P L D 1955 SindChief Court96 [(Extraordinary) Special Jurisdiction] Before Constantine, C. d.

, Vellani, Muhammad Bachal and Muhammad Bakhsh, JJ Maulvi TAMIZUDDIN KHAN-Petitioner versus (1) FEDERATION OF PAKISTAN, (2) MUHAMMAD ALI, PRIME MINISTER OF PAKISTAN (3) CHAUDHRI MUHAMMAD ALI, MEMBER, COUNCIL OF MINISTERS (4) MAJOR-GENERAL ISKANDER MIRZA, MEMBER, COUNCIL OF MINISTERS (5) M. A. H. ISPAHANI, MEMBER, COUNCIL OF MINISTERS (6) DR. A. M. MALIK, MEMBER, COUNCIL OF MINISTERS (7) DR. KHAN SAHIB, MEMBER, COUNCIL OF MINISTERS (8) GENERAL MUHAMMAD AYUB KHAN, MEMBER, COUNCIL OF MINISTERS (9) GHYASUDDIN PATHAN, MEMBER, COUNCIL OF MINISTERS (10) MIR GHULAM ALI TALPUR, MEMBER, COUNCIL OF MINISTERS (11) ESTATE OFFICER, GOVERNMENT OF PAKISTAN-Respondents Writ Petition No. 43 of 1954 decided on 9th February, 1955. (a) Independence Act, 1947-----S. 6 (3)-Governor-General's power of assent to laws of Dominion-Scope-Ss. 10 and 223-A, (as newly substituted and inserted respectively in) Government of India Act, 1935-Whether invalid for want of assent by Governor-GeneralRule 62, Constituent Assembly Rules re : authentication of Bills by President-Validity. On 24th October 1954, His Excellency the Governor General issued the following proclamation: "The Governor-General having considered the political crisis with which the country is faced, has with deep regret come to the conclusion that the constitutional machinery has broken down. He therefore has decided to declare a state of emergency throughout Pakistan. The Constituent Assembly as at present constituted has lost the confidence of the people and can no longer function. The ultimate authority vests in the people who will decide all issues including constitutional issues through their representatives to be elected afresh. Elections will be held as early as possible. Until such time as elections are held, the administration of the country will be carried on by a reconstituted Cabinet. He has called upon the Prime Minister to reform the Cabinet with a view to giving the country a vigorous and stable administration. The invitation has been accepted. The security and stability of the country are of paramount importance. All personal, sectional and provincial interests must be sub-ordinated to the supreme national interest." In pursuance of the proclamation, the Constituent Assembly was dissolved and the Cabinet was reconstituted, respondents 4, 5, 7, 8 and 10, not being, members of the Constituent Assembly, being included in the new set up. The proclamation was the subject of a petition under section 223-A, Government of India Act, 1935 for writs of mandamus and quo warranto preferred by Maulvi Tamizuddin Khan, the President of the Constituent Assembly with a view to : (i) restrain the respondents from giving effect to the proclamation and from obstructing the petitioner in the exercise of his functions and duties as President; (ii) determine the validity of the appointment as Ministers of respondents 2 to 10. The respondents' first preliminary objection was that any constitutional provision required not only passing by the Constituent Assembly, but also assent by the Governor-

General as conditions of valid enactment : this assent being absent, section 223-A of the Government of India Act failed and with it failed the writ jurisdiction invoked by petitioner. This same objection applied to new section 10 of the Government of India Act, which purported to limit the discretion of the Governor-General in his choice of Ministers, the choice being limited from among members of Constituent Assembly only. Held that section 10 of the Government of India Act substituted by the Government of of India (5th Amendment) Act 1954 was a valid enactment. So, also was section 223-A added by Government of India (Amendment) Act, 1954. Writ of quo-warranto was ordered against respondents 4, 5, 7, 8 and 10 prohibiting them from exercising the office of Minister, and a writ of mandamus restoring the petitioner to the office as President of the Constituent Assembly by restraining respondents from interfering With his duties and obstructing him in the exercise of his functions. (Per Constantine, C. J.)---Under subsection (3) of section 6 Independence Act, 1947 the Governor-General's full power to assent is accompanied by deletion of disallowance, reservation, and suspension, and the purport of the section is to provide that the Governor-General's power of assent is not to be controlled by Her Majesty : this is in keeping with the key to interpretation provided by the preamble-the declaration of independence-and with the purport of sections 5, 6 and 7-the abdication of all control by the Crown, Parliament, and Government of the United Kingdom. Subsection (3) does not provide that assent is necessary, but that if assent is necessary the Governor-General shall have the full power. M. A. Khuhro v. Federation of Pakistan P L D 1950 Sind 49 ref. (Per Vellani, J).-It is said that subsection (3) of section 6 of the Indian Independence Act renders the Governor-General's assent necessary to Acts of the Constituent Assembly, in that it says, "the Governor-General of each of the new Dominions shall have full power to assent to any law of the Legislature of the Dominion". The sentence however, does not stop there and proceeds to mention the matter with reference to which or in the context of which these words are used, and to deal with the matter and context by enjoining removal of the existing statutory requirements which derogate from the fulness of power, mentioning the respect which the power was not full. Their removal is therefore, what subsection (3) effects and is intended to effect, and it is their removal which results in the fulness of the power. The whole of subsection (3) is expressed in but one sentence, and all parts of it must be interpreted in relation to each other and in the context of the subject matter with which the sentence deals. The intent is not to create the necessity of assent when none has been prescribed. What subsection (3) does is to shed the existing statutory limitations to the Governor-General's power to assent. There now resides in the Constituent Assembly the sovereign power and supreme prerogative to amend and repeal the existing and frame and bring into force a new Constitution, which was of the essence of His Majesty's sovereignty, and therefore, the Constituent Assembly being in the place of His Majesty is a sovereign body of no prescribed life or duration and subject to no agency or instrument outside itself to effect its dissolution or to give its laws validity, except such as it may itself choose to create. In this situation when His Majesty's own intervention to give validity or force to the measures of the Constituent Assembly was not to be required, it is anomalous to say that the intervention of His Majesty's representative was required. (Per Muhammad Bakhsh, J).---The expression "law" appearing in subsection (3) of section 6 has reference only to the ordinary law which the Federal Legislature has to pass under the 1935 Act, and not the law of Constitution as provided by section 8 (1), Independence Act. Under the Independence Act the Constituent Assembly has two functions to perform. Under section 8 (1) it has the power to frame the Constitution for the country, and under section 8 (2) (e) it has also the powers which the Federal Legislature had under 1935 Act. Section 6 (3) read along with section 8 (2) (e) makes it

clear that the Assent of Governor-General related only to the laws passed by the Constituent Assembly as Federal Legislature under 1935 Act. The Constituent Assembly was a sovereign body and was -not subject to any checks and balances, restraints and restrictions. Under section 6 (2) it could make any kind of law it liked, even though it was against the law of England, against the 1935 Act, against any future Act of British Parliament or even against the Independence Act itself. It had the power to repeal or amend any such Act; order, rule or regulation made thereunder. It had the power to repeal not only section 6 (3) of the Independence Act but the whole of the Independence Act itself.., If that is the position, which certainly it is, it is impossible to think that an Act of the Constituent Assembly repealing or removing the provision regarding assent by Governor-General would require the assent of Governor-General. The Constituent Assembly was the sole and sovereign authority to determine the manner of authentication. The Governor-General had to step in only when the Acts of the Federal Legislature under 1935 Act had to be dealt with. I have, therefore, no manner of doubt that Rule 62 was perfectly consistent with the letter and spirit of the Independence Act and was fully enforceable as law. M. A. Khuhro v. Federation of Pakistan P L D (1950) Sind 49, Khan Iftikhar Hussain Khan of Mamdot v. The Province of the Punjab P L D (1950) F C 15, Sarfaraz Khan and another v. Crown P L D (1950) Lah. 384, Ex-Major-General Akbar Khan and another v. The Crown P L D (1954) F C 87 and Lal Khan and others P L D 1955 Lah:215 ref. (b) Constituent Assembly------Whether can be dissolved by Governor-General-King's prerogative-How for Governor-General represents His Majesty-Independence Act 1947, S. 5 -Constituent Assembly Rules, Rule 15, re : dissolution of Assembly by Resolution with two-thirds majority. (Per Constantine, C. J.)-The Indian Independence Act contains no express provision for dissolution of the Assembly. Where legislatures have been created by statute, dissolution has been provided for by statute. (Hence the contrasting omission in the Independence Act appears deliberate). There is no case throughout the Commonwealth outside England where dissolution of a legislature takes place except by express provision in the Constitution, whether granted by statute or order in council. The prerogative of dissolution in my opinion extends only to the Parliament of the United Kingdom : elsewhere dissolution. is dependent upon statute or order in council. (Per Vellani. J.)-It has been argued, that apart from section 5 of the Indian Independence Act, the Governor-General has, and can exercise His Majesty's prerogative to dissolve the Constituent Assembly, because the Constituent Assembly is a Legislature, and the Indian Independence Act leaves that prerogative of His Majesty unaffected by its provisions. The argument however, cannot stand apart from section 5, because if the GovernorGeneral has that prerogative, he has it by virtue only of being His Majesty's representative. That representation has been limited by express words "for the purposes of the government of the Dominion" and the limitation shuts the door to further implication". When there is legislation covering a field of prerogative and it is desired to make the prerogative still available, it becomes necessary to reserve in the legislation, the power to use the prerogative concurrently with the legislation, as otherwise, the legislation, so long as it is in force precludes the exercise of the prerogative. In 1947, the need for legislation on the Prerogatives of His Majesty in relation to the new Dominions and particularly the Constituent Assemblies clearly arose in the Indian Independence Act, for it was found necessary to specify and define the purposes for which the Governor-General was to represent His Majesty. That purpose having been clearly defined, the inference is one of prohibition against travelling beyond the boundaries of that definition.

The result is that the prerogative to dissolve is governed by the express provisions of section 5 of the Indian Independence Act, and that section does not enable the GovernorGeneral to dissolve the Constituent Assembly. The only prerogative assigned to the Governor-General by his Commission is to grant to convicts a pardon either free or subject to lawful conditions. (Per Muhammad Bakhsh, J.)-The Constituent Assembly was a sovereign body specially created for the purpose of framing the future Constitution of the country. The GovernorGeneral had no power under the Statute or the Commission of appointment to dissolve it. If the British Parliament wanted to give the power of dissolution to, the Governor-General under section 5, they should have said so in very clear terms. There is no provision in the Independence Act for the dissolution of the Constituent Assembly. There is also no provision for setting up a fresh Constituence Assembly by the British Parliament (vide section 6(4), Independence Act). The people of India were given the freedom and the independence to frame any Constitution for their country as they liked and to do what they liked with their own Constituent Assambly. The British Government had no more responsibilities for the affairs of this country. In these circumstances rule 15 was a very proper rule which our Constituent Assembly framed in regard to dissolution. (c) Government of India Act, 1935-----S. 223-A-Writs may be issued to any person or authority or Government within the field of Court's jurisdiction irrespective of whether such authority or Government also functions outside such jurisdiction. (d) Government of India Act, 1935, S. 223-A-Mandamus -Wide scope of writ-Even if normal remedies available. (e) Government of India Act, 1935, S. 223-A-Quo warranto-May be issued at instance of private person. (f) Government of India Act, 1935, S. 306-Grants personal immunity to GovernorGeneral-Validity of Governor-General's acts may, however, be considered by Courts. The section grants to the Governor-General personal immunity, for he exercises the executive authority of the Federation and under section 176 Government of India Act, the Federation may be sued. His personal capacity is not involved in this petition (for writs of mandamus and quo warranto against the Federation of Pakistan and member of the Council of Ministers-Ed.). The argument that the petition involves consideration of the validity of, theacts of the Governer General. On the contrary, proceedings allowed by section 176 and section 223-A, Government of India Act, may well raise the question of their validity, for all executive action of the Federal Government is taken in the name of the Government is taken in the name of the Governer-General. D. N. Pritt, I. I. Chundrigar LVahid-ud-Din Ahmad, Manzar-e-Alam, Sharifuddin, Muhammad Naseem and Homi P. Nocilwala, for Petitioner. Faiyaz Ali, Advocate-General of Pakistan assisted by Abdul Haq for Respondents 1, 2, 3, 6 and 9. Manzur Qadir, assisted by Muhammad Ismail Bhatti, for Respondents 4, 5, 7, 8 and 10.

JUDGMENT CONSTANTINE, C. J.-On 24th October 1954 His Excellency the Governor-General issued a proclamation which my learned brothers Vellani and Muhammad Bakhsh have set out in full. In pursuance of the proclamation the Cabinet was reconstituted; respondents 4, 5, 7, 8 and 10 not being members of the Constituent Assembly. The petitioner was informed by

respondent 4 that the Constituent Assembly had been dissolved, and the Constituent Assembly was prevented from meeting. The petitioner as President of the Constituent Assembly prays for writ of mandamus and quo warranto. (i) to restrain the respondents from giving effect to the proclamation and from obstructing the petitioner in the exercise of his functions and duties as President. (ii) to determine the validity of the appointment as Ministers of respondents 2 to 10. The facts are not in dispute. The respondents rely on objections both preliminary and as to the merits. The first preliminary objection is that any constitutional provision requires not only passing by the Constituent Assembly, but also assent by the Governor-General as conditions of valid enactment : this assent being absent, section 223-A of the Government of India Act fails and with it fails the C writ jurisdiction which it purports to confer. This same objection applies to new section 10 of the Government of India Act, which purports to limit the discretion of the Governor-General in his choice of Ministers, and the objection thus also pertains to the merits of the prayer for a writ of quo warranto. The validity of laws enacted by the Constituent Assembly has been tested in the Courts of Pakistan, including the Federal Court. Only once has this objection been argued, and .it was then overruled by Agha, J., sitting alone in P: L. D. (1950) Sind 49, the argument then being founded upon section 6 (3) of the Indian Independence Act. Many Acts spread over the period since partition have been passed by the Constituent Assembly, and in particular it may be noticed that what I may call the Privy Council jurisdiction of the Federal Court rests upon law enacted by the Constituent Assembly. It seems obviously presumable that until the present petition, the Law Officers of the Crown considered assent not necessary. The objection is novel, and if accepted would upset a consistent course of practice and understanding. The learned Advocate-General relied both upon prerogative and section 6 (3) of the Indian Independence Act, 1947, and I will deal with the latter first. The preamble of the Independence Act is as follows: To make provision for the setting in India of two independent Dominions, to substitute other provisions for certain provisions of the Government of India Act, 1935, which apply outside those Dominions, and to provide for other matters consequential on or connected with the setting up of those Dominions. Section 1 provides for the setting up of the two independent Dominions of India and Pakistan. Sections 2, 3 and 4 provide for the divisions of British India between the two new Dominions. Section 5 provides for appointment by Her Majesty of a GovernorGeneral who shall represent Her Majesty for the purposes of the Government of the Dominion. By sections 6 and 7 Parliament and Her Majesty's Government in the United Kingdom abdicated power and responsibility over the new Dominions. By section 6 the Legislatures of the new Dominions shall have full power to make laws repugnant to the law of England and any Act of Parliament, while Parliament itself abandons its power to legislate for the new Dominions : by subsection 3 it is provided that the GovernorGeneral shall have full power to assent (in His Majesty's name) to any law of the Legislature of the Dominions and provisions as to disallowance or reservation in any Act shall cease to apply to the new Dominions. Pausing here, it should be noted that the words "in His Majesty's name" were deleted by Act of the Constituent Assembly from this subsection and also from section 18 of the Government of India Act in 1950 with retrospective effect, but for the purposes of the learned Advocate-General's argument (which would invalidate the amending Act) the deletion is to be ignored. After these abdicatory sections we reach in section 8 the temporary provision as to government of each of the new Dominions. The powers of the Legislature of the Dominion shall, for the purpose of making provision as to the Constitution of the Dominion, be exerciseable in the first instance by the Constituent Assembly, and references in this Act to the Legislature of the Dominion shall be construed accordingly.

