"
42. The Court also considered the damage
caused to the property during the agitation which is described at pages 698 and
699 of the report reproduced as under:--
"As regards the casualties suffered and
the damage caused to public and gut private property, Mr. Sharifuddin Pirzada,
the learned Attorney- General, has invited us to take judicial notice of the
submissions made before the Supreme Court by the former Attorney-General, Mr.
Yahya Bakhtiar, who now appears for the petitioner Begum Nusrat Bhutto, on
Mr. Yahya Bakhtiar further informed the Court
on that occasion that ` 241 civilians, belonging to both the political parties,
were killed, and ` 1195 were injured, whereas nine members of the security
forces were killed and 531 of them were injured. There were 162 acts of
sabotage ' and arson, besides large-scale destruction of property as follows:--
Installations 18
Shops
74
Banks 58
Vehicles on the road 1622 (They did not include
the vehicles burnt in the
Republic
Motors,
Hotels 7
Cinemas 11 , . . . ............ . -
Offices (public and private) 56 '
Railway, whether bogies
were burnt or otherwise
damaged 27
These losses and casualties, which according to Mr. Yahya Bakhtiar were
unprecedented, appear to me to lend full support to the submission made by Mr.
Sharifuddin Pirzada that the protest movement launched by the Opposition
against the alleged massive rigging of the elections organized by Mr. Z.A.
Bhutto's Government had assumed very serious proportion's indeed, comparable
almost to the well-known agitation movements launched in the undivided India,
like the Khilafat Movement, the Quit India Movement of 1942, etc.
43. It is noteworthy that when in 1977 this
Court was hearing the case of Begum Nusrat Bhutto Constitution of 1973 was in
the field in which Article 58 was there in its original form without addition
of sub-Article (2)(a)(b). Under Article 58 at that time President could
dissolve National Assembly only when he was so advised by the Prime Minister.
In such circumstances, the Court had to keep the factual background in view in
conjunction with position enunciated in the Constitution particularly when
there was no remedy provided to meet such an unforeseen situation with which the
country and the Court were confronted. After a very careful and long hearing
and examination of case-law on the subject and consideration of arguments
advanced by both sides, this Court came to the conclusion which is succintly
summarised in the leading judgment of the learned Chief Justice at page 721 of
the report which is reproduced as under:--
"The final position as emerging from this somewhat lengthy
discussion of the various questions arising in this case may briefly be summed
up as follows:
(i) That the legal character and validity of any
abrupt political change, brought about in a manner not contemplated by the
pre-existing Constitution or Legal Order, cannot be judged by the sole
criterion of its success or effectiveness, as contemplated by Kelsen's pure
theory of law. Not only has this theory not been universally accepted, or
applied, it is also open to serious criticism on the ground that, by making
effectiveness of the political change as the sole condition or criterion its legality, it excludes from consideration
sociological factors car morality and justice which contribute to the
acceptance or effectiveness of the new Legal Order. The legal consequences of
such a change must, therefore, be determined by a consideration of the total
milieu in which the change is brought about, including the motivation of those
responsible for the change, and the extent to which the old Legal order is
sought to be preserved or suppressed.
(ii) That in any case the theory of revolutionary
legality can have no application or relevance to a situation where the breach
of legal continuity is a purely temporary nature and for a specified limited
purpose. Such a phenomenon can more appropriately be described as one of
Constitutional deviation rather than of revolution.
(iii) That examined in this light, the
Proclamation of Martial Law on the 5th of July 1977, appears to be
an extra-Constitutional step necessitated by the complete break-down and
erosion of the Constitutional and moral authority of the Government of Mr. Z.A.
Bhutto, as a result of the
unprecedented protest movement launched by the Pakistan
National Alliance against the alleged massive rigging of elections to the
National Assembly, held on
(iv) That the imposition of Martial Law, therefore,
stands validated on the doctrine of necessity, and the Chief Martial Law
Administrator 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.
(v) That it has also become clear from a review
of the events resulting in the culmination of Martial Law, and the declaration
of intent made by the Chief Martial Law Administrator, that the 1973
Constitution still remains the supreme law, subject to the condition that
certain parts thereof have been held in abeyance on account of State
necessity; and the President of Pakistan as well as the superior Courts continue
-to function under this Constitution. In other words, this is not a case where
the old Legal Order has been completely suppressed or destroyed, but merely a
case of Constitutional deviation for a temporary period and for a specified and
limited objective, namely, the restoration of law and order and normalcy in the
country, and the earliest possible holding of free and fair elections for the
purpose of the restoration of democratic institutions under the 1973
Constitution.
(vi) That, accordingly 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 set out in this judgment. 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, and
(vii) That the provisions contained in clause (3)
of Article 2 of the Laws (Continuance in Force) Order, 1977, suspending the
right to enforce Fundamental Rights are valid for the reason that the situation
prevailing in the country was obviously of such a nature as to amount to an
emergency contemplated by clause (1) of Article 232 of the Constitution, and
the right to enforce Fundamental Rights could, therefore, be legitimately
suspended by an order of the kind which could have been made under clause (2)
of Article 233 of the Constitution."
44. It therefore follows from what is stated
above that this Court in Begum Nusrat Bhutto's case held that imposition of
Martial Law and promulgation of the Laws (Continuance in Force) Order were
extra-Constitutional steps validated on the basis of doctrine of necessity in
light of the fact that 1973 Constitution still remained the supreme law which
was held in abeyance and not abrogated on account of State necessity. This
arrangement was to last for a short time to enable the Government to hold
elections as soon as possible. Superior Courts continued to have power of
judicial review to judge the validity of any act or action of Martial Law
Authorities if challenged in the light of principles underlying the law of
necessity. Another very important feature of this judgment is that C.M.L.A. was
allowed to perform all such acts and promulgate all legislative measures which
have been consistently recognised by judicial authorities as falling within the
scope of law of necessity. Legislative measures included amendment to the
Constitution as well. Record shows that Martial Law was imposed on 5th July,
1977 and on the same day in the morning C.M.L.A. called on the then Chief
Justice of Pakistan Mr. Justice Muhammad Yaqub Ali and remained with him for
some time. Proclamation of Martial Law was issued on the same day and it shows
that Constitution was not obrogated but allowed to remain in abeyance.
Presumption is that Proclamation was published after meeting with the Chief
Justice. The Chief Justices of four High Courts were sworn in as Governors of
the Provinces. There is no dispute about the fact that in the advent of
Martial Law the Constitution of 1973 was not abrogated but was only held in
abeyance. On
45.
Mr. Abdul Mujeeb Pirzada, Mr. Abdul Hafeez Pirzada and Qazi Muhammad Jamil
appearing for appellants and petitioners contended before us vociferously that in
tire judgment of negum Nusrat Bhutto, this court should not
have validated the actions of C:M.L.A. which were outside the Constitution and
should not have given him power to amend the Constitution. instead of
validating, the Court should have condoned the actions at the most as was done
to the case rat Asma Jillani (supra). Validity of PCO was also challenged. Mr.
Abdul Hafeez Pirzada in particular requested this Court to revisit the judgment
in Begun Nusrat Bhutto's case on the grounds stated by him including what is atated
above. It would appear that the case of Begum Nusrat Bhutto was heard and
decided by 9 Judges who adorned the Bench. The Bench which is now nearing the
case in hand is composed of seven Judges. hi any case, we have heard with patience arguments from
both sides and have gone through the judgment in Begurn Nusrat Bhutto's case
minutely in the tight of the criticism made by the learned counsel appearing
for the appellants and the petitioners and arguments put forward in defence
thereof by the counsel appearing for the respondents and Mr. Sharifuddin
Pirzada, who appeared as amicus curiae. We have also gone through the case-law on the subject and particularly two
judgments in the cases of Dosso and Asma Jillani. We are of the considered view
that no exception cats be taken to ratio decidendi laid down in the judgment of
Begum Nusrat Bhutto. It is a very elaborate decision and particularly leading
judgment which is authored by late Chief Justice very painstakingly and
scholarly in which all aspects have been satisfactorily covered. The other
learned Judges in that case have also contributed their judgments all agreeing
with the Chief Justice except Mr. Justice Qaiser Khan who agreed with rte conclusion that the petition
be dismissed but gave his own reasons which are different from order Judges. In
fact, Justice Qaiser Khan has supported the view which was taken by Mr. A.K.
Brohi.
46. In the case of Begum Nusrat Bhutto
Martial Law has been justified and validated on the basis of doctrine of State
necessity and actions taken by C.M.L.A. have been declared to be
extra-Constitutional steps which have been given validation. Since there was
deadlock between the Government and the
Opposition parties and a situation had arisen in which no solution was
in sight and the Constitution was also silent not providing for any remedy, in
such circumstances there was no other way out except what was done by the Chief
of the Army Staff who took over as C.M.L.A. and imposed Martial Law. This third
Martial Law in the case of Begun Nusrat Bhutto was different from the two other
Martial Laws as has been very ably pointed out by Mr. Justice Dr. Nasim Hasan
Shah (as he then was) in his judgment in Begun Nusrat Bhutto's case that in the
previous two Martial Laws the intervention was not only to suppress the
existing Constitutions which were abrogated but to replace them by new
Constitutions. Hence old legal order was replaced by new legal order but
Martial Law in the case of Begun Nusrat Bhutto was intervention specifically
providing that Constitution was not abrogated but held in abeyance and further
expressing intention that elections would be held and Constitution would be
revived. Relevant portion from his judgment at page 753 of the report is
reproduced as under:
"In view of the break-down of the normal Constitutional machinery
and to fill the vacuum, the Armed Forces were obliged to take an extra Constitutional
step. Martial Law was imposed, in the picturesque words used in the written
statement filed by Mr. Brohi„not in order to disable the Constitutional
authority but in order to provide bridge to enable the country to return to the
path of Constitutional rule. In the felicitous phrase of my Lord the Chief
Justice, the act was more in the nature of a 'Constitutional deviation' rather
than an overthrow of the Constitution. The Constitution of 1973 is not buried
but merely suspended. It, however, continues to be the governing instrument
subject to the provisions of the Laws (Continuance in Force) Order, 1977. In
these circumstances, neither the ratio decidendi of Dosso v. State nor that of
Asma Jillani v.
Questions raised by the learned counsel and
mentioned in paragraph No.45 Herein before have already: been answered in the
judgment in the case of Begun Nusrat Bhutto, which is fully endorsed by us. Learned late Cuter
Justice Anwarul Hay and Waheeduddin Ahmed, J. have both relied upon special
Reference No. 1 of 1955 filed by Governor-General and reported in PLD 1955 FC
435 in connection with the validation on account of State necessity as this was
the only way to resolve the Constitutional deadlock. Additionally, I may state
here that Constitutional deadlock had arisen after judgment was rendered by
Federal Court of Pakistan in the case of Federation of Pakistan v. Moulvi
Tamizuddin Khan PLD 1955 SC 240) in which it was held that section 223-A which
was added to the Government of India Act, 1935, conferring writ jurisdiction on
the High Courts was not assented by the Governor-General, hence was not ' valid piece of legislation. Contention raised
against the proposition that Constituent Assembly performed dual functions as
Constitueut Assembly and Legislative Assembly and assent was not required
during the performance of functions as Constituent Assembly but this contention
was not accepted in the result decision rendered by Chief Court of Sindh in
favour of Moulvi Tamizuddin Khan stood nullified. This ruling rendered many
other statutes and laws which were not signed by the Governor-General as
invalid and in consequence the Governor-General issued Ordinance whereby he
sought to validate all such invalid laws. This Ordinance No.IX of 1955 further authorised
the Governor-General to make provisions for framing of new Constitution. This
Ordinance was struck down in the Federal Court in case of Usif Patel v. Crown
(PLD 1955 FC 387) in which it was held that validation amounted to fresh
legislation which the Governor-General could not do in the absence of a
Legislature. In such circumstance a grave situation had arisen leading to
crisis and chaos. Federal Government made a reference to the Federal Court
seeking advice by Reference No.l of 1955 (PLD 1955 FC 435) which was heard
after hearing the Federal Court came to the conclusion that Constituent
Assembly after functioning for
seven long years failed to produce a Constitution hence such failure rendered
the Constituent Assembly somewhat unrepresentative and in such circumstances
the Governor-General had the implied authority to dissolve the Constituent
Assembly. Acting on the "doctrine of necessity" the Court further
held that the Governor-General was justified in validating the invalid laws for
the interim period and the question of validation would be finally decided by
the Legislature. The Court also observed that the GovernorGeneral should
constitute a Constituent Assembly, which would be competent to legislate and
frame a new Constitution for the country. It was in this way that
Constitutional deadlock was averted and the same principle was applied in the
case of Begum Nusrat Bhutto for validation of acts and laws of Chief Martial
Law Administrator which were subsequently given Constitutional cover under
Article 2"70-A. Doctrine of condonation was not attracted to the case of
begun, Nusrat Bhutto as C.M.L.A. was not declared as usurper and all such acts
which were outside the Constitution were treated as extra-Constitutional
measures as intention was obvious that 1973 Constitution was to be revived and
for that reason it was not abrogated.
