The Constitution of Pakistan, 1973 Developed by Zain Sheikh

BENAZIR BHUTTO

Versus

FEDERATION OF PAKISTAN AND OTHERS

Per Muhammad Haleem, C. J.

(a) Constitution of Pakistan (1973), Arts. 2(c), 7, 8, 184(3), 270-A(1), 17, 16, 15, 18, 19, 31, 63(g) & 199(1)(c)-

Section 7 of the repealing Ordinance No. XXVII of 1981 saves the continuance of the textual amendments in the parent Act in the absence of any contrary intention expressed in the amending Ordinances. The texts having become a part of the Act, the repeal of the amending Ordinance would not have the effect of disturbing the textual amendments in the parent Act as even otherwise their continuance stands protected not only by the repealing Ordinance terms enacts that “the repeal shall not effect the continuance of any amendment made by the enactment so repealed and in operation at the time of such repeal”. The learned Attorney-General is correct in stating that the textual amendments having become a part of the Political Parties Act, 1962, are saved by Article 270-A. [p. 497] T.

The latter constitutional provisions follow the same pattern while in Article 270-A there is insertion of sub-Articles (3) and (6). Sub-Article (3) continues in force all laws which survived the repeal until altered, repealed or amended by the competent authority while sub-Article (6) categorises these laws into two categories: those specified in the Seventh Schedule and those not so specified. Those so specified could only be amended in the manner provided for amendment of the Constitution while the others could be amended by the appropriate Legislature in the manner provided for amendment of such laws. In effect, therefore, a constitutional status was given to the specified laws while the others were treated as ordinary laws. There was no such distinction in Articles 281 of the Interim Constitution or 269 of the 1973 Constitution. However, it will be here convenient to refer to sub-Articles (1) and (3) of Article 280 of the Interim Constitution. While sub-Article (1) continues in force all existing laws until altered, repealed or amended by the appropriate Legislature, sub-Article (3) repeals all Martial Law Regulations and Martial Law Orders except those which are specified in the Seventh Schedule and deemed to have become an Act of the appropriate Legislature. By the proviso to this sub-Article, it was provided that no Bill to amend or to repeal any of the Martial Law Regulations or the Martial Law Orders so specified shall be introduced or moved without the previous sancition of the President. Sub-Article (1) of Article 268 of the 1973 Constitution further provides that “subject to the Constitution” all existing laws shall continue in force until altered, repealed or amended by the appropriate Legislature. Sub-Article (2) of this Article, however, gives protection to those laws which are specified in the Sixth Schedule in terms that they cannot be altered, repealed or amended without the previous sanction of the President. None of these constitutional provisions are alike sub-Article (3) and sub-Article (6) of Article 270-A of the 1973 Constitution. While sub-Article (3) of Article 2nd of the interim Constitution gives protection to the Martial Law Regulations and Martial Law Orders specified in the Schedule by curtailing the power of the Legislature to amend it without the previous sanction of the President, sub-Article (6) of Article 270-A makes no mention of Martial Law Regulations or Martial Law Orders but only President’s Orders and Ordinances, which cannot be amended or repealed except as by the procedure prescribed for amendment of the Constitution.

The textual changes of Article 270-A of the 1973 Constitution cannot be ignored while considering the argument of the learned Attorney-General which clearly reflect the intention of the Legislature not to treat laws not specified in the Schedule immune from attack on the ground of violation of the constitutional norm. the words “subject to the Constitution” which makes the laws subordinate to the Constitution even if they were not used in sub-Article (3) of Article 270-A of the 1973 Constitution will not make any difference because of the textual changes in this Article which clearly makes a distinction between laws which are amenable to attack and those which are not. Even otherwise without these words the ordinary laws are subordinate to the Constitution. It will also serve no useful purpose if this sub-Article is read in conjunction with Article 270-A as the latter deals with conferring validity on the legal measures and ouster of jurisdiction of Court while the former concerns itself with the continuance of the survived laws. In construing constitutional provisions the expression used in one provision cannot be lifted and superimposed on the other provision which is not only against the canons of interpretation but also makes the reading of the provisions as a whole discordant. [p. 511] CC.

This is in my view an affirmation of a two-nation theory. The concept of Islamic Ideology is interwoven with the Ideology of Pakistan and is inseparable as it is the foundation of two-nation theory. Therefore, “integrity of Pakistan” not only includes Ideology of Pakistan but also Islamic Ideology. And invasion of “integrity of Pakistan” inevitably lead to an invasion of its sovereignty and vice versa. I may here state that maintenance of public order is an aspect of exercise of sovereignty. (Encyclopaedia Britannica, Vol. 17, Ed.15, p.309). as will appear from the conclusions of Hamoodur Rahman, C.J., “public order” must be regarded to be included in the expression “sovereignty or integrity of Pakistan”.

The safeguards have been duly implemented in the Constitution in the shape of Fundamental Rights where there is no discrimination and so also in the Principles of Policy and elsewhere. The agreement stands apart and cannot be read as a constituent of the Ideology of Pakistan. [p. 523] WW.

“An enactment may immediately on its coming into force take away or abridge the Fundamental Rights of a person by its very terms and without any further overt act being done. In such a case the infringement of the Fundamental Right is complete co instanti the passing of the enactment and, therefore, there can be no reason why the person so prejudicially affected by the law should not be entitled immediately to avail himself of the constitution remedy under Article 32. To say that a person, whose Fundamental Right has been infringed by the mere operation of an enactment, is not entitled to invoke the jurisdiction of this Court under Article 32, for the enforcement of his right, will be to deny him the benefit of a salutary constitutional remedy which is itself his Fundamental Right.”
[p. 483] D.

The case must obviously raise a question which is of interest to, or affects, the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who is the subject-matter of the case, may be of no particular consequence. [p. 492] J.

“In all systems of law which cherish individual freedom and liberty, and which provide constitutional safeguards and guarantees in this behalf, any invasion of such freedom in circumstances which raise serious questions regarding the effectiveness and availability of those safeguards, must be regarded as a matter of great public importance.” [p. 492] K.

Petition accepted.

Advocate for the Petitioner:
Yahya Bakhtiar, Senior Advocate Supreme Court, Aitzaz Ahsan, Advocate Supreme Court, S. Iftikhar Ahmed Gilani, Advocate Supreme Court M. A. Siddiqi, Advocate-on-Record.

Advocate for the Respondent No.1.
Ali Ahmad Fazeel, Attorney-General for Pakistan, Sh. Ghias Muhammad, Senior Advocate Supreme Court, Muhammad Ali Sayeed, Senior Advocate Supreme Court, Tanvir Ahmed Khan, Addl. Advocate-on-Record General, Punjab, Aftab Farrukh, Senior Advocate Supreme Court, Rashid Akhund, Advocate Supreme Court and Fazale Hussain, Advocate-on-Record.

Advocate for the Respondent No.2.
Malik M. Qayyum, Dy. A.-G., Sajjad Ahmed Sipra, Dy. A.-G. and Gh. Fazale Hussain, Advocate-on-Record.

Khalil Ramedy, A.-G. Punjab, Rao M. Yousaf Khan, Advocate-on-Record, Wajihuddin Ahmad, A.-G. Sind, Bashirullah Khan, Addl. A.-G. N.-W.F.P. and Yakub K. Eusafzai, A.-G. Baluchistan on Court Notice.

Dates of hearing: 1st, 2nd, 3rd, 6th, 7th, 8th, 13th, 14th, 15th, 16th and 17th February, 1988.