The Dominion is to be governed by the Government of India Act as nearly as may be except in so far as other provision is made by or in accordance with a law made by the Constituent Assembly, subject to certain express provisos and the power under section 9 of the Governor-General-limited to a time which has now expired to amend the Government of India Act. The important relevant provisos were the elimination of any control of His Majesty's Government in the United Kingdom, of discretion and individual judgment of the Governor-General and Governors, and of reservation and disallowance of Provincial Legislation and lasty that the powers of the Federal Legislature should in the first instance be exercisable by the Constituent Assembly in addition to the powers exercisable by it in subsection (1). Sections 10, 11, 12, 13 and 14 contain particular provisions regarding the various services. Section 15 deals with litigation by or against the Secretary of State, section 16 with Aden, and section 17 with divorce jurisdiction. Section 18 provides inter alia for the continuance of the existing law of British India, except in so far as altered by competent authority, and for the lapse of Instruments of Instructions. Section 19 is an interpretation section and in particular subsection (3) provides that in relation to Pakistan references to the Constituent Assembly shall be construed as references to the Assembly set up or about to be set up at the date of the passing of this Act under the authority of the Governor-General, and gives power to the Assembly to make provision for representation in the Assembly of Indian States and tribal areas and the filling of casual vacancies : an amendment by the Assembly gives power to it to increase, reduce or redistribute seats therein. The key to the interpretation of the Act is provided by the preamble-the independence of Pakistan. The purpose of section 6 is to efface the supremacy of Parliament in the United Kingdom and to confer power, unfettered by any control from the United Kingdom, upon the Legislature of the Dominion. The Legislature of the Dominion has not been defined but the wording in subsection (1) of section 8 "shows that it is not restricted to the Constituent Assembly, but refers to future legislative bodies, and further that the legislature of a Dominion is not restricted to making provision as to the constitution. The Federal Legislature until other provision is made by the Assembly is also part of the Legislature of the Dominion. This is consistent with subsection (3) of section 8 which provides that any provision of the Government of India Act which limits the power of the legislature of the Dominion shall . . . . have the like effect as a law of the Legislature of the Dominion limiting for the future the powers of that Legislature. I think that the use of a small or a capital letter in the word "legislature" is irrelevant. Legislature of the Dominion appears thus to be a comprehensive term, embracing every legislature which has power to legislate for the Dominion as a whole whether its power is derived from the Independence Act or from the future legislation of the Constituent Assembly, and whether its power is restricted to or does not extend to the making of constitutional laws. When we turn to subsection (3) of section 6 we find that the Governor-General's full power to assent is accompanied by deletion of disallowance, reservation, and suspension, and in my opinion the purport of the section is to provide that the Governor-General's power of assent is not to be controlled by Her Majesty : this is in keeping with the key to interpretation provided by the preamble-the declaration of independence-and with the purport of sections 5, 6 and 7 the abdication of all control by the Crown, Parliament, and Government of the United Kingdom. Agha, J., held subsection (3) does not provide that assent is necessary, but that if assent is necessary the Governor-General shall have the full power. The necessity of assent was retained in the Government of India Act in respect of the Federal Legislation : no corresponding provision necessitating consent in respect of the Constituent Assembly was inserted in the Independence Act. The Crown in exercise of the prerogative may legislate for conquered or ceded territories ' of the Crown, but the prerogative is subject to legislation by Parliament binding the Crown by express words or necessary implication. The legislature of the Dominion is given full powers to make laws for the Dominion, and its powers for the purpose of making provision as to the constitution of the Dominion are exercisable by the Constituent Assembly. The Crown is not named as sharing in those powers, and the clear implication is that the Crown is excluded.

Section 10 of the Government of India Act substituted by the Government of India (5th Amendment) Act 1954 is thus valid, and it follows that prima facie those respondents who were not members of the Federal Legislature have been illegally appointed as Ministers. After a faint attempt at argument by Mr. Pritt who had not had the time to study the various notifications, it was conceded by Mr. Chundrigar that other respondents were saved by the new section 10-A. For the opponents it was argued that, the Legislature being dissolved, it was impossible to appoint Ministers from the Legislature : that may be so, but no attempt has been made to show that Government could not continue without appointment of fresh Ministers. That section 223-A, if valid, confers upon this Court the power to issue writs in the nature of quo warranto is undisputed. The learned Advocate-General argued that the writ can issue only at the instance of the Crown ; and not against persons appointed to office by the Crown : this argument was advanced by the Attorney-General and rejected by the King's Bench Division, Lord Reading presiding in Speyer's case. The Advocate-General argued from the Palikamedi case that where the subject matter falls beyond the local limits of the High Court's jurisdiction, this Court has .no power to issue a writ. Now that Privy Council case was concerned with the jurisdiction of the Madras High Court as heir to the jurisdiction of the Supreme Court to issue a writ of certiorari. The Supreme Court's local jurisdiction was confined to Madras city: the Sadar Diwani Adalat exercised jurisdiction over the mofussil and had not the power to issue such writs, The power to issue such writs was confined to the High Courts of the Presidency Towns. Therefore the Privy Council-held that the mere location of the Board of Revenue inside the, city limits did not entitle the High Court to review its orders passed in respect of a subject matter located outside the city. Now however section 223-A has covered the whole area of the Dominion (excluding acceding States) with writ jurisdiction divided between the High Courts : the only condition is that the person or authority to whom the writ is issued shall be within the local jurisdiction of the High Court. Can the High Court then now issue writs where the authority is within its limits, but the subject-matter lies without its limits ? On such a point English Law provides no guidance ; for the King's Bench had jurisdiction throughout the whole of England. The Supreme Court of India has decided in the affirmative. It is not however necessary to decide the point : for it is clear that Central Ministers even if their jurisdiction extends beyond Sind and Karachi, yet exercise jurisdiction within Sind and Karachi. I would therefore issue a writ in the nature of quo warranto against respondents 4, 5, 7, 8, and 10. The proclamation has been accepted by the parties as purporting to dissolve the Constituent Assembly. Has the Governor-General the power to dissolve the Assembly -? This question is res integra. The opponents based the power on prerogati8e and upon the statutory power which they argue is conferred by section 19 (3) (b) of the Independence Act. The Governor-General by order under section 9 amended the Government of India Act so as to deprive the Governor-General of the power to dissolve the Federal Legislature while retaining the power to summon and prorogue. The Independence Act is silent regarding summoning, proroguing or dissolving the Constituent Assembly. By rule 9 of the Rules of Procedure, the President is given the power to summon and prorogue : dissolution according to rule 15 is possible only by resolution assented to by at least twothirds of the Assembly. It is argued by the petitioner that the power to dissolve the Federal Legislature was taken out from the Government of India Act because the Governor-General had no power to dissolve the Assembly. The opponents on the other hand argue that because the Assembly exercises the powers of the Federal Legislature therefore the Federal Legislature'-s dissolution would automatically accompany the dissolution of the Assembly and therefore it was inappropriate to retain any provision for dissolution of the Federal Legislature, and therefore the omission of the GovernorGeneral's power to dissolve the Federal Legislature does not support any inference that the Governor-General has no power to dissolve the: Assembly. I consider that the opponents' argument is correct to this extent that from the taking away of the power to dissolve the Federal Lagislature no inference is deducible as to the presence or absence of power to dissolve the Constituent Assembly : for suppose that the Independence Act had expressly stated that the Governor-General had no power to dissolve the Constituent

Assembly and alternatively suppose such power had been expressly given, yet in either case it would have been appropriate to take away the power to dissolve the Federal Legislature. The Indian Independence Act contains no express provision for dissolution of the Assembly. Judging by rule 15 and by the proclamation it appears common ground that both the Assembly and the Governor-General considered that the Assembly was subject to dissolution. Did Parliament intend that it should be subject to dissolution ' Throughout the Commonwealth the membership of every representative legislature is renewable in order that it may more faithfully represent the opinion of those whom it represents : on the other hand, as the very name shows, a constituent assembly is created for particular and temporary purpose of framing a constitution, and it is arguable with equal plausibility that to effect this purpose was not expected by Parliament to take a long time and that the effecting of the purpose, that is the framing of a constitution, would ipso facto achieve the supersession of the temporary legislature which had framed the new constitution by the permanent legislature for which the new constitution would provide. Now in England the dissolution of Parliament is a matter of prerogative (Hal. 2nd Ed., Vol. VI para 554) : but Parliament in England, like the prerogative, is a creature of the common law. Where legislatures have been', created by statute, dissolution has been provided for by statute. (Hence the contrasting omission in the Independence Act appears deliberate). There is no case throughout the Commonwealth outside England where dissolution of a legislature takes place except by express provision in the Constitution, whether granted by statute or order in council. The prerogative of dissolution in my opinion extends only to the parliament of the United Kingdom :elsewhere dissolution is dependent upon statute or order in council. The learned Advocate-General relied upon section 19 (3) (b) which reads "References in this Act to the Constituent Assembly of a Dominion shall be construed as references . . . . (b) in relation to Pakistan to the Assembly set up or about to be set up at the date of the passing of this Act under the authority of the Governor-General as the Constituent Assembly for Pakistan." This provision, he argued, is to be construed according to section 32 (1) and (2) of the Interpretation Act 1889 (52 and 53 Vict. c. 63); (1) Where an Act . . . confers a power . . . ., then unless the contrary intention appears, the power may be exercised . . . from time to time as occasion occurs. (2) When an Act .... confers a power. . . on the holder of an office, as such, than unless the contrary intention appears, the power may be exercised.by the holder-for the time being of the office." Here however a contrary intention appears limiting the power of the Governor-General to one period, namely about the date of the passing of the Act. It follows, therefore, that the Constituent Assembly's purported dissolution is a nullity in law, and that both it and the office of its President are still existent. It is common ground that as a result of the proclamation the petitioner has been prevented from performing the functions of his (un-doubtedly public) office. We have the power to issue writs against any Government, and that Government for this purpose includes the Federation of Pakistan appears undeniable. Section 306 of the Government of India Act confers a personal immunity upon the Governor-General : it does riot limit the scope of proceedings against "Government," which expression in the case of the Federation of Pakistan corresponds to the executive authority of the Federation exercised by the Governor-General either directly or through officers subordinate to him. That where an incumbent of a public office has been wrongfully dispossessed of his office mandamus lies against the person so dispossessing him is clear from Rex v. Blooer (2 Burr. 1042 (97 English Reports 697).). I would therefore issue a writ of mandamus restraining the respondents from preventing the petitioner from performing the functions of his office of President of the Constituent Assembly. I would order the opponents to bear the costs of the petitioner. VELLANI, J.---(9th February, 1955).--This is a petition by Moulvi Tamizuddin Khan, President of the Constituent Assembly of Pakistan, for a writ of mandamus against the ten respondents (the 11th having been dropped) restraining them from giving effect to the proclamation of the Governor-General dated 24th October 1954 and from interfering with

or obstructing the petitioner in the exercise of his functions and duties as the President of the Constituent Assembly, and for a writ of quo warranto against respondents 2-10 whose appointments as Members of the Council of Ministers are said to be invalid by reason of the Government of India (Fifth Amendment) Act 1954 which was passed by the Constituent Assembly on 21st September, 1954. The Governor-General's proclamation dated 24th October 1954 reads as follows :"The Governor-General having considered the political crisis with which the country is faced, has with deep regret come to the conclusion that the constitutional machinery has broken down. He therefore has decided to declare a state of emergency throughout Pakistan. The Constituent A Assembly as at present constituted has lost the confidence of the people and can no longer function. The ultimate authority vests in the people who will decide all issues including constitutional issues through their representatives to be elected afresh. Elections will be held as early as possible. Until such time as elections are held, the administration of the country will be carried on by a reconstituted Cabinet. He has called upon the Prime Minister to reform the Cabinet with a view to giving the country a vigorous and stable administration. The invitation has been accepted. The security and stability of the country are of paramount importance. All personal, sectional and provincial interests must be subordinated to the supreme national interest. On 25th October, 1954 the Governor-General appointed respondents 4, 5, 8, 9 and 10 to be Members of his Council of Ministers. The same day, the Governor-General was "pleased to reconstitute, with effect on and from the afternoon of the 24th October 1954, his Council of Ministers", "as a result of the declaration of emergency in the country", including respondents 2 and 3, making in all 8 Ministers, and distributed the portfolios amongst them. On 28th October 1954, the Governor-General appointed respondent 7 to be a Minister. Various pleas have been raised by way of preliminary objections but not all of them go to the root of the case. On the other hand, the contentions on the merits are so vital that it is convenient to deal with them first, leaving the preliminary objections to be considered thereafter. The questions involved in the merits of the petition are questions mainly of interpretation of statutory provisions of a written Constitution, that is to say, of the Government of India Act 1935 and the Indian Independence Act, 1947. Part 2 of the Government of India Act 1935 relating to the establishment of the Federation of India never came into effect, for it envisaged accession of Indian States, which never materialised. On the appointed day, therefore, a Federation of the Provinces had to be created in each of the new Dominions. There was no Federal Legislature in existence. There was in existence, however, a Constituent Assembly for the whole of India elected by Members of Provincial Legislatures, and this was converted by means unnecessary. to trace here, into two Constituent Assemblies, one for India ,and the other for Pakistan. The special task of the Constituent Assembly was to frame the Constitution of the Dominion, and till it had done so, it was to exercise the powers of the Federal Legislature as well. The function of the Federal Legislature was to make laws as to matters enumerated in the Federal and Concurrent Legislative Lists, and in emergency or by consent of Provinces in the Provincial Legislative List. It was a subordinate, and not a sovereign legislature, for its powers were limited and it was subject to the legislation of the Westminster Parliament.

The power and duty of framing a Constitution and bringing it into force, which are unmistakable attributes of sovereignty, were placed in the Constituent Assembly, and it was given the ancillary power which only the King and the Westminster Parliament had, of amending or repealing the Government of 'India Act and even the India Independence Act itself. The cession of these sovereign powers finally to the Constituent Assembly, is confirmed by the prohibitions of subsections (4) and (5) of section 6 of the Indian Independence Act. In addition to these sovereign powers, the limited powers of the Federal Legislature were made exercisable by the Constituent Assembly of the Dominion. These two categories of power, however, remained distinct, the powers of the Federal Legislature being governed by the Government of India Act 1935 and powers of the Constituent Assembly being governed by the Indian Independence Act. Under section 8 of the Government of India Act the, executive authority of the Federation extends to the matter with respect to which the Federal Legislature has power to make laws, while section 7 of that Act requires the executive authority of the Federation to be exercised by the Governor-General and references to functions of the Governor-General in the Act are required to be construed as references to his powers and duties in the exercise of the executive authority of the Federation, and to any other powers and duties conferred or imposed upon him as Governor-General by or under the Act. Under section 9 of the Act there is to be a Council of Ministers to aid and advise the Governor-General, but till the amendment of that section by the Constituent Assembly on 21st September, 1954 there was no specific provision making ministerial advice binding on the GovernorGeneral. The Governor-General, therefore, exercises the executive authority of the Federation in regard to matters which are within the Federal Legislative field, and as a matter of law, could not be compelled to act on ministerial advice, though he might consider himself bound in propriety to do so or impelled to do so by the consideration of his possible removal by the Queen. This was then the position of the Governor-General under the Government of India Act till. 21st September 1954 when the ConstituentAssembly amended section 9 of the Act to make the advice binding upon him. Section 5 of the Indian Independence Act says that for each of the new Dominions there shall be a Governor-General who shall be appointed by His Majesty and shall represent His Majesty for the purposes of the Government of the Dominion. Under section 8, subsection (2) of the Act, each of the new. Dominions is to be governed as nearly as may be in accordance with the Government of India Act 1935 subject, however, to the express provisions of the Act and the adaptations made by Order of the Governor-General under section 9 of the Act. The word "Government" in section 5 and the word "governed" in section 8, sub-section (2) of the Act are but grammatical variations of the word "govern", and the one ought not to be construed in a wider or different sense or connotation from the other, except for good reason. No such reason appears, and none has been suggested. It follows, therefore, that the Governor-General represents His Majesty for the purposes of the government of the Dominion in accordance with the Government of India Act, and not generally, that is to say, for all purposes. The precise specification of the purpose in the express enactment shuts the door to further implication, and reference may usefully be made to the observations of Lord Dunedin in Whiteman v. Sadler ((1910) A C 514, 527 : 79 L J K B 1050, 1057). Prior to the Indian Independence Act 1947; the Governor-General did not represent His Majesty generally. Under section 2 subsection (1) of the Government of India Act 1935, all rights, authority and jurisdiction relating to the government of territories in India were exercisable by His Majesty, except as provided under the Act, or as may be otherwise directed by His Majesty. Section 3 of the Act said that the Governor-General of India was to be appointed by His Majesty by a commission under the Royal Sign Manual, and was to have such powers and duties as are conferred or imposed on him by or under the Act, and such other powers as His Majesty may be pleased to assign to him. The extent to which the Governor-General represented His Majesty was ascertainable from the provisions of the Government of India Act and the terms of the commission. Without considering the position of the Governor-General under the prior Indian Constitution Acts, it is sufficient to say that the Governor of a Colony has been consistently held in England not to be a Vicerey or quasi-Viceroy, but to represent His Majesty only in so far as the commission of his appointment authorises him, and for this

