P L D 1990 KARACHI 9




Per Ajmal Mian, C J.

(a) Constitution of Pakistan (1973)— Arts. 199, 51, 41, 75, 239, 270-A, 2-A, 175(2), 59(3), 106, 184(3), 90, 91, 17, 184 & 207-A

I am inclined to hold that it is too late to declare that the National and Provincial Assemblies, which came into existence as a result of partyless elections in 1985 had no legal status or that they were illegal bodies, for the reasons urged by Mr. Yahya Bakhtiar or by the two or by the two petitioner in the first two petitions and the learned counsel for the petitioner in the third petition. Through 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 in getting the Martial Law lifted. [p.49] A.

In my view the very fact that the Supreme Court maintained the judgment of the Lahore High Court declaring that the dissolution of the National Assembly was without jurisdiction indicated that the legal status of the National Assembly was not doubted through it came into existence on the basis of the partyless elections. However, it has been submitted that the Supreme Court had Left the question of legality  of the National Assembly open [p.50] B.

In my view Mr. Sabihuddin’s contention that there was no constitutional deviation involved in holding of elections on non-party basis in 1985 as the same were held under President Order No. 5 of 1977 which allowed such elections, seems to be correct. Additional the effect of holding that Article 270-A was competently incorporated would be that P.O. No. 5 of 1977 and other laws pertaining to elections including elections upto the date of enforcement of the fundamental Rights are protected. [p. 54] E.

Adverting to Mr. S.A. Wadood, learned Dy. Attorney-General’s submission that the amendments were made in the Constitution for the benefit of an individual and, therefore, the same cannot be sustained, it may be observed that after having held that the Parliament, which came into existence as a result of 1985, was legal, I cannot go into the above question, as it was for the members of the National Assembly and the Senate to have examined the effect of the amendments. [p.59] H.

Since I have held that the elections for the National and Provincial Assembly non-party basis in 1985 were in accordance with law then in force as Article 17 of the Constitution was under suspension, natural corollary of the above conclusion would be that no exception can be taken to the factum that the present Senate was elected by the Assemblies which were elected on non-party basis. [p.72] P.

In presence of the above judicial pronouncements of the Superior Courts, in my opinion, it is not open to this Court to hold that the Parliament was not legally constituted. The contention of Mr. Nasim Faruqui in this regard seems to be correct. [p. 54] C.

I may point put that there is a marked distinction between refusal to exercise discretion in favour of restoration of a dissolved Assembly, after having held its dissolution as illegal under Article 199 of the Constitution and to give a declaration under the above Article that an assembly was illegal, the Court cannot give such a declaration unless violation of a provision of law is shown, which in the instant case is missing. [p. 54] D.

I may also observe that even otherwise, the competency of the members of the National Assembly is protected by the doctrine of de facto. The latter doctrine I intend to deal with more in detail in later part of this opinion. However, for the time being, it will suffice to quote hereinbelow from the judgment in the case of Lt.-Col. [p.54] F.

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. [p.63] I.

It is, therefore, evident that the consistent view of the Pakistan Supreme Court 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 the Constitution. [p.70] J.

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 amended provision of the Constitution on any ground other than that the same has been made in a manner different to the prescribed by the Constitution, it must follow that no exception can be taken to the above amendment. I am also inclined to subscribed to Mr. Sabihuddin’s submission that increase in the number of seats of the Senate and extension of its term from four years to six years do not change the basic structure of the Constitution. [p.72] N

However, the same cannot nullify the effect of the pronouncement of the Pakistan Supreme Court contained in the above-cited cases. I may also observe that the natural corollary of holding that Article 270-A has been competently enacted would be that it would provide protective cover to the assailed Constitutional amendments. [p. 70] K.

I am, therefore, of the view that in presence of the above unambiguous dictums dictums of the Pakistan Supreme Court, it is not open to this Court to hold that a provision of the Constitution can be struck down on the ground of its being ethical notions or of philosophical concepts of law or of the basic structure. [p. 70] L.

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. [p.70] M.

