The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Decision of Supreme Court”—Means learned Judge—Majority, and minority, and minority decisions—Rules of construction.

It goes without saying that the law declared by the Supreme Court of Pakistan is binding on all Courts in the country under Article 63 of the Constitution of 1962. It can be readily conceded, however, that it is the decision of the Supreme Court, to distinguish it from the individual opinion of the learned Judges, which is binding on all the Courts in Pakistan. The Supreme Court as such is a legal institution. It operates under mandate of the Constitution and functions through natural persons who adorn it as its Judges. The “decision of the Supreme Court” means the decision by the majority of the Judges constituting the Bench hearing a case. The voice of the majority of the Judges is the voice of the Supreme Court as such. It cannot be suggested that the decision of the Supreme Court on the questions on legal importance, must be backed by an over-all majority of the learned Judges hearing the case, before it can be applied as a good precedent to be followed in the future. The correct approach in al such cases of difference of opinion between the Judges is to ascertain the ratio decidendi on which the judgment of the majority is based. It is the Court’s duty and obligation under Article 63 of the Constitution to faithfully discern the judgment of the Supreme Court, recognise the reasons behind the order made by it and firmly apply the decision to the extent it decides a question of law or is based upon or enunciates a principle of law as deduced from those reasons. The judgment of the majority of the Judges constituting the Bench hearing the appeal, is the judgment of the Supreme Court which is to be looked at in order to ascertain the ratio decidendi behind it. The reason behind the judgment of the Court, and the grounds upon which that decision is based, have to be ascertained with care. In case of separate judgments by the Court giving different reasons for the decision, the Court must find out for itself which of the judgments are to be relied upon and to what extent as giving the real reasons for the decision, the Court must find out for itself which of the judgments are to be relied upon and to what extent as giving the real reasons or the grounds behind the decree or the final order passed by the Court on which it is based. There may be additional or supplemental grounds in those judgments on which it is based. There may be additional or supplemental grounds in those judgments on which the decision of the Court is resting. But other observations, if any, in some of the majority judgments are to be ignored in arriving at the pith and substance of the decision. The minority view, on which the decision of the Court does not rest, has got to be ignored in processing the decision. The “real reason or the real ground of the decision” and the law derived from the judgments of their Lordships of the Supreme Court has got the binding force under Article 63 of the Constitution. [pp. 898, 899 901] B, C, D, E & F

(d) Constitution of Pakistan (1962), Art. 124
Constitution of Pakistan (1973), Art. 205

Legal Practice (Disqualifications) Ordinance (II of 1964), s. 3—Ordinance ultra vires qua Judges of Superior Courts who immediately before the “commencing day” of Constitution of Pakistan (1962) were as of right entitled, under Art. 3 of Retired Judges (Legal Practice) Order, 1962, to resume practice—such right and privilege guaranteed and protected by virtue of Art. 124, constitution of Pakistan (1962) and cannot be altered by Act of Central Legislature—Protection afforded by Art. 124, Constitution of Pakistan (1962), however, does not extend to ex-Judges who retired before “commencing day” of Constitution of 1962 and as such provisions of Legal Practice (Disqualifications) Ordinance )II of 1964 qua such Judges not ultra views—Retired Judges (Legal Practice) Order (21 of 1962), Art. 3—Constitution of Pakistan (1962), Art. 124.

The validity of the Legal Practice (Disqualifications) Ordinance, 1964 was attacked on the ground that the Ordinance has attempted to alter the terms and conditions of service of the Judges of the Superior Courtesy providing that they shall not practice in those Courts after their retirement and for that reason the Ordinance was ultra views Article 124 of the Constitution of Pakistan (1962):

Held, the terms and conditions of service of the judges of the Superior Courts are in no way dependent upon any Act of the Legislatures. Basically these are specified in the Constitution. This is very necessary in order to preserve the independence of the judiciary. These provisions are also in keeping with the position in most of the other countries where the terms and conditions of service of the Judges of the superior Courts are laid in the constitution or determined by the Head of the State and are secured against any interference by the Legislature. In the Second Schedule to the Constitution the salary of the Judges is specified. Every Judge of the High Court of a Province is entitled to such privileges and allowances, and to such rights in respect of leave of absence and pension, as may be determined by the President. In this connection even the powers of the President are circumscribed. Beyond that and in other respects the Judge is entitled to the privileges, allowances and rights to which, immediately before the commencing day, the Judges of the High Court of the province were entitled. Immediately before the commencing day, the 8th June 1962, according to the law as it was then prevailing, the Judges of the Superior Courts were entitled as of right to plead and act in them after their retirement. Therefore, this right is assured to the Judges by the Constitution and could not be curtailed by means of the impugned Ordinance of 1964. The distinction between condition on which a judge is appointed to office and difference. In Syed Akhlaque Hussain’s case P L D 1961 S C 431 the Supreme Court was considering as to whether the undertaking, given by Mr. Akhlaque Hussan, as “condition of appointment”, as a permanent Judge of the High Court of Judicature at Lahore in 1954, to the effect that he shall not resume practice in that Court after his retirement, would hold good after he became a permanent Judge of the High Court of West Pakistan established on the 7th of October 1955, in other words whether the undertaking given by him in 1954 was sufficient to prevent him from practising in this Court after it was established. In the opinion of the Supreme Court Article 6 of High Court of West Pakistan Order, 1955, provided that the Judges of the High Court at Lahore who held their appointments immediately before the Constitution of the West Pakistan High Court had to hold their respective offices in the High Court of West Pakistan “on the same terms and conditions” as were applicable to them immediately before. Similarly Article 6 of the Laws (Continuance in Force) Order, 1958, has laid down that every person who immediately before the 7th of October 1958 was in office as inter alia, a Judge of High Court shall continue in the said office ” on the same terms and conditions and shall enjoy the same privileges, if any”. In the light of these provisions of the law, the Supreme Court was of the view that a stipulation of this kind is to be regarded as a term and condition of the service of the Judge that he shall not be entitled to practise in the Court from which he was retired or removed. [p. 911] L