principle reference may be made to Musgrave v. Pulido ((1879) 5 A C 102: 41 L T R 629), where the Privy Council has reviewed prior cases. In Bonanza Creek Gold Mining Company Limited v. The King ((1916) 1 A C 566: 114 L T R 765, 771, (PC)), Lord Sumner referred to Musgrave v. Pulido as laying down, "that in the case of a Crown Colony, the commission of the Governor must in each case be the measure of his executive authority", and said that this principle "in such a case as that of a selfgoverning Dominion like Canada, might find its analogy in terms not only of the commission but of the statute creating the constitution". To the sane effect is the decision of Privy Council Commercial Cable Company v. The Government of Newfoundland ((1916)2 A C 610, 616 : 115 L T R 574). It has been argued, that apart from section 5 of the Indian Independence Act, the Governor-General has, and can exercise His Majesty's prerogative to dissolve the Constituent Assembly, because the Constituent Assembly is a Legislature, and the India Independence Act leaves that prerogative of His Majesty unaffected by its provisions. The argument, however, cannot stand apart from section 5, because if the GovernorGeneral has that prerogative, he has it by virtue only of being His Majesty's repesentative. That representation has been limited by express words "for the purposes of the government of the Dominion" and the limitation shuts the door to further implication. In Bonanza Creek Gold Mining Company Limited v. The King Lord Sumner in dealing with the argument that in Canada, "the Governor-General and the Lieutenant-Governors of the Provinces, excepting so far as the Royal prerogative has been reserved expressly or by a necessary implication, have the right to exercise them, as though by implication completely handed over and distributed in such a fashion as to cover the whole of the fields to which the Self-Government of Canada extends", observed :"For a Constitution granted to a Dominion for regulating its own affairs in legislation and government generally, cannot be created without dealing with the prerogative, and the British North America Act from beginning to end deals with matters of prerogative for the most part without expressly naming the Sovereign. In Attorney-Genera v. De Keyser's Hotel ((1920) A C 509, 540) H. L. Lord Atkinson says, "that after the statute has been passed, and while it is in force, the thing it empowers the Crown to do can thenceforth only be done by and under the statute, and subject to all the limitations, restrictions and conditions by it imposed, however unrestricted the Royal Prerogative may theretofore have been." In Moors v. Attorney-General for the Irish Free State ((1935) A C 484, 499=A I R 1935 P C 149, 153) Viscount Sankey L. C. while dealing with the effect of the removal by an amending Act of the Parliament of Southern Ireland of the proviso to Article 66 of the Constitution of that Dominion, which, after the decisions of the Supreme Court had been declared final and conclusive by Article 66 declared that nothing in the Constitution shall impair the right of any person to petition His Majesty for special leave to appeal from the Supreme Court and the right of His Majesty to grant such leave, observed as follows :"Mr. Green has finally contended that the amendment is invalid because it affects the prerogative of the King in a matter outside the Dominion and outside the competence of the Oireachtas. It might be possible to state many objections to this contention, but it is enough here to say that whatever might be the position of the Kings Prerogative if it were left as a matter of the common law, it is here in this particular respect and in this particular enactment made matter of parliamentary legislation so that the prerogative pro tanto merged in the statute, and the statute gives powers of amending and altering the statutory prerogative." Therefore, when there is legislation covering a field of prerogative and it is desired to make the prerogative still available, it becomes necessary to reserve in the legislation the power to use the prerogative concurrently with the legislation, as otherwise the legislation, so long as it is in force, precludes the exercise of the prerogative. In Sammut v. Strickland ((1938) A C 678 = A I R (1939) P C 39) the Privy Council dealt with such a reservation in the Malta Letters Patent. Section 295 subsection (2) of the Government of India Act 1935 and section 401 subsection (5) of the Cr. P. C., are instances of similar

reservation of the Royal prerogative of granting pardons, reprieves, respites or remissions of punishment. In 1947, the need for legislation on the Prerogatives of His Majesty in relation to the new Dominion's and particularly the Constituent Assemblies clearly arose in the Indian Independence Act, for it was found necessary to specify and P define the purpose for which the Governor-General was to represent His Majesty. That purpose having been clearly defined, the inference is one of prohibition against travelling beyond the boundaries of that definition. Reference may usefully be made to the remarks of Lindly L. J, in London Association of Ship-owners v. London and India Docks Joint Committee ((1892) 3 Chancery Division 242, 251). It is therefore not correct to say that the prerogative to dissolve the Constituent. Assembly remains unaffected by the provisions of the Indian Independence Act. Confirmation of this view is available, though it is not necessary 'to the interpretation of the clear words of the Indian Independence Act, in the removal of clause (c) of subsection (2) of section 19 of the Government of India Act from 15th August 1947 by the Schedule to the Indian (Provisional Constitution) Order 1947 made by the Governor-General pursuant to his powers under (c) of subsection (1) of section 9 of the Indian Independence Act, whereby the power of the Governor-General to dissolve the Federal Legislature was taken away, though his powers to summon and prorogue it were allowed to remain. At the same time, the Schedule to the Order removed also the whole of Schedule I to the Government of India Act, Part I of which contained provisions for representatives of British India in the Federal Legislature. It has been said that the removal of clause (c) was necessitated by the removal of section 18, but as under that section life of the Federal Assembly was fixed .at five years and could have been sooner dissolved, the removal of section 18 was a reason for retention and not removal of clause(c). The position of the Governor-General under section 9 of the Indian Independence Act is, within its limits, that of a Concurrent Legislature, under subsection (3) with the Westminster Parliament from 3rd June 1947, till the Appointed Day, and thereafter under subsection (5) with the Constituent Assembly till 31st March, 1949. Since the powers of the Federal Legislature were to be exercised by the Constituent Assembly, the removal of the Governor-General's power to dissolve the Federal Legislature was in consonance with what has been said above as to the true meaning of section 5 of the Indian Independence Act and its effect upon prerogative. The true question is not as to the reasons why clause (c) of subsection (2) of section 19 of the Government of India Act was removed, but as to the effect of the removal. The removal itself is quite an unambiguous act. In Moore v. The Attorney-General for the Irish Free State ((1935) A C 484, 498= A I R 1935 P C 149, 154) Viscount Sankey L. C. considered that the removal of the priviso to Article 66 of the Irish Constitution had theeffect of prohibiting appeals to the King in Council from the Supreme Court of that Dominion. Similarly here, the effect of the removal of clause (c) is to prohibit dissolution of the Federal Legislature and since the same body of men exercises the powers of the Federal Legislature anal the Constituent Assembly, the, prohibition refers to the Constituent Assembly. The argument by way of explanation has been advanced that clause (c) was removed because it was not necessary to retain it, as the Governor-General had the power under section 5 of the Indian Independence Act or otherwise under the prerogative to dissolve the Constituent Assembly; which is the same body of men as the Federal Legislature. If that were correct, then the Governor-General's powers to summon and prorogue the Federal Legislature under clauses (a) and (b) of subsection (2) of section 19, and to assent or dissent to its bills under section 32 of the Government of India Act, should, on a parity of reasoning, have been taken away, but they were on contrary retained and have been fully exercised since. The argument, however, is fruitless, as it leads back to the true meaning of section 5 of the Indian Independence Act and the availability of the prerogative. The result is that the prerogative to dissolve is governed by the express provisions of section 5 of the Indian Independence Act, and that section does not enable the Governor-General to dissolve the Constituent Assembly.

The argument that the Governor-General has the power to set up another body of men as the Constituent Assembly for Pakistan under clause (b) of subsection (3) of section 19 of the Indian Independence Act is based on the ground that when a power is once conferred, it may be exercised again as occasion may arise. It-is open to question whether this subsection, appearing as it does not in a substantive but in an interpretation section, can be held to be one conferring a power on the Governor-General for the time being, to set up a Constituent Assembly for Pakistan as occasion may arise. In terms, it refers "to the Assembly set up or about to be set up at the date of the passing of this Act under the authority of the Governor-General as the Constituent Assembly for Pakistan". That authority is clearly the executive authority of the Governor-General, not under the Government of India Act, 1935, or his Commission, but one under the directions and as the Agent of His Majesty's Government in Great Britain to implement its scheme to transfer power to the two new Dominions, and it was exercised in anticipation of Parliamentary legislation giving to the body so set up statutory recognition or existence as the Constituent Assembly, and the powers to frame the Constitution of the Dominion. These the Indian Independence Act gave. The words used are "set up or about to be set up", and they refer to the Assembly which was to the knowledge of Parliament in the process of being set up but as to which Parliament was un certain whether it had already been set up. The words, "or about to be set up", cover the contingency of the Assembly not having been in fact set up, "at the date of the passing of the Act". It is not unusual for His Majesty's Government in Great Britain to take executive action in anticipation of Parliamentary legislation giving it statutory effect, and if an example were needed outside the various agreements on diverse matters between His Majesty's Government in Great Britain and the two major political parties in India, one may be found in the Articles of an Agreement for a Treaty between Great Britain and Ireland, dated 6th December 1921, which was made law by the Irish Free State (Agreement) Act 1922, to which the treaty was scheduled. There is further the consideration that section 19, subsection (1) is meant to be used to interpret the term "Governor-General" used in the Act, only "in relation to any order to be made or every act done on or after the appointed day", i.e. 15th August, 1947. The Indian Independence Act was passed on 18th July, 1947, and the Constituent Assembly for Pakistan was set up on 26th July, 1947. The reference to the GovernorGeneral in clause (b) of subsection (3) of section 19, is to the person of Lord Mountbatten, and he has been referred to therein, not by name but by his designation. Correctly, clause (b) is meant to be used to construe references made in the Indian Independence Act to the Constituent Assembly of a Dominion when the reference relates to Pakistan. It does not, as is contended, confer power upon the Governor-General for the time being to set up another body of men as the Constituent Assembly for Pakistan. The prerogative of preferential payment of Crown debts, to which reference has been made in argument, has long since travelled into the Indian Legislative field and has been legislated upon, as, for instance, in section 49 of the Presidency Towns Insolvency Act 1909, which in Pakistan is called the Insolvency (Capital of the Federation and Dacca) Act, in section 61 of the Provincial Insolvency .Act, and in section 230 of the Companies Act in the Central field, and in the Land Revenue Codes in the Provincial field, Section 174 and section 175 of the Government of India Act still treat Crown property as vested in His Majesty for the purposes of the Federation or Province, and the prerogative is incidental to the property so vesting. Since the prerogative can be legislated upon by the Federal Assembly, it is within the executive authority of the Federation which the Governor-General exercises, and in so far as it is not regulated by statute, can be exercised by the Governor-General. Precisely the same is the position with regard to the prerogative to declare Martial Law, and the cases cited in argument themselves refer to section 72 of the Government of India Act 1919, and section 102 of the Government of India Act, 1935. The only prerogative assigned to the Governor-General by his Commission is to grant to convicts a pardon either free or subject to lawful conditions. It is said that subsection (3) of section 6 of the Indian Independence Act renders the Governor-General's assent necessary to Acts of the Constituent Assembly, in that it says, "the Governor-General of each of the new Dominions shall have full power to assent to any law of the Legislature of the Dominion". The sentence however, does not stop there and proceeds to mention the matter with reference to which or in the context of which

these words are used, and to deal with the matter and context by enjoining removal of the existing statutory requirements which derogate from the fullness; of power, mentioning the respects in which the power was not full. Their removal is, therefore, what subsection (3) effects and is intended to effect, and it is their removal which results in the fullness of the power. The whole of subsection (3) is expressed in but one sentence, and all parts of it must be interpreted in relation to each other and in the context of the subject matter with which the sentence deals. The intent is not to create the necessity of assent when none has been prescribed. What subsection (3) does is to shed the existing statutory limitations to the Governor-General's power to assent. It is said that in subsection (3) of section 6 the words, "the Legislature of that Dominion" mean the Constituent Assembly for Pakistan. The term, "the Legislature of the Dominion" is but notional and has reference to the lawmaking function or machinery or scheme of the Dominion, for there was no Federal Legislature at the partition, and a body of men called the Constituent Assembly was improvised primarily to frame the Constitution. The function of legislation was twofold, to exercise the powers of the Federal Legislature and those for the purpose of making provision as to the Constitution of the Dominion. This is borne out in subsection (1) of section 8, Indian Independence Act, which says: ".the powers of the Legislature of the Dominion shall, for the purpose of making provision as to the Constitution of the Dominion, be exercisable in the first instance by the Constituent Assembly of that Dominion . . . . " The words, "the powers of the Legislature of the Dominion" mean quite simply, the powers of legislation of the Dominion. In the use of the word, "Legislature" the function is concretised or personified as it often is. It is not necessary to refer to other subsections of section 6, Indian Independence Act, in order to interpret the clear words of subsection (3) for no ambiguity as to their meaning appears, but if it were necessary to do so, the following considerations arise. The words "full power" have been used in subsection (2) to remove the only deficiency in subordinate legislative function, namely that of making within its own sphere laws having extra-territorial operation. The object of section 6, Indian Independence Act, is to render the legislative function of each of the new Dominions not subordinate to that of the British Parliament. Subsection (1) (of which subsection (6) is an explanation of a kind often found in an interpretation clause), concedes the extra-territorial operation of laws, subsection (2) concedes the power to make laws repugnant to the Law of England or to any Act (including the Indian Independence Act) of the British Parliament or regulation thereunder which is in force in the Dominion, and subsection (3) removes the means whereby the legislative function was rendered abortive by the British Parliament. These, now removed, are indicia of legislative function which is subordinate to that of the British Parliament, and it was with these among other things that the statute of Westminster dealt in relation to then existing Dominions. Subsections (4) and (5) ensure that no Act of the British Parliament and no Order-in-Council or Rule made in Great Britain shall apply in either of the Dominions. It is in this context and as effectuating this object that the provisions of subsection (3) of section 6, Indian Independence Act, must be interpreted. It has been said that the principle to be applied is that expressed by the Privy Council in Theberge v. Laudry. ((1880) 2 A C 102) in the following words, approved in Cushing v. Dupuy ((1880) 5 A C 409) and reiterated in re. The will of Wi Matua ((1906) A C 448) :"Their Lordship wish to state distinctly that they do not desire to imply any doubt whatever as to the general principle that the Prerogative of the Crown cannot be taken away except by express words; and they would be prepared to hold, as often has been held before, that in any case where the Prerogative of the Crown has existed, precise words must be shown to take away that Prerogative." That principle has no application here, because the question for determination is whether the prerogative claimed subsists in the Governor-General. It is unnecessary to repeal here the conclusions which have been herein arrived at on an examination of the provisions of

section 5 of the Indian Independence Act and sections 7, 8 and 9 of the Government of India Act.

