P L D 1975 SC 506



CONSTITUTION OF PAKISTAN (1973), ARTICLE 144.The learned Deputy Attorney-General has contended that, in any event, clause (ii) of Article 133 of the Constitution of Pakistan of 1962 debars the Courts from calling in question the validity of a law on the ground that the Legislature, by which it ws made, had no power to make it. Learned counsel cointends that the responsibility for deciding whether a particular Legislature had power, under the said Coinstitution, to make a law or not, was of the Legislature itself and since the Legislature had approved the said Ordinance their vires could not now be challenged.

This latter Article came up for consideration before this Court on more than one occasion. Firstly, in the case of FAZLUL QUADER CHOWDHRY V. MUHAMMAD ABDUL HAQUE (2) this Court was unanimously of the view that Article 133 of the 1962 Constitution does not debar the superior Courts from pronouncing upon the constitutionality of law. If it operated as a bar at all, it only debarred the Courts from enquiring into the question as to whether a matter was within the Third Schedule or outside it or whether the impugned legislastion was made in violation of Article 131 or 132.[ ]

Article 133 is coinfined to questions relating to the competency of the Central or the Provincial Legislature or the President or the Governor to make laws with respect to matters in the Legislative Lists set out in the Third Schedule to the Constitution and does not extend beyond those matters.

It did not operate, therefore, as a general ouster of jurisdiction of the Courts from examining the coinstitutionality of a law on any other ground.

This Article again came ukp for consideration in the case of EAST PAKISTAN V. SIRAJUL HAQ PATWARI (1).Cornelius, C.J., there observed :-

“Speaking generally, the view I have formed of the Intention Article 131 to 134 of the Constitution is that the validity of laws made by the various Legislatures is not to be tested by reference to power derived from these provisions, as a theoretical proposition.”

In this case, it was also pointed out that the scheme of the 1962 Constitution was different from the earlier Constitution as under this Constitution, a Provincial Legislature had no exclusive power to legislate with regard to any mnatter. On the other hand, although the Provincial Legislature could not legislate with regard to any matter enumerated in the Third Schedule, which was within the exclusive competence of the Central Legislature, the rest was in the nature of a concurrent field subject to the limitationss specified in clauses (ii) and (iii) of Article 131. Thus where a central law in respect of a matter not enumerated in the Third Schedule had been enacted without fulfilling the conditions prescribed in clauses (ii) and (iii) of Article 131, it could be challenged, but not on the ground of competency of the Legislature. The challenge could only be made on the ground that the conditions specified in the Constitution had not been fulfilled, because once the conditions are fulfilled, the legislation comes within the normal powers ofthe CentralLegislature and there is no question of either pre-empting to move the subject to the exclusive field of the Central Legislature or removing it from the exclusive filed of the Provincial Legislature, because the Provincial Legislature has no exclusive field at all.It does, therefore, appear from these decisions that the superior Courts are debarred from questioning the validity of a law only on the ground of the lack of competency of the Legislature but it is unnecessary in this case to go into this matter in any greater detail, since the view that Ihave taken is that the impugned Ordiances are within the exclusive legislative competence of the Central Legislature and fall directly within items 1, 48 and 49 of the Third Schedule.In so far as the subversion of the loyalty of the members of the armed forces is concerned, it is in my view, a matter substantially and directly, connected with thje defence of Pakistan. In any event, the Provincial Legislatures could nothave amended the Army Act, which was a Central Law, by reason of the provisions of Article 134 of the Constitution of 1962. In either
view of the matter therefore, the impugned Ordinances could only have been made and promulgated by the Central Legislature or the President under Article 29, when the Central Legislature was not in session.[P. 527]I

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