PLJ 1990 Karachi 14 (FB)

(\i) Constitution of Pakistan, 1973--

—-Art. 199-Eighth Amendment-Validity of-Challenge to-Political case and political question—Distinction between—A political case may be subject to adjudication by court but a sensitive political question may not be subject matter of adjudication—Held: Challenge to Eighth Amendment on ground that it was not passed according to Constitution is not a political question-Held further: What should be balance of power inter se President and Prime Minister is a sensitive political question which is not suited for adjudication by Court (Per Ajmal Mian, CJ). IP.,63] AB

(xii) Constitution of Pakistan, 1973—

—Art. 199-Eighth Amendment-Validity of~Challenge to-1988 elections on party basis were held on basis of amended Constitution-Oath was taken by every one after lifting of Martial Law, under amended Constitution—Held: If certain: amended provisions of Constitution are declared as violative of Objectives Resolution or of basic structure of Constitution, it would disturb basis on which present structure of democracy is grounded-Held further: This is highly sensitive and politicized controversy which has unfortunately assumed great significance in view of polarized and charged political climate obtaining in country-Questions raised in petitions should be resolved by consensus of people through Parliament or by other mechanism provided under Constitution—Petitions dismissed.(Per Ajmal Mian, CJ).

, [Pp. 64&65JAC, AD & AE

(xili) Constitution of Pakistan, 1973-

—Art. 199-Elcctions of 1985-Hcld on party-less basis-whether elections can be declared as illegal-Question of-Eficacy and importance of political parties observed in Miss Benazir Bhutto's case by Supreme Court-It cannot be held that political parties have no par| to, play—Held: It is too late to declare that National and Provincial Assemblies of 1985 on partyless basis had no legal status or that they were illegal bodies—Held further: Important role played by 1985 parliament in getting Martial Law lifted, cannot be denied (Per Ajmal Mian CJ). [Pp. 37&38JC, D&E

(xiy) Constitution of Pakistan, |973-

—-Art. 199-Elections of BBS-Validity of-Chaltenge to-Whether held by usurper-Question of-Events between 5th July, 1977 uplo holding of general elections of 1988 were tested and upheld by superior courts in various cases-Held: It is no more open to argument that late General Ziaul Haq was usurper or that his acts and legislative measures should be looked upon as acts of usurper and tested and condoned on principles laid down in Asma Jillani's case-Held further: It cannot be said that general elections of 1985 were held under rule of a usurper (Per Saeeduzzaman Si<Jdiqui, J).

[Pp. 80&81]AFAG & AH

(xv) Constitution of Pakistan, 1973-

—-Art. 199-Elections of 1985-*Validity of--Challenge to-Whether same can be declared invalid being on partyless basis-'Question of—In Benazir Bhutto's case, Supreme Court was examining sub-constitutional legislation (Political Parties Act) in juxtaposition with provisions of Art. 17 of Constitution which guaranteed right of association after restoration of Fundamental Rights-Held: Observations in Benazir Bhutto's case cannot be used as authority for declaring partyless elections of 1985 as invalid (Per Saeeduzzaman Siddiqui, J). [P. 82]AJ.

PLD 1988 SC 416 ref.

(xvi) Constitution of Pakistan, 1973-

—Art. 199-National Assembly of 1985-Brought in by partyless elections— Whcther can be declared as illegal-Question of-No constitutional deviation was involved in holding elections on partyless basis in 1985 as same were held under President Order No. 5 of 1977 which allowed such elections-President Order No. 5 of 1977 is protected under Art. 270-A which has been held to be competently enacted-Held: Declaration that Assembly was illegal, cannot be-given (Per Ajmal Mian, CJ). [P.42JH

(xvii) Constitution of Pakistan, 1973-

—Art. 199-Powers of High Court—Referendum Order-Mala /?*/<?--Whether High Court can go behind motive of legislature-Question of-Refcrendum Order was promulgated by General Ziaul Haq in exercise of powers under PCO-He was same individual who was exercising both executive as well as legislative functions-Held: His legislative functions cannot be outside pale of judicial scrutiny-Held further: High Court is competent to go into question of mala fide raised by petitioners (Per Mamoon Kazi, J). [Pp. 120,123&124] AO, AP, AQ & AR

PLD 1959 (WP) Lah. 76 and PLJ 1987 Lah. 669 rel.

(xviii) Constitution of Pakistan, 1973—

—Art. 199 read with Art. 2-A-Provisions of Constitution—Whether can be struck down being violative of Objectives Resolution-Question of~ Consistent view of Supreme Court has been that a constitutional provision cannot be struck down on a ground other than that it was passed in a manner other than provided under Constitution-Held: In presence of unambiguous dictums of Supreme Court, it is not open to this court to hold that a provision of Constitution can be struck down on ground of its being violative of Objectives Resolution or of national aspiration or of higher ethical notions or philosophical concepts of law or of basic structure (Per Ajmal Mian, CJ). [Pp. 53&57J Q, R, S & T

PLD 1973 SC 49, PLD 1974 SC 151, PLD 1976 SC 57, AIR 1967 SC 1943, AIR 1973 SC 1461, AIR 1951 SC 458, AIR 1965 SC 845, PLD 1975 SC 507, PLD 1977 SC 397, PLD 1983 SC 457, PLD 1988 Lah. 725, PLD 1989 Kar. 404 and PLD 1966 SC 1 ref.

(xix) Constitution of Pakistan, 1973-

—Art. 199~Provisions of Art. 270-A-Competently enacted-Whether 1985 Parliament can be declared as illegally constituted—Question of—Judicial pronouncements of superior courts in various cases that Article 270-A was competently enacted—Held: In presence of judicial pronouncements of superior courts, it is not open to this court to hold that Parliament of 1985 was not legally constituted (Per Ajmal Mian, CJ). [Pp. 39&42]F&G

PLD 1989 SC 26, PLD 1986 Kar. 516, PLD 1987 Kar. 296 and PLD 1988 Lah. 49=PLJ 1987 Lah. 669 rcf.

(xx) Constitution of Pakistan, 1973-

—Art. 199-Referendum Order-Legislation of-Whether Mala fide-Question of--Question referred to referendum was clearly misleading and even if majority of votes casts were "yes" voles, yet by no measure of reason, it could be inferred that General Ziaul Haq had been elected as President of Pakistan-There was no nexus between votes cast in favour of answer "yes" and election of General Ziaul Haq as President-Held: Referendum Order was a legislation in bad faith and mala fide because in reality it was not what it ostensibly appeared to be (Per Mamoon Kazi, J). [P.128]AV

PLD 1974 SC 151 rcl.

(xxi) Constitution of Pakistan, 1973-

—Art. 199--Scnate--Legality of-Challenge to-Whether petitioners have locus slandi-Qmstion of-Legality of Senate has been challenged by petitioners on ground that they wanted to be candidates for Senate-Held: Except writ of habeas corpus or a writ of quo warranto which can be invoked by any person, other writs can be prayed for only by an aggrieved party (Per Ajmal Mian, CJ). [Pp. 59&60] Y&Z

(xxii) Constitution of Pakistan, 1973-

—Art. 270-A-Breaches of conditions by General Ziaul Haq-Whether had become usurper-Question of—In Begum Nusrat Bhutto's case, Supreme Court had accorded recognition to Martial Law regime on conditions which inter alia included holding of free and fair elections at earliest possible time and Superior Courts would have power of judicial review—Conditions were flouted first by incorporation of Article 212-A which was followed by PCO providing blanket immunity from scrutiny of all past and present acts/actions, orders, proceedings of Martial Law Authorities-Held: It could be urged that his position had become somewhat similar to that of General Yahya Khan and ratio decidendi of judgment in miss Asma Jillani's case would be applicable-Held further: But Article 270-A having been held by superior courts as validily enacted, above controversy has become academic and no useful purpose would be served in going into same in detail (Per Ajmal Mian, CJ). [Pp. 31&32JA&B

PLD 1972 SC 139, PLD 1973 SC 49, PLD 1974 SC 151, PLD 1976 SC 476, PLD 1983 SC 457 and PLD 1988 SC 416 ref.

(xxiii) Laches-

—Senate—Challenge to-Whether petition is hit by principle of laches-Question of—Senate came into existence in 1985 and half of its members retired in March, 1988, in whose place, new members were elected—Petitions. have been filed in April, 1989—ileld: Petitions suffer from .-laches—Ik-Id further: However, a petition which involves questions of public importance • as to interpretation of Constitution, cannot be dismissed on ground of laches -.-• alone. (Per Ajmal Mian, CJ.) [Pp. 60&61JAA

PLD 1989 SC1G6 relied

Mr. A Mujccb Pirzada, Advocate in person (in CP-76/89). Mr. Muzaffawl-Haq, Advocate in person (CP-163/89). Mr. Rasheed A. Akhund, Advocate for Petitioners (in CP-168/89). Mr. Yahya Bakhtiar, Attorney General on court notice, Mr. S^4. Wadood, Deputy Attorney General for Federation.

Af/S A~A. Fuzed, Klialid M. Ishaque, S.M.Zafar, Aijaz Ahmad, S.Zahid Hussain, Makhdooin AH KJian, Obaidur Rahman, N^A.Farooqui, Hassan A. Shaikh, Sabiliuddin Ahmad and Afa/z/ooz Yar KJian, Advocates for Respondents.

Mr. A.H.Labho, Advocate General, Sindh.

Dates of hearing: 25,26,27 and 28-9-1989 and 1,2 and 8-10-1989.

judgment

Ajmal Mian, CJ.--(l) By this judgment, I intend to dispose of the above three constitutional petitions, as they involve common questions of facts and law.

In-C.P. No. D-76/1989, the petitioner is an advocate of the Supreme Court of Pakistan and of the High Court of Sindh, and belongs to a political family, and wanted to contest for a Senate seat, has impugned Eighth Amendment Act of 1985 (hereinafter referred to as the Eighth Amendment) as ultra vires the Constitution of 1973 (hereinafter referred to as the Constitution) and has sought declaration that the election to the Senate be declared to be in violation of the provisions of the Constitution. He also sought direction to hold fresh election to the Senate under the provisions of the Constitution. A declaration is also sought that the Parliament under a constitutional system is not competent to change the basic structure of the Constitution.

In C.P. No. D-163/1989, the petitioner is also a practising adovcate and has also impugned the Eighth Amendment and has sought a declaration that it is unconstitutional, invalid and colourable exercise of power and cannot be treated as part of the Constitution and is fraud with the Constitution.

Whereas, in C.P. No. D-168/1989, the petitioner claims to be a voter enrolled in Nawababad Lyari, in the city of Karachi, from where it is alleged that he wanted to seek membership of the Senate, has sought declaration that the extension of the term of the members of the Senate from four years to six years as amended in Article 59(3) with all consequential amendments made therein by the Revival of the Constitution of 1973 Order 1985 (hereinafter referred to as P.O. No. 14/1985) and the Constitution (Eighth Amendment) Act, 198& are unconstitutional, null and void. He has also sought declaration that the elections to the present Senate having not been held in March, 1987 in accordance with the provisions of un-amendment Article 59, its present composition and existence is null and void and that the continuation of the Senate and its functioning beyond 20th March, 1989, would be null and void and ultra vires. Direction has also been sought .against rhc Election Commission of Pakistan to arrange to hold fresh elections to elect the members of the Senate before th 20lh March, 1989. It may be observed that further declarations have been sought to the- effect that_t the Parliament being the creature of the Constitution and noticing the .constituent assembly, is not competent to alter the basic structure of the Constitution, that the CM LA being usurper of the will and sovereignty of the people all his acts and laws are, to be judged on the criterion of "condontion" and riot on the principle of "legitimacy", that the Referendum of 1984 was ab inilio void, mala fide and fraud upon the Constitution and the people of Pakistan and that the CM LA was not a duly elected President and, therefore, had no authority to assent to,the Eighth Amendment under Article 75. Further declaration has been sought to the effect that the Eighth Amendment pursuant to P.O. Nos. 14, 20 and 24 effecting the basic structure, is unconstitutional and that the Constitution of 1973 in its^original from unamcndcd by the Constitution Fifth Amendment Act, 1976 and. Seventh Amendment alongwith Article 2(a) is liable to be restored.

In C.P. No. D-168/1989 inter alia the Chairman Senate has filed a detailed Written Statement verified on solemn affirmation, wherein various factual and legal averments contained in the memo of petition have been denied and the maintainability of the petition has also been challenged.

2. (a) Mr. Abdul Mujeeb Pirzada, in support of his petition, has urged following contentions:—

(/') That in the case of Begum Nusrat Bhutto vs. Tire Federation of Pakistan reported in PLD 1977 SC 657 the Honourable Supreme Court' had granted conditional recognition to the Martial Law with the object to facilitate holding of free and fair elections and subject to the review of the actions of the Martial Law Authorities and/or by the Superior Courts and that the power to amend the Constitution was restricted for achieving the above objective, namely, to hold free and fair elections.

(//) That the PCO, which was enforced in March, 1981 in fact substituted the Constitution of 1973 and the elections to the National and the Provincial Assemblies, which were held in February, 1985 were hot the elections in terms of the provisions of 1973 Constitution but were held under the PCO.

(Hi) That the elections of the Members of the Senate by the Members of the Provincial Assemblies, who were not elected in terms of 1973 Constitution, were not legal.

(/V) That the amendments in the Constitution in the form @f Eighth Amendment have been made by the National Assembly and the Senate which were not competent in law to amend the 1973 Constitution.

(v) That in any case even if it is to be presumed that the elections to the National Assembly were legal, it could not have changed the basic Structure of the Constitution.

(v/) That since the elections to the National and the Provincial Assemblies have been held in November, 1988 on party basis, fresh election to the Senate should have also been held on party basis arrd the Senate should have been elected by the Members of (he Provincial Assemblies, who were elected on party basis.

(»'//) That the doctrine of State necessity is a doctrine of condonation and not of validation and, therefore, the past and future acts/actions are to be judged on that basis.

(yiii) That in fact the PCO, issued on 24-3-1981 amounted to abrogation of the Constitution.

(a) That the act of abrogation of Constitution is punishable under Article 6 of the Constitution and, therefore, no court can condone the acts of a usurper abrogating the Constitution.

(/)) Mr. Muxaffarul Haq, in furtherance of his petition, has contended as undcr:--

(/) That since the CMLA at the relevant lime had the power to amend the Constitution, the Parliament was not competent to pass the Eighth Amendment.

(ii) That the CMLA had no power to delegate his power to amend the Constitution to the Parliament.

(iii) That the Conduct of the CMLA is relevant for interpreting the provisions of the Constitution.

(iv) That the Constitution docs not admit/permit sweeping changes in its frame-work through amendments.

(v) That the Eighth Amendment is colourable exercise of the legislative power.

(i) That upon the issuance of P.O.No.14 of 1985, which came into force on 2nd March, 1985, General Mohammad Ziaul Haq (hereinafter referred to as the General) had ceased to have any power to amend the Constitution and, therefore, President Order 20 of 1985 issued on 17th March, 1985 purporting to restore original Article 239 was of no legal effect.

(ii) That since under the amended Article 239 in terms P.O.No. 14 of 1985, all amendments to the Constitution, were to be referred to the Provincial Assemblies and as the Eighth Amendment was not referred to the Provincial Assemblies, it was not legally passed.

(iii) That since the CMLA was accorded recognition by the Supreme Court in the case of Begum Nusrat Bhutto for limited purpose for holding of free and fair elections and for restoring democracy in orderly manner in the shortest possible time inter alia subject to review of the Martial Law Authorities/Courts acts, actions and orders by the Superior Courts, he became usurper when he enacted Article 212-A in 1979 or upon issuance of the PCO which purported to deprive the Superior Courts, its jurisdiction to scrutinise llie acls/action/ordcrs of the Martial Law Authorities or Courts.

(iv) That a referendum implies choice/option but the questions for the Referendum held by the ficncral were so framed, thai they did not give any choice/option to the voters and hence in fact it was not a referendum but was a fraud committed upon the people and, therefore, its result was nullity in law.

(v) That the CMLA was given the mandate within the doctrine of necessity and that he was not soverign legislature, which could amend the Constitution in any manner, which he liked.

(vi) That since the Constitution envisages British Parliamentary Form of Government, the party-less elections to the National and Provincial Assemblies in February, 1985 were violalivc of the provisions of the. Constitution, and, therefore, were not legal and valid.

(vii) That there was a marked distinction between the Parliament which had passed 1973 Constitution and that which came into existence on account of 1985 elections inasmuch as the former was to act as a constituent assembly, whereas, the latter was not to act as such, therefore, it could not have passed the Eighth Amendment.

(viii) That the impugned Eighth Amendment is violalivc of the basic structure of the Constitution and, therefore, is liable to be struck down.

(be) That the Parliament being a creature of the Constitution could not have passed Article 270-A affirming the Rule of the Martial Law.

(x) That increase in the number of scats of the Senate and its duration are also illegal and violative of the Constitution and, therefore, present Senate has no legal sanctity.

3. (a) Mr.Yahya Bakhtiar, learned Attorney General, who has appeared in response to the Court notice, has urged as follows:-

(i) That the General having failed to hold fair elections in terms of Begum Nusrat Bhutto's case, had ceased to have mandate to rule the country or to prolong his rule and to amend the Constitution according to his whims or liking.

(ii) That P.O.No. 14 of 1985 was issued by the General when the Parliament existed and, therefore, he had no power to issue the same.

(iii) That some of the provisions of the Eighth Amendment are violative of the Objectives Resolution and of the basic structure of the Constitution

(iv) That since the elections of the National and Provincial Assemblies in 1985 were held on non-party basis under constraints, they were violative of the Objectives Resolution and of the basic structure of the Constitution which envisages a parliamentary form of the Government.

(v) That since the Senate has been elected by the National and Provincial Assemblies of which elections were held on partyless basis, it has no legal

(8) was misused in May, 1988 when no Prime Minister was appointed after the dissolution of the Assembly and in the provinces only Mr. Nawaz Sharif was allowed to continue, whereas the other three Chief Ministers were not allowed to continue to hold on the office of the Chief Ministership.

(vi'n) He also invited our attention to corresponding amendments made in the relevant Articles of the Constitution relating to Governor, Provincial Assembly—and Provincial Cabinet.

There is no doubt that the above amendments highlighted by Mr. Yahya Bakhtiar have to some extent affected balance of power inter se between the President and the Prime Minister but the moot point remains, whether this Court is competent to take upon itself exercise on the question which of the amended articles should be struck down and which of the amended articles should be retained or should it be left to be resolved by the Parliament or the people. It cannot be denied that the above controversy is a sensitive political issue and generally the Court declines to entangle itself into sensitive political issues in exercise of its constitutional jurisdiction. This aspect I intend to deal more in detail later on. Additionally, if this Court has no jurisdiction to strike down a constitutional provision on the ground of its being violative of the Objectives Resolution or of the basic structure of the Constitution, the question, whether the .Court can adjudicate upon sensitive political issues loses its significance.

(d) Mr. yahya Bakhtiar, Learned Attorney General has also referred to the following cases:-

(i) MissAsma Jilani.v. Ttie Government of the Punjab and Another, reported in PLD 1972 SC 139, in which General Yahya was declared as a usurper and while dealing with the question of grund-norm, Hambodur-Rehman CJ, made the following observations^-

"In any event, if a grund-norm is necessary for us I do not have to look to the Western legal theorists to discover one. Our own grund-norm is enshrined in our own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March, 1949. This Resolution has been described by Mr. Brohi as the "corner stone of Pakistan's legal edifice" and recognised even by the learned Attorney-General himself "as the bond which binds the nation" and as a document from which the Constitution of Pakistan "must draw its inspiration." This has not been abrogated by any one so far, nor has this been departed or deviated from by any regime, military or Civil. Indeed, it cannot be, for, it is one of the fundamental principles enshrined in the Holy Qur'an
Say, 'O Allah, Lord of sovereignty. Thou givest sovereignty to whomsoever Thou pleasest; and Thou takest away sovereignty from whomsoever Thou pleasest. Thou exaltest whomsoever Thou pleasest and Thou abasest whomsoever Thou pleasest. (Pt. 3, Ch. 3, Al'Imran,Ay27.)".

(h) Mr. Fazlul Quader Chowdhiy And Others v. Mr. Muhammad Abdul Haque, PLD 1963 SC 486. In the above case the facts were that the 3 appellants were the members of the Central Council of Ministers, who took oath of office shortly after promulgation of President Order No. 34 of 1962 under Article 224 of the 1962 Constitution. The above Order had the effect of amending seven Articles of the Constitution. Article 25 was altered so as to give the right of speaking in and otherwise participating in the proceedings of the National Assembly to a member of the President's Council of Ministers, who was not a member of the Assembly though such a person was not entitled to vote. Articles 75, 103 and 104 were also amended. The above amendments were made by the then President in purported exercise of the power conferred on him under above Article 224 for removal of difficulties which might have been encountered in enforcement of the aforesaid Constitution. The erstwhile High Court of East Pakistan took the view that the above amendments made by the President were ultra vires. On appeal filed by the 3 affected Ministers, the Supreme Court maintained the judgment of the High Court and Cornelius CJ inter alia observed as follows:--The major duty upon all concerned including the President was to bring these fundamental provisions into operation. What has actually be done is that instead of implementing these basic provisions, they have been altered in a fundamental way so as to change the form of Government from the pure Presidential form to an anomalous Parliamentary form. It is quite impossible to regard the operation as one in aid of bringing the integral provisions of the Constitution into operation."

(Hi) Mir Abdul Baqi Baloch v. Jam Mir Ghulam Qadir KJtan ofLasbella & Five others, NLR 1980 Civil (Kar) 673, in which a Full Bench of the erstwhile High Court of Sind and Baluchistan while dismissing a petition challenging the appointment of Jam Mir Ghulam Qadir Khan of Lasbella as the Chief Minister of Baluchistan inter alia dilated upon the rule of interpretation of Constitutional provisions by observing as follows:-- " The Interim Constitution, as indeed any legislative instrument, must I think be so construed as to give effect to all parts of it and to reconcile the provisions with one another and there can be no question of choosing between the provisions unless indeed there is such absolute conflict between two provisions that upon no reasonable interpretation can they both be given effect to. It is unnecessary just now to quote the entire Article 136 but clause(l) therefore may usefully be reproduced."