47. With regard to the objection that in the
case of Begum Nusrat Bhuttu power was given to C.M.L.A. as one man to amend the
Constitution which should not have been done it appears that Chief of the Army
Staff had taken over the governance in his own hands as one man and imposed-
Martial Law. He could have abrogated the Constitution but he did not do so and
instead held in abeyance and provided in the Laws (Continuance in Force) Order,
1977 that country would 1e governed as nearly as may be in accordance with the
Constitution. His de facto status as such was later recognized by the Supreme
Court in the judgment in the case of Begum Nusrat Bhutto as de jure and his actions
were justified on the doctrine of State necessity and were treated as extra
Constitutional measures or Constitutional deviations. In fact he had amended
the Constitution before final adjudication could be given by the Supreme Court
in respect of validity of Martial Law. The situation was such that there was no
parliament and reigns of the governance were in the hands of C.M.L.A. as one
man. In such circumstances at the time of validation this Court allowed him the
power to amend the Constitution on the basis of doctrine of State necessity as
in any case Constitutional amendments, if any, made by him would have to be
approved and validated by the Legislature. This was done more or less on the
same lines as allowed by the Federal Court of Pakistan in Reference No. l of
1955 (PLD 1955 FC 435). In tnat case it was held that issue raised
referred to extraordinary powers of the
Governor-General dung the emergency period and not to powers which vested in
the Governor-General during normal times when the vital organ of the Constitution, namely, the Legislature was
functioning and the question that had to be considered was whether there was
any provision in the Constitution governing such a situation or any other legal
principle within outside or above the Constitution Act which entitled the
Governor-General to act in case of necessity of such a nature:
48. Objection was also raised that in the
case of Begum Nusrat Bhutto timeframe was not provided for holding the
elections as promised by C.M.L.A. to the-nation on the basis of which his
take-over and Martial Law were justified as extra-Constitutional steps. This
issue, is adverted to by this Court in that judgment at pages 722 and 723 of
the report. Mr. Yahya Bakhtiar, learned counsel for the petitioner, had expressed
apprehension on the postponement of election schedule to be held on
49. During the hearing of cases under
consideration question was raised that there is no discussion in the judgment
with regard to the power of amendment of Constitution conferred on C.M.L.A. and
in that connection it has been pointed out that in the leading judgment in the
findings summarised at page 721 of the report under the heading of "final
position" under sub-heading (iv) it is mentioned that Chief Martial Law
Administrator is entitled to perform all such acts and promulgate all
legislative measures which have been consistently recognized by judicial
authorities as falling within the scope of law of necessity. In this sub
heading (iv) words "to amend the Constitution" are not mentioned
which are mentioned specifically at page 716 of the report under the subheading
(iii) (a) which are also findings mentioned at page 715 of the report under the
heading of "the true legal position which, therefore, emerges". In
this connection, it was further stated before us that the original record shows
that coloui of typed pages 94 to 100 is different from the remaining pages. We
have checked the original record which shows that pages 94 to 100 are of
brighter white colour than remaining pages which are off white. Then again
pages 1Q2 and 103 are also of brighter white colour and likewise page 108 is
also of brighter white colour. Now, this change in the colour of few pages in
the original judgment does not show that these pages were replaced as it can so
happen in the ordinary course as well. We have seen judgments of other learned
Judges in the main original file which show that both
kinds of paper, as mentioned above, have been used. Each page of leading
judgment is initialled by the late Chief Justice. Mr. Sharifuddin Pirzada, who
was Attorney-General at the relevant time and appeared before the Court, on our
query stated that question with regard to the power of C.M.L.A. to amend the
Constitution was raised and discussed before the Court. We are also of the view
that it must have been discussed because during the pendency-of Constitutional
petition before this Court amendment was. made in the Constitution by the
C.M.L.A. in consequence whereof Chief Justice Muhammad Yaqub Ali had to retire.
Out of nine learned Judges who heard that case five learned Judges had
contributed long judgments and the remaining Judges as well have appended short
notes agreeing with the judgment of the Chief Justice or other Judges. No other
Judge had said that this question with regard to the power to C.M.L.A. to amend
the Constitution was not agitated and discussed before the Bench in the Court.
We are _ completely satisfied that this question was raised and answered in ate
appropriate manner and change in the colour of papers in the judgment does not
indicate anything which is unusual and not proper.
50. Now we come to post judgment developments
which took place after the announcement of judgment in the case of Begum Nusrat
Bhutto leading to the Eighth Amendment which has been called in question before
us. Judgment in that case was announced on
51. Perusal of all the provisions and
Articles in this Order from 1 to 18 in conjunction with explanatory statement
which can be read by way of preamble does not show that the intention was to
abrogate the Constitution or to replace it with new one or to say good-bye to
it in any manner. Article 2 provides that several Articles of the Constitution
which are specifically mentioned were made part of this Order. Post of
Vice-President was created. Provision was made for appointment of ad hoc Judges
of the Supreme Court. Circuit Benches were provided for the High Courts and
other provisions were made affecting service conditions of the Judges. Article
15 thereof provided for validation of laws and provisions was made therein for
non-interference by the ordinary Courts even under judicial review by the
Supreme Court with proceedings before the
52. _ On the contrary it appears that
jurisdiction of the Court was curtailed and Circuit Benches of the High Court
were set up. But such changes do not mean that it should be presumed that PCO
was ` a new grund norm because subsequent events did show that after holding
referendum on 1-12-1984 elections were held on non-party basis on 25-2-1985 and
Constitution of 1973 'was revived on 2-3-1985. Revival of the Constitution of
1973 puts at rest any doubts which might have arisen after promulgation of PCO.
It also appears that the intention of C.M.L.A. was to restore the Constitution
but with amendments to strike balance between the powers of the President and
the Prime Minister and also to blend the Constitution further with Islamic
provisions in respect of which already foundation was laid in the Objectives
Resolution. It may be pointed out at the cost of repetition that Objectives
Resolution appeared as preamble in all the four Constitutions of 1956, 1962,
1972 (Interim Constitution) and 1973. C.M.L.A. was very anxious about the
introduction of Islamic provisions in the Constitution which fact is proved by
subsequent events after introduction of Eighth Amendment.
53. Before Eighth Amendment and before even
Revival of Constitution of 1973 which took place on '
"And whereas in his address of the twelfth day of August, 1983, *
the President of Pakistan declared that the Constitution will be restored after
making therein amendments inter alia to include Islamic provisions in the
substantive part of the Constitution and to bring about a balance between the
powers conferred thereby on the President and the Prime Minister and to revive
democracy and representative institutions in accordance with the principles of
Islam, that elections to the National Assembly, the Senate and the four
Provincial Assemblies will be held so as to be completed by the twenty-third
day of March, 1985, that the rights of women will be protected and they will
have the same right of franchise 'as men, minorities in Islam are not an oppressed and persecuted lot but a-
privileged section of society and that representation will be given to the
ulema, women, workers, peasants, technocrats and professional classes."
The paragraph from Referendum Order, 1984 reproduced above manifests
the intention of the President that he wanted. to retain 1973 Constitution and
wanted to revive it with balance between the powers of the President and the
Prime Minister and introduction and consolidation of Islamic provisions.
5,4. The President ordered General Elections
to be held on
55. By President's Order 14 of 1985 which is
titled as Revival of the Constitution of 1973 Order, 1985, enforced on 10th
March, 1985, provides for revival of the Constitution o€ 1973 with amendments
made thereto which are specified to the third column of Schedule. Perusal of Schedule shows that Objectives
Resolution which was preamble to the Constitution has been inserted in the
Constitution as Article `?A quid
further in the Schedule about 62 Articles in the Constitution: have been amended
in order to bring balance between the powers of the President and the Prime
Minister and also introduce Islamic provisions. It is stated at the Bar by Mr.
Sharifuddin Pirzada that RCO (P.0.14/1985) was drawn by Mr. A.K. Brohi and
Maulana Zaffar Ahmad Ansari and on
56. Eighth Amendment Act has also introduced
Article 270-A which provides for validation of Proclamation of
57. Much has been said against Article
58(2)(b) of the Constitution that it has changed the shape of the Constitution
from Parliamentary to Presidential and has concentrated powers in the hands of
the President who is not directly elected as is Prime Minister. Perusal of the
Constitution, as it is, shows that it is not so and the apprehension is
unfounded for the reason that this. provision has only brought about balance
between the powers of the President and the Prime Minister in Parliamentary
Form of Government as is contemplated under Parliamentary Democracy. There is
nothing unusual about it and such provisions enabling the President to exercise
such power can be found in various Parliamentary and Democratic Constitutions
like
58. We are therefore of considered view that
Eighth Amendment including Article 58(2)(b) has come to stay in the
Constitution as permanent feature. It is open to the
Parliament to make amendment to the Constitution of any provision of the Eighth
Amendment as contemplated under Article 239 as long as basic characteristics of
federalism, parliamentary democracy and Islamic provisions as envisaged in the
Objectives Resolution/Preamble to the Constitution of 1973 which now stands as
substantive part of the Constitution in the shape of Article 2A are not
touched.
59. The abovementioned are our detailed
reasons in support of short order which was announced by us earlier in point of
time on
60. Before we part with this judgment we
would like to express our thanks to the learned counsel who appeared in these
cases before us for the parties and also Mr. Sharifuddin Pirzada who assisted
the Court as amicus curiae and rendered very useful and commendable assistance.
We also appreciate the painstaking assistance tendered by the members of staff
who worked hard during lengthy hearing of this case.
(
SAJJAD ALI SHAH, C.J
(
FAZAL ILAHI KHAN, J
As stated by me in the short order, I only
agree with the conclusion that the appeals and Constitutional petitions merit
dismissal for which I shall separately record my reasons in detail.
(
ZIA MAHMOOD MIRZA, J
I respectfully agree with the judgment proposed by learned Chief Justice.
I have also read judgment of my learned brother Saleem Akhtar, J. and have
agreed with the conclusions thereof.
(
IRSHAD HASAN KHAN, J
I respectfully agree. However, I have given. a separate note of my own
(
RAJA AFRASIAB KHAN, J
I agree. I have also agreed with the
conclusions in the proposed judgment of my learned brother Saleem Akhtar, J.
(
MUNAWAR AHMED MIRZA
Reasons released at
SALEEM AKHTAR, J.--This judgment will dispose of Civil
Appeal No.397-K of 1990, Civil Appeal No.399-K of 1990, Constitution Petition
No.60 of 1996, Constitution Petition No.67 of 1996 and Constitution Petition
No.68 of 1996 in which Constitution (Eighth Amendment) Act, 1985 (Act XVIII of
1985), hereinafter referred as Eighth Amendment, has been challenged.
2. Appeals Nos. 397-K of 1990 and 399-K of
1990 arise from the judgment of the High Court of Sindh in which the
Constitution Petitions challenging the Eighth Amendment were dismissed. The
remaining Constitution petitions i.e. Constitution Petitions Nos.60 of 1996, 67
of 1996. and 68 of 1996, have been filed in this Court under Article 184(3) of
the Constitution challenging the legality and validity of the Eighth Amendment.
3. Before taking into consideration the
contentions raised before us, it is necessary to state some salient and
important facts and features of the case which are necessary for determining
the controversy between the parties. It was in the wake of movement by PNA
against the general elections held by the then Prime Minister Z.A. Bhutto that
General Muhammad Ziaul Haq (hereinafter referred to as the General) proclaimed
Martial Law on 5-7-1977, which reads as follows:--
"Whereas 1, General Muhammad Zia-ul-Haq, Chief of the Army Staff,
have proclaimed Martial Law throughout Pakistan and assumed the office of the
Chief Martial Law Administrator, hereby order and proclaim as follows:--
(A) The Constitution of the Islamic Republic of Pakistan shall remain
in abeyance.
(B) The National Assembly, the Senate and the Provincial Assemblies
shall stand dissolved.
(C) The Prime Minister, the Federal Ministers, Ministers of State,
Advisers to the Prime Minister, the Speaker and Deputy Speaker of the National
Assembly and the Provincial Assemblies, the Chairman and Deputy Chairman of the
Senate, the Provincial Governors, the Provincial Chief Ministers and the
Provincial Ministers shall cease to hold office.
(D) The President of
(E) The whole of
Simultaneously, on the same day, Martial Law Order No. l of 1977 known
as C.M.L.A.'s Order No. l of 1977 - The Laws (Continuance in Force) Order, 1977
was enforced. It may be noted that in the Proclamation of Martial Law, the
Constitution of the Islamic Republic of Pakistan was to remain in abeyance, the
National Assembly, the Senate and the Provincial Assemblies were dissolved and
the Prime Minister, the Federal Ministers, Ministers of State, Advisers to the
Prime Minister, the Speaker and Deputy Speaker of the Assemblies, the Chairman
and Deputy Chairman of the Senate, the Governors, the Chief Ministers and the
Provincial Ministers ceased to hold office. By C.M.L.A. Order No. l of 1977, it
was provided that notwithstanding the abeyance of the Constitution,
"Pakistan shall, subject to this Order and any order made by the President
and any regulation made by the Chief Martial Law Administrator, be governed as
nearly as may be in accordance with the Constitution". Under clause (2) of
Article 2, the Supreme Court and the High Courts in existence, though continued
to exercise their respective powers and jurisdiction, yet their power to make
any order of the nature mentioned in Article 199 of the Constitution was
suspended. Fundamental Rights conferred by Chapter I of Part II of the Constitution,
and all proceedings pending in any Court, in so far as for the enforcement of
any of these rights were suspended. Under Article 3, the President was to act
on or in accordance with the advice of the Chief Martial Law Administrator. The
jurisdiction of the Court, Tribunal or any other authority in respect of
Proclamation or Order or Ordinance made iii pursuance thereof or any Martial
Law Regulation or Martial Law Order was ousted. (Art.4(2)). The Courts and
Tribunals were barred from passing any judgment, decree, writ; order or process
against the Chief Martial Law Administrator (C.M.L.A.) or any Martial Law
Authority (Art.4(3)). The Ordinances promulgated by the President or by the
Governors of the Provinces, were not to be subject to limitation as to duration
prescribed in the Constitution. (Art.7). Article 8 provided that all persons in
the service of Pakistan as defined in Article 260 of the Constitution and those
persons who were before the Proclamation in the office as Judge of the Supreme
Court or a High Court, Auditor-General or Advocate-General, shall continue in
the said service on the same terms and conditions and shall enjoy the same
privileges, if any. The provisions in any law providing for Review Board with
reference to detention cases were declared to be of no effect (Art. 9).
4. C.M.L.A. Order No.1 of 1977 was challenged
in the case of Begum Nusrat Bhutto v. Chief of Army Staff and Federation of
Pakistan PLD 1977 SC 657. The hearing started on 20-9-1977 but before the
judgment which was announced on 10-11-1977, Martial Law Order No.6 of 1977
entitled as the Laws (Continuance in Force) (Fifth Amendment) Order, 1977, was
issued on 22-9-1977. By this Order, amendment was made in clause (1) of Article
2 of C. M. L. A. Order No. l of 1977 by adding an Explanation that "in
this Order the term 'Constitution' shall be so construed as if Articles 179,
195 and 199 of the Constitution had not been amended by any of the Acts
amending it", and in Article 8 a provision was added that "the
incumbent of any office who would have retired from office in the absence of an
amendment of the Constitution shall cease to hold office forthwith". The
immediate effect of this amendment was that Justice Yaqoob Ali, who was Chief
Justice of the Supreme Court at that time, by virtue of the amendment made in
the Constitution before the proclamation of Martial Law, ceased to hold office
with effect from
"(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 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.