In law, sovereignty, i.e., sovereign power and function, resides in His Majesty and His Majesty exercises it to make constitutional and other laws for conquered and ceded territories. That is the supreme Royal Prerogative, and by the exercise of it His Majesty distributes, assigns or delegates and also prescribes the mode of the exercise of the powers which are in His Majesty, in all fields. In 1935, this sovereign power and function was declared to be and preserved in His Majesty by section 2 of the Government of India Act, "except so far as may otherwise be provided by or under" that Act, "or as may otherwise be directed by His Majesty". The Government of India Act truly effects distribution and-regulation of the sovereign power and function of His Majesty : it effects distribution of the sovereign power and function in the legislative, executive and. other fields, specifies the instrument for and prescribes the mode of its exercise Under, section 3 of the Act the Governor-General is said to have such powers and duties as are conferred or imposed on him by or under the Act, and to have such other powers as His Majesty may be pleased to assign to him. The term, "other powers" clearly has reference to the sovereign powers and functions not regulated, distributed or assigned by the terms of the Act. Two fields of the supreme sovereign function are therefore clearly distinguishable, that regulated or covered by the Government of India Act, and that beyond the Act which His Majesty retained. India was a dependent or subject territory by reason of (1) the powers reserved under the Government of India Act to His Majesty and His Majesty's Government in Great Britain, and (ii) the sovereign power and function of His Majesty not affected by the Government of India Act. To effectuate the grant of independence, therefore, was to remove the one and grant the other. There is. no doubt that the reservations were removed, and the question is how the Indian Independence Act dealt with the sovereign power and function beyond the Government of India Act. There is the sovereign power to grant, amend, withdraw, re-grant and bring into force a constitution, which is indeed the supreme Prerogative, because by the exercise of it all prerogatives can be distributed, regulated and even taken away, and this power the Indian Independence Act has placed in the Constituent Assembly, fully and finally without limiting its life or making it dependent upon any outside agency or formality to give validity to its measures, except such as the Constituent Assembly itself may choose to prescribe, as will presently appear. After the appointed day, no Act of the Westminster Parliament can extend to either of the new Dominions unless it is extended to it by the Legislature of the Dominion. The effect is that the law of the Constitution to be framed by the Constituent Assembly cannot be Westminster Parliament's legislation and must be the legislation of the Constituent Assembly itself. This supreme Prerogative is, therefore, granted solely to the Constituent Assembly, and since the grant is without any words of limitation, the Constituent Assembly can exercise it as fully as His Majesty could, that is to say, the exercise of it by' the Constituent Assembly is as supreme and unfettered as could be the exercise of it by His Majesty. When Parliament frames the Constitution it uses His Majesty's Prerogative by His Majesty's consent and the grant and the bringing into force of the Constitution is the act of the King. The true question is whether the exercise of the supreme Prerogative by the Constituent Assembly has been made subject to any limitation by the instrument making the grant. If it has, then to that extent the grant is not full. The grant has been made specifically to the Constituent Assembly in sub-section (1) of section 8 of the Indian Independence pct, and if any derogation from, limitation of, or condition to the fullness of the grant were intended, it would appear in the Indian Independence Act by specific reference to the Constituent Assembly's powers and functions. None, however, appears. In the field outside the Government of India Act, the Governor-General could exercise no power of His Majesty unless it was assigned to him, so that if any such power is now claimed for him, there must appear an express grant of that power to him by the Indian Independence Act in clear arid unmistakable terms. Far from expressly granting the

power, section 5, Indian Independence Act, declares that the position of the GovernorGeneral in relation to the Dominion is to be only that which it has previously been, the reserved powers now taken away by Statute not being taken into account. The GovernorGeneral was, even prior to 1947, appointed by His Majesty and represented His Majesty for the purposes of the Government of India. Section 5 is definitive of the field in which the Governor-General is to represent His Majesty. The representation does not extend to the field of supreme power or prerogative, which has been granted to the Constituent Assembly to make provisions as to the Constitution of the Dominion, and both the powers of assent and dissolution are provisions relating to the Constitution. It follows, therefore, that there now resides in the Constituent Assembly the sovereign power and supreme prerogative to amend and repeal the existing and frame and bring into force a new Constitution, which was of the essence of His Majesty's sovereignty, and therefore, the Constituent Assembly being, in the place of His Majesty is a sovereign body of no prescribed life or duration and subject to no agency or instrument outside itself to effect its dissolution or to give its laws validity, except such as it may itself choose to create. There now falls to be noticed the significant difference between the Constituent Assembly of Southern Ireland and the Constituent Assemblies of the new Dominions. To give force and effect to the Constitution framed by the former, an Act of the Westminster Parliament was necessary, while the Indian Independence Act has rendered it unnecessary in the case of the new Dominions, and this illustrates the fulness of the transfer of power. It was not a case of His Majesty promising to do what the Constituent Assembly might desire, but a case of enabling the Constituent Assembly to do what His Majesty could do. In this situation when His Majesty's own intervention to give validity or force to the measures of the Constituent Assembly was not to be required, it is anomalous to say that the intervention of His Majesty's representative was required. It has been said that the Governor-General as His Majesty's representative was meant to act on the advice of Ministers responsible to the Federal Legislature, but there was nothing then in the Government of India Act to compel him to act on the advice, and as a result of the provisions of sections 7, 8and 9 of the Government of India Act the evidence of the Ministers was confined to the fields of legislative and executive powers covered by the Government of India Act. Therefore, to clothe the Governor-General with powers to assent or dissent to the Bills of the Constituent Assembly was to make him truly a Viceroy, able to foil at will, any constitutional measure framed by the Constituent Assembly and to that extent, the measure of independence would have fallen short of full, instant and immediate independence. The argument that His Majesty could remove the Governor-General only accentuates the dependence on the will of His Majesty. It has been said that what was meant to be achieved by the Indian Independence Act was independence from the control of His Majesty's Government in Great Britain. It is, however, of importance to remember that the sovereign power and function was in His Majesty and that it was this power and function which enabled the Westminster Parliament with the consent of His Majesty to legislate. The powers of His Majesty's Government in Great Britain were reserved by Parliamentary legislation, but if any action were taken beyond them, it involved the executive use of the sovereign power. The independence to be achieved was freedom from the existence of this sovereign power and function in His Majesty, and not merely a promise that it would not be exercised ; what was required and was effected was a transfer of it from His Majesty in whom it resided to hands in law entirely free from His Majesty. There has been pressed the consideration of departmental interpretation in that never before this instance in the entire existence of Pakistan, has any action of Government ever been taken on the basis that a Bill of the Constituent Assembly requires the assent of the Governor-General, and consideration of the facts that, among the numerous Acts of the Constituent Assembly which have been acted upon without the assent of the Governor-General is the Privy Council (Abolition of Jurisdiction) Act 1950, under which the Federal Court of Pakistan has derived and exercised the Prerogative of the King-inCouncil to grant special leave to appeal, as indeed before it, the Federal Court of India had done under a similar Act not assented to by the Governor-General of India, and that

the Constitution of India framed by the Constituent Assembly of India under precisely the same provisions as govern the Constituent Assembly of Pakistan, was not assented to by the Governor-General of India, and the Indian Supreme Court has been treating the Constitution valid and enforcing its provisions. Having regard to the conclusions arrived at on the plain meaning of words used in the statutes in their ordinary and natural sense and -in the context in which they appear, it seems unnecessary to reach findings upon the effect of these considerations, weighty though they may well be. Section 223-A of the Government of India Act was enacted on 6th July 1954 by the Government of India (Amendment) Act, 1954. It reads as follows :Every High Court shall have power throughout territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases any Government within those territories, writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them." It has been said that this Court has no jurisdiction to issue the writs sought, because the Governor-General's Proclamation and appointment of Ministers have effect and operate not only in the Federal Capital and Sind but also beyond them, and that the jurisdiction conferred by section 223-A is limited to matters which take effect only within these territories, and not beyond. This section confers power upon this Court to issue writs throughout the territories in relation to which it exercises jurisdiction to any person or authority or Government within those territories, anal the true question is whether the issue of the writs involves the doing of anything not covered by the words of the section. This Court has sole High Court jurisdiction in the Federal Capital which was established by the Pakistan (Establishment of the Federal Capital) Order 1948, pursuant to power specially reserved under section 290-A, Government of India Act, and that jurisdiction continues, though Karachi is now a Chief Commissioner's Province. The fact remains that Karachi is the Federal Capital where the petitioner and the respondents reside and carry on their legal functions. Under sub-section (5) of section 290-A, Government of India Act, the executive authority of the Federation extends to the Capital of the Federation, and any order made under the sub-section may, be controlled or superseded by an Act of the Federal Legislature. The Constituent Assembly which exercises the powers of the Federal. Legislature has its seat at Karachi where also resides and functions the Governor-General. The Proclamation was made and issued and the Ministers were appointed and assumed office and function at Karachi. Reference has been made to Ryots of Garabandho v. Zamindar of Parlakimedi (A I R (1943) P C 164, 168), but that case is clearly distinguishable. It dealt with the narrow territorial jurisdiction of the Madras High Court extending only to its original civil jurisdiction and the attempt to widen that jurisdiction to subject matter and parties wholly outside it, by reason only of the fact that an order of the Revenue Officer of Ganjam might be corrected by the Board of Revenue which then happened to have its office at Madras. There was a contrast made between this case and Nundolal Bose v. Calcutta Corporation (I L R (1885) 11 Cal 275), where an assessment was made by the Commissioners of the Town of Calcutta upon a dwelling house at Calcutta. The contrast brought out two significant considerations, namely, that it was possible to avoid the jurisdiction of the Madras High Court by shifting the office of the Board of Revenue to a place outside it, and that before jurisdiction could attach, there would have to be an appeal or revision from the Revenue Officer operating in Ganjam to the Board of Revenue at Madras, and the Privy Council found that in substance jurisdiction was claimed mainly on the fact that the office of the Board of Revenue happened to be situate at Madras. The true objection to holding that the situation of the office gave jurisdiction to the Madras High Court was that it involved extending the jurisdiction of the Court to subject matter as well as parties outside its original civil jurisdiction. That ratio decidendi does not support the argument raises' here. This case in its relation to Article 226 of the Indian Constitution, upon which section 223-A, Government of India Act, is largley modelled has been considered in Election Commission India v. Saka Venkatarao (A I R 1953 S C 210, 212-3), and in K. S. Rashid & Son v. Income-tax Investigation Commissioner (A I R 1954 S C 207, 209), and distinguished, in that the matter now rests upon an interpretation of Article 226 and the jurisdiction to issue writs is that defined in

it. Shree Meenakshi Mills Ltd. v. Provincial Textile Commissioner Madras (A I R 1949 P C 307, 310), is also distinguishable in that the case turned upon the words of section 45, Specific Relief Act, and all the reliefs asked for related to acts done or to be done outside the limits of the ordinary original civil jurisdiction of the Madras High Court. It has been said that sections 306, Government of India Act, is a bar to the petition. This petition, however, is not a proceeding "against the Governor-General", and the GovernorGeneral is no party to it. The section grants to the Governor-General personal immunity, for he exercises the executive authority of the Federation, and under section 176, Government of India Act, the Federation may be sued. His personal capacity is not involved in this petition. The agrument that the petition involves consideration of the validity of the Governor-General's Proclamation has no application here, because there is nothing in the section to show that a Court cannot consider the validity of the acts of the Governor-General. On the contrary, proceedings allowed by section 176 and section 223A, Government of India Act, may well raise the question of their validity, for all executive action of the Federal Government is taken in the name of the GovernorGeneral. It has been said that mandamus does not lie, there being no specific statutory right in the petitioner and specific statutory duty upon the respondents to maintain the petitioner in his office. In 1760, a writ of mandamus v issued to restore a Curate to a chapel in R. v. Blooer (97 English Rep. 697.) and the decision was affirmed in King v. Barker (96 English Rep. 169.), a full report of which appears in 97 English Reports 823, 824-5, where Lord Mansfield has adverted to the nature of the writ and the wide circumstances (restoration of an alderman to precedency was one), to which it has been extended. The writ "was introduced to prevent disorder from a failure of justice, and defect of police" and "it ought to be used upon all occasions when the law has established no specific remedy, and where in justice and good Government there ought to be one", and "it has been liberally interposed for the benefit of .the subject and advancement of justice." It appears from Halsbury's Laws of England (Hailsham Edition 1935) vol. IX, page 746, para 1271, that mandamuslies to compel the restoration of a person to an office or franchise, whether spiritual or temporal, of which he has been wrongfully dispossessed, provided the office or franchise is of a public nature. Since the power exists to restore by mandamus a person ousted from his public office, no reason appears why it should not be used to restore the petitioner to his high office ; it is certainly an office of a public nature and involves emoluments and advantages. It has been said that a writ of mandamus ought not to issue, because a suit for declaration and/or injunction could and should have been filed. It is a matter of doubt and by no means of certainty, having regard to the provisions of section 24 and section 56, Specific Relief Act, that the remedies suggested would be granted, and it cannot be predicted that in such a suit for discretionary remedies, it would not have been found that they ought not to be granted because a writ of mandamus could issue. There is a discretion in the Court to withhold a writ of mandamus, if there is an alternative legal remedy equally convenient, beneficial and effectual, but it is a bold assertion that a suit on the original civil side of this Court would be that. Besides, it is difficult to conceive of a matter requiring more prompt consideration and speedy final decision than this writ petition. It raises questions of such basic and vital constitutional importance that a writ petition is the only remedy which ought to be regarded as convenient, beneficial, effectual or satisfactory. It has been said that a writ of mandamus ought not to issue because no demand was made by the petitioner and no refusal given by the respondents in respect of the prayer for mandamus. In a case of this nature where the action complained of was so deliberate, it seems idle to suggest that a demand by the petitioner would have led to any compliance on the part of the respondents. It has been said that a Writ of quo warranto issues only at the instance of the King, and that it cannot issue u against a Minister appointed by the King's representative. In Rex v. Speyer and Cassel ((1916) 1 K B 595 : 114 Law Tines Reports 463) where Sir George Makgil. purely out of a sense of public duty, questioned the competence of Sir Edgar

Spayer and Sir Earnest Cassel to be appointed Members of the Privy Council, it was found that a writ of quo warranto did issue at the instance of a private person, for "every subject has an interest in securing that public duties shall be executed only by those competent to W exercise them," and the argument that the writ did not issue against the King was found ineffective, in that the writ if it issued at all, would issue against a private person on the ground of his incompetency. Respondents 2, 3, 6 and 9 are Members of the Federal Legislature. Respondents 2, 3 and 6 were Ministers prior to 24th October 1954, while respondent 9 was appointed Minister on that day. There is no reason why a writ of quo warranto should issue against respondents 2, 3, 6 and 9. I would therefore issue a writ of mandamus restoring the petitioner to his office as President of the Constituent Assembly and restraining all the respondents from obstructing or interfering with the exercise by the petitioner of the functions and duties of his high office. I would also issue a writ of quo warranto against respondents 4, 5, 7 8 and 10 declaring that by reason of section 10 of the Government of India Act as amended on 21st September 1954 they are not qualified for appointment as Ministers, not being Members of the Federal Legislature. There will be a certificate in terms of section 205, Government of India Act. MUHAMMAD BACHAL, J.-I agree in the order proposed by my lord, the Chief Judge. MUHAMMAD BAKHSH, J.-9th February, 1955. This is a petition under section 223-A of the Constitution Act for writs in the nature of mandamus, quo warranto or any other appropriate writ. The petition has been filed by Maulvi Tamizuddin Khan the President of the Constituent Assembly of Pakistan against the Federation of Pakistan, the Prime Minister of Pakistan and eight Members of the Central Council of Ministers. The facts giving rise to this petition are stated to be as follows :On 16th May 1946 an announcement was made about the Cabinet Mission Plan by the then British Prime Minister Mr. Atlee, making certain recommendations regarding the Indian Constitutional problems and among others, for setting up a 'Constituent Assembly for united India. The election to that Constituent Assembly took place in or about July 1946. The first session of that Assembly was held on 6th December 1946. Under the directions of the Quaid-e-Azam, the Muslim League Members boycotted the said Constituent Assembly. Eventually on 3rd June 1947 the British Government announced their final decision to transfer power to one or two successor authorities in accordance with the plan envisaged in that statement. Specific provisions for taking steps for setting up a separate Constituent Assembly for Pakistan were contained in that statement. Thereafter, the Indian Independence Act was passed which received His Majesty's assent on 18th July 1947. In accordance with the statement of His Majesty's Government dated 3rd June 1947, His Excellency Lord Mountbatten, the then Governor-General of India, directed the formation of a new Constituent Assembly for Pakistan, consisting of various members mentioned in that order. On 10th August, 1947 the first meeting of the said Constituent Assembly of Pakistan was held at Karachi. On 11th August, 1947, Quaid-eAzam Mohammad Ali Jinnah was elected the first President of the said Constituent Assembly. After the death of the Quaid-e-Azam the petitioner Maulvi Tamizuddin Khan was elected as the President of the Constituent Assembly on 14th December 1948 and since then the said office is being held by him. The Constituent Assembly held various sessions from time to time. On the Constitution side the work of drafting and enacting the Constitution for Pakistan was being finalised and final session in this behalf was to be held and as publicly declared and announced by the Prime Minister of Pakistan, respondent No. 2 himself, the Constitution for this country was to be ready before 25th December 1954, coinciding with the birthday of the Quaid-e-Azam. On 24th October 1954, His Excellency the Governor-General of Pakistan was pleased to issue a Proclamation which reads as follows :-