Whereas Mr. S. A. Wadood, learned Deputy Attorney General has referred to the following books and cases:-

(/) Diaz Jurisprudence, Fourth Edition inter alia at page 128, which reads as follows:-

"....................... A written constitution provides probably the most effective of all checks on legislative power, but its success depends on a number of factors. One of the most important is the language in which the limitations are expressed; whether in fairly specific terms or in generalities open to divergent interpretation. Secondly, the safeguards may be effectively cancelled by countervailing provisions elsewhere in the document. Thirdly, if the constitution can be easily amended, a restraint which the government finds irksome will not impose quite such a curb as when the procedure for amendment is complex and elaborate. Fourthly, every constitution has to be interpreted, so the effectiveness of its restraints rests ultimately on the interpreters, i.e., the judges and the measure of their sympathy with an independence of government. An interesting case is Golak Nath v. State of Punjab, in which the Supreme Court of India declared that the Indian Parliament was incapable of amending the constitution so as to abridge or remove fundamental rights. A contrary effect is that, while a constitution may limit legislative power, it may thereby prevent government from dealing with the abuse of liberty which could be as undesirable as the abuse of power."

(H) Rousseau on the Social Contract at page 198, which provides as follows:—

" From which it becomes clear that the sovereign power, albeit absolute, sacrosanct, and inviolable, does not, and cannot, trespass beyond the limits laid down by general agreement, and that every man has full title to enjoy whatever of property and freedom is left to him by that agreement. The sovereign is never entitled to lay a heavier burden on any one of its subjects than on others, for, should it do so, the matter would at once become particular rather than general, and,consequently, the sovereign power would no longer be competent to deal with it."

(Hi) Harold J. Laski at pages 55 and 56, which reads as follows:--

"....We here verge upon the political nature of sovereignty. What, fundamentally, is involved in the question of whether there ought to be, in any State, a power subject to no limits of any kind. But it is first necessary to remember that unlimited power is nowhere existent. Attention has always to be paid to the thousand varying influences which go to shape the nature of the sovereign will. Here we are in the realm rather of fact than of theory; and the attempt to trace out the sources of any single decision would lead most to declare, as John Chipman Gray insisted, that the real rulers of a society are undiscoverable. A realistic analysis would probably content itself with saying that the will of the State is, for practical purposes, the will which determines the boundaries within which other wills must live. The will of the State, in fact, is the will of government as that will is accepted by the citizens over whom it rules."

(/v) O. Hood Phillips' Constitutional and Administrative Law, Sixth Edition at page 57, which reads as follows:--'

" There are in practice, of course, factors which limit Parliament's ability to pass any laws it likes, or, rather, which limit the choice of measures that the government puts before Parliament for approval. These factors are the concern of the political scientist rather than the student of constitutional law, but it is convenient to mention some of the more important ones briefly here."

The author after making the above observations has dilated upon the restrictions referred to by him, namely, the mandate, or party manifesto, public opinion, consultation of organised interests and international law.

(v) Sharaf Faridi and 3 others v. Tlie Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another, PLD 1989 Karachi 404, at page 446, wherein Saleem Akhtar J. has referred to the legislative power with reference to Article 8 of the Constitution and has pointed out the observation of the Supreme Court in the case of Benazir Bhutto as to the manner in which the Constitution restricts the legislature and executive from encroaching upon and violating the fundamental rights.

(vi) Mac Cormick v. Lord Advocate, (1953 S.C. 396, (1953) S.L.T. 255-Scot, in which case Lord President while dealing with the question of violation of the treaty of the union between the Scotland and England ratified by Act 1706 by a legislation passed by the British Parliament observed:—

"....................... the principle of the unlimited sovereignty of Parliament was a distinctively English principle, having no counterpart in the constitutional law of Scotland, and that the united Parliament established by the Treaty of Union did not have unlimited sovereignty in the matter of altering the provisions of the Treaty."

(vh) Federation of Pakistan and another v. Malik Ghulam Mustafa KJiar, PLD 1989 SC 26, the detailed reference to which has already been made hereinabove.

(e) As observed hereinabove according to M/s S. M. Zafar, Khalid M.-Q Ishaque, A. A. Fazeel and Nasim Faruqui none of the provisions of the Constitution can be struck down on the ground of being violative of Objectives Resolution or of basic structure or of some political concept. M/s S. M. Zafar and , A. A. Fazeel have referred to the following cases:--

(/) Tlie State v. Zia-Ur-Rahman and others, PLD 1973 SC 49, in which Hamoodur Rehman CJ explained his observation made in the aforesaid Asma Jilani case quoted hereinabove and relied upon by Mr. Yahya Bakhtiar as to the status of the Objectives Resolution 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 Pakistan and the consequences that flow from it. I did not describe the Objectives Resolution as "the cornerstone of Pakistan's legal edifice" but merely pointed out that one of the learned counsel appealing in the case had described it as such. It is not correct, therefore, to say that I had held it, as Justice Ataullah Sajjad has said in his judgment, "to be a transcendental part of the Constitution" or, as Justice Muhammad Afzal Zullah has said, to be a "supra-Constitutional Instrument which is unalterable and immutable".

His Lordship also pointed out in the other part of the judgment that the judiciary has no power to strike down a provision of the Constitution on the ground of its being violative of the laws of God or nature or of morality or of some other solemn declaration in the following words:--

"....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 as being in violation of such a document."

(if) Tlie Federation of Pakistan Tlirough the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Klian and others, PLD 1974 Sc 151, in which the Honourable Supreme Court reiterated that a constitutional provision cannot be struck down.

(wi) Islamic Republic of Pakistan Tlirough Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Klian, M.AL4. Former President of Defunct National Awami Party, PLD 1976 SC 57. In the above case Supreme Court referred to some cases of Indian jurisdiction, namely, the case of Golak Nath v. State of Punjab, AIR 1967 SC 1943, the case of Kesavanauda v. State of Kerala, AIR 1973 SC 1461, the case of Shankari Prasad v. Union of India, AIR 1951 SC 458 and the case of Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, in which the Indian Supreme Court has dealt with the power of the Indian Parliament as to amend or. to abridge any of the fundamental rights. Original view of the Indian Supreme Court inter alia in the above case of.Shankari Prasad v. Union of India and Sajjan Singh v. Stale of Rajasthan was that the parliament could make any amendment in the Constitution but in above Golak Nath v. State of Punjab case the Indian Supreme Court held that no amendment in the Fundamental Rights could be made by the Parliament. The latter view was modified in the case of Kesavanauda v. State of Kerala by holding that reasonable abridgements of fundamental rights can be effected in the public interest. Hamoodur Rahman, CJ after having referred to the above cases of Indian jurisdiction made following observations:--

"...................... but it is unnecessary for us to enter into this controversy, as this Court is committed to the view that "the judiciary cannot declare any provision of the Constitution to be invalid or repugnant" to that national aspirations of the people and the validity of a Constitutional amendment can only be challenged if it is adopted in a manner different to that prescribed by the Constitution or is passed by a lesser number of votes than those specified in the Constitution", vide State v. Ziaur Rahman (PLD 1973 SC 49)."

(iv) Brig. (Retd) F. B. All and Another v. Jlie State, PLD 1975 SC 507. In the above case Hamoodur Rahman CJ inter alia observed 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 by me in the case of Asma Jilani (PLD 1972 SC 139)."

(v) Federation of Pakistan through The Secretary, Ministry of Finance; Government of Pakistan, Islamabad etc. v. United Sugar Mills Ltd-, Karachi, PLD 1977 SC 397, wherein at page 410 Muhammad Gul J, whtf delivered the opinion on behalf of the Supreme Court, observed as follows:--

"....................... In Pakistan, this Court in the case of Ziaur Rahman (PLD 1973 SC 49) has however firmly laid down the principle that a constitutional provision cannot be challenged on the ground of being repurgnant to what were sometimes stated as "notional inspirations" 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 instant case, the two amendments are not questioned for want of competency or any other formal defect."

(v/) Fajui Foundation and Another v. Shamimur Rehman, PLD 1983 SC 457. In the above case Muhammad Haleem CJ after, referring to the Indian cases in which certain amendments of the Constitution were held to be violative of basic structure reiterated the Supreme Court dictum in Ziaur Rahman's case by quoting "That a constitutional provision cannot be challenged on the ground of being repugnant to what are sometimes stated as "notional 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."

(v//) Kliawaja Muhammad Sharif v. Federation of Pakistan Through Secretary Cabinet Division, Government of Pakistan, Islamabad and 18 others, PLD 1988 Lahore 725, in which a Full Bench of the Lahore High Court observed that "Thus the Scope of sub-clause (b) of clause (2) of Article 58 cannot be enlarged by any ratio of rule similar to the "basic structure" theory, as pronounced in India. Even otherwise, this theory has not been accepted by the Supreme Court of Pakistan in Faiqi Foundation's case (PLD 1983 SC 457)."

(viii) Sharaf Faridi and 3 others v. TJie Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another, reported in PLD 1989 Karachi 404. In the above case a Full Bench of this Court comprising of myself and six other learned Judges after referring to some of the above cases of the Indian Supreme Court has held that a constitutional provision cannot be struck down on the ground of being violative of the basic structure or of the frame-work of the Constitution.

review of the above cited cases indicates that Miss Asma Jilani's case relied upon by Mr. Yahya Bakhtiar was explained by Hamoodur Rahman, CJ, in the case of Ziaur Rahman, where it has been held that "however solemn or sacrosanct 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 Court created under the Constitution will not have the ower to declare any provision of the Constitution itself as being in violation of such a document", the above view was reiterated by the Supreme Court in the case of Saeed Ahmed Khan. The above question agian came up for consideration before the Supreme Court in the reference case of Abdul Wali Khan, wherein, in strong words Hamoodur Rahman, CJ, observed that, "the judiciary cannot declare any provision of the Constitution to be invalid or repugnant to that national aspirations of the people and the validity of a constitutional amendment can only be challenged if it is adopted in a manner different to that prescribed by the Constitution". After that, in the case of Brig. (Retd.) F. B. Ali and another, Hamoodur Rahman, CJ, again reiterated his previous view and observed that, "the Court cannot strike down a law on any such higher "ethical notions" nor can Court act on the basis of "philosophical concepts of law." This was followed in the case of United Sugar Mills, in which Mohammad Gul, J., while delivering the opinion on behalf of the Supreme Court observed 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". Then again in the case of Fauji Foundation, Mohammad Haleem, CJ, reiterated the dictum of Ziaur Rahman's case that, "a constitutional provision cannot be challenged on the ground of being repugnant to what are some times stated as notional aspirations or an abstract concept". The above Supreme Court cases have been followed by a Full Bench of the Lahore High Court in the above case of Khawaja Mohammad Sharif and by a Full Bench of 7 Judges of this Court in the recent case of Sharaf Faridi. It is, therefore, evident that the consistent view of the Pakistan Supreme Court has been that a constitutional provision cannot be struck down on a ground other than that it was passed hi a manner other than provided under the Constitution. The case of Fazlul Quader Chowdhry relied upon by Mr. Yahya Bakhtiar does not lay down any contrary proposition of law than what has been held by the Supreme Court in the aforesaid subsequent cases. The question in the above Fazlul Quader Chowdhry's case was, whether the President under Article 224 of 1962 Constitution, which empowered him to remove difficulties with the object to enforce the provisions of the aforesaid Constitution of 1962, was entitled to amend the Constitution as to change the Presidential form of the Government into Parliamentary from. It is, therefore, obvious that the above case is distinguishable, i

The books relied upon by Mr. SA. Wadood, namely, Dias Jurisprudence, Rousseau on the Social Contract, Harold J. Laski's Treatise, O. Hood Philips' Constitutional Law & Administrative Law to some extent support his contention that a Parliament or any other legislative body is subject to some build in constraints contained in the Constitution or founded on Conventions or practice as to its power to amend a constitution. The above bopks contain personal views of their Authors. However, the same cannot nullify the effect of the • pronouncements of the Pakistan Supreme Court contained in the above cited cases. I may also observe that the natural corollary of holding that Aricle 270-A has been competently enacted would be that it would provide protective cover to the assailed constitutional amendments.

I am, therefore, of the view that in presence of the above unambiguous} dictums of the Pakistan Supreme Court, it is not open to this Court to hold that al provision of the Constitution can be struck down on the ground of its beingl violative of the Objectives Resolution or of the national aspirations or of higherj ethical notions or of philosophical concepts of law or of the basic structure.

Additionally jurisdiction of this Court under Article 199 read with Article 175(2) of the Constitution is subject to the Constitution and not unfettered jurisdiction as to entitle it to strike down a provision of Constitution on a ground other than highlighted by the Supreme Court in the above discussed cases. Reference may also be made to the case of Mian Jamal Shah v. The Mem Election Commission, Government of Pakistan, Lahore and 2 others, PLD 1966 1 at 25-E arid to the aforesaid cases of the Supreme Court, namely, Lt.-Cot. Farzand Ali, United Sugar Mills and of the Fauji Foundation as to the effect -of the expression "subject to Constitution".

12. (a) Before taking up the remaining submissions, which have been urged for and against the above petitions, I may first deal with the submissions relating to the Senate, as in first and third petitions, namely, C.P. Nos, D-76/1989 and D- 168/1989, inter alia a direction is sought for fresh election of the Sanate. la this regard, I may point out that in the unamended constitution the total seats m the Senate were 63 under Article 59 which were increased by P.O. No. 14 of 1985 to 87. The break up of the previous seats and the present seats are as follows:-

Previous Present 14 members to be elected by the members of each of the four Provincial Assemblies 56 56 To be elected by the members

from Federally administered tribal areas in the National Assembly 58 To be elected from the Federal Capital in such a manner as the President may by order prescribe 2 3

Five to be elected by the members of each Provincial Assembly to represent Ulema, technocrates and other . professionals 0 20 The other amendment, which was introduced by President Order 14 of 1985, was to its term, in clause 3 of Article 59 the unamended period was four years. This has been extended to six years. Under the unamended clause, half of the members were to retire after every two years which has now been extended to three years because of the extension of the term. The above amendments are protected under Article 270-A of the Constitution. However, it has been contended that the increase in the number of seats of the Senate and its life were not warranted by law. It has also been submitted that he Senate cannot extend its own life. On the other hand, it was urged by Mr. S.M. Zafar that the increase ia the number of seats in the Senate has made it more representative and that Ike extension of the term of the Senate from four years to six years is also in consonance with the other Constitutions of some of the countries of the world like Austria, India, Japan, Netherland, USA, Fiji, Republic of Vietnam, etc.

Mr. Ali Ahmed Fazeel, in support of the above amendment, has invited ®ur attention to the history of the British Parliament, which is called as the mother of the parliamentary form of government. He pointed out that under the Meeting of the Parliament Act, 1694, die maximum period of the Parliament was three years, which was repealed by Septinial Act, 1715, providing the continuation of the Parliament for seven years term. This was reduced to five years by the Parliament Act, 1911.

Since on the basis of the Supreme Court cases and of the High Courts referred to hereinabove, I have held that this Court cannot, strike down any

15. At this stage I may also mention here that the learned counsel for the Petitioners initially took the stand that the entire Eighth Amendment is to be struck down as unconstitutional and invalid, but after hearing the arguments of the learned Attorney General and Deputy Attorney General and the learned counsel for the contesting Respondents, they did not press for striking down of the Eighth Amendment as a whole. Mr. Mujeeb Pirzada, while exercising the right of reply stated that he is only challenging the validity of elections to Senate and its continuation as a body under Article 59 of the Constitution and Mr. Rashid Akhund, fell in line with the views expressed by the learned Attorney General hen he stated in reply that all the amendments introduced in the Constitution by Eighth Amendment need not be struck down and only those be declared invalid which are foun.I by the court on examination¹ that they altered or changed the basic structure of the Constitution.

16. In order to comprehend the controversies raised in the above Petitions it will be useful to state here hi brief some of the important events which took place between the period from 6th July, 1977 to November 1988, which not only had the effect of changing the course of our national life more than once during this period, but also led to the resolution of numerous legal and constitutional
controversies in Superior courts of the country, which greatly influenced the existing political process in the country. On 5th July 1977, the then Chief of Army Staff Gen. Ziaul Haq, deposed Mr. ZA. Bhutto, the then Prime Minister of Pakistan, proclaimed Martial Law in the country, dissolved the National Assembly, the Senate and the Provincial Assemblies and assumed power under
CMLA Order No. 1 of 1977, known as the Laws (Continuance in Force) Order 1977. The proclamation of 5th July, 1977 and the CMLA Order No. 1 of 1977 was brought under challenge in the case of Begum Musrat Bhutto Vs. Chief of Army Staff and others (PLD 1977 SC 657). The court after examining in detail the events which preceded the proclamation of Martial Law in the country by the Chief of
Army Staff on 5th July, 1977, and promulgation of CMLA Order 1 of 1977 held that the proclamation of Martial Law by the Chief of Army Staff was an extra constitutional step necessitated by the complete break down and erosion of the constitutional and moral authority of the Government of ZA. Bhutto as a result of the unprecedented protest movement launched by the PNA. The imposition of Martial Law in the country in this background was validated on the doctrine of necessity and the Chief Martial Law Administrator was held entitled to perform all such acts and promulgate all legislative measures which have been consistently recognized by the judicial authorities within the scope of law of necessity, namely, all acts and legislative measures which are in accordance with or could have been made under the Constitution including the power to amend it; all acts which tend to advance or promote the good of the people; all acts required to be done for the ordinary orderly running of the State and all such acts as would establish or lead to the establishment of the declarqd 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 purposes of restoration of democracy under the Constitution. That the aforementioned acts could be performed or carried out by the CMLA by means of Presidential Orders, Ordinances, Martial Law Regulations or Orders as the occasion may require.

17. Soon after the above decision in Begum Nusrat Bhutto's case various constitutional appointments made by CMLA and some legislative measures adopted by him for arranging the forthcoming general elections ia the country were again brought under challenge before the Supreme Court in the case of ZA. Bhutto Vs. State (PLD 1978 SC 40) on the ground that these appointments and legislative measures were violative of the provisions of the Constitution and tlie rule laid down by the Supreme Court in Begum Nusrat Bhutto's case. The Supreme Court while repelling the contentions of the Petitioner explained the effect of Begum Nusrat Bhutto's case as follows at page 59 of the report:-

"K 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 or legislative 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 the 5th of July, 1977, to ensure tne restoration of democratic institutions under the Constitution. As the Constitution, unfortunately, does not contain any provisions for meetiag the unprecedented situation which we are considering here, the President, on the advice of the Chief Martial Law Administrator, was clearly not only competent, but also under a solemn obligation, to take steps to ensure fresh elections. In these circumstances, it is not for the Court to substitute its own opinion as to the arrangements necessasry to be made in this behalf; all that the Court is to examine is whether the contemplated measures reasonably fall within the objective in question. We have already said enough to show that the three Presidential Orders in question are directly intended to achieve one of the most important objectives of the imposition of Martial Law. Their validity cannot, therefore, be questioned on the ground that they are not necessary. The Court would be traversing outside the scope of the powers of judicial review in dictating to the Government the procedural and administrative details necessary for the holding of the forthcoming elections such as the -number of Members of the Election Commission."

After decision of the Supreme Court in the case otZA Bhutto Vs. State the then President of Pakistan Mr. Fazal Ellahi, who continued to hold office even after proclamation of Martial Law hi the country under the proclamation of 5th July, 1977, resigned from his post. This led to the issuance of P.O. No. 13 of 1978 % CMLA which provided for filling in the vacancy of President in event of death, physical or mental incapacity, resignation or by reason of incumbent of that office relinquishing charge of office or for any other reason, before election of the President under the Constitution, by the Chief Martial Law Administrator or such other person designated by him. The vires of P.O. No. 13 of 1978 was challenged before a Division Bench of Lahore High Court in the case of Ghulam Jiltani Vs. Province of Punjab (PLD 1979 Lahore 564} but the court found it valid on the basis of the rule laid down in Nusrat Bhutto's case. On 27th May, 1980 P.O. No. 1 of 1980 was issued by the President which amended Article 199 of die Constitution, tatting away the power of High Courts to judicially review the actions of Martial Law Authorities or to examine or pronounce upon the validity or effect of any Martial Law Regulation, Martial Law Order, made by CMLA or MLA, besides introducing Chap. 3-A in Constitudon which provided for establishment of Federal Shariat Court. This P.O. No. 1 of 1980 came up for consideration before a Full Bench of this court hi the case of Haji Abdullah Vs. Presiding Officer, Summary Military Court (PLD 1980 Kar. 498) of which I was one of the members and the court by majority ruled in that case that the amendment made in Article 199 of the Constitution being of a temporary and transitory nature applicable only during the period of constitutional deviation and the said amendments not having the effect of totally destroying the power of the court under Article 199 of the Constitution, were valid in view of the decisions in the cases of Begum Nusrat Bhutto Vs. COAS and Z.A Bhutto Vs. State.

Some time after promulgation of PO No. 1 of 1980 the Provisional Constitutional Order (CMLA's Order 1 of 1981), popularly known as PCO of 1981 was pomulgated by the President on 24th March, 1981. The PCO of 1981 though adopted certain provisions of the Constitudon of 1973 as declared in its Article 2. But in practice it sought to do away with the effect of the decision of Supreme Court in the case of Begum Nursta Bhutto Vs. COAS and provided for new dispensation in the country in accordance with the provisions of this Order. The effect and validity of the PCO of 1981 came to be examined in several cases before the High Courts and the Hon'ble Supreme Court and I will presently refer here some of these cases. In the case of Dr. Mohammad Ifyas Dobas Vs. Punjab Tribunal and others (1982 SCMR 562) the Supreme Court had granted leave to appeal to examine the interpretation of section 4 of the Services Tribunal Act, 1973 and MLR-23 clause (2). The matter came up before the court after enforcement of PCO of 1981, the then Acting Chief Justice (now the present Chief Justice of Pakistan) who expressed the opinion on behalf of the court while dismissing the petition as not maintainable on account of promulgation of P.C.O. observed as follows:-

"Under the present dispensation, namely, the Provisional Constitution Order of 1981, any challenge to an order passed by the Martial Law Administrator is not entertainable in view of clause (2) of Article 15. Therefore, any submission in regard to the validity of the order of compulsory retirement is beyond the pale of challenge."