(iv) That these acts, or any of them, tray 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.
This last point needs a little explanation. In the body of this
judgment opinions of certain textbook 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 tile 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. ,
There is yet another, and a stronger reason. for holding that the power
of judicial review continues. The 1973 Constitution provides for a clear
trichotomy of powers between the executive, legislative-and judicial organs of
the State. However, owing to reasons of necessity, the executive and the
legislative power now stands combined in one authority, for the reason that
these two organs of the State had lost their Constitutional and moral authority
in the circumstances arising since the 7th of March, 1977, but no such
considerations arose in regard to the judicial organ of the State. Accordingly
on no principle of necessity could powers of judicial review vested in the
superior Courts under the 1973 Constitution, be taken away.
Next, even if for any reason the principle or power of judicial review
embodied in the relevant provisions of the 1973 Constitution be held not to be
available under the new dispensation, the fact remains that the ideology of
Pakistan embodying the doctrine that sovereignty belongs to Allah and is to be
exercised on His behalf as a sacred trust by the chosen representatives of the
people, strongly militates against placing the ruler for the time being above
the law, and not accountable to any one in the realm. Muslim rulers have always
regarded themselves as being accountable to the Courts of the land for all
their actions and have never claimed exemption even from personal appearance in
the Courts. The Courts of justice are an embodiment and a symbol of the
conscience of the Millat (Muslim community), and provide an effective safeguard
for the rights of the subjects. On this principle as well, the power of
judicial review for judging the validity of the actions of the Martial Law
Authorities must continue to remain in the superior Courts.
Lastly, the Court is bound to take note of
the fact that already several instances have been brought to its notice where
the ordinary civil rights of the people are being interfered with by the
subordinate Martial Law Authorities even though the laws of the land, which
have been kept alive under the Laws (Continuance in Force) Order, 1977, make
full provision for their adjudication. In some cases, interference has occurred
even when the contending parties had already been litigating in the Civil
Courts regarding the same disputes. 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."
Thereafter, Proclamation of Martial Law and C.M.L.A. Order No.1 of 1977
was discussed in detail and the final position emerging from discussion of
various questions was summed up as follows:--
"(i) That the legal character and validity of any
abrupt political change, brought about in a Manner not contemplated by the
pre-existing Constitution or Legal .Order, cannot be judged by the sole
criterion of its .success or effectiveness, as contemplated by Kelsen's pure theory of law. Not only has this theory not been
universally accepted, or applied, it is also open to serious criticism on the
ground that, by making effectiveness of the political change as the sole
condition or criterion of its legality, it excludes from consideration
sociological factors or morality and justice which contribute to the acceptance
or effectiveness of the new Legal Order. The legal consequences of such a
change must, therefore, be determined by a consideration of the total milieu in
which the change is brought about, including the motivation of those
responsible for the change, and the extent to which the old Legal Order is
sought to be preserved or suppressed.
(ii) That in any case the theory of revolutionary
legality can have no application or relevance to a situation where the breach
of legal continuity is of a purely temporary nature and for a specified limited
purpose. Such a phenomenon can more appropriately be described as one of
Constitutional deviation rather than of revolution.
(iii) That examined in this light, the Proclamation
of Martial Law on the 5th of July, 1977, appears to be an extra-Constitutional
step necessitated by the complete break-down and erosion of the Constitutional
and moral authority of the Government of Mr. Z.A. Bhutto, as a result of the
unprecedented protest movement launched by the Pakistan National Alliance
against the alleged massive rigging of elections to the National Assembly, held
on the 7th of March, 1977. It was a situation for which the Constitution
provided no solution, and the Armed Forces had, therefore to intervene to save
the country from further chaos and bloodshed, to safeguard its integrity and
sovereignty, and to separate the warring factions which had brought the country
to the brink of disaster.
(iv) That the imposition of Martial Law, therefore,
stands validated on the doctrine of necessity, and the Chief Martial Law
Administrator 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.
(v) That it has also become clear from a review
of the events resulting in the culmination of Martial Law, and the declaration
of intent made by the Chief Martial Law Administrator, that the 1973
Constitution still remains the supreme law, subject to the condition that
certain parts thereof have been held in abeyance on account of State necessity;
and the President of Pakistan as well as the superior Courts continue to
function under this Constitution. In other words, this is not a case where the
old Legal Order has ' been completely suppressed or destroyed, but merely a
case of Constitution deviation for a temporary period and for a specified and
limited objective, namely, the restoration of law and order and normalcy in the
country, and the earliest possible holding of free and fair elections for the
purpose of the restoration of democratic institutions under the 1973
Constitution.
(vi) That
accordingly, 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
set out in this judgment. 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, and
(vii) That the provisions
contained in clause (3) of Article 2 of the Laws (Continuance in Force) Order,
1977, suspending the right to enforce Fundamental Rights are valid for the
reason that the situation prevailing in the country was obviously of such a
nature as to amount to an Emergency contemplated by clause (1) of Article 232
of the Constitution, and the right to enforce Fundamental Rights could,
therefore, be legitimately suspended by an order of the kind which could have
been made under clause (2) of Article 233 of the Constitution."
5. Immediately thereafter, .case of. Mr.
Zulfikar Ali Bhutto v. The State PLD 1978 SC 40 came up for hearing before the
Supreme Court, which was decided in December, 1977. In this case, inter alia,
the constitution of High Court and the validity of the appointment of Acting
Chief Justice was challenged. While referring to the contention that Acting
Chief Justice has not been appointed by a Competent Authority, it was observed
that. such ground was not available in view of the judgment of this Court in
Begum Nusrat Bhutto's case in which imposition of Martial Law by the Chief
Martial Law Administrator was held to be valid on the ground of necessity and
it was further held that Chief Martial Law Administrator has the power to
perform, inter alia, all actions which could be taken under the 1973
Constitution. In order to dispel misconception as to the true implications of
the decision in Begun Nusrat Bhutto's case, in so far as it deals with the
power of the Chief Martial Law Administrator under the doctrine of necessity,
it was further clarified as follows:--
"It seems to us, therefore, that it must be clearly understood
that in judging whether an action taken by the President or the Chief Martial
Law Administrator is valid under the law of necessity, the Court is not to sit
in appeal over the executive authority concerned, nor substitute its own
discretion for that of the competent authority. The responsibility
for the relevant action, its methodology and procedural details, must rest on
that authority. In exercising its .power of judicial review the Court is
concerned with examining whether the impugned action reasonably falls within
any of the categories enumerated by this Court in Begum Nusrat Bhutto's case,
while spelling out the powers which may be exercised by the Chief Martial Law
Administrator, or the President of Pakistan acting on his advice. As -to what
is reasonable or not in this context must be judged by the standards of an
ordinary, prudent and reasonable citizen, and will depend on the prevailing
circumstances and the object with which the action has been taken. These
observations are, of course, without derogation to the other accepted
principles governing the exercise of powers conferred by Article 199 of the
Constitution. .
Viewed in this perspective, the Post Proclamation Presidential Orders
Nos. 3, 4 and 5 clearly fall within the objectives for which Martial Law was
imposed in the country on
6. It can thus be said that the
Post-Proclamation Presidential Orders Nos. 3, 4 and 5 were held to be valid.
7. - Mr. Fazal Elahi, the President of
Pakistan, who had continued to hold office after Proclamation of Martial Law.
resigned from his office. This led to the issuance of President's Order. No. 13
of 1978 by the Chief Martial Law Administrator which provided for filling in
the vacancy of the President in the event of death, physical or mental
incapacity, resignation etc. The validity of President's .Order No. 13 of 1978
was challenged in Malik Ghulam7iliani v. The
8. On
9. To complete the Constitutional background
of the present case, it may further be stated that the President, by notification
dated 29-12-1985, issued under Presidential Order 14 of 1985, appointed the day
on which Proclamation of 5-7-1977 is revoked as the date for coming into force
of suspended Articles 6, 8 to 28 (both inclusive), clause (2) of Article 101,
Articles 199, 213 to 216 (both inclusive) and Article 270-A of the
Constitution. Simultaneously another notification was also issued appointing
the day of omission of Article 212-A of the Constitution on the day on which
Proclamation of
10. After the revival of the Constitution,
Mr. Muhammad Khan Junejo became the first Prime Minister of the Assembly
elected in the year 1985. In Provinces also, the Governments were formed.
However, on
11. The political history of the Constitution
is checkered and marred by deviations and Constitutional breakdowns which
bayoneted two Constitutions and the third one remained suspended for nine
years. The dark shadows of military intervention had become a common phenomenon
which has cast its influence on the death and birth of the Constitutions. The
history does not speak of consistent adoption of any basic structure for the
Constitution.
12. Mr. Qazi Muhammad Jamil, learned counsel
for the petitioner contended that the Eighth Amendment has taken away one part
of the State pillar which amounts to abrogation of the Constitution and further
that it has changed the Parliamentary Form of Government to Presidential form
of Government. Article 58(2)(b) of the Constitution has thus changed the basic
structure of the Constitution.
13. According to Mr. Mujib Pirzada, Eighth
Amendment is violative of the basic structure of the Constitution, but he
maintained that there are certain provisions which are beneficial and one of
them being Article 58(2)(b), which should be preserved. Mr. Abdul Hafeez
Pirzada although challenged the validity of the Eighth Amendment was of the
view that it is not possible for the Court to scrutinize each and every Article
amended or substituted by the Eighth Amendment and, therefore, a Constitution
Reforms Commission be formed, which may, after examining it, submit its report,
which may be put to referendum. On a query that would it not be proper to put
the report of such Commission before the National Assembly for proper
legislation instead of referendum, he replied that the National Assembly will
never pass any legislation repealing the Eighth Amendment because of vested
interests.
14. Mr. Habib-ul-Wahabul Khairi, learned
counsel contended that first the basic structure of the Constitution has to be
determined and then any amendment which is not in conflict with the basic
structure of the Constitution should be preserved, and the rest should be
declared void. ,
15. Mr. Khalid Anwar, learned counsel for the
respondent contended that in
16. Mr. Ismail Qureshi, learned counsel
contended that the basic structure of the Constitution is embodied in the Objectives Resolution. He further contended that the
Eighth Amendment has not changed the Constitution of 1973 but has strengthened
the structure according to aspirations and will of the people of
17. Mr. Shahzad Jehangir, learned
Attorney-General contended that the basic structure theory was never accepted
by the Courts in
18. Mr. Syed Sharifuddin Pirzada, learned
amicus curiae contended that the Eighth Amendment has not changed the character
of the Constitution. It is accepted on all hands that the Objectives Resolution
is the basic foundation of the Constitution. The Objectives Resolution was
passed by the Constituent Assembly in 1949, which provided a guideline for
drafting the Constitution. It includes and covers all such principles and
provisions which are essential for a federal democratic type of Constitution
blended with Islamic principles and provisions. This Resolution in principle
has become the important feature of the Constitution. It found its place in the
Constitution of 1956 as its Preamble, and continued as such in the Constitution
of 1962 as well. Then in the Constitution of 1973, it was incorporated as its
Preamble. By Eighth Amendment, Article 2A was added, which has made the
Objectives Resolution as a substantive part of the Constitution. It reads as
follows:--
"2A. The principles and provisions set out in the Objectives
Resolution reproduced in the Annex are hereby made substantive part of the
Constitution and shall have effect accordingly."
The addition of Article 2A has not been challenged or discarded even by
those persons who have sought cancellation of the Eighth Amendment.
19. In order to ascertain whether there
exists an inviolable basic structure of the Constitution, Mr. Khalid Anwar has
taken us to the Constitutional and legal history leading up to the formation of
the Constitution of 1973'. Before we embark upon this exercise, it may be noted
that the Objectives Resolution states that sovereignty over the entire Universe
belongs to Almighty Allah alone, and the authority to be exercised by the
people of Pakistan within the limits prescribed by Him is a sacred trust; State
shall exercise its powers and authority through the chosen representatives of
the people; the principles of democracy, freedom, equality, tolerance and
social justice, as enunciated by Islam, shall be observed. It contemplates a
Federal form of Government with autonomous units, guarantees 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
independence of judiciary has been fully secured. It also confirms its faith to
the declaration made by the Founder of Pakistan, Quaid-eAzam Muhammad Ali
Jinnah, that
"Freedom
and its idealism have taught democracy. Islam has taught equality, justice and
fairplay to everybody. But reason is there for anyone
to fear democracy, equality, freedom on the highest standard of integrity and to the basis of
fairplay and justice for everybody."
The Objectives Resolution and the speech of Quaid-e-Azam quoted above
clearly show that the Constitution was to be based on Islamic principles of
democracy, equality, freedom, justice and fairplay. These were the guiding
principles which were to be moulded in the form of Constitution. These were
inter alia the basic features on which the Constitution was to be framed.
20. Mr. Khalid Anwar, learned counsel,
referred to section 7 of the Government of India Act, 1935 which provides that
the executive authority of the Federation shall be exercised on behalf of His
Majesty by the Governor General
"either directly or through officers subordinate to him. Section 9
provides that there shall be a Council of Ministers not exceeding ten in number
to aid and advise the Governor-General in the exercise of his functions except
in so far as he is by or under this Act required to exercise his functions or
any of them in his discretion. The Council of Ministers was to be chosen by the
Governor-General who were to hold office during his pleasure (section 10). From
the aforestated provisions it is clear that the concept of Cabinet was
introduced but the Council of Ministers did not have any Prime Minister and
that the Council of Ministers held the office at the pleasure of Governor-General.
Section 45 provided that if at any time the Governor-General is satisfied that
a situation has arisen in which the Government of Federation cannot be carried
on in accordance with the provisions of this act, he may by Proclamation
declare that his function shall, be to such extent as may be specified in the
Proclamation, exercised by him in his discretion, assume himself all or any of
the powers vested in or exercisable by any federal body or authority, and . any
such Proclamation may contain such incidental and consequential provisions as
may appear to him to be necessary or desirable for giving effect to the object
of the Proclamation. Similar powers were vested in the Governor under section
93.