"The Governor-General having considered the Political crisis with which the country is faced, has with regret come to the conclusion that the constitutional machinery has broken down. He therefore has decided to declare a state o emergency throughout Pakistan. The Constituent Assembly as at present constituted has lost the confidence of the people and can no longer function. The ultimate authority vests in the people who will decide all issues including constitutional issues through their representatives to be elected afresh. Election will be held as early as possible. Until such time as elections are held, the administration of the country will be carried on by a reconstituted Cabinet. He has called upon the Prime Minister to re-form the Cabinet with a view to giving the country a vigorous and stable administration. The invitation has been accepted. The security and stability of the country are of paramount importance. All personal, sectional and provincial interests must be subordinated to the supreme national interest." On 26th October 1954, various notifications were published in the Extraordinary Issue of the Gazette of Pakistan regarding the reconstitution, appointment and distribution of the portfolios among respondents 2 to 10 as Members of the Governor-General's Council of Ministers. On 25th October 1954, the final meeting of the Drafting Committee appointed by the Constituent Assembly was held wherein the Draft Constitution was approved and the Report of the Committee was finalised and signed. On 26th October 1954, between 830 and 9 a.m. respondent No. 4 approached the petitioner and represented to him that in view of the alleged Proclamation of 24th October 1954; the Constituent Assembly was dissolved. He tried to pursuade the petitioner to accept that position but the petitioner declined to do so. On 27th October 1954, the Constituent Assembly Building was guarded by a strong Police Force and members of the Constituent Assembly including the Deputy President were prevented from entering the said premises. A meeting of the Constituent Assembly (Legislature side) was scheduled to be held on 28th October 1954 at 11 a.m. The petitioner cancelled the said meeting for want of business and adjourned the Constituent Assembly (Legislature) sine die. The meeting of the Constituent Assembly (Constitution side) was also scheduled to be held 28th October 1954, at 4-30 p.m. The petitioner cancelled the said meeting and announced that it would be held stead on 3rd January 1955, at 11 a.m. The petitioner has challenged the alleged Proclamation issued by the Governor-General on 24th October 1954, as unconstitutional, illegal, ultra vires, without jurisdiction, inoperative and void on various grounds mentioned in para. 11 of the petition. He has further submitted that the appointment and reconstitution of respondents 2 to 10 as Ministers are illegal, ultra vires, without jurisdiction, inoperative and void on the grounds stated in para. 12 of the petition. The petitioner further alleges that he has challenged the legality etc. of the alleged Proclamation, and the respondents are persisting in implementing the same and are thereby interfering with the office and public duties of the petitioner. The petitioner has applied for justice which has been denied to him and he therefore submits that there resides in him a legal right to the performance of legal duties by the respondents. The petitioner has also submitted that there is no other specific, effective or convenient alternative remedy open to him. The petitioner has therefore asked for a writ of mandamus or any other appropriate writ to restrain-the respondents from implementing or giving effect to the said proclamation and thereby interfering with the public duties of the petitioner. The petitioner has also lodged information in the nature of quo warranto in respect of respondents 2 to 10 as they have usurped the office of the Council of Ministers. The petitioner has requested that this Court should inquire by what authority the said respondents claim to be Members of the Council of Ministers. It appears that the Estate Officer of the Government of Pakistan had given a notice to the petitioner on 30th October 1954, to vacate his official residence since the Constituent Assembly had been dissolved. The petitioner had therefore joined the Estate Officer also as respondent No. 11. At the time this application came up for summary hearing the petitioner dropped the Estate Officer from this petition and he was permitted to file a separate petition against him if necessary.

On behalf of the respondents, the following objections have been raised against the petition: (1) Section 223-A of the Constitution Act under which this petition has been filed has not yet become law, valid and enforceable in Pakistan though passed by the Constituent Assembly, because under section 6 (3) of the Indian Independence Act it required the assent of the Governor General and has not yet received that assent. Rule 62 of the Constituent Assembly Rules provides that any Bill passed by the said Assembly will become law as soon as it is signed by the President of the Assembly and published in the official gazette under his signature, but this rule is illegal, ultra vires and void on the grounds stated in para. 4 of the objections especially when it did not receive the assent of the Governor-General. (2) Even if section 223-A was a valid provision of Constitutional law, it limits the writ jurisdiction of a High Court to only such person, authority or Government whose public duties, powers, functions and official sphere of activities were confined strictly within the limits of the territorial jurisdiction of the High Court and did not extend beyond it. This Court cannot therefore issue any writ against the Federation of Pakistan which is not and cannot be said to be within the territorial limits of this Court, viz., within Karachi and the Province of Sind. Respondents 2 to 10 as Ministers of the Central Government also exercise authority beyond the territorial jurisdiction of this Court. Alternatively, it would not be "appropriate" in this case to include respondent 1 or respondents 2 to 10 in the term "Person or Authority" used in section 223-A. (3) According to the English Law of writs which must be held to apply in this case in the absence of any definition of the scope and nature of writs in section 223-A, no writs of mandamus or quo warranto have ever been issued or can legally or equitably be issued against either the King or his Ministers. On the same principle the petitioner is not entitled to any writ against the respondents. (4) The petition does not lie in view of the provisions of section 306 of the Constitution Act which lays down that no proceedings can lie against the Governor-General in any capacity. What the law does not permit to be done directly, it will not allow to be done indirectly. (5) The petition for a writ does not lie if normal remedies under the law are available to the petitioner. Since the petitioner admitted that he had summoned the Constituent Assembly to meet in January 1955, there was ample time for him to give notice to the respondents under section 80 C. P. C. and then to file a suit for declaration and injunction if he had any confidence in the justice or strength of his claim. (6) A writ of mandamus can be issued for the benefit of a petitioner only when he has a clear and specific legal right to demand the performance of any specific legal duty from the respondent. Nothing of that kind appears in this case. A writ of mandamus does not issue when a wrong has actually been done ; what the petitioner wants is to undo it. The writ issues only when the respondent is about to commit a wrong or has omitted doing something which it is his duty to do. The petitioner has lost office by dissolution of the Constituent Assembly and no one is at present illegally occupying that office. Hence the writ does not lie. (7) In any case respondents 2, 3, 6 and 9 being Ministers of the old Cabinet have admittedly usurped no office. They continue and remain as Ministers as they were before 24th October 1954. A writ of quo warranto can therefore not be issued against them. (8) In case of usurpation of any office under the Crown, it is the exclusive right of the King to seek a writ of quo warranto declaring the person to be a usurper and compelling him to vacate the office usurped, on the application not of any private person but on the application of the Attorney General, or in Pakistan the Advocate-General. In case of a person appointed to an office by the King himself; there can be no question of a writ. of quo warranto by the King's Court against the King's own act of appointment. Therefore respondents 4, 5, 7, 8 and 10 who have been appointed Ministers by the GovernorGeneral -representing the Queen, no writ of quo warranto can, legally issue against them.

(9) To sustain this petition the petitioner must establish some definite injury to himself so far his personal and present rights are concerned. The appointment of respondents 2 to 10 as Ministers has not caused any personal injury to the petitioner or adversely or directly affected his interest. The petition for quo warranto is therefore not maintainable. (10) Until other provision is made under the Indian Independence Act, Pakistan is one of the Dominions of the Crown of the United Kingdom. In each of those Dominions in which a legislature exists 'the Crown has in common law a power to dissolve that legislature save in so far as that power has been superseded or regulated by legislation. The power of dissolution is a prerogative of the Crown which vests in the GovernorGeneral under section 5 of the Indian Independence Act. The dissolution of the Constituent Assembly was therefore perfectly valid in view of the seven grounds stated in Part II of the objections filed by the respondents which relate to the merits of the petition. Mr. I. I. Chundrigar, advocate, and Mr. D. N. Pritt, Bar-at-law, argued the matter on behalf of the petitioner. Mr. Faiyaz Ali the Advocate-General of Pakistan argued the case on behalf of respondents 1, 2, 3, 6 and 9. Mr. Manzur Qadir argued on behalf of the remaining respondents. Before dealing with the various questions raised in this important matter it is necessary for us to understand the scheme of the Indian Independence Act, 1947 and its background. Before the passing of the Indian Independence Act, 1947, India was being governed by the provisions of the Government of India Act, 1935. Sections 2 and 3 of that Act must be reproduced here :"2. Government of India by the Crown.-(1) All rights, authority and jurisdiction heretofore belonging to His Majesty the King, Emperor of India, which appertain or are incidental to the Government of the territories in India for the time being vested in him, and all rights, authority and jurisdiction exercisable by him in or in relation to any other territories in India, are exercisable by His Majesty, except in so far as may be otherwise provided by or under this Act, or as may be otherwise directed by His Majesty : Provided that any powers connected with the "exercise of the functions of the Crown in its relation with Indian States shall in India, if not exercised by His Majesty, be exercised only by, or by persons acting under the authority of, His Majesty's Representative for the exercise of those functions of the Crown. (2) The said rights, authority and jurisdiction shall include any rights, authority and jurisdiction heretofore exercisable in or in relation to any territories in India by the Secretary of State, the Secretary of State in Council, the Governor-General, the Governor-General in Council, any Governor or any Local Government, whether by declaration from His Majesty or otherwise. 3. The Governor-General of India and His Majesty's Representative as regards relations with Indian States. The Governor-General of India is appointed by His Majesty by a Commission under the Royal Sign Manual and has--(a) all such powers and duties as are conferred or imposed on him by or under this Act; and (b) such other powers of His Majesty, not being powers connected with the exercise of the functions of the Crown in its relations with Indian States, as His Majesty may be pleased to assign to him. (2) His Majesty's Representative for the exercise of the functions of the Crown in its relations with Indian States is appointed by His Majesty in like manner and has such powers and duties in connection with the exercise of those functions (not being powers or duties conferred or imposed by or under this Act on the Governor-General) as His Majesty may be pleased to assign to him.

(3) It shall be lawful for His Majesty to appoint one person to fill both the said offices." Under this Act various powers were conferred upon the Governor-General of India. Important amongst those were the Special Responsibilities (section 12), the Individual Judgment and the Discretion (section 14). There were three fields in which the GovernorGeneral could operate. The first one was the field of "Discretion" where the Governor-General could take any auction he liked without consulting his Ministers ; the second was the field of "Individual Judgment" where the Governor-General was bound to consult his Ministers but was not bound to act on their advice. In these two fields the Governor-General was directly under the control of the Secretary of State (vide section 14 of the Act). The third field was that of "Advice" where the Governor-General was bound to act on the advice of his Ministers. Apart from these powers there were several others which I need not mention at this stage, but which I will mention at their proper places where necessary. On the Legislative side there was a Federal Legislature which consisted of His Majesty represented by the Governor-General and two Chambers (section. 18). When a Bill was to be passed by the Chambers, it was to be presented to the Governor-General and the Governor-General was authorised in his discretion to declare either that he assented in His Majesty's name to the Bill or that he withheld his assent therefrom or that he reserved the Bill for the signification of His Majesty's pleasure. A Bill reserved for the signification of His Majesty pleasure was not to become an Act of the Federal Legislature unless and until within twelve months from the day on which it was presented to the Governor-General, the Governor-General made known by public notification that His Majesty had assented thereto. His Majesty had also the power to disallow the Act assented to by the GovernorGeneral (vide section 32). Thus it would be seen that His Majesty represented by the Governor-General was a part of the Legislature and until any Bill was assented to by Him or on His behalf, the Bill could not become Law. In this connection it is important to note, that, in England His Majesty is a part of the Parliament which consists of His Majesty and the two Houses of Lords and Commons. Every Act of Parliament proceeds with the words, "Be it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Lord Spiritual and Temporal and Commons, in this present Parliament assembled, and by the authority of the same, as follows." At this stage I would also invite reference to the Letter: Patent whereby the office of the Governor-General of India, was created, the Commission issued under the Royal Sign Manual appointing the particular dignitary to be the Governor-General of India and the Instrument of Instruction issued to the Governor-General of India. Para. 2 of the Letters Patent reads as follows :"And We do hereby authorise and empower Our Governor-General in Our name and on Our behalf t grant to any offender convicted in the exercise of its criminal jurisdiction by any Court of Justice within our territories in India a pardon, either free or subject to such lawful conditions as to him may seem fit." This is the delegation of the Royal Prerogative of pardon and reprieve by His Majesty to the Governor-General. In this connection see section 295(2). Para. 16 of the Instrument of Instructions issued to the Governor-General of India on 8th March 1937 reads as follows :"And finally it is Our will and pleasure that Our Governor-General should so exercise the trust reposed in him that the partnership between India and the United Kingdom within Our Empire may be furthered to the end that India may attain its due place among our Dominions." The people of India were not satisfied with this kind of Constitution for their country and hence a lot of agitation was started against the Government of the day. The people wanted full and unfettered freedom for their country and things like the "Quit India" movement were launched. The result was that the British Government ultimately decided to confer independence on India. In 1946 the Cabinet Delegation came to India to study

the political situation in the country at first hand. On 15th March 1946, before the Delegation left for this country, Mr. Attlee, the British Prime Minister, stated as follows:"My colleagues are going to India with the intention of using their utmost endeavours to help her to attain her freedom as speedily and fully as possible. What form of Government is to replace the present regime is for India to decide but our desire is to help her to set up forthwith the machinery for making that decision . . . I hope that India and her people may elect to remain within the British Commonwealth. I am certain that they will find great advantages in doing so .. . . . But if she does so elect it must be of her own free will. The British Commonwealth and Empire is not bound together by chains of external compulsion. It is a free association of free peoples. If on the other hand she elects for Independence, in our view she has a right to do so. It will be for us to help to make the transition as soon and easy as possible." The Cabinet Mission Plan was unfolded in their statement dated 16th May 1946, in which the following passage appears :"We hope that the new independent India may choose to be a member of the British Commonwealth. We hope in any event that you will remain in close and friendly association with our people, but these are matters for your own free choice. Whatever that choice may be we look forward to you to meet with ever increasing prosperity among the great nations of the world and to a future even more glorious than your past". In accordance with the Cabinet Mission Plan a Constituent Assembly was set up for United India and the first session thereof was, held on 6th.December 1946. At that time, there were two main political parties in the country, viz., the Congress and the Muslim League. The Muslim League headed by the Quaid-e-Azam did not accept this plan and consequently they boycotted the Constituent Assembly of India. Talks thereafter went on and ultimately on 3rd June, 1947, the British Government announced their final decision to transfer power to one or two successor authorities. Specific provision was also made for setting up a separate Constituent Assembly for Pakistan. I find it necessary and relevant here to reproduce paras. 3; 19 and 20 from the statement of His Majesty's Government dated 3rd June 1947 :"3 . . . His Majesty's Government wish to make it clear that they have no intention of attempting to frame any ultimate constitution for India ; this is a matter for the Indians themselves, nor is there anything in this plan to preclude negotiations between communities for a United India. 19 . . . . The existing Constituent Assembly and the new Constituent Assembly (if formed) will proceed to frame Constitutions for their respective territories ; they will of course be free to frame their own rules. 20 . . . . Accordingly, as the most expeditious, and indeed the only practicable way of meeting this desire, His Majesty's Government propose to introduce legislation during the current session for the transfer of power this year on a Dominion Status basis to one or two successor authorities according to the decisons taken as a result of this announcement. This will be without prejudice to the right of Indian Constituent Assemblies to decide in due course whether or not the part of India, in respect of which they have authority, will remain within the British Commonwealth." In accordance with this statement of 3rd June 1947 the Indian Independence Act was passed by the British Parliament arid it received His Majesty's assent on 18th July 1947. A new Constituent Assembly for Pakistan was brought into being on 26th July 1947 under the directions of the Governor-General of India, Lord Mountbatten, and the first meeting of this Constituent Assembly of Pakistan was held at Karachi on 10th August 1947. On 11th August 1947, the Quaid-e-Azam was elected as the first President of the Constituent Assembly. Under the Independence Act two separate Independent Dominions to be called India and Pakistan were to be set up with effect from 15th August 1947. On 14th August 1947 Lord Mountbatten, till then the Governor-General of united India, came over to Karachi and formally transferred power to the Constituent Assembly. On

