The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Saad Saood Jan, J.

(a) Constitution of Pakistan (1973), Articles 4, 270A & 185:

Article 270A(2) — Construction — Acts, orders or proceedings, which are done, made or taken without jurisdiction, mala fide or coram non judice, have not been saved from the scrutiny of the Courts by ouster clause — Validity conferred is to acts done or purported to be done in the exercise of or in the purported exercise of powers derived from such orders,
regulations, enactments, rules, orders, bye-laws, etc., and to nothing else. [pp. 46, 48] E & F

FEDERATION OF PAKISTAN V. SAEED AHMAD KHAN PLD 1974 SC 151. Ref.

Articles 270A(2),(5) & 4 — Interpretation of Articles 270A(2) & (5) — Acts, actions or proceedings which suffered from excess or lack of jurisdiction or were coram and judice or mala fide (be it malice kin fact or in law) could not be treated in accordance with law — By enacting clause (2) & (5). Parliament had not intended to validate such acts, actions or
proceedings or to put them beyond the reach of Courts or to deprive persons who had suffered thereunder of any remedy or relief whatsoever.

During the Martial Law when the fundamental rights stood suspended. Article 4 furnished the only guarantee or assurance to the citizens that no action detrimental to the life, liberty, body, reputation or property of any person would be taken except in accordance with law. Acts, actions or proceedings which suffered from excess or lack of jurisdiction or were coram non judice or mala fide (be it malice in fact or in law) could hardly be treated as those in accordance with law. They were thus bad even under the system which was validated by Parliament under Article 270A on account of violation of the assurance given by Article 4. It is difficult to concede that by enacting clauses (2) and (5), the Parliament had intended to validate such acts, actions or proceedings or to put them beyond the reach of the Courts or to deprive the persons who had suffered thereunder of any remedy or relief whatsoever. There is a presumption that Legislature does not perpetuate inequity or injustice and there is no reason why such a presumption should not be invoked while interpreting clauses (2) and (5) of Article 270A. [p. 53]G

Article 270A(2) — Scope and application.

Clause (2) of Article 270A Constitution of Pakistan (1973), as it stands worded includes within its purview all orders made, proceedings taken or acts done by any authority or by any person during the period of the Martial Law in exercise of the powers derived from any proclamation. President’s Order, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws. Similarly, it also encompasses all orders made, proceedings taken and acts done in execution of or in compliance with any order made, or sentence passed by any authority in the exercise or purported exercise of the aforementioned powers. Now during the period of the Martial Law the superior Courts did continue to function. Their jurisdiction was ousted only in respect of orders made or actions taken by the Martial Law authorities and the Military Courts. As regards orders, actions and proceedings taken by the other authorities in the country, thee was no clog on their jurisdiction. They, thus, continued to exercise their power of judicial review in respect of the acts, actions and proceedings made, taken or held by the other authorities. [p.54]J

If the argument is taken to the logical conclusion, all such acts, actions and orders set aside by the superior Courts in exercise of their power of judicial review, would stand revived, for, the words “notwithstanding any judgment of any Court” as occurring in clause (2) of Article 270A are too strong to yield any other result; further, all pending Constitutional petitions challenging the legality of the orders of non-Martial Law authorities or Courts would become infructuous. This could not possibly be the intention of the Parliament in enacting the clauses(2) and (5). [p. 54] L

Article 270A — Object — Interpretation — Article 270A does not take away the jurisdiction of the High Courts from reviewing acts, action or proceedings which suffered from defect of jurisdiction or were coram non judice or were mala fide — Drawing a distinction between malice in fact and malice in law was not necessary for such purpose.
In enacting clauses (2) and (5) of Article 270A the main object of the Parliament was:

(a) to confer validity upon acts, actions and proceedings, done or taken when the Martial Law was in force, and

(b) to oust the jurisdiction of the Courts from examining their validity. [p. 45]E

Taking into account the background in which Article 270A was enacted, the language in which it is phrased and the absurd results which would follow if it is construed widely, it appears that its object was merely to afford protection to the dispensation which came into existence as a result of “Constitutional deviation”; it is difficult to interpret it as conferring validity and immunity upon such acts, actions and proceedings as were illegal or indefensible even under that dispensation. Thus, this Article does not take away the jurisdiction of the High Courts from reviewing acts, actions or proceedings which suffered from defect of jurisdiction or were coram non judice or were mala fide. For this purpose it is unnecessary to draw a distinction between malice in fact and malice in law. [p. 54]M

Article 185 — Appeal to Supreme Court — Scope — Exercise of inquiry into facts cannot be carried out by Supreme Court. [p. 60] R