21. In the Constitution of 1956 which
envisaged parliamentary form of Government, Article 37 .provided that there
shall be a Cabinet of Ministers with the Prime Minister at its head to aid and
advise the President in the exercise of his functions. Clause (3) of Article 37
provided that the President shall, in his discretion, appoint from Ministers,
the members of the National Assembly, a Prime Minister who in his opinion is
more likely to command the confidence of the majority of the members of the
National Assembly. Clause (6) provided that the Prime Minister shall hold the
office during the pleasure of the President but the President shall not
exercise his power under this clause unless he is satisfied that the Prime
Minister does not command the confidence of the majority of the members of the
National Assembly. By virtue of Article 39, the executive authority of the
federation was vested in the President and was to be exercised by him either
directly or through officers subordinate to him, in accordance with the
Constitution. The Constitution of 1956, provided for Parliamentary Form of
Government with, the President as its executive head. In fact it was a Federal
Parliamentary Form of Government. By a Proclamation dated
22. All these actions were challenged and in
Dosso's case judgment was announced on
23. On the first day of March, 1962, General
Muhammad Ayub Khan gave the Constitution of 1962 which was Presidential in
form. Referring to Articles 13, 27, 37, 40, 41, 163, 167 and 173, Mr. Khalid
Anwar contended that the Constitution of 1962 did not envisage a Presidential
form of Government but an authoritarian form in which the President had the
sole power even to ignore the Parliament.
Then came Proclamation of Martial Law of 1969
on
24. On 4-4-1969, the Provisional Constitution
Order, 1969 was promulgated which provided that except as otherwise provided,
the provisions of this order shall be in addition to and not in derogation of
proclamation, and shall be read and construed accordingly. It further provided
that the State of Pakistan shall, except as otherwise provided in this order,
be governed as nearly as may be in accordance with the Constitution of 1962.
The Chief Martial Law Administrator became the President of Pakistan. Articles
2, 4,.5, 6, 7, 8, 9, 13, 14, 15 and 17 conferring and guaranteeing the
fundamental rights set out in Chapter I of Part 11 of the Constitution stood
abrogated and all proceedings pending in any Court for enforcement of those
rights abated. The jurisdiction of the Courts to question the proclamation, or
any Martial law Regulation or Martial Law Order, or any finding, sentence or
order of
25. On
26. The elections were held and 156 seats out
of 300 were won by Awami League while 82 seats were won by the Pakistan Peoples
Party and then the continued malady travelled into a tragedy. We saw the
break-up of
27. The first task was to provide a
Constitution. The Interim Constitution of 1972 was framed when Martial Law was
in force and the Chief Martial Law Administrator was ruling the country. After
this Constitution was framed and Martial Law was lifted on
"The Constitution of 1973 made it crystal clear that the kingpin
of the entire Governmental structure, whether it concerned decision-making in
the Central Government or whether it related to matters, vis-a-vis the
Provincial Governments, was the Prime Minister. As noted in Chapter 2, in 1953
the Governor-General exercising his discretionary power, dismissed the Prime
Minister even though the budget presented by the same Prime Minister's
Government had been approved by the assembly. In 1954, the Governor-General
went so far as to dissolve the Constituent Assembly. Again in 1957, the Prime
Minister was removed by the President. The Constitution of 1973 ensured that in
the future no President would be able to act against the advice of the Prime
Minister or issue any orders without the approval of the Prime Minister. The
Constitution made it clear that the advice of the Prime Minister was binding
and all Presidential orders relating to trotters like dissolution of the
National Assembly, the promulgation of Ordinances when the National Assembly
was not in session, and the declaration of a state of emergency in case of a
threat to the security or financial stability or orders relating to other
matters could only become valid if countersigned by the Prime Minister. Bhutto
could argue that these provisions were not unusual. He was trying to ensure tire
unquestionable supremacy of the Prime Minister through tits written Constitution, whereas in other
Parliamentary Governments these matters had been accepted 'through long
established conventions anti traditions
without being incorporated in the written Constitutions.
It was in the matter of the dominance of the Prime Minister vis-a-vis
the National Assembly that the Constitution of 1973 departed fundamentally from
the Parliamentary norm. No other provision made the position of the Prime
Minister impregnable against almost every eventuality that a Parliamentary
Government was subject to as that which related to the motion of no-confidence
in the Prime Minister. It was clearly stipulated in the Constitution, Article
96(5) drat for a period of ten years from the commencing day of tire
Constitution, that is, April 12, 1973, or from the holding of the second
general election to the National Assembly, whichever occurred later, 'the vote
of a member, elected to the National Assembly as a candidate or nominee of a political
party, cast in support of a resolution for a vote of no confidence shall be
disregarded if the majority of the members of that political party in the
National Assembly has cast its votes against the passing of such resolution'.
This meant that as long as the Prime
Minister enjoyed the support of the majority of the members of the Pakistan People's Party in the National Assembly, he could not be ousted if a minority of the PPP members in the National Assembly decided to support a motion of no-confidence. Similarly, if another party supported the Prime Minister, its minority members could not support a motion of no-confidence against the Prime Minister because this would be considered as going against the wishes of the majority of that particular party. A motion of no-confidence could not be moved during a budgetary session and such a motion could not be reintroduced in the National Assembly until period of six months had elapsed after its first rejection. .
All this clearly indicated that
the Prime Minister could neither be controlled by the President nor challenged
by the Assembly. The latter feature was extraordinary because the essence of
Parliamentary Government was that a Prime Minister was both accountable to and
removable by the Assembly. As suggested in Chapter 3, and as it has often been
remarked the Government of.
It seemed that Bhutto .was not satisfied even with the power of the Prime Minister that was available to him through the Constitution. During 1975-76, he had started thinking of bringing the Parliamentary system under still greater control of the Prime Minister so that he could push certain pieces of legislation through the Parliament with practically no delay or obstruction. This was disclosed to the author by Leslie Wolf Phillips of the Department of Government, London School of Economics and Political Science, who had been invited by the Prime Minister to advise him on how to change the Constitution along these lines.
In January 1976, the Prime
Minister told Wolf-Phillips that he had made up his mind about converting the
present system into a Presidential system. However, he expected that this would
be brought about after the election. It may be noted that there was some
speculation in
One of the provisions discussed and explored by Wolf-Phillips related to a clause being inserted in the Constitution under which a candidate standing ,for National Assembly Election would have to announce his intention of supporting a particular candidate for the presidency.
According to Wolf-Phillips, the report that he submitted to the Prime Minister was interpreted by the Prime Minister as one not very helpful to his contemplated efforts to convert the Constitution into a Presidential form."
Similar view has been expressed
by Stanley Wolpert in his book "Zulf Bhutto of
28. The Constitution as framed in
1973 was Parliamentary in form but it was Prime Ministerial in character. The
turbulent Constitutional history of
29. The doctrine of basic
structure was approved by the Supreme Court of India in Kesavanda Bharti v.
State of
30. Reference was also made to a judgment from the Supreme Court of Srilanka In Re: the 13th Amendment to the Constitution and the Provincial Councils Bill", 1990, Law Reports of 24 Commonwealth page 1 (1990 LRC 1). In this case amendment made in the Constitution was challenged inter alia on the r ground that it has changed the basic structure of the Constitution. It was observed as follows:-
"It was submitted that the Bills seek to amend the basic structure of the constitution. The basis of the submission was that the clauses 4 and 7 of the 13th Constitutional Amendment Bill seek to establish a Constitutional structure which -is Federal or quasi-Federal and these provisions take away the Unitarianism enshrined in Article 2. In our considered view, there is no foundation for the contention that the basic: features of the Constitution have been altered or destroyed by the proposed amendments. The Constitution will survive without any loss of identity despite the amendment. The basic structure of framework of the Constitution will continue intact in its integrity. The unitary state will trot be converted into a Federal or quasi-Federal state. We have already examined the question whether the amendment in any way affects entrenched Article 2 which stipulates a unitary state and after an analysis of the relevant provisions of the Amending Bill have come to the conclusion that the unitary nature of the state is in no way affected by the proposed amendments and that no new sovereign legislative body, executive, or judiciary is established by the amendment. The contra- submission made by the petitioners is based on the misconception that devolution is a divisive force rather than an integrative force."
The
learned Judges noted the observation in Kesavanda v. State of
1973 SC 1461 and while distinguishing Article 368 of Indian Constitution with Article 51 of 1972 Constitution of Srilanka and Article 82(7) of the 1978 Constitution of Sri Lanka which define amendment to include repeal, alteration and addition observed :
"But both our Constitutions of 1972 and 197h specifically provide to, the amendment or repeal of tiny provision of the Constitution vi for the repeat of the entire Constitution: see Article 51 of the 197,1 Constitution states 'In this Chapter 'Amendment' includes repeal, alteration and addition". in view of that exhaustive explanation that amendment embraces repeal in our Constitution, we are of the view that it would not be proper to be guided by concepts of `amendment founts in the Indian ,judgments which had not to consider the statutory definition of the word amendment`. Fundamental principles or basic features of the constitution have to be found in some provision or provisions of the Constitution and if the Constitution contemplates the repeat of any provision or provisions of the entire Constitution, there is no basis for the contention that some provisions which reflect fundamental principles or incorporate basic features are immune from amendment. Accordingly we do not agree with the contention that some provisions of the Constitution are unamendable ." .
31. Mr. Syed Sharifuddin Pirzada the learned amicus curiae while referring to cases from Singapore and Bangladesh has rightly pointed out that the judgments passed by the Supreme Court of Pakistan have-not been noted.
32. Mr. Khalid Anwar has referred to the judgments passed by our superior count in which the theory of basic structure of the Constitution has not found favour. According to the learned counsel those who advocated the basic structure theory mainly relied on Asma Jillani's case in which it was contended that the Objectives Resolution was considered to be the grund norm of our Constitution. However, in State v. Zia-ur-Rehman PLI) 1973 SC 49, Hamoodur Rehmau, C.J., explained his observations in Asma Jillani's case in the following words :
"It
will be observed that this does not say that the Objectives Resolution is the
grund norm, but that the grund norm is the doctrine of legal, sovereignty
accepted by the people of
"Having said this much about the Constitutional position of the Courts and 'their relationship with the other equally important organ of the State, namely; the Legislature, it is now necessary to examine as to whether any document other than the Constitution itself can be given a similar or higher status or whether the judiciary can, in the exercise of its judicial power strike down any provision of the Constitution itself either, because, it is in conflict with the laws of God or of nature or of morality or some other solemn declaration which the people themselves may have adopted for indicating the form of Government they wish to be established. I for my part cannot conceive of a situation, in which, after a formal written Constitution has been lawfully adopted by a competent body and has been generally accepted by the people including the judiciary as the Constitution of the country, the judiciary can claim to declare any of its provisions ultra vires or void, This will be no part of its function of interpretation. Therefore, in my view, however solemn or sacrosanct a document, if it is not incorporated in the Constitution or does not form a -part thereof it cannot control the Constitution. At any rate, the Courts created under the Constitution will not have the power to declare any provision of the Constitution itself am being in violation of such a document. "
33. In Islamic Republic of Pakistan through Secretary Ministry of Interior and Kashmir Affairs v. Abdul Wali Khan PLD 1976 SC 57, Hamoodur Rehman, C-T., after referring to the judgments of the Supreme Court of India noted above, re-affirmed the observation made in Zia-ur-Rehman's case, The same view was again reiterated by Hamoodur Rehman, C.J.; observing that "the Courts cannot strike down a law on any such higher ethical notions nor can Courts act on the basis of philosophical concepts of law as pointed out by tale W the case of Asma Jillani". This view was followed in Federation of Pakistan v
United Sugar Mills Ltd. PLD 1977 SC 397 where it was observed that so long as the provision is passed by the competent Legislature in accordance with the procedure laid down by the Constitution or .a supra-Constitutional instrument, a Constitutional provision cannot be challenged on the ground of being repugnant to what are sometimes stated as "national inspirations" or an "abstract concept". Reference can also be made to Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26. In Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457, Muhammad Haleem C.J., after referring to the judgment of the Indian Courts in which certain amendments to the Constitution were held to be violative of basic structure reiterated the dictum laid down by the Supreme Court in Zia-ur-Rehman's case. Same view was expressed in Dewan Sugar Mills PLD
1976 Kar. 1386, Kh. Muhammad
Sharif v. Federation of
34. It can thus be aid that in
35.
Mr. Ismail Qureshi contended that-the Objectives Resolution which was included in the 1956 Constitution as a
Preamble is the key to the Constitution. This
Resolution was a moved in the First Constituent Assembly and has continued to
be adopted as a. Preamble to the Constitution. By Eighth Amendment, Article 2A
was added, which has made the Objectives Resolution a substantive part of the Constitution, but to say
that it is the basic structure in the sense the Indian Supreme Court has adopted, does not hold force. Mr. Ismail
Qureshi
36. Rigidity is one of the main features of a written Constitution. But this rigidity is often tuned to flexibility by the provisions of the Constitution itself and interpretation made by the Courts. According to Mr. Khalid Anwar rigid Constitution may provoke violence. He has referred to "Introduction to the Study of the Law of the Constitution" by A.V. Deicey, Ninth Edition, where the following analysis has been made:
"A rigid Constitution is one under which certain laws generally known as Constitutional or Fundamental laws cannot be changed in the same manner as ordinary laws.
The twelve unchangeable Constitutions of France have each lasted on an average of less than ten years, and have frequently perished by violence.
The endeavour to create laws which cannot be changed is an attempt to hamper the exercise of sovereign power; it therefore tends to bring the letter of the law into conflict with the will- of the really supreme power ,in the State.