Similarly in Mohammad Haroon Vs. District Food Controller (1982 SCMR 551) about 19 Constitution Petitions were filed by different persons to challenge the termination of their appointment as Depot holder under Martial Law Instruction No. 22, issued by MLA, Zone A. The High Court of Lahore dismissed the petitions as not maintainable under Article 15 of PCO. Nasim Hasan Shah, J. who expressed the opinion on bahalf of court while dismissing the petition fof leave to appeal observed as follows:-

"It is clear, therefore, that the said Instruction is a complete code on the subject and action taken by the authorities mentioned therein is to be construed to be action taken under the said Instruction, which as already pointed out, is, in effect, a "rule" framed by a Martial Law Administrator. Hence action taken thereunder would fall under Article 15 of the Provisional Constitution Order, 1981, which provision ousts the jurisdiction of the High Court impugned before us cannot be excepted to.

Rana Abdul Majid, learned counsel for the petitioners appearing in support of the remaining petitions submitted that he was neither challenging the validity of Martial Law Instruction No. 22 nor questioning the view that if action was taken thereunder it would be immune from challenge after the promulgation of the Provisional Constitution Order, 1981. His plea was that the provisions of Martial Law Instructions No. 22 had not been observed, while cancelling the depot of the petitioners, whom he was representing. In this connection, he submitted that in the case of Qazi Muhammad Ishaq (Petitioner in C.P.S.LA No, 184/82) for instance the said petitioner's authorisation was cancelled <*ii<riout hearing him, although para 8 of Martial Law Order itself provides that the cancellation of the authorisation would be ordered only after giving a show cause notice to the persons effected.

The question whether a person was issued a show cause notice before cancelling his authorisation or not is a question of fact; and insofar as action purports to have been taken under the said Martial Law Instruction No. 22 and shall be presumed that its provisions have been complied with. Moreso its validity is to be judged according to the tenor of the order and if it purports to be passed in pursuance of the said Martial Law Instruction it is immune from challenge. However, if the petitioners felt aggrieved by the said order on the ground now .urged ,. before us they should have filed an appeal to the authority superior to one, who had passed the said order as provided for under para 9 of the Instruction, in the course of which the objection being taken before us could have been scrutinized and investigated."

It is quite clear from the above quotation that in some of the above cases, before the Supreme Court the petitioners without challenging the validity of Martial Law Instruction No. 22 or questioning the view that the action taken thereunder would be immune from challenge after the promulgation of PCO 1981, wanted to convass before the court that the impugned action taken against them was not in confirmity with the provisions of that law which provided for issuance of a show cause notice to petitioner before passing of impugneld order which was not issued to them, but the Supreme Court did not find it possible even to examine this limited question in view of the ouster of jurisdiction of the court under PCO of 1981 and contention was disposed of with the observations quoted above. the case of GovL of Punjab Vs. Saleem Hussein Girdazi (1985 SCMR 443) die order passed by the Punjab Services Tribunal holding the order passed on renew by the MLA Zone A ordering reinstatement of respondent as Asstt: Sub Inspector, bad in law, was challenged before the Supreme Court on the ground that the order passed by MLA Zone A could not be declared as bad in law by Service Tribunal hi view of Article 15(2) of PCO. The Supreme Court allowed the appeal of Government of Punjab and Mian Burhanuddin Khan, J. who expressed the opinion of court this time expressed as follows:-

Therefore, the finding of the learned Tribunal is misconceived on this point. Moreover, under Article 15(2) of the Provisional Constitution Order, 1981 which is as follows:-

"All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done or purported to have been made, taken or done on or after the firth day of July, 1977, hi exercise of the powers derived from any President's Orders, Orders of the Chief Martial Law Administrator, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of any Order made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid shall, notwithstanding any judgment of any court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any court on any ground whatsoever.................................. ..."the order or the Board or the constitution of the Board cannot be challenged. In view of this prohibitory provision of law the learned Tribunal was debarred from adjudicating on the order passed under
Martial Law Instruction."............................................ ''.

Similar views were expressed by the High Court of Lahore hi the case of moj. Gen. (Rtd) Tajjamal Hussain Malik regarding validity and effect of P.C.O. la so far Sindh High Court is concerned, the effect of P.C.O. was examined by a Full Bench of this court in the case of Nazar Mohammad Khan Vs. Pakistan (PLD 1986 Kar. 516) and the learned CJ. as he then was, after quoting Article IS of P.C.O. observed as follows at page 521 of the report:-

"11. As regards the order terminating the service it may be stated that it was passed under paragraph 4 of Martial Law Regulation No. 22.

Now, taking up the first objection, it may be stated that instead of provisions of Article 15(5) (d) of the Provisional Constitution Order 1981, the provisions of Article 15, clause (2) and (5) (a) are attracted, The provisions have already been quoted above. It will be seen from the above provisions of clause (2) that on or after fifth day of July, 1977, they protect all orders made proceedings taken and acts done by any authority in the exercise or purported exercise of powers derived from, any President's Order or Orders of Martial Law Administrator, Martial Law Regulations, Martial Law Orders, etc., notwithstanding any judgment of any Court, deemed to be and always to have been validly made, taken or done and they could not be called in question in any Court on aay .ground whatsoever. Since the order of termination of the service of the petitioner was passed under Martial Law Regulation No. 52, therefore, it could not have been called in question.

We are fortified in our view by serveral decisions of the Supreme Court and of High Courts namely, Muhammad Haroon V. District food Controller and others (1), Dr. Muhammad EUas Dubash v. Punjab Service Tribunal and others (2) Electric Lamp Manufacturers of Pakistan, Ltd. v. Additional Commissioner, Karachi and 3 others (3), The Province of the Punjab and others v. Syed Mohammad Akram Shah, (4) Government of Punjab and others v. Saleem Hussain Gardezi (5) Major-General (Retd.) Tajjamal Hussain Malik v. Federal Government of Pakistan through Defence Secretary and 2 others (6), Sirajuddin v. Larkana Municipal Committee (7), and Muhammad Anwar Khan v. C.M.LA. etc. (8).

It will thus be seen that not only the validity of P.C.O. of 1981 was accepted by the superior courts, but full effect was given to its various provisions by all the courts including the Supreme Court. This situation continued until holding of general elections on 7th and 9th Feb., 1985 to National and Provincial Assemblies respectively, under P.O. 5 of 1977 as amended upto Feb., 1985. On 1-3-1985 the Senate was elected and on the following day, namely, 2-3-1985 Revival of Constitution Order (P.O.14), popularly known as RCO of 1985 was promulgated by the President. A notification under Article 4 of the RCO was issued on 10th March, 1985 fixing that date as the day on which the Constitution of 1973 as amended by RCO of 1985, shall come into effect except Articles 6,8 to 28 (both inclusive), clause (2) and 2(a) of Article 101, Article 199, 213 to 216 (both inclusive) and Article 270-A. On 19th March, 1985 Constitution Second Amendment (PO 20/1985) was promulgated which substituted the present Article 239 in the Constitution in place of the existing Article 239 which was introduced by R.C.O. of 1985. On 19-3-1985 the Constitution was further amended %y Constitution (3rd Amendment) Order (PO 24) of 1985. On 23rd Matcfc joint session of Parliament was held. On 8-9-1985 Eighth Amendment Bitt ^a& introduced in the Parliament but it was later withdrawn. On 30th Sept., 1985 the Eighth Amendment Bill was represented in a modified form and after discussion on the floor of National Assembly it was passed by overwhelming majority ef legislature. The Bill was then'transmitted to Senate where it was passed oa 22-10-1985. On 9-11-1985 the President assented to the above Eighth Amendment BiB which became part of the Constitution. On 29th December, 1985 the President issued two notifications under P.O. 14 of 1985, fixing the date for coming into force of suspended Articles 6,8 to 28 (both inclusive), clause (2) of Article Mfl, Article 199, 213 to 216 (both inclusive) and Article 270-A of Constitution and omission of Article 212-A from the Constitution, as the day on which proclamation of 5th July will be revoked. On the following day namely 30-12-1985 proclamation of withdrawal of Martial Law was issued, which revoked the proclamation of 5th July 1977 and also repealed the Laws (Continuance in Force) Order 1977 and the Provisional Constitution Order 1981, with the result tfiat aft the provisions of the Constitution became operative from this date and Article 212-A, stood deleted from the Constitution. On the same day namely 30-12-198S> Pending Proceedings Order, Martial Law Order 107 was promulgated by the President. The National and Provincial Assemblies thus elected as a result of 1985 election, continued to function under the Constitution until they were dissolved by the President on 29-5-1988. On 29th May, 1988 General Ziaul Haq, as President of Pakistan, dissolved the National Assembly by an order passed under Article 48(2) of the Constitution and simultaneously Provincial Assemblies were also dissolved by the respective Governors of the four provinces. On 20th July, 1988 late Gen. Ziaul Haq announced that general elections will be held in the country on 16th November, 1988. The late Gen. Ziaul Haq, however, died in an air crash, on 17th August, 1988 and in accordance with the provisions of the Constitution the then Chairman of the Senate Mr. Ghulam Ishaque Khan was sworn in as tke President of Pakistan. Elections to the National and Provincial Assemblies were held as announced and power was transferred to the elected representatives both in Center and in the provinces which are functioning after taking oath under the Constitution.

In the meantime, before the general elections of 1988, the dissolution of National Assembly and the Provincial Assemblies by late General Ziaul Haq and the Governors respectively was challenged before a Full Bench of Lahore High. Court in the case of Muhammad Saifuttah Vs. Federation of Pakistan (PLD 1988 Lah. 725) and the court unanimously held that dissolution of National Assembly and the Provincial Assemblies by the President and the Governors was without lawful authority but at the same time the court refused to restore the Assemblies on the ground that the elections to the National and Provincial Assemblies had already been announced and all preparations for holding of these elections have been made and people are read^ to exercise thier right of vote. The above decision of Lahore High Court was challenged before the Supreme Court by the Federation of Pakistan but the appeal was dismissed which is reported as Federation of Pakistan vs. Mohammad Saifullah (PLD 1989 SC 166).

In the above stated background I now proceed to consider the contentions of the parties in the above cases. The main and basic question which requires determination in my view, in the above cases, in the light of the contentions of the parties, is, who made the Eighth Amendment in the Constitution and whether the person or the body introducing the Eighth Amendment in the Consitution was competent. Should, the answer to the later part of the above controversy be in the affirmative, the further question which is convassed by the petitioners before us and which requires determinatin is, whether by introducing Eighth Amendment in the Constitution the person or the body introducing it exceeded or contravened any accepted norm or principles governing the power to amend the Constitutional provisions. However, if the answer to the competency of maker of Eighth Amendment is returned by the court in the negative, then the natural consequences, both according to petitioners and the learned Attorney General, would be that the court will condone only those amongst the various amendments introduced in the Constitution by the Eighth Amendment, which fulfilled the test laid down in the case of Asma Jillani vs. Govt. of Punjab. I will take up the first part of the basic controversy in the cases mentioned above, namely, who made the Eighth Amendment in the Constitution. In my opinion the answer to this question is fully furnished by the decisions in the cases of Federation of Pakistan V. Ghulam Mustafa Khar (PLD 1989 SC 26), Ghulam Mustafa Khar v. Pakistan (PLD 1988 Lah. 49=PLJ 1987 Lahore 669) and Mohammad Bachal Memon Vs, Govt,ofSind (PLD 1987 Kar. 296). The detailed discussion in the above noted three cases, regarding validity of Article 270-A of the Constitution passed by the Parliament elected in 1985, leaves no room for any doubt that the Eighth Amendment in the Constitution was introduced and passed by the parliament which was elected as a result of general elections of 1985. This brings me to the second limb of the main controversy in the cases, namely, whether the Parliament elected in 1985 was a competent body. The main thrust of the arguments of the learned counsel for the petitioners jointly, in the above cases, is that the scheme of our constitution does not permit holding of partlyless elections and as such the elections which were held in 1985 and in which political parties were not allowed to take part were invalid and as a consequence thereof, the parliament and the Assemblies which came into power as a result of these partyless elections were unauthorised bodies. In support of the above argument the learned counsel for the petitioners relied on the case of Miss Benazir Bhutto vs. Federation of Pakistan (PLD 1988 SC 416) and particularly on the following observations of Shafiur Rehman J. in the case of Federation of Pakistan vs. Mohammad Saifullah Khan (PLD 1989 SC 166):

"In our context what is important, is that the restoration of a National Assembly and Provincial Assemblies which were brought into the existence by materially departing from the essential feature of our own constitutional set up cannot be allowed to take place. As we all know these Assemblies were brought into existence as a result of partyless elections. As early as in the. year 1959, the Constitution Commission of our country had pointed out that "as long as it is the representative form of the Government that has to be worked we fail to see how political parties can be avoided". Justice SA. Rehman, observed in the case of AbulA'la Maudoodi v. Government of West Pakistan (PLD 1964 SC 673) that "In a democratic set up such as is visualised by our present Constitution, the presence of political parties is regarded as an essential feature so that it is conceivable that the opposition of today maybe the Government of tomorrow". In judgment of this court of Miss Benazir Bhutto the following observations made by each of the learned Judges recording an opinion are relevant:-

Our Constitution is of the pattern of Parliamentary democracy with a Cabinet system based on party system as essentially it is composed of the representatives of a party which is in majority It is a party system that converts the results of a Parliamentary election into a Government." (Muhammad Haleem, CJ.)

(ii) It provides a basic guarantee to the citizen against usurpation of his will to freely participate in the affairs and governings of Pakistan through political activity relating thereto. (MA. Zullah, J.).

(iii) Persons elected to the legislature in their personal capacities have hardly any importance. They just toss around on the political scene, rudderless and without a destination. It is only when they band themselves into a group, as a party, that they become a force exercising some influence by their activities. It is only as members of a political party and not an individual member of the legislature; can they achieve their objectives. (Nasim Hasan Shah, J.).

(iv) The right to form, and be member of, a political party, is an indispensable political tool for the effective use of the process of a democrtic Government. Besides, the right is vital for the maintenance of other democratic rights like the right to practice one's profession etc. It is often said that Government by public opinion involves the right to create and organize opinion with a view to influence the conduct of Government,, or to bring about a change in the Government. (Abdul Kadir Shaikh, J.).

(v) It is conceded on all hands and is so recognized in the Consitution that Islam confers on the people the right to choose the persons who shall govern them. To deny them the right to organize themselves for choosing such persons is to negate and destroy that right itself. (Shafiur Rehman, J.).

(vi) The expression 'political justice' is very significant and it has been placed in the category of fundamental rights. Political parties have become a subject-matter of a fundamental right in consonance with the said provision in the Objectives Resolution. Even otherwise, speaking broadly our Constitution is a Federal Constitution based on the model of Parliamentary form of representative Government prevalent in United Kingdom. It is also clear from the Objectives Resolution that principles of democracy as enunciated by Islam are to be fully observed. True and fair elections and the existence of political parties, is an essential adjunct of a functional democratic system of Government. (Zaffar Hussain Mirza,!.).

It will be clear from the foregoing observations that Partyless elections are not in consonance with the Scheme of our Constitution and when this Court is possesed of a discretion, or a choice whether to revive, restore or perpetuate by resuscicating such Assemblies, the Court will stand for constitutionalism rather than departures and deviations from it and refuse to restore them."

(5) Section 6(1) in so far as it relates to and includes therein, the references to; "security of Pakistan" and "the contravention of the provisions of section 3-A, is void.

However "Islamic ideology"; "morality"; and, "maintenance of public order" have been upheld; in the manner explained in the relevant parts of the judgment.

(6) The remaining parts of section 6 including subsection (2) thereof have been upheld.

Except that the provision regarding the dissolution of a political party upon the "publication" referred in subsection (1) has been held as void; subject of course, to the possibility of the re-enactment of a provision regarding the same subject, which was indicated in the relevant part of the judgment, should not offend against Article 17(2).

(7) Regarding, sections 7 and 8, it has been held that in view of the decision in respect of the other provisions of the Act, it is for the legislature to amend them and nothing need be said about then- vires, except for the comment made."

During the course of discussion in the case which preceded the final conclusion of the court reproduced above, the existence of political parties in a democratic parliamentary system of Government, which was found to be the feature of our Constitution, was fully acknowledged and recognized, and, accordingly, the provisions of Political Parties Act, 1962, which were found to have affected the right of participation of political parties or curtailed then- role, in the process of election were declared invalid on the touchstone of Article 17 of the Constitution, which guaranteed freedom of Association. In my burnable view the Supreme Court in the above case was examining the provisions of a sub-constitutional legislation which affected and curtailed the rights of a political party to participate in the process of elections, in juxtaposition with the provision of Article 17 of the Constitution, which guaranteed the right of Association, on a date when the said Article in the constitution was fully operative on account of withdrawal of Martial I Law from the country and restoration of Fundamental Rights. The observations of the Supreme Court in the above case, therefore, are to be interpreted and I understood in the context of the controversy which was before the court. These I observations, in my humble opinion, cannot be used as an authority for declaring j the partyless elections of 1985 as invalid. It is not disputed before us that elections | in 1985 were held in the country when Fundamental Rights stood suspended. The 1 elections of 1985 were held under P.O. 5 of 1977 as amended, which prevented Apolitical parties to participate in the general elections in the capacity of political 'party. Therefore, holding of partyless elections of 1985 could at best be treated as 'violative of Article 17 of the Constitution, which at the relevant time stood ; suspended and, therefore, no recourse was available to an aggrieved party to it. I jam therefore, of the view that by arranging a partyless election in 1985 no 1 constitutional breach was committed and the observations of Supreme Court in ; the case of Benazir Bhutto vs. Federation of Pakistan cannot be used as an : authority for holding the elections of 1985 as invalid.

I now turn my attention to the observations of Shafiur Rehman J. in the case of Federation of Pakistan vs. Muhammad Saifullah KJian which is mainstay of the arguments of petitioners. Firstly, I may respectfully point out here, that 10 out of 12 learned Judges who constituted the bench in the above case shared the views expressed hi the opinion of Nasim Hasan Shah, J. which did not contain the observations relied by the learned counsel for the petitioner. Out of the remaining two learned Judges, Usman Ali Shah, J, did not record any separate note but agreed with the opinion of Shafmr Rehman, J. It is, therefore, quite clear that the observations made by Shafmr Rehman J, reproduced above, cannot be regarded as the opinion of full court. The opinion of Shafiur Rehman J, in the circumstances, was the opinion of only two learned Judges out of twelve who constituted the bench in the above case. Apart from it, as I earlier pointed out, the observations of Shafiur Rehman J, relied by the petitioners are to be interpreted and understood hi the context of the issue before the learned Judge. These observations were made by the learned Judge as one of the considerations for not allowing restoration of Assemblies in exercise of discretionary power of the court under Article 199 of the Constitution, inspite of the fact that the court had declared the dissolution of Assemblies as unconstitutional. It may be mentioned here that insofar the dissolution of Assemblies on 29-5-1988 was concerned, the full court, including Shafiur Rehman and Usman Ali Shah JJ., was unanimously of the view that then- dissolution was illegal. In the above circumstances, in my humble view, it is not correct to argue that in view of the above quoted observations of Shafiur Rehman J, in the case of Federation of Pakistan vs. Mohammad Saifullah KJian, the partyless elections held in 1985 shall be deemd to have been declared as invalid. On the contrary, I am of the view that the Supreme Court having unanimously held the dissolution of Assemblies, which came into existence as a result of partyless elections of 1985, as Ulegal and unconstitutional in the case of Federation of Pakistan vs. Mohammad Saifullah Khan, tacitly accepted their validity, for only in the case of a validly constituted body its dissolution could be declared illegal and unconstitutional.

The question of competency and validity of the Assemblies elected in the general elections of 1985, in my humble view, otherwise, cannot be raised any further, in view of the decisions in the cases of Ghulam Mustafa Khar vs. Pakistan (PLD 1988 Lah. 49=PLJ 1987 Lahore 669); Benazir Bhutto vs. Federation of Pakistan (PLD 1988 SC 416) and Federation of Pakistan vs. Ghulam Mustafa Khar (PLD 1989 SC 26).

In the first noted case the question of validity and competency of Assemblies elected in 1985 was directly raised before a bench of Lahore High Court consisting of five learned Judges of that court. Mohammad Afzal Lone, J, who spoke for the court in the case dealt with the objections relating to validity and competency of Assemblies elected in 1985 as follows:-

"64. Mr. Aitzaz Ahsan has raised another formidable objection and thrown a challenge to the competence of the Parliament to pass the Constitution (Eighth Amendment) Act 1985 whereby Article 270-A was incorporated in the Constitution. The first part of his argument is founded on the observations made in Begum Nusrat Bhutto's case, requiring the Chief Marial Law Administrator to hold free and fair elections, hi terms of the 1973 Constitution. It is contended that the present Parliament has been installed through a process of election held on non-party basis, whereby the political compaign was restricted, discussion on fundamental issues prohibited; by importation of arbitrary disqualifications of the candidates, in the Election Laws, the categories of the candidates were limited; there was also a ban on propogation of any meeting of public nature for seeking support in favour of any candidate was an offence and, thus, it was practically made impossible for the candidates to project their view point before the public. Resultantly, the candidates were elected on "Baradari Basis". It was pointed out that the Election Laws were drastically amended to change the complexion of the election. In this behalf the learned counsel invited our attention to the amendments made in the Representation of the People Act, 1976 and the Houses of Parliament and Provincial Assemblies (Election) Order, 1977. It is not necessary to give here the details of such amendments. Reference was also made by the learned counsel to Martial Law Regulations Nos. 33 and 48. As a result of these Regulations, convassing or campaigning of policial parties was prohibited. In this view of the matter the learned counsel concluded that the election, in consequence whereof the present Parliament came into existence cannot be treated to have been held under 1973 Constitution. 65. 66.

