The Constitution of Pakistan, 1973 Developed by Zain Sheikh

MOHAMMAD AKHTAR HUSSAIN AND OTHERS

V/S

GOVERNMENT OF WEST PAKISTAN AND OTHERS

Frame (2)

(a) Constitution of Pakistan (1962) Arts. 110, 17, 175 & 177
Constitution of Pakistan (1973) Arts. 241 55 & 248(1)

Held, the word “law” has not been defined in the Constitution. In Article 242 only “Central law” and “Provisional law” have been defined. Central law means “a law made by or under the authority of the Central Legislature, and includes a law made by the President”. Similarly, a Provincial law means ” a law made by or under the authority of a Provincial Legislature, and includes a law made by the Governor”. Under this definition it is not clear whether rules framed in exercise of powers given by the Constitution after its coming into force or by a subsequent statute would have the status of law but an Ordinance promulgated by the Governor would certainly come within the definition of “Provincial Law” as given in Article 242. since an Ordinance is definitely a law and clause (1) of Article 234 is subject both to the Constitution and the law, it cannot be said that the terms and conditions, other than those relating to remuneration and age of superannuation, applicable to a public servant at the time of the coming into force of the Constitution cannot be altered to his disadvantage. Whenever the Constitution intends that a particular provision should be subject not only to the Constitution but also to a law enacted by virtue of powers granted by the Constitution it has so provided but where the intention is to make the provision subject only to the Constitution it has been so expressed, e.g. in Article 110, 117 and 177 which are only subject to the Constitution while Articles 178 and 179 are like Article 234 subject both to the Constitution and the law. This difference in the language employed by the makers of the Constitution is not without significance. The difference in terminology is being maintained throughout the Constitution so consistently that it becomes manifest that where the provisions are intended to be unalterable save by an amendment of the Constitution, they are being made subject to the Constitution only but in other cases subject to both the Constitution and the law. It would also appear from the provisions of clause (3) of Article 178 that the guarantee that is being given by the Constitution to public servants is only to this extent by the Constitution to public servants is only to this extent that their remuneration and ages fixed for superannuation will not be varied to their disadvantage during the period of their service but there is no guarantee with regard to the other terms and conditions of service. A comparison between these provisions would also make it clear that Article 234 was not intended to guarantee make it clear that Article 234 was intended to guarantee anything more than the continuance of the existing state of affairs during the transitional period or until other provisions is made either by the Constitution or some competently made law. It is, therefore, not correct to say that Ordinance XLI of 1963 was bad by reason of being repugnant to the provisions of Article 234 of the Constitution. [p. 154] B et seq

It is well settled that legislation may be made both prospectively and retrospectively but normally legislation, which is not of a purely procedural nature, will not be given retrospective effect so as to take away vested rights unless the Legislature has used express words in that behalf or such an intention necessarily flows from the language of the statute. There are express words in the Ordinance XLI of 1963 giving it retrospective effect. By saying that the Rules of 1943 shall be deemed to have been repealed “with effect on and from the first day of January 1946” the Ordinance made its intention abundantly clear and there could be no room for doubt that the abundantly clear and there could be no room for doubt that the repeal was being made with retrospective effect. It is difficult to construe Article 2 of the Constitution as conveying a fundamental construe Article 2 of the Constitution as conveying a fundamental right in every citizen of Pakistan and every person for the time being within Pakistan against the making of laws by the established Legislatures, which expressly operate retrospectively or retroactively against his interest. [p. 156] D & E

The repeal effected by the Ordinance remained effective even after the Ordinance itself was deemed to have been repealed. As stated by Maxwell in his Interpretation of Statutes (11th Edition) at page 389, the common law rule undoubtedly was that the repeal of a repealing enactment “revived the first ab initio” but since the passing of the Interpretation Act, 1889, the rule does not apply to repealing statutes passed after 1850. The rule now is that “where an Act repealing, in whole or in part, a former Act, is itself repealed, the last repeal does not now revive the Act or provisions before repealed, unless words be added reviving them”. Article 250 of the Constitution of 1962 appears to have adopted the latter rule. [p. 157] F & G