The Constitution of Pakistan, 1973 Developed by Zain Sheikh

 PLD 1973 SC 49

STATE

Versus

ZIA-UR-REHMAN AND OTHERS 

Per Hamoodur Rahman, J.

(a) Constitution of Pakistan (1973) Arts. 199, 238, 268, 270

Reading these provisions together, as we are entitled to do, for, the Constitution has to be construed like any other document reading it as a whole and giving to every part thereof a meaning consistent with the other provisions of the Constitution, the net result of clause (1) of Article 281 is merely to bring about a national validation, for, immediately clause (1) of Article 281 came into effect, clauses (2) and (3) of Article 280 also became operative simultaneously. As a result thereof, in respect of the Martial Law Regulations and Martial Law Orders repealed by Article 280(3), the provisions of Article 295 became attracted, and even the few Martial Law Regulations and Martial Law Orders, specified in the Seventh Schedule, which are to continue, have to be treated as and to have effect as sub-constitutional legislative measures which will be open to the judicial scrutiny of the Courts, for, their validly will always be open to scrutiny and capable of being tested on the basis of the provisions of the Constitution itself, the Supreme or Organic Law. [p. 85]

Now the next question is as to whether acts which are done mala fide are protected by these words. There are some decisions of the British Indian High Courts, which have been referred to in the impugned judgments of the High Court, where it has been held that, if an act within the jurisdiction of a public officer is done mala fide in exercise of that jurisdiction it can be said that it is an act “purported” to be done by that officer in his public capacity. But so far as this Court is concerned, it has, in several cases laid done that mala fide acts are not exempt from judicial scrutiny.

In the case of Zafar-ul-Ahsan v. The Republic of Pakistan (2), while consideration the ouster clause in clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958, which expressly said that an order of the authority mentioned in clause (3) of that order “shall not be called in question in any Court”, Munir, C.J. observed:-

                “If a statue provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statue, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statue, and the order made should be such as could have been made under the statue. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statue, the omissions or irregularity alleged will be a matter for that authority, and not, as rightly observed by the High Court, for a Court of law. Of course where the proceedings are taken mala fide and the statue is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute.”

It will be observed that this too was a case of an ouster of jurisdiction of the Courts by express words contained in a supra-Constitutional document. Nevertheless, the learned Chief Justice pointed out with great clarity the conditions under which the ouster would be operative and he in no uncertain terms excluded therefrom proceedings taken mala fide or cases in which the stature was merely being used as a cloak to cover an act which, in fact, is not taken, even though it purports to have been taken under the statute.

This again emphasizes the same point that if the statute is being used merely as a cloak for a purpose which is not covered by the statue, then, even the ouster clause, will not operate to exclude the jurisdiction of the Courts to review the official act concerned in exercise of the power conferred by the Constitution itself e.g. by Article 201.

It has also been held by this Court that an act done mala fide is an act without jurisdiction. Thus, in the case of Abdul Rauf v. Abdul Hamid Khan (1), Kaikaus, J., while delivering the unanimous judgment of the Court, observed:-

                “A mala fide act is by its nature an act without jurisdiction. No Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power. A mala fide order is a fraud on the statute. It may be explained that a mala fide order means one which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior purposes.”

(1)    PLD 1965 SC 671

Again, in the judgment of the Court in the case of Mohammad Jamil Asghar v. The Improvement Trust (1), the same learned Judge observed :

                “However, with respect to mala fides the jurisdiction of the civil Court can never be taken away for a mala fide act is in its very nature an illegal and void act and the civil Court can always pronounce an act to be mala fide and therefore void.”

I have myself, in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (2), where too the question of ouster of jurisdiction of the High Court was raised, held that, in the discharge of its duties under Article 98 of the Constitution of 1962, corresponding to Article 201 of the Interim Constitution, the High Court would have the right to determine the circumstances in which a detention could be said to be detention in an unlawful manner and that in so doing the High Court would be entitled to go into the question of mala fides or colourable exercise of power, for, such exercise of power is not regarded to be action in accordance with law.

It will thus be seen that, so far as this Court is concerned, it has consistently held the view that a mala fide act stands in the same position as an act done without jurisdiction, because, no Legislature when granting a power to do an act can possibly contemplate the perpetration of injustice by permitting the doing of that act mala fide. I am, therefore, of the opinion that the words “purported to be done or done in the purported exercise of powers” cannot cover acts which were not done by persons empowered under the statue or the legislative measure to so act or were clearly beyond the scope of the powers given by the statute or were done mala fide or by practicing a fraud upon the statue for a colourable purpose. I, therefore, agree with the majority view which prevailed in the High Court that clause (2) of Article 281 of the Interim Constitution does not validate acts which are coram non judice or without jurisdiction or done mala fide. [pp. 86, 87, 88] V and continuation

It is well-established rule of interpretation that where in a statute there are both general provisions as well as special provisions for meeting a particular situation, then it is the special provisions which must be applied to that particular case or situation instead of the general provisions. Applying this principle of generalia specialibus nom derogant, the provisions of Article 295 will have to be applied to the repealed legislative measures and thereunder it is significant that only acts “duty done” or things “suffered under the law” are protected. Acts done mala fide or without jurisdiction or acts which are coram non judice would clearly not be acts “duly done” and, therefore, the protection would not extend to such acts. [p. 89] W and continuation

In either view of the matter, therefore, the conclusion to which I have arrived is that the validity given by clause (2) of Article 281 of the Interim Constitution to acts done or purported to be done in exercise of the powers given by Martial Law Regulations and Orders  since repealed or even in the purported exercise of those powers do not have the effect of validating acts done coram non judice or without jurisdiction or mala fide. Such an interpretation, in my view, not only gives full effect to the provisions of the Interim constitutions but also administers the will of the Law-maker as far as it can be gathered from a harmonious reading of the provisions of clause (2) of Article 281 along with some of the other provisions of the same Constitution without departing from the well-recognized principle that the Legislature should not be imputed the intention of perpetuating or perpetrating an injustice. [pp. 89, 90] X and continuation