The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Sh. Riaz Ahmad, J.

(a) Constitution of Pakistan (1973), Art. 2A
r/w INTERPRETATION –

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

(b) Constitution of Pakistan (1973), Interpretation

The rule for the interpretation of the Constitution as laid down by the Supreme Court in Jabindra Kishore’s case PLD 1957 SC 9 is that it is a fundamental canon of construction that a Constitution should receive a liberal interpretation in favour of the citizen, especially with respect to those provisions which were desinged to safeguard the fundamental rights. [p.492] J.

Jabindra Kishore’s case PLD 1957 SC 9 ref.

(c) Constitution of Pakistan (1973), Preamble

Mr. Sharifuddin Pirzada also argued taht the Ordinance was privilegium and an enactment without legislative competence, is to be struck down. It was also rightly contended by him that it was a bill of attainder being one of pains and penalties. [p. 494] M

In the judgment of Shariat Appellate Benchof the Supreme Court referred to above, it was also laid down that right of hearing was acknowledge in Islam and the application of this principle would depend upon the circumstances and the situation vis-a-vis the law, each case and in the context of the particular action. As we have already observed that the report of the Commission, the source on the basis of which, the impugned Ordinance was made, was not a judgment but was an enquiry confined to the terms of Reference and, therefore, in the light of its recommendations, the law could be made and it had to conform with the Injunctions of Islam, Constitution and the fundamental principles enshrined in our jurisprudence and, therefore, such legislative judgment declaring 102 societies undesirable enumerated in the schedule to the Ordinance cannot be upheld. The declaration of these Cooperative Societies as “undersirable” without a criterion or yardstick in the Ordinance itself amounts to usurpation of the judicial power by the legislature and such adverse action must have preceded by a finding in exercise of the judicial power andthe report of the Commission in the light of its own observation cannot be equated with the judgment. However, following the judgment of the Shariat Appellate Bench of the Supreme Court reported as Federation of Pakistan v. The General Public PLD 1988 sc 645, we would further suggest amendment in the impugned Ordinance so as to make it workable and intra vires of the Constitution.

It would have been in the fitness of things if the Ordinance making authority would have provided a definition of “Undesirable societies” and to have also laid down a yardstick or criterion to hold it so as provided under the Cooperative Societies Act, 1925. It would have been further advantageous for the Legislature to have left in to the Court concerned to determine whether a particular cooperative society falls within jurisdiction of the aforesaid definition or not. It would have been appropriate if alongwith this, the Court was also given the power to consider the question of the winding up of such society or not. [p. 494, 495] N

As already held by us, we would reiterate that the impugned Ordinance by usurping judicial power was passed and gramed to declare 102 societies as undesirable which was a function exclusively resting upon the exercise of the judicial power rather than the legislative power. [p. 496] Q

SYED SHARIFUDDIN PIRZADA V. FEDERATION OF PAKISTAN PLD 1973 KARACHI 132;
SHER KHAN V REGIONAL TRANSPORT KAUTHORITY AND 4 OTHERS PLD 1985 KARACHI 614;
TULSIPUR SUGAR CO. V. NOTIFIED AREA AIR 1980 SC 882;
FAUJI FOUNDATION’CASE PLD 1983 SC 457 distinguished.

We have carefully considered this aspect and Mr. Khalid M. Ishaq frankly conceded that after the introduction of Article 2A in the Constitution, it cannot be argued that a Cooperative Society cannot complain the violation of the fundamental rights. Mr. Sharifuddin Pirzada argued that at one point of time, the Indian Supreme Court also held the same view but the said concept underwent a change. [p. 497] R

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

NASEERE AHMED KHAN V. PROVINCE OF WEST PAKISTAN PLD 1980 LAHORE 684;
GOVERNMENT OF SINDH & ANOTHER V. SHARAF FARIDI 1990 SCMR 91;
SHARAF FARIDI & 3 OTHERS V. THE FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN PLD 1989 KARACHI 404, ETC. Ref.

(d) 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