67. The general elections, under challenge, were held under the Houses of Parliament and Provincial Assemblies (Elelctions) Order, 1977. Article 24 of the Order, to which our attention has been drawn by the learned Attorney General provides that the election held under the said Order "shall be deemed to have been held under the Constitution and shall have effect accordingly¹. This Article rather the Order itself, and other connected laws were examined by the Supreme Court in Zulfiqar Ali Bhutto's case and it was held.

"................ It will be seen that from a persual of the Post-Proclamation Order No. 5 of 1977 read with Post-Proclamation Order No. 4 of 1977, it becomes abundantly clear that the forthcoming elections are not covered by any provision of the 1973 Constitution nor, indeed, could they be so covered as the situation arising in March, 1977, in the wake of wide spread allegations of massive rigging of the elections, was an unprecedented situation not within the contemplation of the Constitution. It was, therefore, necessasry to make special provision for new elections, and the Post-Proclamation Order No. 5 of 1977 rightly recites that these provisions were being made in an endeavour to restore the principles of democracy whereunder the State of Pakistan exercises its power and authority through the chosen representatives of the people. It is in the same spirit that Article 24 of the Order lays down that the elections held under this Order shall be deemed to have been held under the Constitution and shall have effect accordingly. Without this deeming provision the resulting Legislatures could not function under the 1973 Constitution, but to our mind the deeming provision contained in Article 24 of this Order, cannot attract, in terms of the provisions contained in Chapter 1 of Part VIII of the Constitution relating to elections, as the elections are, in fact, not being held under that Chapter. The deeming clause is to come into operation only after the elections have been held and the Prime Minister etc. have been elected "

We feel that these observations furnish an effective answer to the petitioner's objection that the elections were not held under 1973 Constitution. The elections have been held, Prime Minister elected and a Cabinet formed. The country is being run by the civilian Government for the last over two and half years. Article 24 ibid, therefore, in terms of the Supreme Court Judgment, is operating with full force. Article 270-B of the Constitution also ordains that elections held under the Houses of Parliament and Provincial Assemblies (Elections) Orders, 1977 shall be deemed to have been held under the Constitution.

68....................

69. In February, 1985, when general elections were held, country had already endured Martial Law for more than 7 and half years. It is true that during this period political activities through the medium of political parties, and so also the public meetings and debates, which are so vital for proper working of a parliamentary democracy in all possible areas, remained banned. The Fundamental Rights also remained suspended. However, shortly before the elections, the Chief Martial Law Administrator made some relaxation, inasmuch as under M.L.O. 102, promulgated on 12th of June, 1985 holding of close door meetings close door conferences and publication of hand-bills for enlisting the support of the elections was permitted. When the elections were held the country was passing through a very crucial stage of transfer of power from a Martial Law Regime to a civilian Government. The law promulgated and measures adopted by the Chief Martial Law Administrator, for holding the elections, need be examined in this background. As per dictum of the Supreme Court in Zulfiqar Ali Bhutto's case this Court cannot substitute its opinion as to the arrangements made by the Chief Martial Law Administrator for holding the elections and all that is to be seen, is that such arrangements should reasonably fall within the objectives of the Martial Law. Speaking broadly the elections were held in an atmosphele . not charged with any upheaval and civil strife. The consent of the governed is the foundation of the democratic Institutions. It can well be said that such a consent was adequately conveyed by the people during the general elections and can constitute an implied mandate."

The appeal against the above order of Lahore High Court filed before the Supreme Court by the Federation of Pakistan was dismissed and the order passed by the Lahore High Court was maintained. The decision of Supreme Court in appeal is reported as Federation of Pakistan Vs. Ghulam Mustafa Niar. The learned counsel for the petitioners, however jointly contended that the question regarding competency of parliament was left open by the Supreme Court, in the case of Federation of Pakistan Vs. Mohammad Saifullah Khan and in support of their contention they relied on the following observations of the court:

"16. During the course of hearing of these matters, Mr. Abdul Mujib Peerzada, who appeared for the petitioner in C.P.S.LA. No. 429-K of 1981, raised the plea that the Parliament was not competent to enact Article 270-A, but then all the learned counsel agreed to keep this aspect of the matter out of consideration for the time being and thus no elaborate arguments were addressed on this plea. I would therefore refrain from expressing any views on it."

The learned counsel for the petitioners while relying on the above quoted observations overlooked the observations made in the same case in pa/agraph 19 which are as follows:

"19. 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 convassed by the learned Attorney General. By declaring that all laws, brought on the statute book during the period of the Martial Law, had been made validly and by a competent authority, and, further by adopting and affirming the same the intention of the Parliament clearly was to obviate all possible objections with regard to theu: validity or the competency of the markers thereof and save them from challenge in Courts on these grounds. Neither the Sind High Court nor the Lahore High Court took a contrary view on this part of 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 been 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."

I may here also respectfully quote the relevant passages from the leading judgment of Mojiammad Haleem C.J., in the case of Benazir Bhutto vs. Federation of Pakistan which is referred in the above quoted passage and which dealt with the question of competency of legislature which enacted Article 270-A in the Constitution. The first relevant observations appear at page 498 of the report reads as under:-

"As to the scope, content and meaning of Article 270-A(1) of the Constitution, the formulation of the learned counsel for the petitioner has been stated earlier and in a nutshell is that beyond giving competence and validity to the legal instruments and laws it does not preserve or continue the effect of the laws repealed. And as for those, saved they are open to attack on the ground of being violative of the Fundamental Rights or being inconsistent with any other provision of the Constitution. On the other hand, the learned Attorney General contended that the validity granted under Article 270-A(1) is not merely confined to removing the taint in the maker of the law but also validated the contents of the law itself so as not to be amenable to any attack on the ground of its being violative of the Fundamental Rights or inconsistent with any provision of the Constitution."

The above quoted passage fully reflects the rival contentions of the parties before the court. After the above quoted passage a detailed discussion about the legislative background of enactment of Article 270-A of the Constitution follows in the case and thereafter the following observations appear at pages 502 to 504 of the report:

"It is worthy to note that the judgment in Asma Jillani's case was rendered after the de facto abrogation of the 1962 Constitution while the Martial Law was in force, and, accordingly, by declaring General Yahya Khan to be a usurper all his legislative measures were declared to be void ab initio except those which stood the test of condonation. In Begum Nusrat Bhutto's case the position was different as the 1973 Constitution was held to be the supreme law of the land subject to certain parts thereof to have been held to be in abeyance on account of State necessity. This being so the power to promulgate legal measures within the scope of the law of necessity was conferred on the Chief Martial Law Administrator including the power to amend the Constitution. This power was exercised from time to time to amend the Constitution.

Those amendments which need specific mention are: firstly, the power of judicial review which was saved in Begum Nusrat Bhutto's case was eroded by the insertion of Article 212-A by the Constitution (Second Amendment) Order, 1979 (P.O. 21 of 1979) with effect from 5th July, 1977; and, secondly by the Constitution (Amendment) Order 1980 (P.O. 1 of 1980), promulgated on 27-5-1980, Article 199 was amended by inserting Article 3-A in it which not only neutralized the effect of the judgment of this Court in Begum Nusrat Bhutto's case but also placed further restrictions on the exercise of judicial power. This Order also provided for the creation of the Federal Shariat Court; the powers, jurisdiction and functions to be exercised by it and also the persons to be appointed as members of the Court including the Chairman and their qualifications.

Next to follow was the Provisional Constitution Order, 1981 (CMLA's Order 1 of 1981) which was promulgated on 24th of March, 1981 as an interim measure as the President and the Chief Martial Law Administrator felt satisfied "that it is necessary to make adequate interim provisions for governing Pakistan in accordance with this Order and for the removal of doubts and for consolidating and declaring the Law and for effectively meeting the threat to the integrity and sovereignty of Pakistan and its Islamic ideology. By Article 2 of this Order certain Constitutional provisions including Article 4 were saved and became part of the Order but their operation was made subject to this Order or any other Order made by the President or the Chief Martial Law Administrator. Significantly Article 238 which gave power to the President to amend the Constitution was kept in abeyance and not included in the Provisional Constitution Order. However, by Article 16 of this Order, the President gave to himself the power to amend the Constitution while nullifying the effect of the judgment in Begum Nusrat Bhutto's case in Article 15 of the Order.

The most important legal instrument which follows hereafter is the Revival of the Constitution of 1973 Order, 1985 (P.O. 14 of 1985), which was promulgated on 2nd of March, 1985. Although this Order came into force at once but by Article 4, its revival was deferred to such dates on which the President was authorised, by notification to revive its different provisions. Again by Article 5 of this Order, the President was authorised to make such provisions and pass such orders in case any difficulty arose in giving effect to any of the provisions of this Order. However, by Article 2 of this Order extensive amendments were made in the 1973 Constitution, including the insertion of Article 270-A. By notification issued under Article 4 of the Order on 10th of March, 1985, provisions other than Articles 6, 8 to 28, clauses (2) and 2(A) of Article 101, Articles 199, 213 to 216 and 270-A were revived. By Constitution (Second Amendment) Order, 1985 (P.O. 20 of 1985), promulgated on 17-3-1985, amongst certain other amendments clause (6) of Article 270-A was substituted for the following "(6) The President's Orders referred to in clause (1) shall not be altered, repealed or amended without the previous sanction of the President". • The earlier text of this clause was "Any of the President's Orders referred to in clause (1) may be amended in the manner provided for amendment of the Constitution". On the 19th of March, 1985, Constitution (Third Amendment) Order, 1985 (President's Order 24 of 1985) was promulgated. Thereafter on llth of November, 1985, Constitution (Eighth Amendment) Act, 1985, was promulgated which came into force at once except section 19 which was to take effect on the date on which the Proclamation of the fifth day of July, 1977 was revoked. This Article related to the substitution of Article 270-A of the Constitution as enacted by the Majlis-e-Shoora for that earlier inserted by the President in the Revival of the Constitution of 1973 Order, 1985 (President's Order 14 of 1985) and a new Schedule called the Seventh Schedule was added by section 20.:

The next relevant observation in the case is at pages 506 to 508 of the report which read as under: -

In Asma Jillani's case since the maker of the legislative measures was held to be the usurper, condonation was given in particular to all acts and legislative measures which were in accordance with or could have been made under the abrogated Constitution or the previous legal order. Similarly Begum Nusrat Bhutto's case authorised the Chief Martial Law Administrator not only to promulgate Presidential Orders, Ordinances, Martial Law Regulations or Orders but also to enact legislative measures which were in accordance with or could have been made under the 1973 Constitution including the power to amend it in the background that the 1973 Constitution continued to be the supreme law of the land subject to its certain parts having been held to be in abeyance on account of State necessity. In the first case the criterion was principle of condonation and in the second case, State necessity. However, upon the promulgation of the Provisional Constitution Order, the judgment in the case of Begum Nusrat Bhutto was nullified and a new order came in the field. However, the pattern of legislation was that the power was derived from the proclamation of the fifth day of July, 1977 read with the Laws (Continuance in Force) Order, 1977. By the proviso to Article 270-A(1) (Constitution Eighth Amendment Act, 1985), the President and the Chief Martial Administrator was authorised only to enact such legal measures which served the purpose mentioned therein. Therefore, protection had to be given firstly, to the legal measures including the Martial Law Regulations and Martial Law Orders which followed the pattern of legal measures in Zia-ur-Rehman's case. Secondly, to such Constitutional amendments as were made on the touchstone of State necessity. Thirdly, such amendments as were made after the promulgation of the Provisional Constitution Order which superseded Begum Nusrat Bhutto's case and rendered it ineffective. And fourthly, to the legal measures made for the purpose mentioned in the proviso to Article 270-A(l). However, the added feature here is that the constitutional amendments also needed protection for which a different procedure is prescribed by Article 238 of -' the 1973 Constitution. Therefore, not only the effect of the judgment in

Begum Nusrat Bhutto' case had to be nullified but also constitutional validity had to be given to the legal measures both as regards their content and the power exercised in enacting them. In this respect I find no distinction between this case and that of Zia-ur-Rehman. But as no constitutional amendment was involved which needed protection, therefore, there was no mention of the expression "notwithstanding anything contained in the Constitution" in Article 280(1) and all that was needed to be cared for was the judgment in Asma Jillani's case in regard to which the expression "notwithstanding any judgment" was used.

Now comparing the earlier Articles namely Article 281(1) of the Interim Constitution arid Article 269(1) of the 1973 Constitution with Article 270-A(1) of the 1973 Constitution, the change in terminology is in
_ respect; firstly, that in the earlier two constitutional provisions the word "declared" was .used before the words "notwithstanding any judgment of any Court" but in Article 270-A(l) the additional words "affirmed" and "adopted" are added after the word "hereby" and before the word "declared"; and secondly, the expression namely "notwithstanding anything contained in the Constitution" is inserted before the expression "shall not be called in question in any Court on any ground whatsoever". These specific words and expression were not hitherto interpreted by this Court owing to the terminology being different in this respect. Reading Article 270-A(1), I find that it is in two parts joined together by the conjunctive "and". The first part deals with the proclamation of the fifth day of July, 1977, legal instruments and all legal measures including Martial Law Regulations and Martial Law Orders made between the specified dates which are hereby affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made by *- competent authority" and the second part deals with the ouster of the jurisdiction of Courts in terms: "notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever." dverting to the first part, it will be necessary to examine the meaning of •{he specific words used in the constitutional provision. In' Ballentine's Law Dictionary, Third Ed., page 36, the word "adopt" is defined to mean "to approve, to take as one's own that which was not so before". In Black's Law Dictionary, Fifth Edition, page 45, it means "to make that one's own act which was not so originally, to accept; consent to and put into effective operation; as in the case of constitutional amendment, ordinance, Court rule, or by-law". In Chamber's Twentieth Century Dictionary at page 16, "adopt" means "to take as ones own, to endorse, approve". The word "affirm" in the Chamber's Twentieth Century Dictionary is defined at page 20 to mean: "to assert confidently or positively, to ratify (a judgment); to confirm or stand by". In Black's Law Dictionary, Fifth Edition at page 55 this word k defined to convey the meaning: "to ratify, make firm, to make a solemn and formal declaration". In Ballentine's Law Dictionary, Third Edition at page 46, this word carries the same meaning, i.e. "to declare solemnly, to confirm or ratify a statement, belief, opinion, decision or judgment". The word "declared" was also used in the earlier constitutional provisions and also in this provision. It means "to make known, manifest; to announce dearly some opinion or resolution". (Black's Law Dictionary, Fifth Edition at page 368).

Having regard to the meanings which the words "affirm" "adopt" and "declare" convey, it is manifest that the legislature owned the legal instruments and legal measures made between the specified dates as if enacted by itself so as to give validity and competency to those legal instruments and measures. The principle of ratification was here adopted and such validity and competency was proclaimed. This principle belongs to the realm of the law of agency: "In the law of principal and agent, the adoption and confirmation by one person with knowledge of all material facts, of an act or contract performed or entered into in his behalf by another who at the time assumed without authority to act as his agent. Essence of "ratification" by principal of act of agent is manifestation of mental determination by principal to affirm the act, and this may be manifested by written word " (See Black's Law Dictionary, Fifth Edition, P. 1135). In this respect there was a departure from the protection earner given by the two constitutional provisions, namely Article 281(1) of the Interim Constitution and Article 269(1) of the 1973 Constitution.

The next expression in this part which needs consideration is "notwithstanding any judgment of any Court". Obviously this expression could not have any reference to Asma Jillani's case as its effect was taken away by Article 281(1) of the Interim Constitution (see Zia-ur-Rehman's case) and it could only refer to Begum Nusrat Bhutto's case hi which the 1973 Constitution was held to be the supreme law of the land subject to certain portions having been held in abeyance and the Chief Martial Law Administrator to have validly assumed power by means of extra-Constitutional steps in the interest of the State and for the welfare of the people. But subsequently this judgment was superseded by the Provisional Constitution Order and its effect was therein nullified. It was, therefore, to avoid the effect of that judgment after the lifting of the Martial Law and the revocation of the Provisional Constitution Order and the Laws (Continuance in Force) Order, 1977, that the expression "notwithstanding any judgment of any Court" was again used.

Coming now to the second part, the non obstante expression "notwithstanding anything contained in the Constitution" in the context in which it occurs is equivalent to saying that the provisions of the Constitution shall not be an impediment in ousting the jurisdiction of the Court qua the validity and competency of the legal measures. While on one hand by this device the legislature has chosen to give wholesale validity and competency to the said legal measures as if it had enacted them and on the other by neutralising the constitutional impediments so as to render them immune from any attack on their validity and competency on any ground whatsoever. Having held so, the dictum laid down in Saeed Ahmad's case will be fully applicable. The ouster of jurisdiction to strike off the laws the Court is left with no jurisdiction to strike off the laws without, in any way, affecting the judicial power to interpret the constitutional provision, which cannot be denied so long as the Court exists. Here I would add the admirable words of Chief Justice Hughes of the Supreme Court of United States of America: "We are under a Constitution, but the Constitution is what the judges say it is " (Columbia Law Review, Volume 49,p.201).

It is difficult to confine the expression "notwithstanding anything contained in the Constitution" only to the maker of the legal measures as contended by the learned counsel for the Petitioner. This constitutional provision has to be read as a whole and both its parts have to be harmonised to give full meaning and effect to it."

The above discussion leaves no room for any doubt in my mind that the Assemblies elected in 1985 were legally and validly constituted.

This brings me to the next question, namely, whether the Eighth Amendment passed by the parliament elected in 1985 was valid or it was invalid for the reason that it was not passed according to the procedure prescribed under P.O. No.14 of 1985 and that the amendments introduced in the Constitution by the Eighth Amendment altered/changed the basic structure of the Constitution. I will take up the later part of the controversy first as it is common contention of the petitioners in the above cases and is also supported by learned Attorney General and Deputy Attorney General.

According to learned counsel for the petitioners as well as learned Attorney General and DA.G the basic features of the Constitution are; (1) its Federal nature with a parliamentary system of Government; its Islamic character; trichotomy of powers 'between the three Organs of the State namely, the legislature, judiciary and the executive; preservation of human rights and dignity in the form of Fundamental Rights. The learned counsel for the petitioners contended that the Eighth Amendment in the Constitution seriously eroded its parliamentary features which is the basic structure of the Constitution. It is urged that under the Constitution, as it originally stood, the President of Pakistan ^as only a figure head of the Federation as is usual in a parliamentary system of Government but under the Eighth Amendment, the powers of President have been enhanced to such an extent that now he can over rule and by pass: the advice of Prime Minister in many constitutional matters by exercising his discretion. The learned Attorney General contended that after the passing of Eighth Amendment in the Constitution there is such a concentration of power in an individual that the President is now even free to dissolve an elected body like the parliament at his discretion and whims. This concentration of power in an individual according to learned Attorney General is opposed to Islamic concept of polity which is a basic feature of the constitution. The learned Attorney General pointed out that objectives resolution which is incorporated in the preamble of the constitution and is also now an operative part of it, in Article 2-A, declares that Sovereignty over the entire universe belongs to "Allah" and the authority to be exercised by the people of Pakistan within the limits prescribed by "Allah" is a sacred trust. It further declares that the State shall exercise its power and authority through the chosen representatives of the people, while under the Eighth Amendment, an individual has been vested with all the powers, which is negation of basic principles of our Constitution as enshrined in the objectives resolution. In this connection the learned Attorney General made reference to clause (7) of Article 41, amendment of Article 46, proviso to clause (1) and clauses (2), (3), (5) to (7) of Article 48, clauses (2), (3), (4) of Article 56, clause 2 and sub-clause 2(b) of Article 58, Article 90, Article 91(2) and (5), Article 94, clause (5) and (6) of Article 239, clause (1-A) of Article 242 and clauses (1-A) and (2) and sub-clauses thereof of Article 243 and further stated that it is not possible here to refer and examine all amendments introduced in the Constitution by the Eighth Amendment. The learned counsel for the Petitioners also referred to some ofthe amendments in the constitution introduced by the Eighth Amendment, besides those referred by the learned Attorney General, in support of their contentions.

I do not intend here to make any critical or detailed examination of the amendments introduced in the Constitution by the Eighth Amendment and determine their effect on the parliamentary system of Government or the concept of Islamic polity. However, from the arguments of learned counsel for the petitioners and the learned Attorney General, it is quite clear that then- objection to the validity of these amendments rests mainly on the ground that these j amendments have the effect of either concentrating arbitrary powers in the hands of an individual or that the balance of the power which was in favour of Prime (Minister under the Constitution, as it originally stood, has now titled in favour of {President. In my humble opinion these controversies are more of a political nature than to be treated as a legal controversy. Neither the learned¹ counsel for I the petitioners, nor the learned Attorney General, was able to point out finy j objective legal standards on which such controversies could, be resolved by courts of law. It cannot be ignored that a duly elected Government is functioning in the country both in centre and in the provinces. It also appeared from jjie reports i appearing in national press from time to time thaf the Government in centre is ! trying to enter into a meaningful dialogue with the opposition^ parties to. j sting out of Eighth Amendment. The validity of the assuni^o^ of [President by Mr. Ghulam Ishaque Khan on the death of General fZiaul Haq pn_;r7-8-198&and his subsequent election to the pfgce;bjf I the basis, of amended constitution is not challenged, by anyoneij | petitioners. The President, Prime Minister, Federal Ministers, ^nl Speaker and Deputy Speaker of National Assembly, Chairman and Deputy' Chairman of Senate, members of National Assembly, Governors of Provinces, \ Chief Ministers of provinces and Provincial Ministers, members of Provincial; Assemblies and Judges of superior courts, all have taken Oath under the j Constitution as amended by Eighth Amendment, and are functioning nder it.| There is no clog on the power of parliament to amend those Constitutional 1 provisions which are considered undesirable for smooth functioning of! parliamentary Government. In these circumstances, I am unable to agree with the? learned Attorney General and the counsel for the petitioners that the Eighth; Amendment has changed the basic structure of the Constitution or that on; account of amendments introduced in the Constitution by the "Eighth; Amendment", the working of a parliamentary system of Government under the; Constitution has become impossible.