The rigidity, in short, of a Constitution tends to check gradual innovation; but, just because it impedes change, may, under unfavourable circumstances, occasion or provoke revolution. "
According to Dicey "the
force of public opinion", "ingenious balancing of political
powers" and the Courts having power to adjudicate upon the
Constitutionality of legislative acts and declare them as void "if they
are inconsistent with the letter or the spirit of the Constitution" are
the safeguards against unconstitutional legislation, The historical experience
in Pakistan has shown that so far it is only the judiciary, which having power
to declare any law as void if it is inconsistent with the provisions of the
Constitution, has provided safeguards. The force of public opinion except in a
rare case, has independently remained ineffective or unconcerned, Out of three
Constitutions two were 'abrogated by military dictators and the third one *
worked hardly for five years and remained suspended for about 8 years. The
Constitution of 1973 after amendments made by the Eighth Amendment has been
working from
37. This question of basic structure is directly linked with the power of the Parliament to amend the Constitution. Article 239, as substituted by the Eight Amendment, provides that a Bill to amend the Constitution may originate it either House and, when the bill has been passed by votes of not less than two thirds of the total members of the House it shall be transmitted to the other House. If the other House passes the bill by the votes of not less than two-third; of the total members of the said House, it shall be presented to the President fog assent. Clauses (5) and (6) of Article 239 which have presented difficulty read a follows :
"Article 239 .................... ,
(5) No amendment of the Constitution shall be called in question in any Court on any ground whatsoever.
(6) For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provision of the Constitution."
It may be noted that these two
clauses did not find place in the original text of the Constitution of 1973
although the procedure for amendment of the Constitution has substantially
remained the same. This blanket power to amend the Constitution directly comes
in conflict with the basic structure theory which prohibits any amendment made
in this regard. Mr.Syed Sharifuddin Pirzad~ contended that in the case of
Nusrat Bhutto (supra) the validity of Martial Lave was upheld and the power to
amend the Constitution. was conceded. At this stage I may refer, for purposes
of clarification to quell the rumour circulating since the announcement of the
judgment in Nusrat Bhutto's case that the words "including the power to
amend the Constitution" were not in the original draft judgment which was
circulated amongst the Judges, but were added afterwards without the knowledge
and consent of the other learned Judges forming the Bench. We have examined the
record which does not suggest any physical addition or alteration in the page
concerned. Moreover, none of the Judges forming the Bench ever protested
against such alleged addition which was by no means not an insignificant
addition. Mr.Syed Sharifuddin Pirzada related the incident during arguments
that the night before the date of delivery of judgment there was a dinner in
which Anwarul Haq, C.J. (as he then was) told Mr. Pirzada that the judgment
would be announced the next morning and that the power to amend the
Constitution was conceded but he was having a second thought about it.
According to Mr.Syed Sharifuddin Pirzada he replied that any judgment delivered
would be accepted and that Justice (Rtd.) Yaqoob Ali Khan would be called back
as Chief Justice. The matter seems to have ended there. Mr. Justice (Rtd.)
Dorab Patel who, on promulgation of PCO, refused to take oath, was a member of
the Bench which decided Nusrat Bhutto's case. His recent interview published in
the Dawn dated
"Q. Did you give blanket cover in the Supreme Court decision in the Nusrat Bhutto case to General Zia to amend the Constitution?
Ans. No, certainly no,,, the power of amending the Constitution was, expressly limited by>he doctrine of necessity, This power vas given for a limited period required for holding the election or. the assurance given to The Court by the Attorney-General, Further, the power to amend tire Constitution does not include the powers to alter the essential features of a Constitution, and that has been the view of the Indian Supreme Court in a series of judgments. That is why Article 239, after its amendment, states that there is no limitation whatsoever on Parliament's power to amend the Constitution. This express provision had been inserted so that an amendment of the Constitution by Parliament cannot be questioned on the ground that the amendment has altered the essential feature of the Constitution."
This reported interview does not deny conferring of power to amend the Constitution on the Chief Martial Law Administrator. In my humble opinion such rumours and doubts intended to shake the credibility of the judgment and confidence in the judiciary must end.
38. The provision to amend the Constitution seems to be provided in most' of the written Constitutions. It is only question of degrees and to what extent it lW operates. Mr. Khalid Anwar has referred to the Constitutions of various countries containing provision for amendment. Article 89 of the Constitution of France (Fifth French Republic 1958) provides that amendment in the Constitution "may be introduced both by the President of the Republic on the proposal of the Prime Minister, and by a member of Parliament". The amendment passed by both the Houses in identical terms becomes "definitive on its approval by referendum". However, a Government amendment passed by the two Houses convened in Congress is not required to be put to referendum. The prohibitions provided are as follows :
"No amendment process may be undertaken or maintained when the integrity of the territory is in jeopardy.
The republican form of Government is not subject to amendment."
39. The French Constitution has imposed restriction on the power of amendment and the Republican form of Government cannot be changed by amendment.
40. The Constitution of Federal
Republic of
"An amendment of this Basic Law affecting the division of the Federation into laender, the participation in principle of the Laender in legislation, or the basic principles laid down in Arts. Land 20, is inadmissible.'"
41. In the Constitution of USA, Article V relating to amendment of the Constitution reads as follows:
"The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two-thirds of the several States,. Shall call a convention for proposing Amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the Ninth Section of the first Article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate. "
42. The
Constitution of
43. It is a well-recognised principle of interpretation of Constitution that if two provisions conflict with each other the Courts should first resolve the same by reconciling them. But if reconciliation seems difficult, then such interpretation should be adopted which is more in consonance or nearer to the provisions of Constitution guaranteeing fundamental rights, independence of judiciary and democratic principles blended with Islamic provisions. Thus it is the lesser right which must yield in favour of higher rights. Reference may be made to Shahid Nabi Malik, v. Chief Election Commissioner PLD 1997 SC 32, Halsbury Laws of England, 4th Edition, Vo1.44.., page 532 and para. 872 and Corpus Juris Secundum, Vol. 16, page 97. Ajmal Mian, J, while explaining his observation in the case of Al-Jehad Trust PLD 1996 SC 324, relating to conflict between Article 209(7) and Article 203-C held that Article 209(7) carried higher right preserving the independence of judiciary and should prevail over Article 203-C which negated the same.
44. Apart from the fact that Constitution confers and guarantees fundamental rights, Article 8 prohibits the Federal Government, Majlis-e-Shoora (Parliament), a Provincial Government and a Provincial Assembly from making any law which takes away or abridges such fundamental rights. It further declares that the law made to the extent of such contravention shall be void. This by, itself is a limitation on the Legislature. Clause (2) of Article 8 reads as follows:--
"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."
Significantly by employing the words "any law", the intention of the Constitution seems to be that Article 8 will apply to all laws made by the MajIise-Slioora (Parliament) be it general or any law to amend the Constitution. Likewise no enactments can be made in respect of the provisions of the Constitution relating to judiciary by which its independence and separation from executive is undermined or compromised. These are in-built limitations in the Constitution completely independent from political morality and force of public opinion.
45. The next contention is that
the National Assembly which made the Eighth Amendment Act was not competent to
make it, the same being constituted by members not validly elected and that it
was a captive Assembly under the umbrella of Martial Law. No doubt by
promulgating Provisional Constitution Order, 1981 (PCO), the General had
deviated from the mandate given by the Supreme Court in Begum Nusrat Bhutto
case. But subsequently by introducing Article 270-A, a legal cover was provided
for such deviation. The validity of Article 270-A was considered in Nazar
Muhammad v.
"Lastly, there was no constraint on the Parliament to give validity to any legislative instrument whatever may be the defects. While considering the validity of legal measures and protection given to them under Article 181(1) of the Interim Constitution which as already stated, is similar as Article 270-A of the Constitution, the Chief Justice in the case of Fauji Foundation clearly laid down at page 584 that there was no constraint on the Constituent Assembly to give validity to any
legislative instrument whatever might have been the defect.
I am, therefore, of the opinion .that vires of Article 270-A of the Constitution cannot be questioned under Article 199 thereof on the aforesaid ground."
In Malik Ghulam Mustafa Khar and
others v.
"A corollary of these arguments, is another submission made by Mr. Raza Kazim, that when the Parliament enacted Article 270-A, it was not a sovereign body as the Martial Law was in force then; Article 270-A was subject to will of the Chief Martial Law Administrator who qua the Constitution and the National Assembly was not under any compulsion o issue the proclamation of withdrawal of Martial Law. In these circumstances according to the learned counsel, Parliament lacked competence to amend the Constitution.
The objection has political assumption rather than a legal significance.
However, examining it from a purely
legal point of view, it is noteworthy that Revival of Constitution Order, 1985,
was enforced with effect from
In the same context reference can be made to Ms. Benazir Bhutto v. Federaion of Pakistan and others PLD 1988 SC 416 where Muhammad Haleem, C.J. observed :
"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
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."
Nasim Hasan Shah, J. (as he then was) made the following observation:-
According tit the learned Attorney-General, the effect of sub-Articie (1) of Article 270-A is that not only are the laws made during the period 5th July, 1977 to 30th December, 1985 alongwitn 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 of Article 270-A which caves their future operation and renders them immune from scrutiny in the like manner. .
On the other hand, according to Mr. Yahya Bakhtiar what has bee saved from all challenge by the provisions of Article 270-A is the entertainment of any plea to the effect that the laws made during the period were not made by a competent authority and the liability to b struck down on that ground. In any case, the jurisdiction of the Court to see whether such a law, in its future continuance, constitutes violation of any of the Fundamental Rights, which have now bee restored is not ousted."
The question of competency of Parliament to enact Article 270-A though no directly in issue was noted in Federation of Pakistan v. Ghulam Mustafa Kha PLD 1989 SC 26 with the following observation:
The first limb of the argument of the learned Attorney-General was the clause (1) of Article 270-A gave blanket protection to all laws mad during the period when the Martial Law was in force and that the validation extended by the said clause encompassed not only their pas operation but also their future continuance, despite any other provisions to the contrary contained in the Constitution; further, the said clause ousted the jurisdiction of all Courts including the superior Courts from examining the validity of the said laws on any ground whatsoever. He also contended that the intent of the clause was not confined to on removing doubts about the competency of the law-maker but also conferred validity on the contents of the laws themselves.
So far as the question relating to the validity of the laws and the competency of the makers thereof is concerned, there can be no quarrel with the proposition conversed by the learned Attorney-General. By declaring that all laws, brought on the statute book during the period o the Martial Law, had been made validly and by a competent authority and, further by adopting and firming the same the intention of the Parliament clearly was to obviate all possible objections with regard to their validity or the competency of a makers thereof and save then from challenge in Courts on these rounds. Neither the Sindh High Court nor the Lahore High Court took a contrary view on this part o: the learned Attorney-General's argument. But then in the matters before us we are not concerned with the validity of the said laws or the competency of the makers thereof--or for that matter, with their future operation after the revival of the Constitution. These questions were raised and dealt with in another judgment of this Court which has beer reported as Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416. On the other hand, the issue before us is of a limited nature, that ' is, whether at all, and if so, to what extent the acts, actions and proceedings done, taken or held while the Martial Law was in force, can be reviewed by the superior Courts in exercise of the Constitutional jurisdiction after the lifting of the Martial Law and the revival of the Constitution."
46. From the above observations
it is clear that the validity of Article 270-A has been determined consistently
and thus competence of the Parliament and the laws enacted up to
47. Now I will take up the next related question that as the Parliament consisted of members elected on non-party basis, it was not a competent body to legislate laws. This contention is based mainly on the observation made in Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166 where although order of dissolution of the National Assembly was held to be unconstitutional, it was not restored, inter alia, on the ground that its members were elected in an election held on non-party basis. Shafiur Rehman, J, after referring to various books on Constitution Law and judgments of this Court including Ms. Benazir Bhutto observed:
"It will be clear from the foregoing observations that party-less elections, are not in consonance with the scheme of our Constitution and when this Court is possessed of a discretion, or a choice whether to revive, restore or perpetuate by resuscitating such Assemblies, the Court will stand for Constitutionalism rather than departures .and deviations from it and refuse to restore them."
This observation was made in the context of exercise of discretion in a case where partyless election not in consonance with the Constitution is held. There is no observation that the National Assembly elected on non-party, basis was unconstitutional and illegal. As pointed' out by Mr. Syed Sharifuddin Pirzada and Mr. Khalid Anwar, the partyless elections in 1985 were not held under the Constitution, but under P.O. No.5 of 1977 which did not allow the political parties to participate in the elections. Further at that time the Fundamental Rights stood suspended. The Constitutional deviations were validated under Article 270-A which has been held to be competently enacted. The contention, therefore, cannot be sustained. From a close scrutiny of judgments in Ms. Benazir Bhutto, Haji Muhammad Saifullah Khan and Ghulam Mustafa Khar, it can safely be observed that the Assemblies elected in 1985 were validly and legally constituted. The net result of the above discussion is that the Parliament was validly constituted and the Eighth Amendment introduced in and passed by it was a competently enacted piece of legislation.
48. The Eighth Amendment has
introduced, added, deleted and substituted a large number of provisions in the
Constitution. Mr. Mujib Pirzada has pointedly referred to the provisions of the
Constitution which are affected by the Eighth Amendment, viz., Articles 5, 27,
31, 41,46, 47, 48, 50, 51, 58, 59, 112, 175, 180, 196, 199, 270-A and 270-11;.
Article 2A was added making the Objectives Resolution as a substantive part of
the Constitution. Articles 203-A to 203-I constituting and regulating
49. In support of the argument that Eighth Amendment cannot be struck down, it has been contended that the Judges of the superior Courts have taken oath under the amended Constitution and have been receiving salary which has been increased from time to time, cannot strike out the same. Such limitation placed on, the power of judicial review of superior Courts or any Court seems to be without any legal basis. The power and jurisdiction of judicial review cannot be controlled and fettered on this basis. The Judges of the superior Courts have taken oath to defend, preserve and protect the Constitution. If any illegal amendment is made or has been made in the Constitution, the Court is competent to examine it and make interpretation to reconcile its provisions in which inferior rights must yield to higher rights. The salary paid to the Judges is not a bounty or favour. It is a Constitutional duty to provide salary and benefits to the Judges by which independence of judiciary is guaranteed. While striking down any illegal and unconstitutional provision or interpreting the Constitution in the manner stated above, the Court defends, protects and preserves the Constitution.
50. The learned Advocate for the
respondents and the learned amicus curiae have contended that the competency of
the members of the National Assembly is protected by the doctrine of de facto.