Since I have held that the elections for the National and Provincial Assembly non-party basis in 1985 were in accordance with law then in force as Article 17 of the Constitution was under suspension, natural corollary of the above conclusion would be that no exception can be taken to the factum that the present Senate was elected by the Assemblies which were elected on non-party basis. [p.72] P.

No doubt, if I were to give declaration that the present Senate has not been legally constituted and if I were to order its fresh election on party basis, it will amount to dissolution of the present Senate, which is prohibited by the above clause 3 of Article 59 of the Constitution.
[p.73] Q.

In my view a distinction is to be made between a prospective right of franchise which has already been conferred by the relevant law and prospective right of franchise, which is to be conferred by law to be enacted. The former right may be enforceable through a constitutional if the functionary entrusted to hold election fails to do so, the latter right cannot be pressed into service through a constitutional petition. I may also observed that under Article 199 except a writ of habeas corpus petition and a writ of quo warranto, which can be invoked by any person, the other writs can be prayed for by an aggrieved party, whereas under Article 184 (3) there is no requirement that only an aggrieved party can press into service the above provision, but the Supreme Court can entertain a petition under the above provision at the behest of any person. [p.73]R & S.

The above judgment was upheld by the Supreme Court in the often referred case of Haji Saifullah. In the instant case the Senate came into existence in March, 1985 and half of its members retired in March, 1988 and in their place new members were elected. The first petition has been filed in April, 1989, in my view, the petitions suffer from laches. However, a petition, which involves questions of public importance as to the interpretation of the Constitution, cannot be dismissed on the ground of laches alone in view of the above judgment of the Supreme Court in the case of Haji Saifullah.[p.74] U, V.

I may observe that there is a distinction between a political case and a political question. A political case may be subject to adjudication by the Court but a sensitive political question may not be subject-matter of adjudication. The challenge to the English 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 through the case relating to it may be termed as a political case. In contrast to it the question, what should be the balance of power inter se between the President and the Prime Minister is a sensitive political question of the nature which is not suited for adjudication by a Court but can be resolved by a Court but can be resolved by the Parliament or by the people. [p.77] W, X.

On the contrary, I am of the view that Supreme Court having unanimously held the dissolution of Assemblies, which came into existence as a result of partyless elections of 1985, as illegal and un-constitutional in the case of federation of Pakistan v. Muhammad Saufullah Khan, tacitly accepted their validity, for only in the case of a validity constituted body its dissolution could be declared illegal and unconstitutional. [p.99] EE.

The above discussion leaves no room for any doubt in my mind that the Assemblies elected in 1985 were legally and validly constituted. [p.108] FF.

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 their objection to the validity of these amendments rests mainly on the ground that these 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 Minster under the Constitutional, as it originally stood, has now titled in favour of the President. In my humble opinion these controversies are more of a political nature than to be treated as a legal controversy. Neither the learned counsel for the petitioners, nor the learned Attorney-General, was able to point out any 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. [p.109] GG.

It is, therefore, quite clear that provisions in the Constitution relating to National and Provincial Assemblies were in full force and operation as and from 10-3-1985 and as such the National and Provincial Assembly could legally function from this date. The Constitution was further amended on 17-3-1988 by two President 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 16-10-1985. 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 30-1-1985, the country was passing through a transitory phase in which preparations were being made to switch over to Constitutional 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 in force 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 Martial Law was still in force in the country. After all a valid order had to come into existence before power could be transferred by the Military dictator to the C.P. No.163 of 1989. [p. 115] LL

Before ending the discussion on the validity of Eighth Amendment, one more aspect needs to be mentioned here, which, in my opinion is not only important but goes to the root of the controversy. On 31st of December, 1985 all the Judges of this Court took Oath under the Constitution which stood amended by the Eighth Amendment. None of the present Judge of this Court had taken the Oath under the Constitution as it stood before its amendment by the Eighth Amendment. In these circumstances, the Oath taken by the Judges of this Court was far all practical purposes an Oath under the fist 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. [p.116] MM

Petitions allowed

Date of hearing: 25th to 28th September; 1st 2nd and 8th October 1989.

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