The argument of the learned counsel for the petitioners that • a constitutional amendment which has the effect of changing/altering the basic structure of the Constitution, can be declared invalid by superior courts otherwise cannot be accepted as it is based on the rule enunciated by the Indian Supreme Court in the famous case of Golak Nath (AIR 1967 SC 1643) and later modified in Kesavanandir's case (AIR 1973 SC 1461) and Minerva Mills case (AIR 1980 SC 1789). This rule enunciated in the above referred cases by the Indian Supreme Court has not been approved by our Supreme Court. In the case of State vs.Ziaur Rehman (PLD 1973 SC 49), Hamoodur Rehman C.J., while examining the scope of authority of superior courts in Pakistan to strike down a constitutional provision observed as follows:"So far, therefore, as this Court is concerned it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. It has accepted the position that it is a creature of the Constitution; that it derives its powers and jurisdictions from the Constitution; and that it will even confine itself within the limits set by the Constitution which it has taken path to protect and preserve but it does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court."

In the same case the learned Chief Justice while pointing out difference between the "jurisdiction" and "judicial power" observed as under at page 70 of the report:

"In exercising this power, the judiciary claims no supremacy over other organs of the Government but acts only as the administrator of the public will. Even when it declares a legislative measure unconstitutional and void, it does not do so, because, the judicial power is superior in degree or dignity to the legislative power; but because the Constitution has .vested it with the power to declare what the law is in the cases which come before it. It thus merely enforces the Constitution as paramount law whenever a legislative enactment comes into conflict with U because, it is its duty to see that the Constitution prevails. It is only'.when the Legislature fails to keep within its own Constitutional ₍ljmits, the judiciary steps in to enforce compliance with the Constitution. This is no doubt a delicate task as pointed out in the case of Fazul Quader Chowdhuty v. Shah Nawaz, which has to be performed with great circumspection but it has nevertheless to be performed as a sacred Constitutional duty when other State functionaries disregard the limitations imposed: upon diem or claim to exercise power which the people have been careful to withhold from them.

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 establishes a particular Court may also, if it so desires, abolish it."

The final analysis with regard to the power of the superior courts to strike down a constitutional provision was stated by the learned Chief Justice ia Ziaur Rehman's case in these words:

"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 as being in violation of such a document. If in fact that document contains the expression of the will of the vast majority of the people, then the remedy for correcting such a violation will lie with the people and not with the judiciary. It follows from this that under our own system too , the Objectives , Resolution of 1949, even though it is a document which has been generally accepted and has never been repealed or renounced, will not have the same status or authority as the Constitution itself until k is incorporated within it or made part of it. If it appears only as a preamble to the Constitution, then it will serve the same purpose as any other preamble serves, namely, that in the case of any doubt as to the intent of the law-maker, it may be looked at to ascertain the true intent, but it cannot control the substantive provisions thereof. This does not, however, mean that the validity of no Constitutional measures can be tested in the Courts. If a Constitutional measure is adopted in a manner different to that prescribed in the Constitution itself or is passed by a lesser number of votes than those specified in the Constitution then the validity of such a measure may well be questioned and adjudicated upon. This, however, will be possible only in the case of a Constitutional amendment but generally not in the case of a first or a new Constitution, unless the powers of the Constitution-making body itself are limited by some supra-Constitutional document."The rule laid down in Ziaur Rehman's case was reaffirmed in the case of Islamic Republic of Pakistan vs. Abdul Wall Khan (PLD 1976 SC 57) as 'follows by Mohammad Gul, J:-

"It will be convenient to deal with the vires of constitutionality of section 6 of Act as amended at this stage. Mr. Sharifuddin Pirzada, learned Arnicas curiae, who addressed the Court on the Law points only, stated at the outset that clause (2) of Article 17 of the Constitution as substituted by Act XIII of 1974 was perfectly constitutional. He thought 'it necessary to make that statement, because of the doubt created by the majority judgment in Golak Nath's case (1) decided in Indian jurisdiction, though the majority view in that case was modified by the majority judgment ot;a larger Bench in the later case of Kasavnuda (2). It is unnecessary to refer to the ratio decidendi of the conflicting views in these two cases, ibecause so far as this country is concerned, the law is firmly laid down by this Court in Zia-ur-Rehman's case (3) that a constitutional amendment cannot be challenged on the ground of being "repugnant to what are stated as national aspirations", so long as the amendment k duly passed b accordance with the procedure laid down by the Constitution."

Again in the case of Federation of Pakistan Vs. United Sugar Milts Ltd. (PLD 1977 SC 397) the rule laid down in Zia-ur-Rehman's case was reiterated as follows by Mohammad Gul, J:-

This brings me to consider the first limb of argument of learned counsel for the petitioner concerning the vires of the two provisions of the Amending Act set out in the beginning. Learned counsel however, did not assail the amendments on the larger ground as was done in Golaknath's case (1) decided in the Indian Jurisdiction. In that case a narrowly divided. Supreme Court ruled that the Indian Parliament lacked the power to amend Part III of the Indian Constitution which provides for Fundamental Rights. However, the majority view in that case was modified later in the case of Kasavnuda (2) again by a narrow majority. In Pakistan, this Court in the case of Ziaur Rehman (3) has, however, firmly laid down the principle that a constitutional provision cannot be challenged on the ground of bring repugnant to what are sometimes stated as "national inspirations" 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 Fauji Foundation Vs. Shamimur Rehman (PLD 1983 SC 457) Mohammad Haleem C.J. quoted the opinion of Mohammad Gul, J, in the case of Federation of Pakistan Vs. United Sugar Mills Ltd. with approval hi paragraphs 189 and 190 of the judgment which reads as under:-"189. The distinction spelled out in the case of Piare Dusadh would still be applicable for the non-applicability of the doctrine to our constitutions. In Federation of Pakistan Vs. United Sugar Mills Ltd (5), the addition of clause 4(2) to Article 199 of the Constitution by section 8 clause (b) of the Constitution (Fourth Amendment) Act, 1975, which was challenged on the ground that it violated the separation of powers as it amounted to an inroad in the judicial power of the High Court. This Court firmly held that the vires of the Act could not be thrown overboard as this doctrine was not applicable to our constitutions. In holding so Muhammad Gul, J., spoke for the Court and observed at page 411:

"It is also important to observe that our Constitution, like many other modern written Constitutions, does not provide for rigid separation of powers. Indeed there is no direct provision in that behalf except that the Constitution by various provisions provides for the setting up of the principal institutions for the exercise of the sovereign powers of the State in the appointed field. In actual practice in all modern Governments, separation is only functional to subserve the practical necessity of an efficient .and enlightened Government by providing for checks and balances to avoid abuse of public power. Nowhere, so far as I am aware, the principle is pushed to its logical conclusion so as to create watertight compartments within the Government."

190. Fundamentally the Court adopted the dictum in Zia-ur-Rehman's case: That a constitutional provision cannot be challenged on the ground of being repugnant to what are sometimes stated as "notional 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. This Court accordingly distinguished Golak Nath's case (6), on the above premise, decided by a majority of 6 to 5 that the Indian Parliament lacked the power to amend Part HI of the Indian Constitution which provides for the fundamental rights."

(in view of these clear pronouncements of Supreme Court I am of the view that a constitutional amendment cannot be brought under challenge before the High ^Ai\ Court under Article 199 of the Constitution on the ground that it had the effect of ! changing/altering the basic structure of the constitution.

The learned counsel for. the petitioner in Petition No. 168/89 raised an additional argument that the Eighth Amendment was also invalid for the reason that it was not passed in accordance with the provisions of Article 239 which was introduced in the Constitution by R.C.O. (P;O. 14 of 1985). The argument of the learned counsel is based on an assumption that with the promulgation of P.O. No.14 of 1985, the power vested in General Mohammad Ziaul Haq was exhausted and as such promulgation of P.O. 20 of 1985 subsequently, which substituted the present Article 239 in the Constitution was unauthorised. P.O. 14 of 1985 was issued on 2nd March, 1985 by the President in exercise of his powers under the proclamation of 5th July, 1977. The subsequent President Order No. 20 of 1985 was also issued on 17-3-1985 in pursuance of the power derived by the President under the Proclamation of 5th July, 1977. The proclamation of 5th of July, 1977 was revoked by the President on 30-12-1985. It is, therefore, quite clear that so long the proclamation of 5th July, 1977 was in the field and the power was available thereunder, no exception could be taken to issuance of any President Order which either provided for something new or amended an existing state of law. It may be mentioned here that after promulgation of P.O. No. 20 of 1985, the CMLA issued Martial Law Order No. 107 on 29-12-1985 immediately before revocation of proclamation of 5th July, 1977. The effectiveness of MLO was considered at length in the case of Federation of Pakistan Vs. Ghutam Mustafa Khar (PLD 1989 SC 26) and full effect was given to it. I therefore, see no force in the contention of the learned counsel.

While still on the issue of validity of Eighth Amendment, I may dispose of one more contention raised by the petitioner in C.P. No. 163 of 1989. According to petitioner in this case, the power to amend the Constitution during the period Martial Law was enforced in the country, exclusively vested in the C.M.LA. by virtue of the decision of Supreme Court in the case of Begum Nusrat Bhutto Vs. Chief of the Army Staff and another. It is accordingly contended that this power could not be delegated by the CMLA to any other body and as such the Eighth Amendment bill passed by the Parliament while the Martial Law was still enforced in the country was wholly invalid. The argument of the petitioner is based on a misconception that the power to amend the Constitution was derived by the CMLA/President under the decision of Supreme Court in the case of Begum Nusrat Bhutto. The effect of the decision in the case of Begum Nusrat Bhutto was displaced by the Provisional Constitution Order of 1981 which was promulgated on 24-3-1981, and validity whereof was recognized by all the courts in Pakistan including the Supreme Court. It is, therefore, quite clear that as and from 24-3-1981, all powers were derived by the CMLA/President under the, P.C.O. of 1981 and the Proclamation of 5th July, 1977. Article 16 of P.C.O. was as follows: -

"16. Power to amend Constitution:-

The President as well as Chief Martial Law Administrator shall have, and shall be deemed always to have had the power to amend the Constitution."

On 2nd March, 1985, Revival of the Constitution of 1973 Order 1985 (P.O. 14 of 1985) was promulgated by the President, Article 4 whereof provides that the provisions of the Constitution as amended by P.O. 14 of 1985 shall stand revived on such day as the President may, by notification in the Official Gazette, appoint, and different day may be so appointed in respect of different provisions. On the date P.O. 14 of 1985 was promulgated, members of National and Provincial Assemblies were already elected. The notification under Article 4 of P.O. 14 of 1985 was issued by the President on 10-3-1985 which revived the provisions of the Constitution as amended, except Articles 6, 8 to 28 (both inclusive) clause (2) and 2(a) of Article 101, Articles 199, 213 to 216 (both inclusive) and 270-A. It is therefore, quite clear that Provisions in the Constitution relating to National and Provincial Assemblies were hi full force and operation as and from 10-3-1985 and as such the National and Provincial Assemblies could legally function from this date. The Constitution was further amended on 17-3-1985 and 19-3-1985 by two Presidential Orders namely P.O. 20 and P.O. 24 of 1985 respectively. The joint session of Parliament was held on 23-3-1985 and the Eighth Amendment bill was introduced on 8-9-1985 which was later withdrawn. It was again introduced in the Parliament on 30-9-1985 and was passed on 16-9-1985. It was also passed by the Senate on 28-10-1985 and having received the assent of President on 9-11-1985 became part of Constitution. Thereafter, Martial Law was lifted from the country on 30-12-1985. It will thus be seen that from 2-3-1985 till the lifting of Martial Law on 30-12-1985, the country was passing through a transitory phase in which preparations were being made to switch over to Constitution Government from Rule of Martial Law. In these circumstances, when the new order was displacing the old one, the possibility of both the dispensations being enforced in the country simultaneously at some point of time during the transition could not be avoided. In these circumstances, no objection, could be taken to the passing of the Eighth Amendment by the Parliament, while the Martial Law was still enforced in the country. After all a valid order had to come into existence before power could be transferred by the military dictator to the Civilian Government. I therefore see no force in the contention of petitioner in C.P. No. 163 of 1989.

Before ending the discussion on the validity of Eighth Amendment, one more aspect needs to be mentioned here, which, in my opinion is nqt only important but goes to the root of the controversy. On 31st December, 1985 all the Judges of this court took Oath under the Constitution which stood amended by the Eighth Amendment. None of the present Judges of this court had taken the Oath under the Constitution as it stood before its amendment by the Eighth AN Amendment. In these circumstances, the Oath taken by the Judges of this court was for all practical purposes an Oath under the first or a new Constitution and as such they cannot declare any part of this Constitution as invalid after having taken the Oath to defend it. This, however, will not apply to any constitutional amendment which may be made in the Constitution after 31-12-1985. I am fortified in my above conclusion by the following observations of Hamoodur Rehman C.J. in the case of State Vs. Ziaur Rehman.

"This does not, however, mean that the validity of no Constitutional measure can be tested in the Courts. If a Constitutional measure is adopted in a manner different to that prescribed in the Constitution itself or is passed by a lesser number of votes than those specified in the Constitution then the validity of such a measure may well be questioned and adjudicated upon. This, however, will be possible only in the case of a Constitutional amendment but generally not in the case of a first or a new Constitution, unless the powers of the Constitution-making body itself are limited by some supra-Constitutional documents."

One more contention jointly raised by the learned counsel for the Petitioners which has not been considered so far is, that late General Ziaul Haq was not a duly elected President and as such he was not competent to give assent to the Eighth Amendment Bill. The argument proceeds on the basis that Referendum of 1984 which installed General Ziaul Haq in the office of Presidency was invalid. In my view this controversy can be decided without going into the validity or otherwise of the Referendum of 1984. Late General Ziaul Haq, admittedly assumed the office of Presidency on the resignation of Mr. Fazal Ellahi, under President's Succession Order (P.O. 13 of 1978). Article 4(1) of P.O. 13 of 1978 provided that if the CMLA is the President he shall hold office until a President is elected in accordance with the Constitution. The assumption of the office of Presidency by General Ziaul Haq and the vires of P.O. 13 of 1978 were challenged before the Lahore High Court in the case of Ghulam Jillani Vs. Province of Punjab (Supra) but it was upheld. Therefore on 9-11-1985 when General Ziaul Haq gave his assent to the Eighth Amendment Bill he was fully competent. A somewhat similar contention though in a different form was also raised before the Supreme Court in the case of Federation of Pakistan Vs. Ghulam Mustafa Kfiar but it was repelled as follows: -

"15. It will be appropriate at this stage to take notice of a contention raised by Mr. U. Niamat Moulvi who appeared on behalf of the Appellant in Civil Appeal No. 285 of 1987. He argued that the Constitution (Eighth Amendment) Act, No. 18 of 1985, which introduced Article 270-A in the Constitution was still a Bill and not an Act of Parliament and for that technical reason it did not form part of the Constitution. While elaborating his contention he stated that the date on which the Bill was passed, the Provisional Constitution Order was still in force and under the Order there was no requirement that the President should give assent to the Bill passed by the Majlis-e-Shoora. He further contended that even though by a notification issued under section 4 of the Revival of Constitution Order most of the provisions of the Constitution, as amended, stood revived, yet in the presence of the Provisional Constitution Order, the Constitution could not become alive again as there could not be possibly two Constitutions governing the State simultaneously.

The contention of Mr. U. Naimat Moulvi is clearly untenable. The sanction behind the Revival of the Constitution Order was the Provisional Constitution Order itself. Article 238 of the Constitution, as revived, laid down the mode of the amendment of the Constitution. According to the said Article, amendment of the Constitution required the assent of the President. The President while giving assent to the Bill was acting in the manner as envisaged by the Revival of the Constitution Order which, as already stated, had the sanction of the Provisional Constitution Order itself. In the circumstances, the contention that the President could not give assent to the Bill of the Majlis-e-Shoora or there could not be concomitantly two Constitutions in force is neither here nor there.:

I, therefore, do not find any force hi the above contention of the Petitioners.

The last point in these cases relates to the locus standi of the petitioners. The learned counsel for the contesting Respondents urge that no proceedings under Article 199 of the Constitution can be maintained unless the petitioner is an aggrieved person. The learned counsel for the petitioners in reply to the above objection relied on the case of Benazir Bhutto Vs. Federation of Pakistan (PLD 1988 SC 416). In my view the observations of the Supreme Court in that case are of no assistance to the petitioners in the present cases. The proceedings in Benazir Bhutto's case were entertained by the Supreme Court under Article 184 of the Constitution on the basis that the issue involved in the case had an element of Public Importance. Unlike Article 199 of the Constitution, the petitioners under Article 184 need not be an aggrieved person. I am, therefore, of the view that unless the petitioners are able to show violation of some personal right or non-performance of some legal duty which has resulted in some personal disadvantage to them they cannot maintain the petitions under Article 199 of the Constitution. In the cases before me, the petitioners are from amongst the general body of voters who have already exejrcised their right of franchise in the elections and in consequences thereof elected Governments are functioning both in Centre and the provinces. The petitioners are seeking invalidation of some of the provisions of the Constitution under which the elected Governments are functioning. The individual voter from amongst the general body of electorate, in these circumstances cannot bring a grievance of this nature before the court specially when the decision on the issue is likely to affect the working of elected Government in power which is not before the Court in the proceedings. I am, therefore, of the view that the petitioners also do not have locus standi to file these petitions. I accordingly dismiss the above Petitions but leave the parties to bear their respective costs.

Before parting with the case I must record my appreciation for the fairness and straight forward manner in which the learned Attorney General placed his arguments before the court in these cases in his capacity as amicus. Syed Abdur Rahman, J.--I had the benefit and privilege of going through the judgments proposed to be delivered by the Hon'ble Chief Justice and my learned brother Hon'ble Mr. Justice Saeeduzzaman Siddiqui, J. I am in respectful agreement with the conclusions arrived at by the Hon'ble Chief Justice as further explained by my learned brother Saeeduzzaman Siddiqui, J. I feel tempted to add a few words of my own looking to the importance of the constitutional issues involved therein, but let meat the very outset summarise the conclusions:--

(i) No doubt General Mohammad Ziaul Haq had committed breach of the conditions on which Supreme Court had accorded its recognition to the Martial Law and had become a usurper and occupied a position somewhat similar to that of General Yahya Khan, still the ratio decidendi in the case olMissAsma Jilani v. The Government of the Punjab reported hi PLD 1972 S.C. 139 would not be fully attracted as Article 270-A has been enacted by the parliament to provide blanket cover to all his acts and laws, whereas at the time when the above case of Miss Asma Jilani was decided by the Supreme Court, Article 281 of the 1972 Interim Constitution or Article 268 of 1973 Constitution was not enacted.

(h) The effect .of-.validating Articles was considered in The State v. Zia-ur-Rahman' reported in PLD 1973 SC 49, (2) The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmed Khan reported in PLD 1974 S.C. 151 (3) Sh. Karamat All v. The State reported in PLD 1976 S.C. 476 (4) Fauji Foundation v. Shamimw Rehman reported in PLD 1983 S.C. 457 (5) Miss. Benazir Bhutto v. Federation of Pakistan reported in PLD 1988 S.C. 416, and it was held that the same were validly made and protected the laws referred to therein.

(Hi) In Ziaur Rehman's case it has also been held that any law which is violative of the Objectives Resolution can be struck down on the aforesaid ground only after the same is incorporated in the body of the Constitution.

(/v) It is too late to declare that the Assemblies which came into existence as a result of partyless elections in 1985 had no legal status or that they were illegal bodies. Though the elections of 1985 to the Parliament were held on non-party basis, but the important part played by it cannot be denied as it was instrumental hi getting the Martial Law lifted and fundamental rights restored which enabled the Supreme Court to strike down certain provisions of Political Parties Act as violative of fundamental rights in Miss Benazir Bhutto's case. Moreover in Haji Saifullah Khan v. Federation of Pakistan reported in PLD 1989 S.C. 166 the Supreme Court while declaring the dissolution of the National Assembly as illegal had not doubted its legal status.

(v) In the case Federation of Pakistan v. Ghulam Mustafa Khar (PLD 1989 S.C. 26), Supreme Court had not left open the question of legality of the National Assembly while enacting Article 270-A wherein challenge was thrown to its competency to enact Article 270-A. No doubt in para 16 of the judgment Supreme Court refrained from expressing any view on it, but in paras 18 & 19 thereof the Supreme Court accepted the proposition canvassed by the Attorney General that Article 270-A was validly enacted. There was consensus among all learned counsel including Mr. Yahya Bakhtiar on the competence of the legislature to enact Article 270-A.

(v/) although at the relevant time the CMLA had the power to amend the Constitution, the Parliament was also competent to legislate the Eighth Amendment. Principle of incompetence of delegatee to further delegate the power was inapplicable. The Chief Martial Law Administrator was not a delegatee and that the Eighth Amendment after having been passed by the Parliament was assented by the Chief Martial Law Administrator and President. Moreover according to the dictum in Fauji Foundation ease no mala fides can be attributed to the legislature.

(vh) After enforcement of P. O. 14 of 1985 on 2-3-1985 the General had not ceased to have power to amend the Constitution and therefore could omit the Provincial assemblies from Article 239, because he lifted the artial Law on 30-12-1985 and issued Martial Law Regulation No. 107 on 29-12-1985, the validity of which was upheld in the case of Ghulam Mustafa Khar.