this account, Pakistan celebrates her Independence Day on 14th August every year. The significance of this should not be forgotten. On 15th August 1947 the Quaid-e-Azam was also sworn in as the first Governor-General of Pakistan. This is the background of the Indian Independence Act. I will now deal with the scheme of the Indian Independence Act (hereinafter for the sake of brevity called the "Independence Act") in order to see what changes it brought about in the Government of India Act, 1935 (hereafter for the sake of brevity called the "1935 Act"). Under the preamble and section 1 of Independence Act two "Independent Dominions" as, distinguished from mere "Dominions" were set up in this country. The word "Independent" was not redundant, meaningless or superfluous. The expression "Independent Dominions" only means that for the time being the status of this country was to be on the Dominion basis as stated by His Majesty's Government on 3rd June 1947, but the Dominions were at liberty to frame any Constitution for themselves. This Independence becomes manifest from the provisions of section 6 (2) of the Independence Act. It was apparently in consequence of this provision that section 2 of 1935 Act as reproduced above, was done away with. In fact, the Constitution of India whereby the Independence Act and the 1935 Act were repealed makes this position very clear. In this connection it is necessary to refer to Articles 52, 53 and 54 of the Constitution of India. They read as follows :-"52. There shall be a President of India. 53. (1) The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. (2) Without prejudice to the generality of the foregoing provision, the supreme command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law. (3) Nothing in this article shall (a) be deemed to transfer to the President any functions conferred by any existing law on the Government of any State or other authority ; or (b) prevent Parliament from conferring by law functions on authorities other than the President. "54. The President shall be elected by the members of an electoral college consisting of--(a) the elected members of both Houses of Parliament ; and (b) the elected members of the Legislative Assemblies of the States. All this could be done and the authority of His Majesty in the affairs of the Indian Republic was altogether omitted because the Dominion was an independent one from the very start and was free to make its own Constitution in any manner it liked. In this respect the Independence Act differs from the Constitutions of other Dominions, for instance North America, Australia or South Africa. For those and other Dominions the Constitution is made by the British. Parliament of which His Majesty is an integral part. Those Dominions are governed in accordance with the provisions of those Constitutions passed by the British Parliament while this country was to be governed by a Constitution made by itself. Sections 2, 3 and 4 of the Independence Act deal with the territories which are to be comprised in Pakistan.

Section 5 says that for each of the Dominions there was to be a Governor-General who was to be appointed by His Majesty and who was to represent His Majesty for the purposes of the Government of the Dominion. According to the learned AdvocateGeneral of Pakistan this section is the sheet-anchor of his whole case. He relies on this section as vesting in the Governor-General of Pakistan all the prerogatives of the Crown. The Governor-General, according to this section, is the repository of all the discretionary and arbitrary power of the British Crown. Some of these prerogatives are summoning, proroguing and dissolving of the Federal Legislature and also assenting to the Bills passed by the Legislature. This section, according to the learned Advocate-General, is an omnibus section which contains all the prerogatives of the Crown. I will discuss that aspect of the case later 'on. For the present I am only outlining the scheme of the Independence Act. At this stage I would only like to reproduce again section 3 of the 1935 Act and the same section 3 as adapted after the. Independence Act :"3. Section 3 of the 1935 Act.-(1) The Governor-General of India is appointed by His Majesty by a Commission under the Royal Sign Manual and has--(a) all such powers and duties as are conferred or imposed on him by or under this Act ; and (b) such other powers of His Majesty, not being powers connected with the exercise of the functions of the Crown in its relations with Indian States, as His Majesty may be pleased to assign to him. (2) His Majesty's Representative for the exercise of the functions of the Crown in its relations with Indian States is appointed by His Majesty in like manner and has such powers and duties in connection with the exercise of those functions (not being powers or duties conferred or imposed by or under this Act on the Governor-General) as His Majesty may be pleased to assign to him. (3) It shall be lawful for His Majesty to appoint one person to fill both the said offices." Section 3 of the Adapted Act "3. The Governor-General. The Governor-General of Pakistan is appointed by His Majesty by a Commission under the Royal Sign Manual. Now begin the most important provisions of the Independence Act. Under section 6 each of the new Dominions was to have a Legislature with full power to make laws for the Dominion, including laws having extra-territorial operation. Under subsection (2) the Dominion Legislature was authorised to pass any law even though it may be repugnant to the law of England or the Independence Act or the 1935 Act or any future Act of the British Parliament. The Legislature of the Dominion had also the power to repeal or amend any such Act, order, rule or regulation made thereunder. Under subsection (3) His Majesty's interference in the sphere of legislation was done away with. The GovernorGeneral of Pakistan had full power to assent to any law passed by the Legislature of the Dominion, and no Bills were to be reserved for the signification of His Majesty's pleasure thereon or for disallowance of the same or suspension until the signification. Under subsection (4) Acts of the British Parliament passed after 15th August 1947, were not to apply to Pakistan. Under subsection (5) no Order in Council made on or after 15th August 1947 under any Act passed before that date, could apply to Pakistan. Under section 7 His Majesty's Government were no longer responsible for the Government of any of the territories comprised in British India. The suzerainty of His Majesty over the Indian States lapsed and with it all the treaties and agreements went off. The treaties of agreements between His Majesty and any persons having authority in the tribal areas, etc., also went off. The titles of the British Sovereign namely "Indiae Imperator" and "Emperor of India" were done away with, and so also provision for the issue of Royal Proclamations by His Majesty under the Great Seal of the Realm was omitted.

Under section 8 the powers of the British Parliament to frame constitution for this country were removed. Instead this power was given to the Constituent Assembly which alone could make provision as to the Constitution' of Pakistan. Subsection (2) gives us a complete legislative assignment. Till other provision was made by the Constituent Assembly, the 1935 Act was to remain in force with all adaptations, etc., ordered by the Governor-General under section 9. Under section 8 (2) (h) His Majesty's Government in the United Kingdom had no kind of control whatsoever over the affairs of the new Dominions or any province or part thereof. Under section 8 (2) (e) the individual judgment and the discretion of the Governor-General or any Governor were also done away with. Under section 8 (2) (d) no Provincial Bill was to be reserved for the signification of His Majesty's pleasure, and no Provincial Act was to be disallowed by His Majesty. Under section 8 (2) (e) the Constituent Assembly was also to exercise the powers of the Federal Legislature under the 1935 Act in regard to making laws other than the Constitution. Under section 9 the Governor-General was empowered to make omissions from, additions to, and adaptations and modifications of the 1935 Act, and the Orders in Council and rules, etc., thereunder for a fixed period only, viz., from 3rd June 1947 to 31st March 1948. This period was further extended by the Constituent Assembly to 31st March 1949. Sections 10, 11, 12 and 13 refer to the provisions regarding the Secretary of State's services, the Indian Armed Forces, the British forces in India and the Naval forces. Sections 14 and 15 make further provisions regarding the Auditor of Home Accounts and the Legal proceedings by and against the Secretary of State. Section 16 refers to Aden, section 17 refers to divorce jurisdiction and section 18 makes a provision as to existing laws. Under section 18 (4) the Instruments of Instructions issued by His Majesty to the Governor-General and the Governors of Provinces before the passing of the Independence Act were to lapse completely with effect from 15th August 1947. Section 19 is the interpretation clause and section 20 is the short title. This is the entire scheme of the Independence Act, and in accordance with that scheme the Governor-General of India His Excellency Lord Mountbatten, in the exercise of powers conferred upon him by section 9 (1) (c), Independence Act, promulgated on 14th August 1947, i.e., one day previous to the setting up of two Independence Dominions, the Provisional Constitution Order, No. 22 of 1947, whereby the 1935 Act was adapted for each of the two Dominions which were to be governed by the same until other provision was made by the Constituent 'Assembly. We are at present being governed by the 1935 Act (as adapted by the Provisional Constitution Order 1947 and the various amendments made therein). I will now deal with various objections raised by the respondents. I will first deal with the most important or vital questions as the learned Advocate-General pointed out in his arguments, viz., of Assent and Dissolution. I shall now take up the question whether the, Acts passed by the Constituent Assembly under section 8 (1) of the Independence Act required the assent of Governor-General. The learned Advocate-General has laid great stress on the words of section 6 (3), Independence Act, and has tried to show that every Act passed by the Constituent Assembly whether on the Constitution or the Legislature side necessarily requires the assent of Governor-General and without that assent no Act whatsoever passed by the Constituent Assembly can have the force of law m Pakistan. Section 223-A which was passed by the Constituent Assembly on 6th July 1954, did not receive the assent and hence it is not enforceable. He also argued that section 6 (3) gave statutory recognition to a similar constitutional provision and parallel practice prevailing in other Dominions of the British Commonwealth. The learned Advocate-General also referred to Rule 62 of the Constituent Assembly Rules which provides that a Bill passed by the Constituent Assembly will become law as soon as it is signed by the President of the Constituent Assembly and published in the official gazette under his signature, and argued that this Rule was ultra vires, illegal and void for various reasons, specially for the reason that it did not receive the assent of Governor-General.

In his written objections the learned Advocate-General did not rely on section 5, Independence Act in this connection, and he did not claim that the right of assent to the Bills of the Legislature was also a prerogative of the Crown which now vested in the Governor-General by virtue of section 5. In his arguments, however, he relied for the point of assent on section 5 as well. I will deal with the question of prerogative fully later on. For the present I will confine myself to the other points raised by the learned Advocate-General in this connection. In my opinion reference to the Constitution of other Dominions in this behalf will not be helpful in the proper interpretation of section 6 (3) Independence Act. The language of section 6 (3) is materially different from the parallel provisions in other Constitutions. The words generally used are the same which are found in section 32 of 1935 Act, original or adapted. They are to the following effect :--"When a Bill has been passed by the Federal Legislature, it shall be presented to the Governor-General and the Governor-General shall declare either that he assents to the Bill or that he withholds assent therefrom." This is not the language of section 6 (3), Independence Act which reads as follows : "The Governor-General of each of the new Dominions shall have full power to assent to any law of the Legislature of that Dominion and . . . . ." The reason for this difference, in my opinion, is quite simple. The Independence Act ' is not the Constitution Act of this country in the same sense as 1935 Act or the North America Act, South Africa Act and the Commonwealth of Australia Act, etc. The Independence Act has simply conferred Independence on India, and the permanent Constitution for this country is yet to be framed by a special Chamber, viz., the Constituent Assembly set up under the Independence Act. When a full-fledged Constitution is made for this country, if the Constituent Assembly makes any provision for assent being given to the Acts of the Pakistan Parliament by the Governor-General, the wording will naturally be that "the Bill will be presented to the Governor-General and he shall declare either that he assents to the Bill or withholds his assent" Of course I agree with the learned Advocate General that "full power to assent to any law" includes the power to withhold assent in proper cases. But this kind of language is never employed in the drafting of a full-fledged and permanent Constitution of a country which is the supreme law of the land. The language employed is always clear and unambiguous. It never reduces people to the necessity of referring to the Interpretation Acts or the General Clauses Acts, specially when a provision is as simple as this one and for which precedent is found in almost every Constitution Act. There is also another reason why reference to the Constitutions of other Dominions will not be of any assistance to us in this behalf. The Constituent Assembly of Pakistan has yet to decide whether Pakistan will remain a Dominion within 'the British Commonwealth of Nations. In fact India is no longer a Dominion though it was also created like Pakistan on "Dominion basis" by the Independence Act. It is probably , on this account that we find the following note at the bottom of page 194, Halsbury's Statutes, Volume 6, Second Edition, which reads as follows :"The Dominions of India and Pakistan which were created by the Indian Independence Act, 1947, have not been expressly added to this list of 'Dominions' . . . ." In this behalf it will be instructive to read Article 111 of the Indian Constitution which deals with the question of assent to Bills. Article 111 reads as follows :"When a Bill has been passed by the- Houses of Parliament, it shall be presented to the President, and the President shall declare either that he assents to the Bill, or that he withholds assent therefrom: Provided that the President may, as soon as possible after the presentation to him of a Bill for assent, return the Bill if it is not a Money Bill to the Houses with a message requesting that they will re-consider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may

recommend in his message, and when a Bill is so returned, the Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the Houses with or without amendment and presented to the President for assent, the President shall not withhold assent therefrom." In view of these reasons, therefore, we have to interpret section 6 (3) in its proper context, and we have to read the words of the statute itself in order to arrive at the correct interpretation. Now section 6 (3) reads as follows:"The Governor-General of each of the new Dominions shall have full power to assent in His Majesty's name to any law of the Legislature of that Dominion and so much of any Act as relates to the disallowance of laws by His Majesty or the reservation of laws for the signification of His Majesty's pleasure thereon or the suspension of the operation of laws until the signification of His Majesty's pleasure thereon shall not apply to laws. of the Legislature of either of the new Dominions." This subsection must be read as a whole. It cannot be divided into two parts and each part read independently of the other. We cannot take up the first part, namely, "The GovernorGeneral of each of the new Dominions shall have full power to assent to any law of the Legislature of that Dominion" and start interpreting it independently of what follows in the second part. When we read it as a whole we will have no difficulty in understanding its true meaning and import. In view of the scheme of the Independence Act as outlined by me in the previous pages, section 6 (3) clearly refers to the 1935 Act and lays down that with effect from 15th August 1947 all provisions of that Act with regard to the reservation of any Bills for the signification of His Majesty or the disallowance of any law shall disappear. Instead, the Governor-General who is to represent His Majesty under section 5, Independence Act, shall have full power to assent to the Bills. This fully explains the different language of this subsection, viz., "shall have full power to assent". It was on account of this subsection that section 32 of 1935 Act was adapted in the manner as it appears now. A bare look at the original and adapted section 32 will clarify the whole point. In the original section there was also the word "discretion". That too has been removed in view of section 8 (2) (c), Independence Act. If the argument of the learned Advocate-General were accepted, section 32 would have been adapted to read as follows and not as it actually appears :--"When a Bill has been passed by the Federal Legislature, it shall be presented to the Governor-General and the Governor-General shall have full power to assent to that Bill." This proves that the expression "law" appearing in this subsection has reference only to the ordinary law which the Federal Legislature has to pass under the 1935 Act, and not the law of Constitution as provided by section 8 (1), Independence Act. Under the Independence Act the Constituent Assembly has two functions to perform. Under section 8 (1) it has the power to frame the Constitution for the country, and under section 8 (2) (e) it has also the powers which the Federal Legislature had under 1935 Act. Section 6 (3) read along with section 8 (2) (e) makes it quite clear that the Assent of Governor-General related only to the laws passed by the Constituent Assembly as Federal! Legislature under 1935 Act. In the Full Bench ruling in the case of Shankari Prasad Singh Deo and others v. The Union or India and others (A I R (1951) S C 458), their Lordships have clearly recognised the distinction between the ordinary law and the law of constitution. They observed :"Therefore, in the context of Article 13 'law' must be taken to mean rules or regulations made 'in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power, with the result that Article 13 (2) does not affect amendments made under Article 368." The provisions of Independence Act leave no room, for any manner of doubt that the Constituent Assembly was a sovereign body and was not subject to any checks and balances, restraints and restrictions as the learned Advocate General pointed out in his arguments. Under section 6 (2) it could make any kind of law it liked, even though it was

