The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Sh. Riaz Ahmad, J.

(a) Constitution of Pakistan (1973), Arts. 2A, 17 & 14:
r/w Punjab Undesirable Cooperative Societies (Dissolution) Ordinance (XX of 1992)—Ss. 4, 12, 12, 22 and Schedule

It was frankly conceded before us by Mr. Khalid M. Ishaq that after the incorporation of Objectives Resolution in the Constitution as Article 2A and same having become enforceable by the Courts, the ratio of judgment delivered by the Supreme Court of Pakistan in Fauji Foundation case PLD 1983 SC 457, loses its significance. [p. 491]I

FAUJI FOUNDATION’S CASE 1983 SC 457. Ref.

The independence of judiciary is, thus, a most sacred pillar on which the edifice as a safeguard against every type of injustices, i.e. social, political and economic has to stand and no inroad into the fundamental rights guaranteed to a citizen including the equality of status, and of opportunity before law, social, economic and political justice and freedom of thought, expression, belief, faith, worship and association can be made by the executive. However, as it is well-established that subject to law and public morality on the basis of reasonable classification, the Legislature can regulate the exercise of such rights guaranteed in the Constitution but in the light of the independence of judiciary, having been secured, guaranteed and being essential part of our grund norm, the same is enforceable.
In this view of the matter, the scheme of trichotomy of power as envisaged under the Constitution, into three organs of the State i.e. executive, legislature and judiciary gains importance and, therefore, none of these organs can make inroad or transgress the sphere of others. Thus, taking of adverse action against any person or body on the basis of its misdeeds, if any, is nothing but exercise of judicial power. In exercise of such power, it has to be seen whether care to comply with law and opportunity of being heard as a principle of natural justice was provided before taking any adverse action. The concept of independence of judiciary as guaranteed and enforceable under our Constitution would not authorise the legislature or the Provincial Governor to enunciate a legislative judgment through a piece of legislation. [p. 492]K

The judicial power cannot be exercised by the legislature and every adverse action must precede by a finding of a tribunal and any action in its derogation would amount to legislative judgment which is not permissible by law. [p. 494]L

NASEER AHMAD KHAN V. PROVINCE OF WEST PAKISTAN PLD 1980 LAHORE 684;
GOVERNMENT SINDH AND ANOTHER V. SHARAF FARIDI 1990 SCMR 91;
SHARAF FARIDI AND 3 OTHERS V. THE FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN PLD 1989 KARACHI 404;
SRIMATI INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN AIR 1975 SC 2299;
The enjoyment of every right is subject to reasonable classification and restrictions as contained in the Article itself. Unfortunately, in the impugned Ordinance, no classification has been mentioned and as observed earlier, no yardstick or criterion has been laid down to hold a society undesirable, therefore, we are of the view that arbitrary powers emerge from the Ordinance, particularly, by virtue of sections 4 and 12 read with Schedule to the Ordinance, whereby, 102 Cooperative societies enumerated in the Schedule stand dissolved. The framer of the Ordinance also did not visualise the agony of the depositors, although, certain Cooperative Societies before us, by submitting a report of its funds, undertook to make repayments to its depositors as it was contended by them than their assets were more than their liabilities. [p. 495]O

The argument is devoid of force because as already observed that the grund norms, the Objective Resolution having become enforceable in the Constitution, no clog or fetter can be on the powers conferred upon this Court under Article 199 of the Constitution to examine any act on the touchstone of Article 2-A. There is no clog or fetter nor it can be placed upon the powers of this Court to examine the validity of any act or law and to declare it unconstitutional if repugnant to Islam. Hence we are not impressed with this argument. [p. 497, 498]S
(b) Constitution of Pakistan (1973) Article 2A & Chap. 1 [Arts. 8 to 28]
Part II

The upshot of the above discussion is taht the provisions of section 4, 12 and 13 of the Ordinance read with the Schedule to the Ordinance amounts to legislative judgment by usurping the judicial power and, therefore, are vioative judgment by usurping the judicial power and, therefore, are violative of the fundamental rights and Article 2A of the Constitutional and thus cannot be saved being unconstitutional, illegal and violative of the principles of natural justice. [p. 502] W

We will be failing in our duty, if we do not direct the competent authority to give priority and to introduce such a mechanism whereby agony of the depositors comes to an end and easy procedure is laid down for satisfying the claims of such depositors. In this behalf, the appointment of a Committee by this Court is a food for thought for the competent authority because in this way neither the Cooperative Society nor the bureacratic set-up as created by the Ordinance would be in a position to deal with the assets and the unclaimed funds in a manner otherwise than in accordance with law. The competent authority shall also consider the offers of these societies, the financial position of which, permits the payments to the depositors and for the satisfaction of the claims of the depositors without the intervention of the third party. No code or system or procedure can be rendered ineffective provided the same is implemented diligently and honestly. The appointment of the Cooperative Board and its composition is also against the recommendations of the Commission, inasmuch as, again wide powers have been conferred upon the Governor to pick and choose which may further aggravate the situation rather than to remedy the same. [p. 502]BB