Reference has been made to Farzand Ali v.
51. Mr. Syed Sharifuddin Pirzada has contended that the Eighth Amendment has introduced checks and balances between the power of the President and the Prime Minister. As discussed above, the Constitution of 1973 had vested supreme power to the Prime Minister and though democratic in form it was Prime Ministerial in character. Amendments made in Articles 48, 58, 91 and 92 have curtailed the power of the Prime Minister and have strengthened the hand of the President. In a democratic system check and balance is provided to avoid autocratic rule and to provide balance of power for a proper functioning of the Government according to the Constitution. No doubt the amendments particularly Article 58(2)(b) have tilted the balance in favour of the President, yet this Court has structured and circumscribed the discretionary power of dissolution. One reason given in favour of Article 58(2)(b) is that it prevents Constitutional deviation. This seems to be plausible because when Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary, the President may exercise his power before any person, agency or authority taking advantage of such situation strikes not at the Assembly but at the Constitution. One may comment that to save the Constitution, Assembly is dissolved. The exercise of power under Article 58(2)(b) or Constitutional deviation can be avoided not by tine letters of the Constitution but by political ethics, morality and maturity. Unless a responsible Government exists which has', respect for law, opportunity shall continue to be provided for Constitutional strike.
52. , The learned counsel defending the Eighth Amendment have pointed out that the entire existing political and Governmental structure is built on it (Eighth Amendment) and once it is struck down, then right from the top to the bottom the whole edifice will crumble. It will affect the Senate and the Assemblies. This may be an argument to defend the Eighth Amendment, but as we do not propose to strike it down, it is not necessary to advert to it. Suffice to say that in case it is struck down, some protection and validation will have to be provided to protect against chaos, confusion, uncertainty and instability and also to provide' continuity in all walks of life.
53. It has also been pointed out that the controversy involves political question which the Courts should avoid to decide. The contention is more relevant with reference to the balance of power, between the President and the Prime Minister. Such question is a political question to be decided by the' Constituent Power. It therefore, requires determination of what is a political question. A political question is one which because of its political sensitivity is not fit for adjudication by the Court or the Constitution requires it to be determined finally by any other organ of the State. This 'political question doctrine' is based on the respect for the Constitutional provisions relating to separation of power among the organs of the State. But where in a case the Court has jurisdiction to exercise power of judicial review, the fact that it involves
political question, cannot compel the Court to refuse its determination. In Corpus Juris Secundum, Vol. 16, it has been stated that :
"It is not easy to define the phrase 'political question', nor to determine what matters fall within its scope. It is frequently used to designate all questions that lie outside the scope of the judicial power. More' properly, however, it means those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or to regard to which full discretionary, authority has been delegated to the legislative or executive branch of the Government. A political question encompasses more than a question about politics, but the mere fact that litigation seeks protection of a political rights, might have political consequences does not mean it presents a political question."
It was further observed :
"The doctrine is based on Constitutional provisions relating to the distribution of powers among the branches of Government, and it is as a function of the separation of powers that political questions are, not' determinable by the judiciary . thus, the limitations on judicial review imposed by the political question doctrine apply only when the Court is M faced with a challenge to action by a coordinate branch of the Government, and not where the issue involved falls within the traditional role accorded to Courts to interpret the law or the Constitution. "
In determining whether a question is political, one has to advert to the facts and controversy which controls it. In Ballentines Law Dictionary "political question" has been defined as follows:
"A question, the determination of which is a prerogative of the legislative or executive branch of the Government, so as not to be appropriate for judicial inquiry or adjudication."
Under the Constitution, Legislature, Executive and Judiciary are the organs of the State having specific power, jurisdiction and defined role. In its own field each one is supreme and none is subordinate to the other. These three organs function and exercise their power as provided by the Constitution. The judiciary is the custodian of the Constitution. It is its function to adjudicate and see that all acts done and actions taken by any organ of the State do not violate the provisions of the Constitution. The fact that any question is a political question will not deter the Court from determining it provided it involves the interpretation of Constitution or the validity of such question is to be determined on the touchstone of the Constitution. The Court should not adopt 'political question doctrine' for refusing to determine difficult and knotty questions having political overtones. This would amount to abdication of judicial power which neither the Constitution permits nor the law allows. In Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166, Nasim Hasan Shah, J. (as he then was) observed:--
"The circumstance that the impugned action has political overtone; cannot prevent the Court from interfering therewith, if it is shown that the action taken is violative of the Constitution. The superior Court: have an inherent duty, together with the appurtenant power in any case coming before them, to ascertain and enforce the provisions of the Constitution and as this duty is derivable from the express provisions of the Constitution itself the Court will not be deterred from performing its Constitutional duty, merely because the action impugned has political implications (see Mr. Fazlul Quader Chaudhry and others v, Muhammad Abdul Haque PLD 1963 SC 486 at page 504)."
In Ziaur Rahman's case PLD 1973 SC 49, Hamoodur Rahman, C.J. helc that:--
"With political decisions on questions of policy, the judiciary is no' concerned. Its function is to enforce the Constitution and to see that the other organs of the State confine themselves within the limitation: prescribed therein."
For this aspect of the case reference can be made to the observations of Shafiur Rahman, J. in Muhammad Nawaz Sharif .v. Federation of Pakistan PLD 199? SC 433. It is not easy to draw line of demarcation between political and non political questions. This has to be determined by the Court on the facts of act case. The Courts' function is to enforce, preserve, protect and defend the Constitution. Any action taken, act done or policy framed which violates the provisions of the Constitution or is not permissible under the Constitution o~ law, the Court irrespective of the fact that it is a political question, must exercise power of judicial review. The abuse, excess or non-observance of the provision; of the Constitution has to be checked by the Courts unless its jurisdiction i~ barred by the Constitution or law.
54. For the foregoing reasons, the appeals and petitions were dismissed by the following short order, which forms part of this Judgment:--
"For reasons to be recorded later, we pass following short order What is the basic structure of the Constitution is a question of academic nature which cannot be answered authoritatively with a touch of finalit3 but it can be said that the prominent characteristics of the Constitution are amply reflected in the Objectives Resolution which is nom substantive part of the Constitution as Article 2A inserted by tae Eight Amendment.
3. The Objectives Resolution was Preamble of the Constitutions made and promulgated in our country in 1956, 1962 and 1973. Perusal of the Objectives Resolution shows that for scheme of governance the main features envisaged are Federalism and Parliamentary Form of Government blended with Islamic provisions. The Eighth Amendment was inserted in the Constitution in 1985, after which three elections were held on party-basis and the resultant Parliaments did not touch this Amendment, which demonstrates amply that this Amendment is ratified by implication and has come to stay in the Constitution unless amended in the manner prescribed in the Constitution as contemplated under Article 239. Article 58(2)(b) brought in the Constitution by the Eighth Amendment, which maintains Parliamentary Form of Government has provided checks and balances between the powers of the President and the Prime Minister to let the system work without let or hindrance to forestall a situation in ,which martial law could be imposed.
4 In the result the two Civil Appeals Nos.397-K/90 (Abdul Mujib Pirzada v. Federation of Islamic Republic of Pakistan), 399-K/90 (Haji Ahmed v. Federation of Pakistan and others), and three Constitutional Petitions Nos. 60/90 (Mahmood Khan Achakzai v. President of Pakistan and others), 67/96 (Habibul Wahabul Khairi v. Federation of Pakistan and others) and 68/96 (Wukala Mahaz Barai Tahafuz Dastoor v. Federation of Pakistan and others) are dismissed.
55. In the end I wish to place on record my deep appreciation for the valuable assistance rendered by the learned counsel for the parties and in particular Mr. Khalid Anwar and Mr. Syed Sharifuddin Pirzada, who acted as amicus curiae.
(
SALEEM AKHTAR, J
(
FAZAL ILAHI KHAN, J
(
IRSI+AD HASAN KHAN, J
agree with the result. However have given my own reasons
(
RAJA AFRASIAB KHAN, J
(
MUNAWAR AHMAD MIRZA,
RAJA AFRASIAB KHAN, J.---To begin
with, Civil Petition No.D-76/1989 was instituted by Abdul Mujeeb Pirzada, the
appellant herein against the Federation of Islamic Republic of Pakistan and
others to challenge the validity of Eighth Amendment in the High Court of
Sindh. The appellant states that he is an Advocate of the High Courts and the
Supreme Court of Pakistan and comes from a known political family of Sindh. The
contribution of his family towards Constitution-making is well-known. Likewise
Civil Petitions Nos.D-163/1989 and D-168/1989 were filed in the Sindh High
Court on the controversy by Muhammad Muzaffar-ul-Haq, Advocate and Haji Ahmad
with similar prayer to annul the Eighth Amendment. It was mentioned that on
12th of April, 1973, the Constitution of Pakistan wase unanimously passed and
promulgated which remained in force till 4th of July, 1977. On 5th of July
1977, the Constitution was suspended through imposition of Martial Law
throughout
"The three petitions for leave to appeal raise important questions of Constitutional law, leave to appeal is granted to examine inter alia, the following questions:
(i) Whether the decision of this Court rendered to Begun Nusrat Bhutto's case (PLD 1977 SC 657) was violated in promulgating anti enforcing amongst others, Provisional Constitution Order, 1981 and Referendum Order, 1985? If so, Us effect`!,
(ii) Whether the National Assembly and the Provincial Assemblies elected in 1985 and their functioning thereafter can be taken to be duly elected bodies under the Constitution of 1973? If not, its effect?
(iii) What is the validity and effect of the Eighth Constitutional Amendment approved by such a National Assembly?
Security in the sum of Rs.2,000 in each case."
Out of the
above-quoted petitions,
Constitution
Petition No. 60 of 1996 has been brought by Mahmood Khan Achakzai against the
Federation of Pakistan and others on
M/s. Abdul
Hafeez Pirzada, Abdul Mujeeb Pirzada, Qazi Muhammad Jamil, Dr. Abdul Basit,
Khalid Anwar, Ali Ahmad Fazeel, M. Ismail Qureshi, Sharifuddin Pirzada,
Advocates and Shehzad Jehangir, learned Attorney-General for
Mr. Abdul
Mujeeb Pirzada, the appellant in C.A. 397-K of 1990 has submitted that the
impugned majority judgment has caused miscarriage of justice inasmuch as rule
laid down by this Court in Begum Nusrat Bhutto's case, supra has not been
followed in letter and spirit. According to him, no elections as required by
the unamended Constitution of 1973 were ever conducted. This being the
position, the National Assembly, the Provincial Assemblies and the Senate of
Pakistan which came into existence on the basis of partyless elections, were
illegal on the face of them and as such of no legal effect. These elections
were held under the Provisional Constitution Order, 1981 and in that way, the
members of the Parliament and the Provincial Assemblies could not be held to be
the members having been elected under the original Constitution of 1973. They,
therefore, had no authority to pass the Eighth Amendment Act, 1985 and to
substantially change the original Constitution. At any rate, it is argued that
basic structure of the Constitution has been changed inasmuch as substantial
powers had been conferred upon the President to change the system from
Parliamentary into Presidential Form of Government. The promulgation of
Provisional Constitution Order on 25th of March, 1981, as a matter of fact,
amounted to abrogation of the 1973 Constitution. He states that abrogation of
the Constitution is an act of high treason which is punishable under Article 6
of the Constitution. That being the position, the Courts in
Mr. Abdul
Hafeez Pirzada, learned counsel appearing on behalf of the appellant, Mr. Abdul
Mujeeb Pirzada has taken us to the background under which the Eighth Amendment
Act of 1985 was passed. His argument is that in presence of Martial Law, it
cannot be said that the members of the National Assembly acted on their own
free volition in passing the impugned amendment. He argues that it has already
been laid down by the Supreme Court in case of Begum Nusrat Bhutto, that free,
fair and just elections would be held in accordance with the original
Constitution. This unequivocal undertaking was given to this Court by the then
Attorney-General for
His next argument is that no such power to amend the Constitution-was ever given by the Supreme Court in Begum Nusrat Bhutto's case. He, particularly, has brought to our notice that several pages of the judgment in Begum Nusrat Bhutto's case look doubtful by virtue of their different colour. His argument is that there was no jurisdiction/authority vested in the National Assembly to pass and adopt the Eighth Amendment Act, 1985 to change the shape and structure of the Constitution.
Qazi Muhammad
Jamil, learned counsel for Mahmood Khan Achakzai, argues that on 16th of
October 1979, Gen. Muhammad Zia-ul-Haq, the then Martial Law Administrator
banned all the political parties by issuing Martial Law Regulation No. 48. The
result was that political activity of every kind came to a grinding halt
throughout
He submitted that after the judgment having been rendered by this Court in Begum Nusrat Bhutto's case, the then President/Chief Martial Law Administrator was not competent to issue Provisional Constitution Order 1981. At any rate, he was required to hold free and fair elections under 1973-Constitution which he failed to do: It has been claimed by the learned counsel that the original Constitution envisaged Parliamentary Form of Government and it had assumed the status of basic structure of the polity of Pakistan. According to him, basic structure of the Constitution could not be changed through the impugned amendment. The Prime Minister is the head of the Executive under the Constitution. He argues that after the passing of the Eighth Amendment, the system has been changed into Presidential Form of Government. He, therefore, has no authority to dissolve the National Assembly and dismiss the Government on the basis of powers under Article 58(2)(b).
Mr. Habibul Wahabul Khairi, the petitioner in the fourth Constitution Petition No. 67 of 1996 has taken the position in his petition as follows:
I
In the last Constitution Petition No. 68 of 1996, Dr. Abdul Basit, learned counsel for the petitioner has given us the following points of law in writing :
II
Constitution (8th Amendment Act) has no legal` effect. 1973 Constitution has not been amended by it.
Article 270-A is not a proper
part of the true Constitution in force in
III
The entire period from
IV
No validation has been given by the National Assembly of Pakistan to any legislative measure in force during the period of deviation.
V
Indeed, no validation can be given to any legislative measure in force during the period of deviation as it would conflict with Article `. thereof. Thus validation is only possible through amendment procedure contemplated in the Constitution.