(vwj) the alleged irregularities in the assumption of office by General Mohammad Ziaul Haq would not render his official act of giving assent to Eighth Amendment Bill as illegal as it is protected by de-facto doctrine, at least. Reliance was placed in Farzand All v. Province of West Pakistan reported in PLD 1970 S.C. 98 and other cases of this Court and from Indian, English and American jurisdiction. Challenge to the alleged irregularities cannot be thrown through a collateral proceedings after several years, as it suffers from latches.

(ix) The National Assembly and Senate had power to pass Eighth Amendment even though they were not Constitution Assembly like the Assembly that passed 1972 and 1973 Constitutions, because the amendment was passed in accordance with the procedure prescribed for amending the Constitution.

(x) the Eighth Amendment was not brought about by force and coercion. Had it been so the original Bill would not have been withdrawn on its non-acceptance by the members of National Assembly. It was then amended and rcintroduced and then passed, after much deliberations.

(xi) No doubt the amendments have to some extent affected balance of power interese between the President and Prime Minister but this Court cannot strike down a Constitutional provision for this reason or for the reason that it was violative of basic structure of the Constitution or the Objectives Resolution or national aspirations or higher ethical notions. An amendment in the Constitution cannot be struck down on a ground other than that it was passed in a manner inconsistent with the procedure provided under the Constitution.

(xii) The jurisdiction of this Court under Article 199 read with Article 175(2) of Constitution is, "subject to Constitution," and not un-fettered, so as to empower it to strike down a provision of Constitution on a ground other than the one given above.

(xiii) On the same principles the amendment increasing the number of seats and extending the term of the Senate cannot be successfully challenged in the circumstances.

(jrfv) A prospective right of franchise already conferred by law may be enforced through a Constitution Petition and that which is to be conferred by law to be enacted cannot be enforced by Constitution etition.

(xv) There is a distinction between a political case and a political question. A political case may be subject to adjudication by the Court but sensitive political question may not be subject matter of adjudication. The challenge to the Eighth Amendment on the ground that it was not passed according to the Constitution is not a political question and, therefore, it can be adjudicated upon though the case relating to it may be termed as a political case. As to what should be the balance of power between President and the Prune Minister is a sensitive political question of the nature which is not suitable for adjudication by the Court but can be resolved by Parliament and the People through their chosen representatives.

(rvi) Every one of us including the Judges had taken oath to protect the constitution after the Martial Law was lifted and the fundamental rights were restored on 1-1-1989 under the amended constitution and therefore are bound by it.

(mi) The present legal edifice is based on the amended constitution, if we take out some amended provisions the super-structure of democracy built on it may collapse. If the above amendments were held as illegal it will affect the President, the Prime Minister and number of other incumbents of offices and institutions who are not before us. This will be an unending process. There is no manageable standard available to this court to decide which of the amendment should be struck down and which should be retained.

2. The facts forming the background to these writ petitions are the part of our chequered constitutional history which may be briefly stated as under:--

3. General Mohammad Ziaul Haq, who was the Chief of the Army Staff at the relevant time, imposed Martial Law, held certain provisions of the Constitution in abeyance, dismissed the then Prime Minister Zulfiqar Ali Bhutto and dissolved the 'Parliament and took over the administration of the country on 5th July, 1977. On 16-9-1978 General Mohammad Ziaul Haq assumed the office of President. On 1-12-1984 he promulgated Referendum Order 1984 and after holding a referendum declared himself the elected President of Pakistan on the basis of the result of that referendum. On 2-3-1985 he promulgated R. C. O. (P.O. No. 14 of 1985). In accordance therewith elections were held on non-party basis and a National Assembly and a Senate were elected. He also promulgated P.O. 20
of 1985 and P.O. 14 of 1985. The National Assembly and Senate, which were the two Houses of Majlis-e-Shoora (Parliament) enacted Act XVIII of 1985. By this Act a number of amendments were made. The details of which need not be given.

4. The learned advocates who canvassed for the annulment of the 8^th Amendment contended that it was passed by a Parliament which was elected on non-party basis and, therefore, that Parliament was not elected in a free democratic and fair manner nor can be it called a democratic parliament. It was also argued that these amendments had distorted and disfigured the basic structure of the original 1973 Constitution and had violated the grund norm i.e. Objectives Resolution. It was also contended tha the Senate which was elected by the Provincial Assemblies of the four Provinces all of which were elected on non- party basis was equally un-democratic and was not elected by free and fair elections. Moreover the term of the Senate having been expired in March, 1988, was unlawfully extended by said Parliament for two years.

5. It may be re-called that this action of General Mohammad Ziaul Haq was not the solitary act in the Constitutional history of Pakistan nor was this outrage first in the line. The Constitutional history of Pakistan is unique in its nature in that there has been usurpation of power by the then heads of the State more than once and thereafter by the Commander-in-Chiefs of the Army on several occasions and the democratic governments of the time were toppled and the Country was ruled by the head of Army Chief concerned for years together. The first of such occasions was the dismissal of Khawaja Nazimuddin the then Prime Minister and the dissolution of National and Provincial Assemblies by the then Governor General Ghulam Mohammad in 1953. The second was a similar action by the then President Iskandar Mirza, in 1958 and the imposition of Martial Law which was soon thereafter followed by his own ouster by the then Commander-in-Chief General Mohammad Ayub Khan. The validity of the action was considered by the Supreme Court in the case of State v. Dosso reported in PLD 1958 S.C. (Pak) 533. The then Chief Justice Mohammad Muneer who delivered the leading judgment observed that the basic doctrines of legal positivism were such firmly and universally accepted that the whole science of modern jurisprudence rested upon them, that any abrupt political change not within the contemplation of the Constitution constitutes -a revolution, no matter how temporary or transitory the change, if no one has taken any step to oppose it and that the rule of international law with regard to the recognition of States can determine the validity of the States internal sovereignty also. Such a change not only affects the legal destruction of the Constitution but also gives validity to the new national legal order. Thus the Supreme Court of Pakistan accepted Kelsen's theory.

6. The above view of the Supreme Court in Dosso's case was re-considered after lifting of Martial Law and restoration of democracy, after the country had lost half of its territory and population and the view was over-ruled by it in the subsequent case of Asma Jilani v. Government of Punjab reported in PLD 1972 S.C. 139. The Chief Justice of that time Mr. Justice Hamoodur Rahman declared General Mohammad Yahyya Khan, who had imposed Martial Law on 24-3-1969 as a usurper and held that proclamation of Martial Law by itself does not give the Commander of the Armed Forces the power to abrogate the Constitution which he is bound by his oath to defend. The Supreme Court, therefore, held that there can be no doubt that the Military Rule sought to be imposed on the country by General Mohammad Yahyya Khan was entirely illegal. Over-ruling their earlier decision in Dosso's case it was held as follows:--

"The Observations of the Chief Justice in Dosso's case are not correct that upon the principles of international law if the territory and the people remain substantially the same there is "no change hi the corpus or international entity of the State and the revolutionary government and the new State are, according to international law, the legitimate Government and the valid Constitution of the State". This proposition does not find support from any principle of international law. According to Oppenheim's view as propounded in his book on International Law if the revolutionary Government is ineffective and or has no "reasonable expectancy of permanence", and/or does not "enjoy the acquiescence of the population", then the international community may well refuse to recognize it, even though its territorial integrity remains unchanged and its people remain substantially the same. The criticism therefore, is true that the Chief Justice of the Supreme Court not only misapplied the doctrine of Hans Kelsen, but also fell into error in thinking that it was a generally accepted doctrine of modern jurisprudence. Even the disciples of Kelsen have hesitated to go as far as Kelsen had gone. Yaqoob Ali, J (as he then was) went to the extent of observing that in his

view a person who destroys the national legal order in an illegitimate manner cannot be regarded- as a valid source of law-making. May be that on account of his holding the coercive apparatus of the State, the people and the Courts are silenced temporarily but let it be laid down firmly that the order which the usurper imposes will remain illegal and Court will not recognize its rule and act upon them as de jure. As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper, he should be tried for high treason and suitably punished. This alone will serve as a deterrent to would be adventurers.

Dealing with the acts of usurper in Asma Jilani's case it was observed by Hamood-ur-Rahman, C.J., that there was no doubt that a usurper may do things both good and bad, and he may have during the period of usurpation also made many Regulations or taken actions which would be valid if emanating from a lawful Government and which may well have, in the course of time, affected the enforcement of contracts, the settlement of estates, the transfer of property and other rights etc. Hence taking recourse to the doctrine of necessity where the ignoring of it would result hi disastrous consequences to the body politic and upset the social order, a number of condonations were resorted to and not legitimization because the illegal acts of the usurper should not be validated but had to be condoned. Applying this test the Supreme Court condoned:

"(1) All transactions which are past and closed, for, no useful purpose can be served by re-opening them, (2) all acts and legislative measures which are in accordance with, or could have been made under, the abrogated Constitution or the previous legal order, (3) all acts which tend to advance or promote the good of the people, (4) all acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment of, in our case, the objectives mentioned in the Objectives Resolution of 1954. I would not, however, condone any act intended to entrench the usurper more firmly in his power or to directly help him to run the country contrary to its legitimate objectives. I would not Also condone anything which seriously impairs the rights of the citizens except hi so far as they may be designed to advance the social welfare and national solidarity."

The next case is The State v. Zia-ur-Rahman reported hi PLD 1973 S.C. 49. To minimize the consequences of the case of Asma Jillani referred to above Article 281 was enacted hi the interim Constitution of 1972 whereby all laws made after General Yahya Khan's imposition of Martial Law were validated notwithstanding any judgment of any Court and the jurisdiction of the Courts was ousted from questioning any such laws. It also saved all the orders, proceedings and acts of the said period from legal challenge. The validity of Article 281 of the Interim Constitution 1972 was examined hi Zia-ur-Rahman's case. It was, however held that amendments hi the Constitution could be declared as void by the Court if the same were adopted hi a manner different to that prescribed in the Constitution itself. In this ruling it was held that the Constitution was supreme law by which the Government can be controlled and stood higher hi position than other laws of the country. Judiciary including Supreme Court was a creature of the Constitution and has never claimed the right to strike down any provision thereof. It does, however, claim the right to interpret the constitution even if the provision is one seeking to oust the jurisdiction of the Court. In exercising the power of interpreting the constitution the judiciary acts only as an administration of the public will. Even when it declares a legislative measure unconstitutional and void, it does not do so, because the judicial power is superior in degree or dignity to the legislative power because the constitution had vested it with such power. Dealing with the objective resolution it was held that the same was the grund norm of Pakistan and that the Constitution had drawn inspiration from it. It was, however, held that no provision of law or constitution including Article 24 could be tested on the touch stone of Objective Resolution until and unless it was incorporated in the Constitution.

Case of Federation of Pakistan v. Saeed Ahmad reported in PLD 1974 S.C. 151 again took into consideration Article 281 of the Interim Constitution of 1972 with regard to the jurisdiction of the Court to examine the cases of government servants dismissed and removed from the service or retired before time. It was held that the order did not extend to acts done, orders made or proceedings taken without jurisdiction, coram-non-judice or malafide. With regard to the constitutional provisions following principles of interpretation were enumerated:--

"(/) The Constitution is a fundamental or organic or supreme law standing on a somewhat higher position than the other laws of the country.

(//) The Constitution is the source from which all governmental power amanates and it defines its scope and ambit so that each functionary should act within his respective sphere.

(Hi) The Courts are creatures of the Constitution; they derive their powers and jurisdiction from the Constitution and must confine themselves within the limits set by the Constitution.

(iv) Under a Constitution prescribing a system where there is a trichotomy of sovereign powers the judicial power must from the very nature of things be vested in the judiciary.

(v) Thus the judiciary does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean even if it is a provision seeking to oust its own jurisdiction.

(v/) In the latter case an ouster of jurisdiction is not to be readily inferred, because, the consistent rule is that provisions seeking to oust the jurisdiction of superior Courts, even by a constitutional provision, are to be construed strictly with a pronounced leaning against ouster.

(vii) It is not, however, the function of the judiciary to legislate or to question the wisdom of the law-giver if the law has been competently made without transgressing the limitations of the onstitution. If a law has been competently made the judiciary cannot refuse to enforce it- even if the result be to nullify its own decisions.

(viii) The law-giver has also every right to change, amend or clarify the law if the judiciary has found that the language used conveys an intent different | from that which was sought to be conveyed by the law-giver.

(ix) The Constitution has to be construed like any other document reading it as a whole and giving to every part thereof a meaning consistent with the other provisions of the Constitution.

(x) As far as possible each provision of the Constitution should be construed so as the harmonize with all the others."

On 5-7-1977 late Mr. Zulfiqar Ali Bhutto, who was Prime Minister of Pakistan, was dismissed in consequence of a military taken over by General Mohammad Ziaul Haq, the then Chief of Army Staff. The Federal as well as Provincial Assemblies were dissolved. The constitution was not abrogated but some of its provisions were held in abeyance. Martial law was proclaimed and General Mohammad Ziaul Haq assumed the office of Chief Martial Law Administrator. This action of General Mohammad Ziaul Haq was challenged in the Supreme Court in the case of Begum Nusrat Bliuloo v. Chief of Army Staff reported in PLD 1977 S.C. 657. Majority view was that the principles laid down in the case of Asma Jillani were not applicable to the facts of this case. It was also held that Kelsen's theory of revolution also did not "apply to the change over brought about by General Mohammad Ziaul Haq. That military coup was however, justified on the maxim ofsaluspopuli. It was held as follows:--

The conditions culminating in the Proclamation of Martial Law were so grave that the very existence of the country was threatened, that chaos and bloodshed was apprehended and there was complete erosion of the constitutional authority of the Federal Government, leave alone that of the various Provincial Governments. The situation had indeed deteriorated to such an extent that it justified an extra-Constitutional step, resulting in the suspension of certain parts of the Constitution itself by the Armed Forces. Such being the case, the situation was obviously at least of the kind contemplated by clause (1) of Article 232 of the Constitution. In the circumstances, the Chief Martial Law Administrator was justified in providing in clause (3) of Article 2 of the Laws (Continuance in Force) Order that the right to enforce Fundamental Rights shall be suspended. It was clearly an Order which could have been under the 1973 Constitution. No exception can, therefore, be taken to the validity of this provision.

The Court, however, called upon the C.M.L.A., to hold free and fair elections and made the following observations:

"While the Court does not consider it appropriate to issue any directions as to a definite time-table for the holding of elections, the Court would like to state hi clear terms that it has found it possible to validate the extra-Constitutional action of the Chief Martial Law Administrator not only for the reason that he stepped in to save the country at a time of grave national crises and constitutional break-down, but also because of the solemn pledge given by him that the period of constitutional deviations shall be of as short a duration as possible, and that during this period all his energies shall be directed towards creating conditions conducive to the holding of free and fair elections, leading to the restoration of democratic rule in accordance with the dictates of the Constitution. The Court, therefore, expects the Chief Martial Law Administrator to redeem this pledge, which must be construed in the nature of a mandate from the people of Pakistan, who have, by the large, willingly accepted his administration as interim Government of Pakistan.

The C.M.LA. was thereby held entitled to perform all such acts and promulgate all such laws which were necessary for the above purpose including the power to amend the constitution.

Makhdoom Ali Khan a young barrister in his introduction on the Constitution of Islamic Republic of Pakistan has made the following comments on this judgment:

"This enunciation of the Law of necessity by Chief Justice Anwarul Haq was contrary to what the Supreme Court under another Chief Justice had laid down as law declared only five years ago;"I too am of the opinion that recourse has to be taken to the doctrine of necessity were the ignoring of it would result in disastrous consequences to the body politic and upset the social order itself but I respectfully beg to disagree with the view that this is a doctrine for validating the illegal acts of usurpers. In my humble opinion, this doctrine can be invoked in aid only after the Court has come to the conclusion that the acts of the usurper were illegal and illegitimate. It is only then that the question arises as to how many of his acts, legislative or otherwise, should be condoned or maintained, notwithstanding their illegality in the wider public interest. I would call this a principle of condonation and not legitimization."

One could have supported the Begum Nusrat Bhutto judgment as an attempt to discover a middle ground between Dosso and Asma Jillani, in order to save judicial powers from being destroyed and retain jurisdiction, at a tune when the CMLA still held the reins of power and the Court had taken a new oath. But the strange and disturbing aspect of the judgment was the permission given to the CMLA to amend the Constitution and this is what makes it indefensible. It is submitted that the Court as an institution had no power or jurisdiction to circumvent settled constitutional procedures and allow someone who could at best be described as an executive functionary to tamper with the Constitution. This was an exercise of power without precedent. It could not draw support from either the text or the ideals of the Constitution and was, therefore, unconstitutional. It now appears that not all the judges of the Supreme Court were prepared to give the CMLA a free hand in amending the Constitution. That may be the case, but not a single, dissent was filed, no appeal was made".

General Mohammad Ziaul Haq did not hold elections as promised from time to time and went on postponing the same. Instead he promulgated Provisional Constitution Order on 23-3-1981. Thereafter he promulgated Referendum Order 1984 and on the pretext of a favourable verdict from the public declared himself to be the President of Pakistan under the revival of Constitution of 1973 Order 1985 (P.O. 14/1985). The parliament, elected on non-political basis under the P.C.O. enacted Article 270-A as well as made many other amendments in the Constitution of Pakistan (1973) by the Constitution (8th Amendment) Act 1985. The validity of Article 270-A, as it was enacted in P.O. 14 of 1985, was challenged before this Court in the case of Mohammad Bachal Memon v. Government ofSind reported in PLD 1987 Karachi 296. A Full Bench of this Court held as follows:-

"Thirdly, Article 2-A on the basis of which also validity of Article 270-A is sought to be questioned was inserted by the President's Order No. 14 of 1985 promulgated on 2-3-1985, by the President of Pakistan. I do not find any valid reason nor has any been advanced by any counsel to test the validity of an amendment made in the Constitution by the Parliament by Constitution (Eighth Amendment) Act, 1985, on the touchstone of a provision which was initially not an enforceable part of the Constitution and which was made enforceable by the President's Order No. 14 of 1985. In my opinion both the amendments have the same force and the validity of one cannot be tested on the touchstone of the other."

The decision of Mohammad BachaPs case was taken in appeal to the Supreme Court in Federation of Pakistan v. Ghulam Mustafa KJiar reported in PLD 1989 S.C. 26. It was held that clause (1) of Article 270-A gave blanket protection to all laws made during the period when Martial Law was enforced i.e. from 5.7. 1977 upto the lifting of Martial Law in 1985 and that the validation extended by said clause encompassed not only their past operation but also their future continuance despite any other provision to the contrary contained in the Constitution. It would oust the jurisdiction of the Courts from examining the validity of the said laws on any account whatsoever. In this ruling it was, however, held that this clause did not save acts, orders or proceedings which were done, made or taken without jurisdiction, malafide or coram non judice and it was unnecessary to draw a difference between malice in fact and malice in law. Thus Article 270-A of the Constitution, which was brought into it by 8th Amendment, was held to be validly and competently enacted.

The National Assembly and the Provincial Assemblies were dissolved by General Mohammad Ziaul Haq on 29-5-1988 and the Prime Minister and the Federal and Provincial Cabinets were dismissed. The dismissal of the Prime Minister and the dissolution of the Assemblies came up for consideration in appeal before the Supreme Court in the case of Federation of Pakistan vMohammad Saifullah Khan reported in PLD 1989 S.C. 166. The dismissal of the Prime Minister and the dissolution of Assemblies was declared by Lahore High Court to be illegal and the order of the Lahore High Court to that effect was upheld by the Supreme Court. The relief of restoration of the National Assembly was, however, not granted, despite this finding and the reasons for doing so enumerated by Lahore High Court were approved by the Supreme Court which read as under:

"But we are not unmindful of the fact that the whole nation is geared up for elections and we do not propose to do anything which makes confusion worst confounded and creates a greater state of chaos which would be the reason if the vital process of elections is interrupted at this juncture.

The Courts always keep in view the higher interest of Pakistan while resolving matters of national importance in accordance with the Constitution and law. National interests must take precedence over private interests and individual rights. The forthcoming elections are at hand and the people of Pakistan must be allowed to choose their representatives for the National Assembly on party basis, a right which is guaranteed to them under the Constitution.

The writ jurisdiction is discretionary in nature and even if the Court finds that a party has a good case, it may refrain from giving him the relief if greater harm is likely to be caused thereby than the one sought to be remedied. It is well settled that individual interest must be subordinated to the collective good. Therefore, we refrain from granting consequential reliefs, inter alia, the restoration of the National Assembly and the dissolved Federal Cabinet."

The Supreme Court also expressed itself on the question of national interest in the following words:

"It is true that the concept of "national interests taking precedence over rights of the individuals" which has been given effect to by us is a somewhat indefinite concept and the decision of this Court to deny the relief in exercise of its discretionary jurisdiction on its basis, therefore, requires some elaboration.

Granted that the concept of "national interests taking precedence over individual rights" is an indefinite concept and that it can mean different things to different persons but in the instant case no such ambiguity existed because it was quite clear that the national interest would be better served by a recourse to the electorate than by the restoration of the existing Assemblies provided, of course, the holding of the elections on a very early date was ensured. The bane of our society has been that elections have not been held with any degree of regularity, after reasonable intervals. An overwhelming majority in the country was strongly of the opinion and a clear national consensus existed to the effect that the political malaise in the country could be solved only by holding national general elections, wherein all the political parties were allowed to participate. In conformity with this national consensus and the unambiguously expressed wish of all the political parties of Pakistan and every section of the people there was no difficulty in coming to the conclusion that an appeal to the electorate rather than restoration of the existing Assemblies, ensuring at the same time that the dates already fixed in this behalf namely the 16th November, 1988, for the National Assembly and 19th november, 1988, for the Provincial Assemblies were adhered to was the proper course to be followed and that this was in the collective good. In exercise of the discretionary writ jurisdiction it was not, therefore, considered appropriate to set aside the aforementioned part of the order of the President whereby the dates for holding of fresh general elections were specified. On the other hand, to ensure compliance therewith and to see that elections are actually held on these dates, the said dates were made a binding part of the Court's judgment itself.