against the law of England, against the 1935 Act, against any future Act of British Parliament or even against shed Independence Act itself. It lead the power to repeal or amend any such Act, order, rule or regulation made thereunder. It had the power to repeal not only section 6 (3) of the' Independence Act but the whole of the Independence Act itself. In fact, in the exercise of this power by Article 395 of the Indian Constitution, the whole of the Independence and the 1935 Acts were repealed. If that is the position, which certainly it is, it is impossible to think that an Act of the Constituent Assembly repealing or removing the provision regarding assent by Governor-General would require the assent of Governor-General. To a question by the Court, the learned Advocate Mr. Manzur Qadir conceded that the Constituent Assembly had the power to repeal sections 5 and 6 altogether. His argument then was that if these sections were repealed all power would vest in the King because the King has not divested himself of the power. This view is apparently erroneous. "Having by the Indian Independence. Act conferred upon the Constituent Assembly a power of legislation, the King could not derogate from his grant ; and the Constituent Assembly having set up a Constitution under that power, the King still cannot derogate from his grant notwithstanding the repeal of the Indian Independence Act". (Vide page 148, Constitution Law of the Commonwealth, Second Edition, by Sir Ivor Jennings and the late C. M. Young). In Halsbury's Laws of England, Third Edition, Volume 5, page 488, para. 1082, we have the following passage :"1082. Pakistan, The Federal Legislature, in its capacity as the Constituent Assembly, is invested with full constituent powers in Pakistan." The footnote reads ".Indian Independence Act, section 8 (1)". Full constituent powers apparently mean unrestricted powers, powers not restricted by Assent. I will now go to section 8 (2) which lays down in unambiguous terms that the New Dominions shall be governed in accordance with the provisions of 1935 Act, Orders-inCouncil, etc., made thereunder subject to the express provisions of the Independence Act, and with such omissions, additions, adaptations and modifications as may be specified in the orders of the Governor-General under section 9, except in so far as other provision is made by or in accordance with a law made by the Constituent Assembly of the Dominion, under section 8 (1). Thus section 8 (2) clearly lays down that the orders of the Governor-General under section 9, Independence Act, were subject to amendment, variation or repeal by the Constituent Assembly. That clearly establishes the sovereignty and the over-riding power of the Constituent Assembly with regard to the making of the Constitution of the country. Apart from this, the power of Governor-General under section 9 was only temporary. It lasted from 3rd June 1947, to 31st March 1948. This period was then extended by the Constituent Assembly to 31st March, 1949. All this proves fully that the Constituent Assembly was a sovereign body on the Constitution making side and no assent was therefore necessary for its Acts which trade a provision as to the Constitution of Pakistan. Under the statute it had the power and it actually exercised the power of extending for one year the authority of Governor-General to issue orders under section 9. In this state of law it can never be said that an Act passed by the Constituent Assembly is subject to the restraint of assent by the Governor-General. Now I will go to Rule 62 of the Constituent Assembly Rules which reads as follows : "Authentication of Bills.-When a Bill is passed by the Assembly, a copy thereof shall be signed by the President and it shall become law on being published in the official Gazette of Pakistan under authority of the President." By the statement of His Majesty's Government dated 3rd June 1947, the Constituent Assembly was given the power to frame its own rules under the Independence Act it was given the power even to increase, reduce or redistribute the seats in the Constituent Assembly. It was thus a sovereign body and its rules are therefore the expression of the will of that sovereign body. On the Legislature side, there is section 38 of 1935 Act which as adapted reads as follows :--

"38. Rule of procedure.-(1) The Federal Legislature may make rules for regulating, subject to the provisions of this Act, their procedure and the conduct of their business. (3) Until rules are made under this section, the rules of procedure and standing orders in force immediately before the establishment of the Federation with respect to the Legislative Assembly of the Indian Legislature shall have effect in relation to the Federal Legislature subject to such modifications and adaptations as may be made therein by the President of that Legislature." It is important to notice in this connection that in sub section (3) for the original words "Governor-General" the words "President of that Legislature" were substituted by the Provisional Constitution Order, 1947. This would clearly prove that under the Independence Act with which 1935 Act was brought in line after the partition, the Constituent Assembly was clearly intended to be a sovereign body free to make its own rules on the ordinary Legislative side as well as the Constitution side. In this connection it is also important to read section 18 of 1935 Act as adapted. It reads as follows :--"Constitution of the Federal Legislature.---The powers of the Federal Legislature under this Act shall, until other provision is made by or in accordance with a law made by the Constituent Assembly under subsection (1) of section 8 of the Indian Independence Act, 1947, be exercisable by that Assembly, and accordingly references in this Act to the Federal Legislature shall be construed as references to the Constituent Assembly". This clearly shows that the Constituent Assembly had full and unfettered authority to make rules on the Legislative as well as the Constitution side. Rule 62 was passed by the Constituent Assembly of Pakistan on 25th May 1948 under the Presidentship of the Quaid-e-Azam himself. The Indian Constituent Assembly adopted this rule on 4th November 1948 and that is Rule No. 38 (V), Indian Constituent Assembly Rules. The learned Advocate-General has attacked this rule on two main grounds, viz. :(a) That it is a mere rule of procedure and the Constituent Assembly did not pass it as law. (b) Rule 42 of the Constituent Assembly and section 6 (3), Independence Act, were not followed as the assent of Governor-General was not obtained. I am unable to agree with these contentions. Section 38 (1) of 1935 Act will show that the Federal Legislature was statutorily authorised to make rules for their procedure. The word used therein is "procedure". Section 38 read with section 18 of 1935 Act confers full authority on the Constituent Assembly to make rules of procedure and those rules certainly have the force of law. On the Constitution side it has been given full and unrestricted authority to make rules for their procedure. I have already referred to the statement of His Majesty's Government dated 3rd June 1947. These rules of procedure have therefore the full force of law. As regards section 6 (3), I have already stated above that the Constituent Assembly is a sovereign body and as such its Acts and rules did not require the assent of the GovernorGeneral. There remains Rule 42 which reads as follows :"42. Legislation.---The procedure for making provision as to the constitution of the Dominion or for amending the Indian Independence Act and the Government of India Act, 1935, shall be the same as that of a Bill." Now this rule, in my opinion, does not in any way come in conflict with Rule 62. It only means that the procedure, namely of publication, introduction, discussion, etc., regarding a Bill will apply to the making of a provision as to the constitution of the country. Rule 62 deals with the authentication of the Acts of the Constituent Assembly. For that the Constituent Assembly was the sole and sovereign authority to determine the manner of authentication. The Governor-General had to step in only when the Acts of the Federal K

Legislature under 1935 Act had to be dealt with. I have, therefore, no manner of doubt that Rule 62 was prefectly consistent with the letter and spirit of the Independence Act and was fully enforceable as law. Having discussed the question of assent from the legal point of view, I will now show that everyone in and outside this country (including the Federation of Pakistan themselves) has been fully accepting and acting on the view up to now that the Acts of the Constituent Assembly did not require the assent of Governor-General. The learned advocates for the petitioner have produced before us a list of as many as forty-six Acts which the Constituent Assembly has passed so far and none of which ever received the assent of the Governor-General. Some of these Acts are most important, e.g. The Privy Council (Abolition of Jurisdiction) Act 1950, passed on 12th April 1950 and published on 20th April 1950, the Rawalpindi Conspiracy (Special Tribunal) Act 1951, passed on 16th April 1951 and published on 28th April 1951, and the Indian Independence (Amendment) Act 1948, passed on 2nd March 1948 and published on 17th March 1948. Under the last Act the authority of the Governor-General under section 9, Independence Act, was extended for one year from 31st March 1948. Every one of these Acts is an important one and even the Governor-General has himself been acting under those Acts and has been passing several orders thereunder. Not only this, several people have been convicted and acquitted under these Acts. If everyone of these Acts were held invalid for want of assent, the consequences are bound to be disastrous. Let us take the case of one Act, viz., the Privy Council (Abolition of Jurisdiction) Act, 1950. This Act did not receive the assent of Governor-General and yet the Privy Council sent back all the appeals and other matters of Pakistan pending before it to the Federal Court of Pakistan and the latter Court has been deciding those cases as successors of the Privy Council. I consider this action of the Privy Council in sending all the records here and of the Federal Court of Pakistan dealing with those very cases as successors of the Privy Council, to be a law declared under section 212 of 1935 Act, on the point that the Acts passed by the Constituent Assembly did not require the assent of the Governor-General. Although very technically it may be argued that the point of assent was not particularly raised before both these Courts, still in my opinion it is impossible that the point would have succeeded in escaping the scrutiny of the highest judicial authorities like the Privy Council and the Federal Court. Then we find that even the British Parliament accepted this position when they passed the India (Consequential Provisions) Act, 1949, whereby the self-same Parliament which had enacted the Independence Act gave parliamentary recognition to the fact that the Acts passed by the Constituent Assembly did not require the assent of Governor-General. The Governor-General of Pakistan has himself passed so many 'orders under various Acts passed by the Constituent Assembly, and never was any question raised on his behalf that any of the Acts was invalid for want of assent. For example, he has passed so many orders under the Public and Representative Offices (Disqualification) Act, 1949, which was passed on 6th November 1949, and published on 11th November 1949, disqualifying various persons for various terms. For brevity I will refer to this Act hereafter as "Proda". Not only this, the Governor-General was pleased to pass an order on 20th October 1954, i.e., only four days before he issued the Proclamation dissolving the Constituent Assembly, under the same Proda and Proda Repealing Act which was passed on 21st September 1954, and published on the same date, amending his previous order of disqualification in the cases of certain persons. In that order which is sufficiently long and well discussed, the plea of assent was never raised. On the contrary the position was accepted that the Acts were quite valid and good law even though they had not received the assent of Governor-General. I will now go over to the reported cases. The following cases, chronologically arranged, are relevant to the point at issue :(1) The case of M. A. Khuhro plaintiff v. Federation of Pakistan (P L D 1950 Sind 49), decided on 20th March 1950.

(2) The case of Khan Iftikhar Hussain Khan of Mamdot v. The Province of the Punjab (P L D 1950 F C 15), decided on 18th May, 1950. (3) The case of Sarfraz Khan and another v. Crown (P L D 1950 Lah. 384), decided on 31st. May 1950 by the Division Bench and thereafter on reference by the Full Bench of the Lahore High Court. (4) The case of Ex-Major-General Akbar Khan and another v. The Crown (P L D 1954 F C 87), decided on 5th January 1953. (5) The recent case of Lal Khan and others (P L D 1955 Lah. 215.) under section 491 Criminal Procedure Code read with section 223-A of the 1935 Act which has not yet been reported but which appeared in "Dawn", dated 22nd December 1954. The learned Advocate Mr. Pritt, continuing his arguments on that day, started with a reference to this case. I will discuss these cases one by one in their chronological order." In the first case (1950 Sind 49) Mr. Manzur Qadir the learned advocate who appears for some of the respondents now in this case, was representing the Federation of Pakistan and he took the plea that no assent was necessary to the Acts of the Constituent Assembly. Mr. Siraj who was appearing for Mr. Khuro, relied on section 6 (3) of the Indian Independence Act, 1947, in support of his theory that the assent of Governor-General was necessary. I consider it necessary to reproduce the pertinent passage from the judgment here :" From this Mr. Siraj has argued that all laws passed by the Legislature of the Dominion require the assent of the Governor-General. Mr. Manzoor Qadir, who appears for the Federation of Pakistan, has on the other hand relied on section 6, clauses .(1) and (2) and section 8, clause (1) and proviso clause (6) in support of his contention that the Act did not require the assent of the Governor-General, as it was passed by the Constituent Assembly sitting as a constitution making body and not as the Federal Legislature." The Court, after discussing the relevant provisions, came to the following conclusion :- . " I have no doubt in my mind that there is no limit imposed upon the legislative powers of the Constituent Assembly sitting as a constitution making body. No assent of the Governor-General was, therefore, necessary." The learned advocate Mr. Abdul Haq, who was assisting the Advocate-General in this case, referred to some decisions in support of the theory that the rule of " stare-decision " cannot apply to the facts of our present case because we will be mostly depending oninferences. But in P L D 1950 Sind 49, a point was actually taken by the advocate of Mr. Khuhro that the assent of Governor-General was necessary and Mr. Manzur Qadir appearing for the Federation of Pakistan raised the plea that no such assent was necessary. It was, however, decided very definitely and clearly by the Court that the assent was not necessary. It was of course amusing to hear Mr. Manzur Qadir saying now that his own view in 1950 was not mature. I now go to Mumdot's case reported in P L D (1950) F C 15. This case was decided after Khuhro's case and the plea of assent was never raised before the Federal Court. In this case the appeal had been filed by special leave under the Privy Council (Abolition of Jurisdiction) Act, 1950, which was passed by the Constituent Assembly and for which no assent had been taken. If there had been any force in the plea of assent which has been raised by the learned Advocate-General on behalf of the Federation of Pakistan, surely it could never have escaped the notice of the learned advocates and the Honourable Judges of the Federal Court. Then I go to the third case of Sarfruz Khan, reported in P L D (1950) Lah. 384. This was decided by the Full Bench of the Lahore High Court and the leading judgment was delivered by Muhammad Munir, C.J. (at present the Chief Justice of Pakistan). It is a very important judgment which considers the entire constitutional position of the country before and after the passing of the Indian Independence Act. No question came up in this

case from any side whether the assent of the Governor-General to the Acts of the Constituent Assembly was necessary. I now go to the fourth case reported in (1954) F C 87. This dealt with the case of the petitioners under the Rawalpindi Conspiracy (Special Tribunal) Act, 1951, passed on 16th April 1950 by the Constituent Assembly. No question whatsoever of assent to the Acts of the Constituent Assembly was raised in this case. The Federal Court knew very well that no assent of the Governor-General had been obtained to this Act of the Constituent - Assembly, and therefore it must be taken for granted that the Federal Court did not think that assent to be necessary. The following observation in the leading judgment of Akram, J., is important :" It is sufficiently clear from the above provisions that the Constituent Assembly of Pakistan as the supreme legislature of the Dominion is vested not merely with the function of " making provision as to the Constitution of the Dominion". but is further empowered to act as the Federal Legislature for the purpose of the Government of India Act, 1935. The Constituent Assembly, therefore, much like the British Parliament, can make or unmake any kind of law and no question of vires with reference to any legislation passed by it under its plenary powers can be raised." Now I wilt refer to the fifth case which was reported in " Dawn " of 22nd December 1954. There it was held by the Full Bench of the Lahore High Court that section 223-A of the Constitution Act over-rides and abrogates the provisions of section 10 of the Restriction and Detention Ordinance in so far as they are repugnant to it. The relevant observation is reproduced below :" Section 10 of the Ordinance is clearly inconsistent with the new power conferred on the High Court by section 223-A of the Constitution Act and it must, therefore, yield supremacy to the new constitution provisions." The Full Bench of the Lahore High Court knew very well that no assent of the GovernorGeneral had been obtained to section 223-A and therefore this judgment judicially recognises the validity of section 223-A of the 1935 Act. All these facts clearly establish the theory that the Acts of the Constituent Assembly do not need the assent of the Governor-General. The question of assent of the GovernorGeneral arises under the 1935 Act only. The Constituent Assembly has no place in the 1935 Act. It was a special Chamber created by the Independence Act and possessed the soverign power of framing the Constitution by which this country was to be governed in future, and in the - exercise of which power it could even repeal the whole of 1935 Act. Therefore the question of the Governor-General's assent to its Acts does not arise at all. I therefore hold that the petition does lie under section 223-A of the Constitution Act. I will now take up the question whether the Governor-General had the power to dissolve the Constituent Assembly. According to the learned Advocate-General this is the most important point in the whole case. The petitioner's case is stated in para. 11 which is reproduced below :"The petitioner is advised that the alleged Proclamation is unconstitutional, illegal, ultravires, without jurisdiction, inoperative and void on the following among other grounds :(a) That His Excellency the Governor-General has no authority either under the Indian Independence Act of 1947 or under the Government of India Act, 1935 (as adapted by Pakistan for under any law for the time being in force in Pakistan) for issuing the alleged Proclamation. (b) It is denied that the Constitutional Machinery had broken down. It is submitted that the said allegation was made in the alleged proclamation merely with a view to justify the promulgation thereof. In any case the insertion or assertion of such allegation therein does not empower His Excellency the Governor-General to issue the alleged proclamation.