VI
No Act of indemnity has been passed with the result that any person who has participated in the period of Deviation remains liable fog punishment under high treason.
VII
So-called 8th Amendment Act, 1985 has made 1973 Constitution unworkable. Executive Arm of the State was deliberately fractured to facilitate reimposition of Martial Law.
VIII
1973-Constitution will retain its Islamic character notwithstanding the elimination of Amendments interpolated therein by the 8th Amendmen Act.
IX
Determination as to whether 8th Amendment Act has legal force o~ amending the Constitution is a proper judicial question.
X
All the amendments purportedly introduced in the Constitution by the 8th Amendment Act are not a proper part thereof and therefore are nor existing law. Thus, it is not possible to either repeal or amend them.
The only option before the Supreme Court is either to strike down the 1985 Constitution or to strike down the 1973 Constitution. There is no middle way."
Mr. Shehzad Jehangir, learned
Attorney-General for
Learned counsel for the parties have been heard at great length with utmost patience.
It may be stated at the very outset that almost all the Judges of the Supreme Court acid the High Courts have taken oath of their offices under the amended Constitution vide Articles 178 and 194. Under Articles 178 and 194, the following oath has been prescribed:
"(In the name of Allah, the most Beneficent, the most Merciful.)
I,... ................ ... .... .... ... ,
do solemnly swear that I will bear true faith and allegiance to
That, as Chief Justice of Pakistan (or a Judge of the Supreme Court of Pakistan or Chief Justice or a Judge of the High Court for the Province or Provinces of…. ), I will discharge my duties, and perform my functions, honestly, to- the best of my ability and faithfully in accordance with the Constitution of the Islamic Republic of Pakistan and the law:
That I will abide by the code of conduct issued by the Supreme Judicial Council:
That I will not allow my personal interest to influence my official conduct or my official decisions:
That I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan:
And that, in all circumstances, 1 will do right to all manner of people, according to law, without fear or favour, affection or ill-will:
(May Allah Almighty help and guide me (A'meen)."
Needless to state that an undertaking on oath has been given by all the Judges to preserve, protect and defend the Constitution. "The Constitution" would naturally be the Constitution which existed on the day, the oath was administered to the Judges of the superior Courts. In this view of the matter, every Judge is under the oath of his office to uphold, preserve, protect arid defend the Constitution under any circumstances. To further augment the point, Dictionary meaning of the expression 'to preserve', 'to protect' and 'to defend' {Emphasis supplied) is given :
"To preserve. --1. a keep safe or free from harm, decay, etc. b keep alive (a name, memory, etc.) 2. maintain (a thing) in its existing state. 3. retain (a quality or condition) 4.a, treat or refrigerate (food) to prevent decomposition or fermentation. b prepare (fruit) by boiling it with sugar, for long-term storage. 5.keep (game, a rive, etc.) undisturbed for private use. - n. (in sing. or pl.) 1. preserved fruit; jam 2 a place where game or fish etc. are preserved. 3 a sphere or area of activity regarded as a person's own.
To protect.- -Keep (a person, thing, etc.) safe; defend; guard (goggles protected her eyes from dust; guards protected the queen). 2 Econ. shield (home industry) from competition by imposing import duties on foreign goods. 3 Brit. provide funds to meet (a bill, draft, etc.). 4. provide (machinery etc.) with appliances to prevent injury from it.''
To defend.- -1. (often foll. by against, from) resist an attack made on; protect (a person or thing) from harm or danger. 2. support or uphold by argument; speak or write in favour of 3. conduct the case for (a defendant in a law suit)."
This shall leave no doubt whatsoever that constitutionally, legally and morally speaking, every Judge is duty bound to uphold the Constitution in letter and spirit. It is, therefore, not possible for the Judges to act contrary to their.
specified oath. Their sacred duty as such is to do justice even handedly according to the Constitution and the law without fear or favour.
It way be recalled that the members of the National Assembly were elected in popular elections held in 1985 under the martial Law umbrella. The turn-out in the said elections of 1985 when compare with the elections conducted on party-basis in 1988, 1990 and 1993 was the highest. To illustrate the point, the percentage in the said elections is as follows:
Year of Polls Percentage of
votes cast
1985 53 .69 %
1988 43.07 %
1990 45.46%
1993 40.28%
remedies to set right anything done by the officers, taking the law into their own hands.
I think, therefore, that the
principle laid down by the learned Judges, as the principle of law, is one that
is in conformity with public convenience, with reference to the discharge of
the duties connected with the office'. "in the case of the office of a
Judge the
Colley in his book on Constitutional Limitations, Eighth Edition, Volume 2, page 1357 says as follows:
"No one is under obligation to recognize or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of iegai
s:h.: authority except by some direct proceeding instituted for the purpose by Iii. * the State or by some one claiming the office de jure, or except when the
1w` person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be. Ir. all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. This is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally."
An officer de facto is defined by Colley in his book on Constitutional Limitations, vol. 2, page 1355 as. "one who by some colour of right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact". An intruder is defined in the same book at page 1357 as "one who attempts to perform the duties of an office without authority of law and without the support of public acquiescence".
A modern author, Antnou Rubinstein in his book on Jurisdiction and thegality, at page 204 et seq opines that this principle has been evolved purely upon considerations of public policy and as such, collateral proceedings have in
With regard to the competence of the vescrymen, who were vestrymen de facto but not vestrymen de jute, to make the rate, your Lordships will see at once the importance of that objection, when you consider how many public officers and persons there are who are charged with very important duties, and whose title to the office on the part of the public cannot be ascertained at the time. You will at once see to what it would lead if the validity of their acts, when in such office, depended upon the propriety of their election. It might tend, if doubts were cast upon them, to consequences of the most destructive kind. It would create uncertainty with respect to the obedience to public officers, and it might also lead to persons, instead of resorting to the ordinary legal remedies to set right anything done by the officers, taking the law into their own hands.
I think, therefore, that the principle laid down by the learned Judges, as the principle of law, is one that is in conformity with public convenience, with reference to the discharge of the duties connected with the office'. "
In the case of the office of a
Judge the
"That it is not open to attack, in a collateral proceeding, the status of de facto Judge, having at least a colourable title to the office, and that his acts are valid, is clear, I think on principle and on authority and it is also clear that the proper proceeding to question his right to the office is by quo warranto information. "
Colley in his book on Constitutional Limitations, Eighth Edition, Volume 2, page 1357 says as follows:
"No one is under obligation to recognize or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights. the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jute, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be. In all other cases the acts of an officer de facto are as valiJ and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. This is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally."
An officer de facto is defined by Colley in his book on Constitutional Limitations, Vol. 2, page 1355 as. "one who by some colour of right is ir: possession of an office and for the time being performs its duties with public acquiescence. though having no right in fact". An intruder is defined in the same book at page 1357 as "one who attempts to perform the duties of an office without authority of law and without the support of public acquiescence".
A modern author, Amnon Rubinstein in his book on Jurisdiction and Illegality, at page 204 et seq opines that this principle has been evolved purely upon considerations of public policy and as such, collateral proceedings have inWith regard to the competence of the vescrymen, who were vestrymen de facto but not vestrymen de jute, to make the rate, your Lordships will see at once the importance of that objection, when you consider how many public officers and persons there are who are charged with very important duties, and whose title to the office on the part of the public cannot be ascertained at the time. You will at once see to what it would lead if the validity of their acts, when in such office, depended upon the propriety of their election. It might tend, if doubts were cast upon them, to consequences of the most destructive kind. It would create uncertainty with respect to the obedience to public officers, and it might also lead to persons, instead of resorting to the ordinary legal remedies to set right anything done by the officers, taking the law into their own hands.
I think, therefore, that the principle laid down by the learned Judges, as the principle of law, is one that is in conformity with public convenience, with reference to the discharge of the duties connected with the office'. "
In the case of the office of a
Judge the
"That it is not open to attack, in a collateral proceeding, the status of de facto Judge, having at least a colourable title to the office, and that his acts are valid, is clear, I think on principle and on authority and it is also clear that the proper proceeding to question his right to the office is by quo warranto information."
Colley in his book on Constitutional Limitations, Eighth Edition, Volume 2, page 1357 says as follows:
"No one is under obligation to recognize or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights. the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jute, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be. In all other cases the acts of an officer de facto are as valiJ and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. This is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally."
An officer de facto is defined by Colley in his book on Constitutional Limitations, Vol. 2, page 1355 as. "one who by some colour of right is ir: possession of an office and for the time being performs its duties with public acquiescence. though having no right in fact". An intruder is defined in the same book at page 1357 as "one who attempts to perform the duties of an office without authority of law and without the support of public acquiescence".
A modern author, Amnon Rubinstein in his book on Jurisdiction and Illegality, at page 204 et seq opines that this principle has been evolved purely upon considerations of public policy and as such, collateral proceedings have in this context invariably been given a particularly broad meaning so as to include almost every proceeding which does seek to remove the Judge or office; concerned, including any attack upon the decision itself.
Upon these principles it has been strenuously argued by the learner Attorney-General that the Third, Fourth and the Sixth Constitution a Amendments are now unassailable, because, at any rate, the allegedly disqualified respondents had acted as de facto members, for, they had acted under ,the bona fide belief that they were entitled to so act and had at least a fair colour of title and they have also performed their duties with public acquiescence. They were not purely intruders. Therefore, their acts even apart from the provisions of sot)-clause (d) of clause (1) of Article 110 were as good as those of de jute members of the National Assembly. I am of the opinion that there is a great deal of force in this contention and since this is not a direct attack upon their right to continue as members, I am also of the opinion that their acts should not be invalidated merely because they could have been found in a proper proceeding under Article 98(2)(1) to be disqualified from continuing as Members of the House. To do so collaterally in proceedings not taken to test the validity of their title directly would lead to serious inconvenience to the public and those individuals whose interests may have been affected by the legislative measures enacted in the meantime. This de facto doctrine is a doctrine o1 necessity to tiring about regularity and prevent confusion in the conduct o1 public business and promote security of private rights.
In saying this, however, I would also like to take this opportunity of pointing out that I find it difficult to appreciate upon what principle to allegedly disqualified members were allowed to participate tit the passing of the Third Amendment itself which was are amendment for removing their own disqualification’s with regard to which the doubts had arisen. It would have beer, more dignified and more keeping with the principle that perms directly interested tit a measure being proposed in the House should riot participate in the voting thereof if they had refrained from doing so. This principle is embodied lit 'the Rules of the National Assembly itself (vide sub-rule (3) of rule 152) and if authority is needed for this, one might refer to the case of The Queen v. Ward (1873) 8 Q B 210) where Balckburn, J. had indicated that if a person were to wilfully and contumaciously act in his own election the Court might allow an information to go:
"I am not also unmindful of
the fact that during the pendency of the proceedings tit the High Court the
appellants did apply to amend their petition for including therein a relief for
a direction in the nature of quo warranto but this application was rejected on
the concession of the Attorney-General that if they were otherwise entitled to
tire relief, the Government would not take the technical stand that particular
relief had not been claimed. Assuming therefore, that the relief by way of a
quo warranto had been claimed
This Court has consistently been holding under the doctrine of trichotomy of powers every organ of the State has to remain within its own field in the discharge of its specified functions. Needless to observe that the Legislature has to legislate, the Executive has to execute while the Judiciary has to interpret the law. In every democratic/political State, the Judiciary enjoys a unique position/status. It has to provide justice to all without fear or favour according to the Constitution and the law. It has, however, no right to interfere in the affairs/functions of the Legislature. In case of State v. Zia-ur-Rehman (PLD 1973 SC 49), it has been laid down in clear terms that it is not the function of the Judiciary to legislate:
"On the other hand it is equally important to remember that it is not the function of the Judiciary to legislate or to question the wisdom of the Legislature in making a particular law if it has made it competently without transgressing the limitations of the Constitution. Again if a law has been competently and validly made the Judiciary cannot refuse to enforce it even if the result of it be to nullify its own decisions. The Legislature has also every right to change, amend or clarify the law if the Judiciary has found that the language used by the Legislature conveys an intent different from that which was sought to be conveyed by it. The Legislature which established a particular Court may also, .if it so desires, abolish it.'
Similarly, in
case of Asma Jillani v. Government of
the
'The Courts in the country also gave full effect to this Constitution arid adjudicated upon the rights and duties of citizens in accordance with the terms thereof by recognizing this law constitutive medium as a competent authority to exercise that function as also enforced the laws, created by that medium in a number of cases. (Vide Mr. Fazlul Quadir Choudhry and others v. Mr. Muhammad Abdul Haque (PLD 1964 SC 673), The Government of East Pakistan v. .Mrs. Roshan Bijoy Shams Ali Khan (PLD 1966 SC 286), Malik Ghulam Jillani v. The Government of West Pakistan and another (PLD 1967 SC 373) and The Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14).
Thus even according to cite arguments advanced by the learned counsel appearing for the appellants all the laws made and acts done by the various Governments, Civil and Military, became lawful and valid by reason of the recognition given to them by the new Constitution and the Courts. They had not only de facto validity but also acquired de jure validity by reason of the, unquestioned recognition extended to them by the Courts of highest jurisdiction in the country. The validity of the acts done thereunder ;ire no longer, therefore, open to challenge, even under the concept of law propounded by the realist school of jurists and adopted by the learned counsel for the appellants."
It has not been argued before us that the method to amend the Constitution under Article 239 was not adopted by the Parliament in passing the Eighth Amendment. Article 239 provides a mechanism for the amendment of the Constitution: The Amendment Bill may originate in either House and it has to be passed by the votes of not less than two-third of the total membership of the House. It was admitted that the Eighth Amendment Act, 1985 was unanimously passed by the Parliament. Relying upon Articles 238 and 239 of the Constitution and the rule laid down by this Court in Zia-ur-Rehman's case supra, it can be ' said that this Court is not competent to strike down the Eighth Amendment which has competently been passed by the Parliament.