Accordingly, in our short order, passed at the conclusion of the hearing, it was said :

"We however, emphasise that the general elections scheduled for the 16th and the 19th November, 1988, shall be held on the said dates and an opportunity be thus afforded to the people of Pakistan to choose their own representatives in a free, fair and impartial election.

Accordingly, these appeals stand disposed of in the above terms."

In an Islamic State sovereignty belongs to Almighty Allah alone. The authority is to be exercised by the people of that State within the limits prescribed by Allah and such authority is a sacred trust. Holy Quran has .commanded the Muslims to decide all tHeir matters by means of Shoora ( & X-^*V**f>*/^ L> ) thereby these Muslims have been commanded to ordain their State in accordance with the principles of democracy, fraternity and equality. The Muslims have to order their lives in their individual and collective spheres in accordance with the teachings and requirements of Islam as set out in Holy Quran and Sunnah. It was with this object and goal in view that the first constituent As^i. ably had passed the Objectives Resolution, which reads as under :-

"Whereas sovereignty over the entire Universe belongs 10 Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust;

And whereas it is the will of the people of Pakistan to establish an order-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 Jives in theij individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah;

Wherein adequate provision shall be made for the minorities freely to profess and practise their religions 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 from 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 and 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;

5. On 16-9-1978, the President's Succession Order (No. 13 of 19%) promulgated and according to clause 3(1) thereof, "......Chief Martial Administrator or such other person, as may be designated by the Chief Law Administrator, shall be the President and shall perform all functions to the President by or under the Constitution or by or under any law,.....¹' I office of the President became vacant on account of the reasons specified I said clause 3(1), then according to clause 4 thereof, "If the Chief Ma Administrator is the President he shall hold office until President is el accordance with the Constitution". Late Mr. Fazal Elahi Choudhry, who was President before the promulgation of the said President's Order resigned from J office and since no other person was designated as President by the Chief Martial Law Administrator, General Muhammad Zia-ul-Haq by virtue of clause 3^J*ef the said Order himself became the President of Pakistan. -*

6. On 24-3-1981, the Provisional Constitution Order (C.M.LA*s Order 1« 1981) was promulgated and certain provisions of the Constitution, which w_>vearlier held-in-abeyance, became operative as part of the said Order. By virtue of ' clause 15 thereof validation was accorded to the proclamation of fifth day of Juty, 1977, all President's Orders, Orders of the Chief Martial Law Administrator
including Orders amending the Constitution made by the President or the Chief Martial Law Administrator, Martial Law Regulations, Martial Law Orders and att - other laws made on or after the fifth day of July, 1977, by declaring them to hav&j " been validly made by a competent authority, notwithstanding any judgment of; Court. Under clause 16 of the Order, "the President as weff as the Chief

Law Administrator shall have, and shall be deemed always to have had the power to amend the Constitution."

7. Another significant fact in the chain of events preceding the passing of the Constitution (Eighth Amendment) Act, 1985 is the Referendum Order (President's Order 11 of 1984), which was published in the Gazette of Pakistan Extraordinary, on 1-12-1984. This Order, according to Clause 3 thereof, provided that "the elections to the National Assembly, the Provincial Assemblies and the Senate shall be completed by 23-3-1985" A question framed under clause 4 thereof was referred to referendum and as the majority of the votes cast in the referendum were in favour of the answer "Yes", General Muhammad Zia-ul-Haq by virtue of Clause 7 thereof became the President of Pakistan.

8. On 2-3-1985, the President issued Revival of the Constitution of 1973 Order (President's Order 14 of 1985). After passing of this Order, which became effective from 10th March, 1985 by virtue of Clause 4 thereof, "The provisions of the Constitution, as amended by this Order, shall stand revived on such day as the President may, by Notification in the official Gazette appoint and different days may be so appointed in respect of different provisions." By this Order, the Constitution of 1973 was drastically amended and as many as fifty-nine amendments were introduced therein. Thereafter the President issued two more orders viz., P.O. 20/85 and P.O. 24/85 introducing further amendments in the Constitution.

9. After promulgation of the Revival of the Constitution of 1973 Order, the elections to the National Assembly and the Provincial Assemblies took place on 2* 2-1985 and 9-2-1985 respectively and the elections to the Senate took place on 21- 3-1985. These elections which took place under President's Order 5 of 1977 were held on non-party basis. Thereafter a joint session of the Parliament was held on 23-3-1985.

10. On 13-9-1985, a bill purporting to incorporate the said amendments in the Constitution was introduced in the National Assembly and was passed by the same on 16-10-1985. On 28-10-1985, the bill was passed by the Senate and after assent by the President was given on 9-11-1985, the Constitution (Eighth Amendment) Act, 1985 was passed and the same was published in Gazette of

Pakistan, Extraordinary, dated llth November, 1985. On 30th December, 1985, the Proclamation of withdrawal of Martial Law was issued by the Chief of the Army Staff and the Chief Martial Law Administrator and hence the transition from Martial Law to the restoration of democracy finally took place.

11. The contentions raised before us on behalf of the petitioners have been formulated by me as follows:

(i) that power to amend the Constitution was derived by the Chief Martial Law Administrator through Begum Nusrat Bhutto's case (PLD 1977 SC 657), therefore, each amendment, introduced in the
Constitution was liable to be tested on the touchstone of thedoctrine of necessity as propounded in the said case.

(ii) that the Constitution (Eighth Amendment) Act, 1985 cannot be construed as a valid piece of legislation as assent thereto under Article 75 and Article 239 of the Constitution was not given to it by a duly elected President whose so-called endorsement under the Referendum Order, 1984 was obtained from the people of Pakistan by an extra-Constitutional Act, which infact, was a fraud committed upon the Constitution and the nation;

(iii) that the National Assembly which came into existence on the basis of non-party elections was not competent to pass the eighth amendment to the Constitution;

(iv) that the Parliament, not being a Constituent Assembly, had no mandate from the people of Pakistan to introduce amendments in the Constitution which have altered its basic structure and features and exercise of power by it by dint of amendatory provisions was ultra vires, un-Constitutional and null and void;

(v) the extension of the term of the members to retire from the Senate from 4 years to 6 years by amendment of Article 59(3) of the Constitution was opposed to the basic principle of democracy that no legislature can extend the term of its members;

(vi) that Article 270-A of the Constitution which was introduced into the Constitution through the Constitution (Eighth Amendment) Act, 1985 cannot provide a blanket protection to such amendments which are opposed to the basic structure of the Constitution; and(vii) that two legislatures, viz., the Parliament and the C.M.LA. could not coexist at the same time and consequently, the National Assembly was not competent to pass the Eighth Amendment Bill.

12. The question as to the competence of the National Assembly elected on non-party basis was raised in the case of Malik Ghulam Mustafa Kliar v. Pakistan and orders (PLD 1988 Lah. 49=PLJ 1987 Lahore 669) and the argument advanced on behalf of the petitioner was as follows:

"64. Mr. Aitzaz Ahsan has raised another formidable objection and thrown a challenge to the competence of the Parliament to pass the Constitution (Eighth Amendment) Act 1985 whereby Article 270-A was incorporated in the Constitution. The first part of his argument is founded on the observations made in Begum Nusrat Bhutto's case, requiring the Chief Martial Law Administrator to hold free and fair elections, in terms of the 1973 Constitution. It is contended that thepresent Parliament has been installed through a process of election held on non-party basis, whereby the political campaign was restricted,discussion on fundamental issues prohibited; arbitrary disqualifications of the candidates, in the Election Laws, the categories of the candidates were limited; there was also a ban on propagation and mass contacts as under the Martial Law Order No. 102, holding of any meeting of public nature for seeking support in favour of any candidate was an offence and, thus, it was practically made impossible for the candidates to project their view point before the public. Resultantly, the candidates were elected on "Bradari Basis". It was pointed out that the Election Laws were drastically amended to change the complexion of the election. In this behalf the learned counsel invited our attention to the amendments made is ttt Representation of the People Act, 1976 aod the Houses of ParKaraeof and Provincial Assemblies (Election) Order, 1977. It is not necessary/ W give here the details of such amendments. Reference was also made by the learned counsel to Martial Law Regulations Nos. 33 and 48. As a result of these Regulations, canvassing or compaigning of political parties was prohibited. In this view of the matter the learned counsel concluded that the election, in consequence whereof the present Parliament came into existence cannot be treated to have been held under 1973 Constitution."

The argument was however repelled by the Lahore High Court, rtse reasons for which appear in paragraph 67 of the judgment as follows:

"67. The general elections, under challenge, were held tinder the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977. Article 24 of the Order, to which our attention has been drawn by the leaned Attorney-General provides that the election held uader the said Order "shall be deemed to have been held under the Constitution and S&&B fene effect accordingly." This article rather the Order itsefl^ anrf 'afifct¹-connected laws were examined by the Supreme Court in Zulfiqar AH Bhutto's case and it was held,

"................ It will be seen that from a perusal of the Post-Proclamation Order No. 5 of 1977 read with Post-Proclamation Order No. 4 of 1977, It becomes abundantly dear that the forthcoming elections are not covered by any provision of 1973 Constitution nor, indeed, could they be so covered as the situation arising in March, 1977, in the wake of wide spread allegations of massive rigging of the elections, was an
unprecedented situation not within the contemplation of the Constitution. It was, therefore, necessary to make special provision for new elections, and the Post-Proclamation Order No. 5 of 1977 rightly recites hat these provisions were being made 'in an endeavour to restore the principles of democracy where-under the State of Pakistan exercises its power and authority through the chosen representatives of the people.' It is ia the same spirit that Article 24 of Order lays down that the elections held under this Order shall be deemed to have been held uader the Constitution and shall have effect accordingly. Without this deeming provision the resulting Legislatures could not function under the 1973 Constitution but to our mind the deeming provision contained in Article 24 of this Order, cannot attract, in terms of the provisions contained ia Chapter I of Part VIII of the Constitution relating to elections, as the elections are, in fact, not being held under that chapter. The deeming clause is to come into operation only after the elections have been hera and the Prime Minister etc. have been elected .."

We feel that these observations furnish an effective answer to the petitioner's objection that the elections were not held wider 1973 Constitution. The elections have been held, Prime Minister elected and a Cabinet formed. The country is being run by the civilian Govenuaest for the last over 2h years. Article 24 ibid, therefore, in terms tif die Court judgment, is operating with full force. Article 270-B of the Constitution also ordains that elections held under the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 shall be deemed to have been held under the Constitution.

13. The question was once again raked before the Supreme Court of Pakistan in the case of Federation of Pakistan v, Malik Ghulatn Mustafa KJiar (PLD 1989 SC 26), but the Supreme Court refrained froa expressing its opinion thereon, as will appear from the following observation:

"16, During the course of bearing of these matters, Mr, Abdul Mujib Peerzada, who appeared for the petitioner in CP.S.LA. No. 429-K of 1987, raised the plea that the Parliament was not competent to enact article 270-A, but then all the learned counsel agreed to keep this aspect of the matter out of consideration for the tune being and thus no elaborate arguments were addressed on this plea. I would therefore t?H refrain from expressing any view on it*.

14. Mr. S.M.Zafar, Learned counsel appearing on behalf of some of the respondents in this case, has argued that validity has been assigned to all the President's Orders, Ordinances, Martial Law Regulations or Orders issued or passed during the period in question by Article 27Q-A(1) of the amended Constitution which has been held to be validly passed by the Supreme Court, consequently, none of them can now be impugned in the present petitions. He has further argued that the Eighth Amendment to the Constitution is a vital link between our past and the present and in case it is knocked out the entire super structure which now stands thereon would crumble. The devastation that would be caused in the process would be enormous and at least the following
offices/institutions according to him, would be rendered non est:

(1) the President of Pakistan, (2) seven Muslim Members of the National Assembly, (3) four Members elected against minority seats in the National Assembly, (4) twenty Members in the National Assembly elected on women's seats, (5) the Prime Minister of Pakistan, (6) the Senate, (7) the Chairman Senate, (8) the Federal Shairat Court and (9) the new Benches of the High Court wherever established. Mr. AA. Fazeel, learned counsel also appearing for some of the respondents, made a further addition to this list by including the names of the Federal Ministers, the Ministers of State, the Advisors to the Prune Minister, the Provincial Ministers, the additional female Members in the National Assembly, the Chairman Public Service Commission, the Chairman Joint Chiefs of the Staff and other Chiefs of the Staff and the Chief Election Commissioner thereto. The other counsel appearing on behalf of the private respondents also more or less advanced similar arguments. The learned Attorney General, however, did not support the Eighth Amendment.

15. As far as these contentions are concerned, the same have very elaborately been dealt with by the learned Chief Justice in his judgment proposed to be given and I need not further express my opinion thereon as no useful purpose would be served thereby, however one of the contentions raised on behalf of the petitioners is that the assent to the Constitution (Eighth Amendment) Act, 1985 after it was passed by the two houses, was given by General Muhammad Zia-ul-Haq, who was not a Constitutional President and consequently, such assent could not clothe the
said Act with validity. Although the Hon'ble Chief Justice has dealt with this question in his judgment at a great length, but I am unable to pursuade myself to agree with the conclusions reached by him, and I say so with great humility and respect.

16. Mr. Abdul Mujeeb Prizada who is the petitioner in C.P. No. D-76/89 and Mr. Rasheed Akhund learned counsel for the petitioner in C.P. No. D-168/89 have argued that the referendum held by General Mohammad Zia^ul-Haq in 1984 was a fraud upon the Constitution as well as the people of Pakistan and was also not in accordance with the provisions of the Constitution of 1973 but the same was

I held in pursuance of the will of an individual who intended to perpetuate himself I in power in defiance of all cannons of rule of law and in breach of his own solemn [pledge given to the.nation.

17. It may be pointed out that the Referendum Order 1984 which was published in the gazette of Pakistan, Extraordinary, dated 1st December, 1984, was promulgated by General Mohammad Zia-ul-Haq in the exercise of the powers vesting in him under the Provisional Constitution Order, 1981. It is not disputed that the Referendum Order was issued by General Mohammad Zia- l-
Haq while exercising his legislative powers both under the Provisional Constitution Order as well as the Judgment of the Supreme Court in the case of Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1977 SC 657). Consequently, the first question that arises is whether this court can go behind the motive of the legislature and determine whether the legislation was bonafide.

18. In Ch. Qaseem-ud-Din v. Province of W. Pakistan (PLD 1959 W.P. Lah. 76) an Ordinance issued by the then Governor of West Pakistan under Article 102 of the Constitution of 1956 was assailed before a Division Bench of the Lahore High Court on the ground that the same had been issued for a collateral purpose and was mala fide. An objection was raised that the court was not competent to go
behind the motive of the legislature. Repelling the objection, Kaikaus,J. observed as under:

"The power of the Governor which arises on account of an emergency is confined to the requirements of the emergency. And if he promulgates an Ordinance not to meet the emergency but for a colleteral and imporer purpose, his act can as much be impeached as any other act of the executive Government can be impeached on the ground of mala fides. '•:•• The act though legislative in character remains an act of the executive Government. Should the acts of the executive Government become immune from attack merely on the ground that they take the form of Ordinances, little check will there remain on its mala fide action, because it is easy for it to secure the promulgation of an Ordinance."

19. However, Yaqub AliJ. did not concur with Kaikaus, J. as according to him, any advice given by Cabinet to the Governor under Article 71(7) m Chewy "carried with it the weight of the majority of the Members of the accordingly the promulgation of the Ordinances was not an legislative act, which the courts of law cannot set aside except by i _ authority of the Members of the Provincial Assembly to enact laws «9»kh lie within their competence under the Constitution.

20. Although reference was made by KaikausJ. to the case of Punjab Province v. KJiizar Hayat Tiwana (PLD 1956 FC 200) wherein a contrary view had been taken but the same was not followed by him as the observations made by the Federal Court were not supported by any further discussion on the issue. However the learned Judge relied upon the observations made in the case of Soon Hinq v. P. Crowley, Chief of Police of the City of San Francisco (113 US 703) where Mr. Justice Field while delivering the opinion of the court said:

"The principal objection, however, of the petitioner to the ordinance in question is founded upon the supposed hostile motives of the supervisors in passing it. The petition alleges that it was adopted owing to a feeling of antipathy and hatred pre-vailing in the City and Country of San Francisco against the subjects of the Emperor of China resident therein, and for the purpose of compelling those engaged in the laundry business to abandon their lawful vocation, and residence there, and not for any sanitary, police or other legitimate purpose. There is nothing, however, in the language of the ordinance, or in the record of its enactment, which in any respect tends to sustain this allegation. And the rule is general, with reference to the enactments of all legislative bodies, that the Courts cannot inquire into the motives of the legislators in passing them, except as they may be disclosed on the face of the Acts, or inferable from their operation, considered with reference to the condition of the country and existing legislation. The motives of the legislators, considered as the purposes they had in view, will always be presumed to be, to accomplish that which follows as the natural and reasonable effect of their enactments. Their motives, considered as the moral inducements for their votes, will vary with the different members of the legislative body. The diverse character of such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such inquiries as impracticable and futile".

21. The next case referred to by Kaikaus, J. in his judgment is the case of Emperor v. Benoari Lai Sanna (AIR 1945 P.C. 48). In this case an Ordinance was promulgated by the Governor General by virtue of powers conferred on him by para 72 of the Ninth Schedule to the Government of India Act enabling him to make and promulgate in case of emergency Ordinances "for the peace and good government of British India or any part thereof. The Ordinance was attacked inter alia on the ground of non-existance of an emergency as required by para 72 ibid. The attack was two-fold; (1) that an emergency did not exist and (2) that although the preamble of the Ordinance stated that an emergency existed, the Governor General did not in fact hold the opinion that an emergency existed and was only providing for emergency that may in future arise. The Ordinance was held to be ultra vires by the Calcutta High Court and the Federal Court of India. In the meanwhile Governor-General had promulgated another Ordinance in place
of the impugned Ordinance so that when the appeal came up for hearing before their lordships of the Privy Council the question of validity of the Ordinance was more or less of academic interest. However their lordships dealt exhaustively with the question raised, holding that:

"It is to be observed that the paragraph does not require the Governor General to state that there is an emergency, or what the emergency is, either in the text of the Ordinance or at all, and assuming that he acts
bona fide and in accordance with his statutory powers, it cannot rest with the Courts to challenge his view that the emergency exists. In the present instance, such questions are immaterial, for at the date of the Ordinance (2nd January, 1942) no one could suggest that the situation in India did not constitute an emergency of the most anxious kind. Japan had declared war on the previous 7th December, Rangoon had been bombed by the enemy on 23rd December; and again on 25th December; earlier Ordinances had recited that an emergency had arisen which required special provision being made to maintain essential services, to increase ^ certain penalties, to deal with looting of property left unprotected by ' evacuation of premises and so forth".

22. In Jnan Prosanna v. Province of West Bengal (AIR 1949 Cal. 1) their lordships after going into the question of mala fides held that the same were not proved. Same was the case in re Kalyanam Veerabhadrayya (AIR 1950 Mad. 243).

23. A similar question also arose in Ziaur Rehman's case (PLD 1973 SC 49) and the Court was of the opinion that it could competently determine the question whether the impugned legislative instrument was conceived in bad faith or promulgated for any extraneous and collateral considerations, however in Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457) Muhammad Haleem Acting CJ. (as he then was) while narrowing down the scope of judicial scrutiny in such sases, observed as follows:

"117. The words "competently" and validly" here have reference to the authority of the particular Legislature to legislate in regard to legislative lists and other constitutional limitations. Clearly from these observations the exertion of the legislative power, either by the elected Assembly or the President is not made dependent on any motive, wisdom, policy or impolicy or any rule of jurisprudence etc. and further it seeks to avoid a conflict between the two functional organs of the State....Again the observations of Hamoodur Rehman, CJ. undoubtedly bear out that the constitutionality of an act depends upon the exercise of power within constitutional limits and not upon motive or any other consideration."

In the final analysis the learned Acting Chief Justice observed:

"122. On principle there is no distinction between an Act and Ordinance as both are the product of the exercise of legislative power. Therefore, it leads to the same conflict if it were to be struck down on the ground of mala fides a contigency which has been strongly deprecated for the all embracing reasons in the aforementioned decision. In Zia-ur-Rehman's cases, Hamoodur Rehman, C.J., expressed himself alike at page 77 of the report: With political decisions or 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."

24. This question was also considered by Muhammad Afzal Lone, J. in the case of Malik Ghulam Mustafa KJtar v. Pakistan reference to which has been already made earlier in this judgment. It has been observed by the learned Judge; "The reason that the power of judicial review is not available for questioning the wisdom of law-giver and the propriety of the law made by him, is that under the structural features of the constitution, prescribing trichotomy of powers, one organ of the State docs not usurp the powers of the other. The limits of the spheres of the Legislature, Executive and Judiciary are enumerated in the constitution. This separation of power, is, the pivotal fea^fure of the federalism and ensures rule of law in a Constitutional Government."

25. However, an exception was made by the learned Judge in case of a person who was acting as the Chief Martial Law Administrator during the Martial Law. It was thus observed: "Thus as long as the law is competently made, the Courts which are the creation of Constitution, do not interfere with the discretion exercised by the Legislature in enacting a particular law. This principle, however, cannot be extended to the Chief Martial Law Administrator, who during Martial Law, weilded all powers of State authority, and exercised the legislative and executive powers untrammelled by any limitation. As regards the judiciary no doubt, the ordinary Courts were not closed but they exercised their functions within the field un-occupied by the Military Courts and the Martial Law Authorities. To that extent even with regard to judiciary, the paramount power vested in the Chief Martial Law Administrator. In these circumstances, it is not possible to equate the Chief Martial Law Administrator with a representative
legislature, and the immuniiy available to such a Legislature conferred on him."