Immediately before the “commencing day” the Retired Judges (Legal Practice) Order (21 of 1962), promulgated on the 2nd of June 1962, was in force. Under Article 3 of this Order the Judges of the Superior Courts were as of right entitled to be enrolled as Advocates in these Courts after their retirement and had a right of audience in them. Therefore, this right and privilege was guaranteed in favour of the Judges by virtue of the provisions of Article 124 read with the Second Schedule of the Constitution. Such a term and condition of service of a Judge of this Court cannot be altered by any Act of the Central Legislature. Consequently the impugned Ordinance is ultra vires qua those Judges to whom this protection afforded by Article 124 of the present Constitution is available. Prima facie the Central Legislature is not even competent under the Third Schedule of the Constitution to legislate about the terms and conditions of the service of a
Judge of the Superior Courts. The Legal Practice (Disqualifications) Ordinance (II of 1964) was promulgated by the President in the exercise of the powers vested in him under Article 29 of the Constitution when the National Assembly was not in session. But by virtue of clause (5) of Article 29, the power of the President in this respect to make laws by making and promulgation of Ordinances extends only to the making of law within the legislative competence of the Central Legislature. In other words it is strictly confined to the matters enumerated in the Third Schedule only.[p.913] M

Of course under Article 133, the responsibility of deciding whether a Legislature has power under this Constitution to take a law is that of the Legislature and that the validity of a law cannot be called in question on the ground that the Legislature by which it was made had no power to make the law. It is a question as to whether the responsibility of the legislature in this respect also extends to the Ordinances promulgated by the President by virtue of the powers vested in him under Article 29, But, on the strength of the authority of the Supreme Court in Fazlul Qadir Chaudhry v. Muhammad Abdul Haque (P. L. D 1963 S C 486) it can be said that the ban imposed by Article 133 of the Constitution against judicial review of laws is not an absolute one. Articles 131, 132 and 133 have to be read together. So construed Article 133 will only bar an enquiry by this Court into the question whether a matter was within the Third Schedule or outside it in the competence of the Provincial Legislature. The jurisdiction of the Courts in respect to all other matters was never taken away by Article 133 of the Constitution. [p. 913] N

The Advocate in the instant case (C. M. No. 439-C of 1966) retired as a judge of the High Court of West Pakistan on the 6th of November 1960. This was at a time when the provisions of Article 166(3) of the 1956 Constitution were continued in force under Article 2 of the Laws (Continuance in Force) Order, 1958. At the time of his retirement there was an absolute prohibition against him not to plead or act in this Court or any Court or authority within its jurisdiction. Judges (Legal Practice) Order (21 of 1962) on the 2nd of June 1962 that the bar was lifted and he became entitled to freely practice in these Courts. The 1962 Constitution came into force only after his retirement and as such he cannot benefit by the provisions of Article 124 which are not applicable to him. In Ghulam Muhammad v. Government of Pakistan and others P L D 1964 Lah. 117, it was held that the provisions of Article 124 which are not applicable to him. In Ghulam Muhammad v. Government of Pakistan provisions of Article 126(2) of the 1962 Constitution were not applicable to a Judge who had retired before it came into force. On the same reasoning, it can be held that Article 124 of this Constitution is not attracted to the case of the ex-Judges who had retired before the “commencing day”. In these circumstances it cannot be said that the provisions of the Legal Practice (Disqualifications) Ordinance, 1964, have in their application to the Advocate, resulted in changing any of the terms and conditions of his service as a Judge of this Court. It would be too much to say that so far as he is concerned, the terms and conditions of his service as a Judge were retrospectively changed by the promulgation of the Ordinance in the year 1964. Therefore, the provisions of the Ordinance cannot be held to be ultra vires qua him. [p. 914] O

Fazlul Qadir Chaudhry v. Muhammad Abdul Haque P L D 1963 SC 486 and Ghulam Muhammad v. Government of Pakistan and others P L D 1964 Lah. 117 ref.

(e) Constitution of Pakistan (1962), Art. 124
Constitution of Pakistan (1973) 205

Read with Second service—Secure from interference by Legislature— No distinctions of between condition on which Judge appointed to office and terms and conditions of his service. [p. 911] L