P L D 1966 LAHORE 43


Frame (1)

(a) Constitution of Pakistan (1962), Arts. 224(1), 225(1), 131(1) & 29
Constitution of Pakistan (1973), Arts. 265, 268, 203 & 86

Whether Central Legislature or President, could legislate so as to give retrospective effect to legislation beyond 8-6-62, i.e. date on which Constitution came into force—Whether amendment of S. 31, Displaced Persons (Compensation and Rehabilitation) Act, 1958 by Displaced Persons Laws Amendment Ordinance (XVIII of 1965) could not be given retrospective effect beyond 8-6-62 Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 31 [as amended by Displaced Persons Laws Amendment Ordinance (XVIII of 1965)].

The question involved in a writ petition was whether the Central Legislature under Article 131 of the President under Article 29 of the Constitution of Pakistan (1962), could legislate so as to give retrospective effect to a legislation beyond the date when the Constitution came into force. The argument put forward by the petitioner was that the amendment made in section 31 of the Displaced Persons Laws Amendment Ordinance (XVIII of 1965) gave retrospective effect to acts done prior to 8-6-62, i.e., the date on which the Constitution came into existence and as such the provision of the Ordinance to that extent was void. Relying on Article 224(1) and 225(1) of the Constitution it was urged that the Legislature derives its powers from the constitution and the Constitution having come into force on 8-6-62 the President was not competent to legislate so as to take away vested rights beyond 8-6-62.

Held : Reading Article 131 and Article 29 of the Constitution together, one thing is clear that no limitation has been put on the power of the Legislature except that the Central Legislature cannot legislate with respect to any matter not enumerated in the Third schedule to the Constitution. The Central Legislature is a sovereign body and there is not reason to put any fetter or limitation on its power, and none can be construed from the Constitution itself. The President has the same power to legislate under Article 29 of the Constitution. The Displaced Persons Laws Amendment Ordinance (XVIII of 1965) cannot, therefore be challenged on the ground that it has been given retrospective effect beyond 8-6-62). [p. 46] A

Commentary on Fundamental Law of Pakistan, (1958 Edn.) by A. K Brohi considered.

(b) Constitution of Pakistan (1962), Arts. 30(9), 6 & 98
Constitution of Pakistan (1973), Arts. 232, 8 & 199

Read with Arts. 6 & 98—No point regarding infringement of any fundamental right raised in writ petition—Mere submission at bar at time of argument regarding such infringement—Would not make proceedings “pending in Court” within meaning of Art. 30(9) so as to keep proceedings in abeyance during period Proclamation of Emergency remains in force. [p. 47] B

I am of the view that there is no proceedings pending in respect of the said Fundamental Right as the same point has not been taken in the petition before me. It was open to the petitioner to have amended the petition so as to include the Fundamental Right about equality. The mere submission at the Bar at the time of arguments could not, in my opinion, amount to proceedings pending in Court. (p. 47) B

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