26. Although our constitution envisages trichotomy of powers and the limits of the sphere within which each organ of the State can act are defined, but the acts of a Martial Law Administrator arc always liable to be subjected to a judicial scrutiny. In this respect no distinction can be drawn between the acts which are legislative or executive in nature. Even in Soon Hing v. Cmwley to which I have earlier referred, Mr. Justice Field has made on exception in the case of cases where the motives of the Legislators are inferable on the face of the Acts. Influenced by these observations, it was further held by Kaikaus, J. in the case of Qascem-ud-Din v. Province of West Pakistan that "the act though legislative in character remains an act of the Executive Government". He further observed:
"Should the acts of the executive Government become immune from attack merely on the ground thai they take the form of Ordinances...."

27. General Mohammad Zia-ui-Haq although promulgated the Referendum' Order 1984 while excidsing his legislative powers vesting in him under the Provisional Constitution Order but the Court can hardly be oblivious of the fact that it was the same individual who was exercising both the executive as well as the legislative functions. His legislative functions, therefore cannot be outside the pale of judicial scrutiny. In this behalf I am further fortified by the observations of Muhammad Af/al Lone, J. in the case of Malik Ghulam Mustafa Kliario which I have already referred earlier, in the case of Fauji Foundation v. Shamimur AO Rahman no doubt Martial Law Regulation No. 103 had been impugned by the respondent and one of the grounds of attack was that the said regulation had been
issued mala fide, but the Supreme Court was of the view that mala fides must be first established and the same could not be presumed or inferred in absence of sufficient material placing before the court in this behalf. However the context in which the present case is being examined is not the same, because the contention raised on behalf of the petitioners is thai mala fides are disclo-. J on the face of the legislation itself which has been impugned by them.

28.1 am consequently of the view that this court is competent to go into the .question of mala fides raised by the petitioners.

29.. However, before undertaking an examination of the Referendum Order, I would first like to deal with another important aspect of the matter. Assuming that General Mohammad Zia-ul-Haq was not a constitutional President but it is not disputed that for all practical purposes he was a de facto President, having appointed himself as such after the resignation of Ch: Fazal Ellahi by virtue of clause 3 of the President's Order 13 of 1978 which he himself issued in pursuance of the powers vesting in him under Proclamation of Fifth July 1977 read with Laws (Continuance in Force) Order, 1977 The question, therefore, arises whether his actions were saved by de facto doctrine which has been held by the Courts to give ^AS validity to the holders of de facto office notwithstanding any defect found in their appointment. The doctrine is founded upon the consideration of public policy and necessity and for the protection of individuals whose interests may be effected. In Lt. Col. FarzandAH and others v. Province of West Pakistan (PLD 1970 SC 98) the petitioners had challenged their retirement on the ground that the amendments made in the constitution by Acts IV and XV of 1965 and II of 1966 were passed by majority votes which included thirty-three persons who were not qualified under Article 103 of the Constitution of 1962 as it stood originally and as such power .assumed by the government in retiring them was not lawfully acquired. It was held by their Lordships of the Supreme Court that:

"Upon these principles it was strenuously argued that the Third, Fourth and Sixth Constitutional 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 duites with public acquiescence. They were not purely intruders. Therefore, their acts even apart from the provisions of sub-clause (d) of clause (1) of Article 110 were as good as those of de jure members of the National Assembly. 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, their acts should not be invalidated merely because they could have been found in a proper proceeding under Article 98(2)(b) to be disqualified from continuing as Members of the House to do so collaterally in proceedings not taken to lest the validity of their tille directly would lead to serious inconvenience to the public and those individuals whose interests have been affected by the legislative measures enacted in the meantime. This de facto doctrine is a doctrine of necessity to bring about regularity and prevent confusion in the conduct of public business and promote security of private rights."

30. This case was followed by a Division Bench of this Court in the case of Abdul Salam Qnrcshi v. Judge, Special Court of Banking of Sind (PLD 1984 Kar. 462). The petitioner in this case had assailed the appointment of the Special Courts Banking for Sind on the ground that the person who was appointed a Judge thereof was not legally qualified, Naimuddin,.!. (as he then was) while extensively quoting from precedents concluded that the orders, judgments and decrees passed by the then Judge, Special Court Banking were saved by de facto doctrine. Reference was also made by him to a passage from Coney's Constitutional Limitations, 8lh Edn., Vol.2 p.1357 which reads 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 or 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 someone claiming the office de jure 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 valid and effectual, which 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 parlies. This is an important principle, which finds concise expression in the legal maxim that the acts of Officers de facto cannot be questioned collaterally."

31. Reference was also made by Naimuddin, J. to the observations made in Kilward v. Tliatchcr (1787)2 T.R. 81 and Scaddin v. Lorant (1851) 3 H L C 418. In the first case it was held that:

"The question whether the judges below be properly judges or not, can never be datermincd, it is sufficient if they be Judges de facto. Suppose a person were even criminally convicted in a Court of Record, and the Recorder of such Court were not duly elected, the conviction would still be good in law, he being the Judge de facto".

In the second case the question arose whether a rate for the relief of the poor was rendered invalid for the reason that some of the vestrymen who made it were vestrymen de facto and not de jure. The Lord Chancellor said as follows:

"With regard to the competency of the vestrymen who were vestrymen de facto, but not vestrymen dc jure, to make the rate, your Lordship will see at once the importance of that objection, when you consider how many public officers and persons there are who were charged with very important duties, and whose tide 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 i.f the validity of their acts, when in such office, depended upon the propiicty 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 ordinary legal remedies to set right anything done by the Officers, taking the law into their own hands".

32. Cases have also been cited by Naimuddin, J. from the Amrican jurisdiction. In Stale v. Gardner (Cases on Constitutional Law by MC. Convey & Haward, p.102) a question arose whether the offer of a bribe to a City Commissioner whose appointment was unconstitutional was an offence. Bradbury,J. observed "We think that principle of public policy, declared by the English Courts three centuries ago, which gave validity to the official acts of persons who intruded themselves into an office to which they had not been legally appointed, is as applicable to the conditions now presented as they were to the conditions that then confronted the English Judiciary. We are not required to find a name by which Officers are to be known, who have acted under a statute that has subsequently been declared unconstitutional, though we think such Officers might aptly be called de facto Officers".

33. In Norton v. Shelby County (1886) 118 US 425 it was observed:

"The doctrine which gives validity to acts of Officers dc facto whatever defects there may be in the legality of their appointment or election is founded upon considerations of public policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such Offices and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined. It is manifest that endless confusion would result, if in every proccdding before such Officers their title could be called in question."

34. Cases have also been cited by Naimuddin,J. from the Indian jurisdiction. The Supreme Court of India in Gokaraju Rangaraju v. State of Andhra Pradesh (AIR 1981 SC 1473) held that:

"A Judge, de facto is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever the defect of his title to the office, judgments pronounced by him and acts dune by him when he- was dollied with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. The de facto doctrine saves such acts. There is yet another rule also based on public policy. The defective appointment ol a dc facto Judge may be questioned directly in a proceeding to which he be a parly but it cannot be permitted to be questioned in litigation between two private litigants, a litigation which is of no concern or con.scquencc to the Judge except as Judge, Two litigants litigating their private titles cannot be permitted to bring the issue and litigate upon the title of a Judge to his office. Otherwise as soon as a Judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the Judge is no Judge. A Judge's tide to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial appointments. To question a judge's appointment in an appeal against his judgment is, of course, such a collateral attack",

39. Mr. Rasheed Akhund has further contended that the method for election of the President provided in the Constitution was different and according to its modern concept, "referendum" is held only for submitting some legislative measures to direct vote of the people. He also referred to the meaning of "referendum" in Black's Law Dictionary which is as follows:"In the modern Constitutional law of Switzerland and elsewhere a method of submitting important legislative measure to direct vote of the whole people Right reserved to the people to adopt or reject any Act or measure which has been passed by legisaltivc body, and which in most cases, would without action on the part of the electors become a law".

40. Before Article 41(3) of the Constitution was amended by the Constitution (Eighth amendment) Act, 1985, the method of election of the President provided thereby was as follows:

"(3) The President shall be elected by the members of Parliament in joint sitting in accordance with the provisions of the Second Schedule".

However, Article 41 was amended by the Revival of the Constitution of 1973 Order, 1985 (President's Order 14 of 1985) and after its amendment Article 41(3) presided- as follows:

"(3) The President to be elected after the expiration of the term specified in clause (7) shall be elected in accordance with the provisions of the Second Schedule by the members of an electoral college consisting of—

(a) the members of both Houses; and

(b) The members of the Provincial Assemblies." Clause (7) of Article 41 further provided that:

"(7) Notwithstanding anything contained in this Article or Article 43, or any other Article of the Constitution or any other law, General Mohammad Zia-ul-Haq, in consequence of the result of the referendum held on the nineteenth day of December, 1984 shall become the President of Pakistan on the day of the first meeting of Majlis-e-Shoora (Parliament) in joint sitting summoned after the elections to the Houses of Majlis-e-Shoora (Parliament) and shall hold office for a term of five years from that day; and Article 44 and other provisions of the Constitution shall apply accordingly."

41. Clauses (3) and (7) ibid thus show that after the said amendments first' General Mohammad Zia-ul-Haq was to become the President of Pakistan on the day of the first meeting of "Majlis-e-Shoora (Parliament) in joint sitting summoned after the elections to the two Houses and after the expiration of the period referred to in clause (7), the elction of the President was to take place in

"""" accordance with clause (3) of Article 41, which obviously was a marked deviation AW from the original Article 41(3). However, even if it is assumed for the time being that the Revival of the Constitution Order, 1985 was a valid piece of legislation, the assumption of the office of the President of Pakistan by General Mohammad Zia-ul-Haq by virtue of Clause (7) of Article 41 after promulgation of the Revival of the Constitution of 1973 Order, 1985 was by means of the referendum held on, ^;the 19th day of December, 1984. As the said Referendum Order as pointed out earlier, was a colourable legislation meant to achieve a desired result by means of a deceit, as is disclosed by its various provisions already referred to by me, such legislation was liable to be declared void, and in my opinion, General Mohammad Zia-ul-Haq did not enjoy a de jure status as the President of Pakistan.

; Consequently, can the assent given to the said Bill by a person who did not enjoy a de jure status clothe the Constiluion (Eighth Amendment) Act 1985 with validity? The competency of the Parliament to amend the Constitution is subject to the i restrictions imposed by Article 239 of the Constitution. No amendment to the | Constitution of 1973 can be valid unless it is strictly made in accordance with the

procedure provided by Article 239 of the Constitution.

42. The question relating to the validity of the eighth amendment too was examined by the Supreme Court in Federation of Pakistan v. Malik Gliulam Mustafa Kar (PLD 1989 SC 29) and it was held to be a valid legislation. However, the contention raised before the Supreme Court was as follows:

"................ Mr. U. Niamat Moulvi who appeared on behalf of of the appellant in Civil Appeal No. 285 of 1987. He argued that the Constitution (Eighth Amendment) Act 1985, which introduced Article 270-A in the Constitution was still a Bill and not an Act of Parliament and for that technical reason it did not form part of the Constitution. While elaborating his contention he stated that the date on which the Bill was passed, the Provisional Constitution Order was still in force and under the Order there was no requirement that the President should give assent to the bills passed by the Majlis-e-Shoora. He further contended that even though by a notification issued under section 4 of the Revival of Constitution, Order most of the provisions of Constitution, as amended, stood revived, yet in the presence of the Provisional Constitution could not become alive again as there could not be possibly two Constitutions governing the State simulteneously."

This argument was repelled by the Supreme Court. However as is evident from the argument itself, the question raised before the Supreme Court was different. It is also pertinent to point out that earlier, the challenge to the Eighth Amendment was repelled by the High Court, holding that after the amendments to the Constitution were approved by the Parliament, the amendments had attained validity. (See Malik Glnilam Mustafa Kliar v. Pakistan (PLD 1988 Lah. 49=PLJ 1987 Lahore 669). It is therefore ,lear that the question now raised before us was not raised either before the F.gL Court or the Supreme Court in the case of Gulam Mustafa Khar. Therefore, notwithstanding the two judgments, the question raised in regard to the validity of t ie said Amendment can be re-examined by us.

43. However, this does not dispose of the matter as it remains to be considered whether the Referendum Order, 1984 can be subjected to a judicial review in view Article 270-A which was incorporated in the Revival of the Constitution Order, 1985. Article 270-A in the said Order provides as follows:

"270-A. Validation and President's Order, etc.~(l) The Proclamation of the fifth day of July, 1977, all President's Orders, Martial Law Regulations, Martial Law Orders and all other laws made between the fifth day of July, 1977, and the date on which this Article comes into force, are hereby declared, notwithstanding any judgment of any court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any court on any ground whatsoever.

(2) All orders made, proceedings taken and acts done by any authority, or by person, which were made, taken or done, or purported to have been made, taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation, President's Orders, Martial Law Regulations, Martial Orders, enactments, notifications, rules, orders bye-laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any court on any ground whatsoever.

(3) All President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority.

(4) No suit, prosecution or other legal proceedings shall lie in any court against any authority or any person, for or on account of or in respect of any order made proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.

(5) For the purposes of clauses (1), (2) and (4) all orders made, proceedings taken or done by any authority or person shall be deemed to have been made taken or done in good faith and for the purpose intended to be served thereby.

(6) Any of the President's Orders referred to in clause (1) may be amended in the manner provided for amendment of the Constitution".

44. A pcrsual of Article 270-A shows that clause (1) of Article 270-A provides a blanket protection to the Proclamation of the fifth July, 1977, and all President's Orders, Martial Law Regulations, Martial Law Orders and all other laws made between the fifth day of July, 1977 and coming into force of the Revival of the Constitution Order and no such Acts or Orders etc. can be called in question in any Court on any ground whatsoever. Clause (2) of the Article provides further protection to all orders, proceedings, actions made or taken during such period.

45. Now, since General Mohammad Zia-ul-Haq became the President of Pakistan by virtue of Article 41(7) as incorporated in the Schedule to the President's Order 14 of 1985 and Article 270-A in the said Order provided validity to all President's Orders, Martial Law Regulation, Martial Law Orders and all other Laws made on or after fifth July, 1977, the question arises whether the Referendum Order, 1984 and the amendments incorporated in the Revival of Constitution Order can he subjected to a judicial scrutiny. It may be pointed out that General Mohammad Zia-ul-Haq initially assumed legislative powers including power to amend the Constitution by virtue of the Supreme Courts' Judgment in Begum Nusral Bhutto's case, ibid. Such powers were given to him by the Supreme Court while invoking the doctrine of necessity, which" as held by the Supreme Court itself, is a doctrine of condonation and not validation. Notwithstanding the fact that the Supreme Court in the case of Zulfiqar Ali Bhutto (PLD 1978 SC 40) and this court in Haji Abdullah's case (PLD 1980 Kar. 498) held that such power was not subject to restrictions and thereafter, Provisional Constitution Order 1981 was promulgated, the Revival of the Constitution Order, 1985 and Article 41(3) and (7) incorporated therein cannot hold the same status as Constitutional provisions and acquire immunity from judicial review under Article 270-A, as incorporated in the said Order. Furthermore the Provisional Constitution Order under which the Revival of the Constitution Order was promulgated, itself could not enjoy the same status as a constitutional instrument without grant of validation by the Parliament (See p.84 of Slate v. Ziaur Rahman PLD 1973 SC 49). Refering to Article 270-A, now incorporated in the Constitution, the learned Chief Justice in Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) said:

".................... During the specified period, the Constitution was in abeyance and so were the fundamental rights. Therefore, the power to enact legal measures which was derived from the proclamation of fifth day of July, 1977, and the Laws (Continuance in Force) Order was without any limitation as to the subject of legislation. There was no occasion, however, for any conflict of the legal measures, the state of things then existing with any constitution."

It was further observed:

"Having regard to the purpose of validation the defects in the legal measures when enacted during the specified dates had to be cured in the state of things as they existed which, of course, did not include any violation of a Constitutional norm; and validity in this context could not be said to have achieved anything more than this".

However, Mr. Justice Muhammad Haleem was examining the effect of Article 270-A after it was incorporated in the Constitution. Article 270-A as embodied in „ the Revival of Constitution Order cannot assume the same status. Therefore in my opinion, the Revival of Constitution Order 1985, notwithstanding Article 270-A incorporated therein is not immune from judicial review under Article 199 of ,the Constitution.

47. In Saecd Ahmad's case, ibid, the following observations made by Hamoodur Rchman, C.J., appear at page 172 of the report:

"For the reasons given above, we have come to the conclusion that the High Court rightly decided the preliminary objection. Action or proceedings taken without jurisdiction or mala fide or orders of judicial or </«a.«'-judicial nature which arc coram non judice are not validated by either clause (2) of Article 281 of the Interim Constitution as amended by the President's Order No. 3 of 1973 or by clause (2) of Article 269 of the Permanent Constitution".

In Shamimur Reham v. Government of Pakistan (PLD 1980 Kar. 345), SA.Nusrat,, J. who delivered the judgment of the Division Bench observed:

"If therefore, it can be successfully demonstrated that a legislative instrument was conceived in bad faith and enacted mala fide or for any collateral purpose there seems no reason for holding that such an instrument could not be declared void".

The judgment hi the above case was not upheld by the Supreme Court but the facts of the present case are distinguishable as mala fides appear on the face of the Referendum Order. Even in the said case decided by the Supreme Court (PLD 1983 SC 457) Zafar Hussain MirzaJ. did not concur with the opinion of the Hon'ble Acting Chief Justice vis-a-vis the concept of limitation on the judicial power of scrutiny, although he agreed with him on all other issues involved in the case. M.S.H. Qureshi, J. agreed only to the extent that Martial Law Regulation No. 103 was immune from scrutiny by virtue of Art. 281(1) and Art. 269(1) of the interim and permanent Constitutions respectively. Shafiur Rehman, J. however fully concurred with the Hon'ble Acting Chief Justice.

48. I now turn to the apprehensions shown by Mr. S.M.Zafar and Mr. AA..Fazeel, according to whom, many important offices and institutions would be rendered on est if the said amendments to the Constitution are held to be null and void. The size of the National Assembly has been altered by amendment of Art. 51 of the Constitution and the number of seats therein has been increased. So is the case with Senate as the number of its Members has been increased from 63 to 87. (See Article 59 of the Constitution). The electoral college for the election of President has been altered by amendment of Article 41(3) of the Constitution. The mode of appointment of the Prime Minister has also been altered. (Article 91(2) of the Constitution). All such offices and institutions would therefore be rendered non est, according to S.M.Zafar, and many others as referred to by him. Although the apprehensions shown by the learned counsel are not incorrect and I am not unmindedful of the duty cast upon us to preserve rather than destroy the legal order now existing in the country, particularly when it is still in the process of complete transition from Martial Law to a democratic order and as was observed by Shafiur Rehman, J in Federation of Pakistan v. Muhammad Saifullah Klian (PLD 1989 SC 166), "the court will stand for constitutionalism rather than departures and deviation from it" but as was observed by the Supreme Com? in MissAsma Jilani v. Government of Punjab (PLD 1972 SC 139), all such acts which tend to advance or promote the good of the people required to be done for the ordinary orderly running of the State can be condoned. Hamoodur Rehman, C J., at page 206 of the report in the said case has observed:

"I too am of the opinion that recourse has to be taken to the doctrine of necessity where the ignoring of it would result in disastrous consequences to the body politic and up§et the social order itself but I respectfully beg to disagree with the view that this is a doctine for validating the illegal acts of usurpers in my humble opinion, this doctrine can be invoked in aid only after the Court has come to the conclusion that the acts of the usurper were illegal and illegitimate. It is only then that the question arises as to how many of his acts, legislative or otherwise should be condoned or maintained notwithstanding their illegality in the wider public interest. I would call this a principle of condonation and not legitimization.

"Applying this test I would condone (1) all transactions which are past and closed, for, no useful purpose can be served by reopening them (2) all acts and legislative measures which are in accordance with, or could have been made under, the abrogated Constitution or the various legal order, (3) all acts which tend to advance or promote the good of people, (4) all acts required to be done for the ordinary running of the State and all such measures as would establish or lead to the establishment of, in our case, the objective mentioned in the Objectives Resolution of 1949. I would not, however, condone any act intended to entrench the usurper more firmly in his power or to directly help him to run the country contrary to its legitimate objectives. I would not also condone anything which seriously impairs the rights of the citizens except in so far-as-they may be designed to advance the social welfare and national solidarity."

49. Following the observations made by Hamoodur Rehman, C.J., in the aforesaid case, the National Assembly elected under the amended Constitution may continue to function till the next Assembly is elected by the people of Pakistan in accordance with the provisions contained in the Constitution of 1973 in its original form, the elections of the President and the Prime Minister untill
the expiry of their present term of office likewise may also not be disturbed. Similarly, all appointments made under the amended Constitution may continue to remain valid as if they were made under the 1973 Constitution, unamended. I would also condone all other acts and transactions which advance or promote the good of the people and which are for the advancement of the democratic order in Pakistan. However, the Senate cannot continue to function, being a permanent body. Mr. S.M. Zafar has referred to clause (3) of Article 59 of the Constitution, according to which "The Senate shall not be subjected to dissolution". However, no obstacle has been created for the courts and the Senate if not constituted in accordance with the Constitution can be declared as non est by the courts under Article 199 of the Constitution. No doubt we have taken oath under the .Constitution to preserve and protect it but can we sustain a provision thereof which is ab initio void? The power to declare such provision as non est is inherent in the courts under article 199 of the Constitution.

50. In the result, I would allow these petitions and declare the Constitution (Eighth Amendment) Act 1985 and the impugned amendments in the Constitution as null and void and of no legal effect. I would further hold that the election to and the constitution of the Senate and the extention of the term of its

J Members from four to six years is violative of the Constitution and hence without ] lawful authority.

1970	57.96%	52.77%	59.87%	53.54%
1985	51.90%	56.12%	56.12%	57.37%
1988	42.33%	42.69%	43.00%	43.20%