The
controversy may also be seen from another angle, inasmuch as; on the face of
it, the validity or otherwise of Eighth Amendment is substantially a political
question which, of course, cannot be subjected to judicial review. In support
of the above view, Khawaja Muhammad Sharif v. Federation of Pakistan (PLD 1988 Lahore 725), Fauji
Foundation and another v. Shamitnur Rehman (PLD 1983 SC 45), Rolla W. Coleman
v. Clarence W. Mill (307
This is a
case of political controversy pure and simple. To resolve the controversy, the
Courts may not be the right forum. The Parliament is the' appropriate from
where such a controversy can be raised if it is so desired for 'its settlement
once for all by the political parties who have representation in it. It may be
seen that the validity of the Eighth Amendment has never been questioned by
rite major political parties namely, Pakistan People's Party and Pakistan
Muslim league. Die latter party was in power from 1990 to 1993. It had
two-third majority in the National Assembly. This much strength was needed to
amend the Constitution as warranted by the provisions of Article 239. No
attempts to amend the Constitution were made. by the said party when it was in
power to withdraw the impugned amendment. On the contrary, during the regime of
this party, 12th Amendment Act (Article 212-B) was introduced the create
Special Courts for Speedy Trials in the year 1990. If this political party for
that matter any other political party was aggrieved of the impugned amendment,
they could repeal the Eighth Amendment Act, 1985 without an] difficulty by
taking joint action on the floor of the Parliament. This was no done for the
obvious reasons that they had already decided to live with the amendment
whether good or bad.
In case
of Hakim Khan v. Government of Pakistan (PLD 1992 SC 595),it has been lard down
that Article 2A is not a supra-Constitutional provision such as it has become
are essential and integral part of the Constitution possessing the same weight
and status as the other Articles of the Constitution are already a substantive
part thereof. This case arose out of a decision was rendered by a Full Bench of
the Lahore High Court in test. Sakina . Federation of
"The word "substantive", according to Black's Law Dictionary, means an essential part or constituent or relating to what is essential. Since the Objectives Resolution has been made a substantive part of the Constitution it has undoubtedly become an essential or integral part of the Constitution possessing the same weight and status as other Articles of the Constitution which are already °a substantive part thereof. In other word, the Objectives Resolution had become from merely a preamble of the Constitution declaring the objectives and ideals which the Constitution-makers were expected to reflect in the substantive part of the Constitution by framing appropriate provisions to carry into effect those objectives and ideals, a substantive, binding, integral provision of the Constitution. This is now its undeniable position.
It is, therefore, necessary to examine once again what this Resolution exactly provides?
Its first clause states:--
"Whereas sovereignty over ilk entire universe belongs to Allah Almighty alone and the authority which He has delegated to die State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust."
The above declaration epitomises the belief of every Muslim regarding the true nature of an Islamic polity with regard to the extent of power exercisable by them in their State as also the mode in which this power shall be exercised.
The second clause declares:-
"This
Constituent Assembly representing the people of
This
clause refers to the resolve of the people of
Now the well-established rule of interpretation is that a Constitution has to be read as a whole and that it is the duty of the Court to have recourse to the whole instrument in order to ascertain the true intent and meaning of any particular provision. And where any apparent repugnancy appears to exist between its different provision; the Court should harmonise them, .if possible (see Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan- (PLD 1957 SC (Pak.) 219 at p.235).
This rule of interpretation does not appear to have been given effect to in the judgment of the High Court on its view that Article 2A is a supra-Constitutional provision. Because, if this be its true status then the above-quoted clause would require the framing of an entirely new Constitution. Anal even if Article 2A really meant that after its introduction it is to fete in control of the other provisions of the Constitution, then most of the Articles of the existing Constitution will become questionable on the ground of their alleged inconsistency with the provisions of the Objectives Resolution. According to the opening clause of this Resolution the authority which Almighty Allah has delegated to the State of Pakistan is to be exercised through its people only 'within the limits prescribed by Him'. Thus all the provisions of the existing Constitution will be challengeable before Courts of law on the ground that these provisions are not "within the limits of Allah" and are in transgression thereof. Thus, the law regarding political parties, mode of election, the entire structure of Government as embodied in the Constitution, the powers and privileges of the President and other functionaries of the Government will be open to question. Indeed; the very basis on which the Constitution is founded namely the trichotomy of powers i.e.' that the three great organs of the State have their own particular spheres of authority wherein they exercise their respective powers or the system of checks and balances could be challenged, alongwith all the ancillary provisions embodied in the 1973-Constitution in relation thereto. Thus, instead of making the 1973-Constitution more purposeful, such an interpretation of Article 2A, namely that it is in control of all the other provisions of the Constitution would result in undermining it and pave the way for its eventual destruction of at least its continuance in its present form. ,This presumably was not the intention of General Muhammad Ziaul Haq while adding Article 2A in the Constitution under the Revival of the Constitution Order, 1985 (President's Order No.14/ 1985). It certainly was not the intention of the law-makers who enacted Article 270-A (vide section 19 of the Constitution (Eighth Amendment) Act; 1985) which provision affirmed and adopted, inter alia, P.O. 14/1985 (whereby Article 2A was inserted in the Constitution). Their intention simply was that the Objectives Resolution should no longer be treated merely as a declaration of intent but should enjoy the status of a substantive provision and become equal in weight and status as the other substantive provisions of the Constitution. In case any inconsistency was found to exist between the provisions of the 1973 Constitution and those of the Objectives Resolution would, they expected, be harmonised by the Courts in accordance with the well established rules of interpretation of the Constitutional documents already mentioned. Being creatures of the Constitution it was not visualised that they could not annul any existing Constitutional provisions (on the plea of it repugnancy with the provisions of Article 2A) as no Court, operating under a Constitution, can do so. To use the picturesque words of Mr. Justice (Rtd.) Sh. Aftab Hussain, former Chief Justice of the Federal Shariat Court, in his discourse on the subject of "the Shariat Bill and its implications "PLD 1986 S.C 327; "The Courts are the creation of the Constitution and on no principle of law can they be allowed to cut the tree on which they are perched." The learned Chief Justice, in ,the same discourse, in which he made the above observation, proceeded to observe that "the objection in respect of the un-Islamic character of the Constitution is more ill-advised. It was passed by a Parliament consisting of renowned Ulema representing all our politico-religious organisations all of whom approved it. This is sufficient certificate for its Islamic character. If someone thinks that some of its provisions are contrary to Sharia, he should raise the issue in the Majlis-i-Shoora (Parliament)."
It has been said in Hakim Khan's case (supra) that every provision of the Constitution has to be given its meaning and effect. No substantive Constitutional provision can be given any superiority over the other provisions. . They have to be read alongwith other provisions as an integral part of the Constitution-which is an organic document having come to' stay once for all unless it is amended in accordance with Article 239 of the Constitution. ~ This rule has been reiterated in another landmark judgment reported as Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) in following words :
"Article
209 of the Constitution relates to (he composition of the Supreme Judicial
Council and its functions. It enables the Council to take action or remove a
Judge from the office on the ground of his incapability to perform the duties
of his office for the reason of physical or mental incapability or misconduct.
Sub-Article (7) of this Article provides that a Judge of the Supreme Court or
of a High Court shall not be removed from the office except as provided by this
Article. Sub-Article (8) of this Article provides that the Council shall issue
the Code of Conduct to be observed by the Judges of, the Supreme Court and the High
Courts. It is clear from the above provisions that the security of tenure is
provided under Article 209 and also the forum for removal from the office as
Judge of the High Court or of the Supreme Court. This provision is incorporated
in the Constitution by the Constitution makers. Subsequently, Chapter 111-A
setting up the Federal Shariat Court was inserted in the Constitution vide P.O:
No. 1 of 1980 providing in Article 203-C(4) that a Judge or Chief Justice of
the High Court can be appointed to the Federal Shariat Court without his
consent -for a period not exceeding two years. After such appointment it is
open to the President to modify the terms of the appointment of such Judge in
the
Supreme Judicial Council is constituted and is authorised to take action of such punitive nature. If the Government finds a particular Judge or the Chief Justice of a High Court to be uncooperative and if there is sufficient material to support the charge of misconduct, then in all fairness action should be taken against him and proceedings should be initiated before the Supreme Judicial Council in the manner prescribed under Article 209. We are not striking down provisions (4), (4-B) and (5) of Article 203 (c) as void being inconsistent with Article 209 but we do say ,that keeping in view the rules of interpretation, if there is choice between two forums or provisions, then the provision beneficial to the affected Judge should have been adopted or resorted to, and in such circumstances, the resultant action is to be considered as void in absence of cogent reasons without going into the Constitutionality of Article 203(c) of the Constitution. The Constitution is to be read as a whole and if there is any inconsistency, the same can be removed or rectified by the Parliament. In support of the proposition, reliance can be placed on the cases of Fazlul Quader Chowdhry v. Muhammad Abdul Hague (PLD 1963 SC 486) and Hakim Khan v. Government of Pakistan (PLD 1992 SC 595).
The principles on which the
Constitution has been framed have not been affected so substantially so as to
call that-the basic structure of the Constitution has been changed through .
the impugned Amendment. To start with, the Objectives Resolution was the
Preamble of the Constitution which was made a substantive part of the
Constitution. Article 2A demonstrates that system of Government is Federal and
Parliamentary in nature. It is based on Islamic provisions. Objection of the
learned counsel for the appellant that by changing Parliamentary Form of
Government, Presidential form of Government has been introduced on the basis of
Eighth Amendment Act 1985, is not correct inasmuch as recently in case of
Presidential Reference No.2 of 1996, Constitution Petition No.23 of 1996
(AI-Jehad Trust through Raees-ul-Mujahidin, Habib Al-Wahabul Khairi v.
Federation of Pakistan and others) and Constitution Petition No.54 of 1996
(Zafar lqbal Chaudhry v. Federation of Pakistan and others), it has unanimously
- been held that system, on the basis of 1973 Constitution is still
Parliamentary in nature and that by means of Eighth Amendment, a balance has
been created in respect of the powers between the President and the Prime
Minister. The basic principles of the Constitution of 1973 remain the same to
make the system of Government as Federal and Parliamentary in nature. It may be
added that the answer to the arguments addressed by M/s. Habibul Wahabul Khairi
and Dr. Abdul Basit, Advocates has already been given by this Court in cases of
Farzand Ali PLD 1970 SC 98, Zia-ur-Rehman PLD 1973 SC 49, Hakim Khan PLD
1992~SC 595 and Presidential Reference No.2 of 1996. They, h therefore, need no
further discussion. As already held above, this is not within the authority of
this Court to declare the amendment in question as invalid muchless to repeal
the Constitution of 1973. The argument that the elections to 1985 were held
contrary to the rule laid down by this Court in Begum Nusrat Bhutto's case
(supra) does not appear to be valid because in 1981, Provisional Constitution
Order, 1981 was promulgated by the President under which new oaths were
administered to- the Judges of the superior Courts. That being so, the Judges
as already observed above were not competent to .go beyond their specified
oath. Secondly,, under Article 270-A of the Constitution all acts/orders of the
Chief Martial Law Administrator right from 5th of July, 1977 to 31-12-1985 were
revalidated. In this situation, rule of this Court cannot be pressed into
service by the learned counsel for the appellants to advance their case. In
these circumstances, the arguments of the learned counsel for the
appellants/petitioners- have no substance and as such are repelled. It may be
noted that the impugned Amendment was passed and promulgated on
On the face of them, these cases suffer from considerable laches and delay. No reasonable and plausible explanation has been given by the appellants/petitioners for the condonation of such contumacious and intentional delay. Delay per se may not be the only ground to refuse relief where question of Constitutional importance is involved. Nevertheless, the delay and laches shall have to be considered alongwith other grounds in refusing to give the relief. This is surely a past and closed transaction which cannot be reopened at such a late stage and that too at the wrong forum.
The conclusions which may be drawn from the above are:
(i) The Parliamentary system of Government is still in- force even on the basis of Amended Constitution of Pakistan.
(ii) Substantial power have beer given to the President under the amended Constitution to create a balance of powers between the Prime Minister and the President of Pakistan to run the affairs of the Federation smoothly and successfully.
(iii) the controversy, if any, over the Eighth Amendment is pure political in nature. It may be raised if so desired for its final settlement at the forum of Parliament in an appropriate manner having been provided under . Article 239 of the Constitution.
(iv) Eighth Amendment Act of 1985 is, undoubtedly, the de facto and de jute Constitutional provision and no successful challenge could be thrown to its validity before the Courts.
(v) (v) Every substantive Constitutional provision. is equal in status and position-wise. It has to be acted upon and followed by all the Courts.
(vi) Courts are bound to interpret. the Constitution as it is and have no powers to change or re-write it.
On 12th of January, 1997, following short order was passed:-- .
"For reasons to be recorded later, we pass following short order.
What is the basic structure of the Constitution is a question of academic nature which cannot be answered authoritatively with a touch of finality but it can be said that the prominent characteristics of the Constitution are amply reflected in the Objectives Resolution which is now substantive part of the Constitution as Article 2A inserted by the Eighth Amendment.
The Objectives Resolution was Preamble of the Constitution made and promulgated in our country in 1956, 1962 and 1973. Perusal of the . Objectives Resolution shows that for scheme of governance the main features envisaged are Federalism and Parliamentary Form of Government blended with Islamic provisions. The Eighth Amendment was inserted in the Constitution in 1985, after which three elections were held on party-basis and the resultant Parliaments did not touch this Amendment, which demonstrates amply that this Amendment is ratified by implication and has come to stay in the Constitution as contemplated under Article 239. Article 58(2)(b) brought in the Constitution by the Eighth Amendment, which maintains Parliamentary Form of Government has provided checks and balances -between the powers of the President and the Prime Minister to let the system work without let or hindrance to forestall a situation in which Martial Law could be imposed. .
In the result the two Civil
Appeals Nos.397-K/90 (Abdul.Mujib Pirzada v. Federation of Islamic Republic of
Pakistan), 399-K/90 (Haji Ahmed v. Federation of Pakistan and others), and
three Constitutional Petitions Nos.60/96 (Mahmood Khan Achakzai v. President of
Pakistan and others), 67/96 (Habibul Wahabul Khairi v. Federation of Pakistan
and others) and 68/96 (Wukala Mahaz Barai Tahafuz Dastoor v. Federation of.
The above are the reasons in support of our short order referred to above.
(
RAJA AFRASIAB KHAN, J:
M.B.A./M-3358/S
order accordingly
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