(c) Under the provisions contained in the Indian Independence Act 1947 the Constituent Assembly performs dual functions. It is invested with the higher over-riding functions of acting as a supreme, sovereign, unfettered legislature and is also empowered to act as the Federal Legislature for the purposes of the Government of India Act 1935 (as adapted by Pakistan). (d) The said proclamation recites that the Constituent Assembly could no longer function. If thereby it is purported or otherwise intended to dissolve the Constituent Assembly the said petitioner submits that the Proclamation is void as His Excellency the GovernorGeneral has no power to dissolve the Constituent Assembly. (e) It is denied that the Constituent Assembly has ceased to function. The Constituent Assembly cannot be dissolved by the Governor-General or any other authority except by the Assembly itself. (f) The Constituent Assembly even in its capacity as the Federal Legislature cannot be dissolved by the Governor-General. The power to dissolve the Federal Legislature was contained in section 19 (2) (c) of the Government of India Act 1935 prior to August 15, 1947. Thereafter the said subsection was omitted by and under the Pakistan (Provisional Constitution) Order of 1947. The Governor-General, therefore, does not possess any power to dissolve the Federal Legislature. (g) As regards the Constituent Assembly exercising the powers of the Legislature of the Dominion, His Excellency the Governor-General has no jurisdiction, authority or power to dissolve it. The provisions regarding the summoning, adjourning a meeting, proroguing or dissolving the Constituent Assembly are contained in the rules framed b, the Constituent Assembly. The President alone has the power 'to summon, adjourn a meeting of and to prorogue the Constituent Assembly. So far as dissolution is concerned it is provided that the Assembly could not be dissolved except by a Resolution assented to by at least two-thirds of the total number of Members of the Assembly. (h) It is therefore submitted that by virtue of alleged proclamation the Constituent Assembly could not be dissolved. (i) His Excellency the Governor-General had no control over the Constituent Assembly (Constitution). In fact the acts passed by the Constituent Assembly in that capacity do not require his assent. It is provided that when a bill .is passed, a copy thereof shall be signed by the President and it shall become law on being published in the Official Gazette of Pakistan under authority of the President." The case of the respondents is that the dissolution of the Constituent Assembly was perfectly valid in view of the following seven grounds stated in Part II of the written objections :(1) Until other provision is made under the Indian Independence Act, 1947, Pakistan is one of the Dominions of the Crown of the United Kingdom. In each of those dominions in which a legislature exists the Crown has at common law a power to dissolve that legislature save in so far as that power had been superseded or regulated by legislation. (2) Pakistan is by the express language of the Indian Independence Act, 1947, one of the said Dominions. The power to dissolve the legislature of the Dominion, which in accordance with section 8 of the Indian Independence Act, is in the first instance the Constituent Assembly, is a prerogative of the Crown, which cannot be taken away except by express words in an Act of the Parliament of the United Kingdom or a law passed under section 8 of the Indian Independence Act. The petitioner does not claim that any such Act or law has been passed, and the Respondents accordingly claim that the power remains in full force and effect. (3) The Respondents claim that, in order to give independence to the Dominion of Pakistan and to deprive Her Majesty's Government in the United Kingdom of all responsibility as respects the Government of Pakistan, section 5 of the Indian Independence Act provided that the Governor-General should represent Her Majesty for

the purposes of the Government of the Dominion and thereby vested in the GovernorGeneral all the powers of the Crown at common law. (4) By Rule 15 of the Rules of Procedure of the Constituent Assembly of Pakistan, the said Assembly purported to regulate the power of dissolution by providing that the Assembly should not be dissolved except by a resolution assented to by at least twothirds of the total number of members of the Assembly. The Respondents claim that this Rule of Procedure is not a law within the meaning of sections 6 and 8 of the Indian Independence Act and accordingly that it has no legal force and effect. Even if it could be regarded as a law it would be void and inoperative because(i) It is not a law made for the purpose of making Provision as to the Constituent Assembly to keep that Assembly in being and is therefore not within the power conferred on the Constituent Assembly. (ii) It has not received the assent of the Governor-General under section 6 (3) and is therefore not valid and enforceable law. (5) It is admitted that the Constituent Assembly of Pakistan was established under the authority of the Governor-General of India in accordance with paragraph 21 of the statement of His Majesty's Government dated 3rd June, 1947. It is however claimed by the Respondents that its composition was changed under Acts and rules which had not the force of law. The Respondents also claim that by reason of section 19 (3) of the Indian Independence Act and section 32 (1) and (2) of the Interpretation Act, 1889, the Governor-General of Pakistan has power to revoke or vary the order of the GovernorGeneral of India and to make further orders. (6) The Respondents deny that the removal of the power to dissolve the Federal Legislature conferred on the Governor-General of India by section 19 (2) (c) of the Government of India Act, 1935, deprived the Governor-General of Pakistan of his power to dissolve the Constituent Assembly of Pakistan under section 5 of the Indian Independence Act, 1947. (7) In the exercise of his said power, His Excellency the Governor-General issued the Proclamation of the 24th October, 1954, whereby the Constituent Assembly was dissolved. The Respondents submit that it is not within the jurisdiction of the Honourable Court to decide whether His Excellency had or had not good reasons for exercising his power on the 24th October, 1954. If however the Court requires the Respondents to submit proof of facts asserted in the Proclamation, the Respondents are prepared to show that--(a) The constitutional machinery had broken down ; (b) The Constituent Assembly had lost the confidence of the people ; and (c) The Constituent Assembly could no longer function in accordance with the provisions of the Indian Independence Act, 1947. At the time of arguments both the parties developed their case further and supported it by extensive reference to the authorities. I will deal with all the important points one by one. The learned Advocate-General at the time of summing up his arguments, made a categorical statement that the Proclamation of 24th October 7954, dissolving the Constituent Assembly was issued by the Governor-General under section 5, Independence Act. I will deal with the aspect later on. For the present I will deal with section 19 of 1935 Act which, according to me, is the most important provision of law bearing on the question of dissolution and which thoroughly solves this question. After considering the aspect of the case under section 19, I really consider any reference to section 5 unnecessary. Section 19 as it stood originally reads as follows :"19. Sessions of the Legislature, prorogation and dissolution.-(1) The Chambers of the Federal Legislature shall be summoned to meet once at least in every year, and twelve

months shall not intervene between their last sitting in one session and the date appointed for their first sitting in the next session. (2) Subject to the provisions of this section, the Governor-General may in his discretion from time to time(a) summon the Chambers or either Chamber to meet at such time and place as he thinks fit ; (b) prorogue the Chambers ; (c) dissolve the Federal Assembly. (3) The Chambers shall be summoned to meet for their first session on a day not later than such day as may be specified in that behalf in His Majesty's Proclamation establishing the Federation. Section 19 as adapted reads as follows :"19. Sessions of the Legislature, prorogation and dissolution.-(1) The Federal Legislature shall be summoned to meet once at least in every year, and twelve months shall not intervene between their last sitting in one session and the date appointed for their first sitting in the next session. (2) Subject to the provisions of this section, the Governor-General may from time to time(a) summon the Federal Legislature to meet at such time and place he thinks fit ; (b) prorogue the Federal Legislature ; (c) Omitted . . . . . . . (3) Omitted. . . . . . . This adaptation was apparently made in order to bring the 1935 Act in line with the Independence Act. It will be seen from above that while the Governor-General's power to summon and prorogue the Federal Legislature (i.e., the Legislature under the 1935 Act operating for the enactment of ordinary laws and not the Constituent Assembly under section 8 (1) of the Independence Act) were retained after adaptation, his power to dissolve the Federal Legislature was withdrawn by the omission of section 19 (2) (c). It is an admitted position that the summoning, proroguing and dissolving a legislative body are prerogative powers. The argument of the learned Advocate -General was that even if section 19 (2) (c) was omitted, the prerogative to dissolve under section 5, Independence Act, remained, A question. was therefore naturally put to the learned Advocate-General as to why the two prerogative powers of summoning and proroguing were retained in the statute when the third one of dissolution was withdrawn. Up to the last the learned Advocate-General was not able to state any reasons whatsoever for the retention of section 19 (2) (a) and (b). At this stage I consider it necessary to reproduce section 18 of 1935 Act, original as well as adapted :-Government of India Act, 1935 "18. Constitution of the Federal Legislature.-(1) There shall be a Federal Legislature which shall consist of His Majesty, represented by the Governor-General, and two Chambers, to be known respectively as the Council of State and the House of Assembly (in this Act referred to as " the Federal Assembly"). (2) The Council of State shall consist of one hundred and fifty-six representatives of British India and not more than one hundred and four representatives of the Indian States, and the Federal Assembly shall consist of two hundred and fifty representatives of British India and not more than one hundred and twenty-five representatives of the Indian States.

(3) The said representatives shall be chosen in accordance with the provisions in that behalf contained in the First Schedule to this Act. (4) The Council of State shall be a permanent body not subject to dissolution, but as near may be one-third of the members thereof shall retire in every third year in accordance with the provisions in that behalf contained in the said First Schedule. (5) Every Federal Assembly, unless sooner dissolved, shall continue for five years from the date appointed for their first meeting and no longer, and the expiration of the said period of five years shall operate as a dissolution of the Assembly. Adapted Act "18. Constitution of the Federal Legislature.---The powers of the Federal Legislature under this Act shall, until other provision is made by or in accordance with a law made by the Constituent Assembly under subsection (1) of section 8 of the Indian Independence Act, 1947, be exercisable by that Assembly, and accordingly, references in this Act to the Federal Legislature shall be construed as references to the Constituent Assembly. It will be seen from above that under 1935 Act the life of the Federal Legislature was fixed by the statute to be five years unless sooner dissolved by Governor-General under section 19? (2) (c). Under the adaptations its life was not limited to any period for the simple reason that the Constituent Assembly set up under section 8 of the Independence Act was also to act as the Federal Legislature under 1935 Act and the life of the Constituent Assembly was to last till the Constitution was made for Pakistan. Therefore, it could not be dissolved till it had completed the Constitution. The learned AdvocateGeneral admits that the dissolution of the Constituent Assembly will mean the dissolution of the Federal Legislature and vice versa. Because the life of the Constituent Assembly was unlimited and because it could not be dissolved till it had completed the functions for which it was created under the Indian Independence Act, it was impossible to retain the Governor-General's power of dissolving the Federal Legislature under section 19 (2) (c). Hence this power of dissolution was deliberately withdrawn with the set purpose. The learned Advocate-General argued that under 1935 Act the life was fixed for five years and therefore a power of dissolution had to be provided for; now that the life was unlimited there was no necessity to retain that power ! Frankly, I am not able to understand this argument. If you need the statutory authority to dissolve a body whose life is only five years, your need of that power is a number of times greater when the life is unlimited. According to me, omission of section 19 (2) (c) is a deliberate withdrawal of the prerogative power of dissolution which was merged in the statute. When the statute was repealed it was clearly intended and meant that the Governor-General's power of dissolution had to cease. It is impossible for me to accept the contention that the prerogative was revived by repealing the statute. In this connection it is worthwhile referring to sections 61 (2) and 62 (2) of the 1935 Act as adapted :"61 (2). Every Legislative Assembly of every Province, unless sooner dissolved, shall continue for five years from the date appointed for their first meeting and no longer, and the expiration of the said period of five years shall operate as a dissolution of the Assembly." "62 (2). Subject to the provisions of this section, the Governor may from time to time(a) summon the Legislative Assembly to meet at such time and place as he thinks fit ; (b) prorogue the Legislative Assembly ; (c) dissolve the Legislative Assembly.

This will show that while the Provincial Governors' prerogative power of dissolution was retained, that of the Governor-General was deliberately withdrawn. If section 19 (2) (c) was omitted because section 5 Independence Act was there, as the learned AdvocateGeneral has sought to make out, there was no purpose in retaining section 19 (2) (a) and (b). Section 5 Independence Act was there even for the purpose of summoning and proroguing the Federal Legislature. This only proves that the learned advocates for the respondents are reading into section 5 Independence Act what does not really appear there. The real position is so simple. The Constituent Assembly being a sovereign body is summoned and prorogued by the President of the Constituent Assembly in accordance with the rules framed by the Constituent Assembly, while the Constituent Assembly sitting as the Federal Legislature under the 1935 Act is summoned and prorogued by the Governor-General in accordance with the provisions of section 19 (2) (a) and (b). The Governor-General's power of dissolution of Federal Legislature is withdrawn because the dissolution of Federal Legislature will mean the dissolution of the Constituent Assembly, which is not permissible under the provisions of Independence Act. The Constituent Assembly have framed Rule 15 in regard to dissolution with which I will deal in due course. I will now take up section 5, Independence Act, which is the sheet-anchor of the respondents' case. It has been argued that this section vests in the Governor-General all the prerogatives of His Majesty, and the Proclamation of 24th October was issued by the Governor-General in exercise of his powers under this section. The language employed in the Proclamation, however, is somewhat extraordinary. Relevant extract from it reads as follows :The Governor-General having considered the political crisis with which the country is faced, has with regret come to the conclusion that the constitutional machinery has broken down. He therefore has decided to declare a state of emergency throughout Pakistan. The Constituent Assembly as at present constituted has lost the confidence of the people and can no longer function." It will be noticed that neither section 5, Independence Act, nor any other provision of law has been cited in the Proclamation. It does not even say in clear and specific terms that the Constituent Assembly is " dissolved ". Normally, whenever any order is passed, it indicates the provision of law under which the power is exercised. The language of the Proclamation would therefore show that those responsible for its draft could not think of any provision of law. But that does not mean that the case set up now by the learned Advocate-General under section 5, Independence Act, should not be considered by the Court. The pertinent portion of section 5 reads as follows :" For each of the new Dominions, there shall be a Governor-General who shall be appointed by His Majesty and shall represent His Majesty for the purposes of the government of the Dominion :" It will be necessary to see what is meant by the words "for the purposes of the government of the Dominion". The learned Advocate-General has argued and he has relied in this connection on Halsbury's Laws of England to show that "government" means government on the Executive, Judicial and Legislative side. The context in which this term appears in section 5 does not however support the contention of the AdvocateGeneral. These words in section 5 apparently mean " for the purposes of the government of the Dominion as required by the Government of India Act, 1935 ". These words have no reference whatsoever to the Constitution-making function of the Constituent Assembly which is a sovereign body under the Independence Act. This point will be clear if we refer to the other provisions of the Independence Act itself. In this connection section 8 (2) is most important. It reads as under :"(2) Except in so far as other provision is made by or in accordance with a law made by the Constituent Assembly of the Dominion under subsection (1) of this section, each of the new Dominions and all Provinces and other parts thereof shall be governed as nearly as may be in accordance with the Government of India Act, 1935 ; and the provisions of

that Act, and of the Orders in Council, rules and other instruments made thereunder, shall, so far as applicable, and subject to any express provisions of this Act, and with such omissions, additions, adaptations and modifications as may be specified in orders of the Governor-General under the next succeeding section, have effect accordingly :" It will be noticed that the words used here are "shall be governed". The words "for the purposes of the government of the Dominion" in section 5 have therefore the same meaning as in section 8 (2). Section 7 (1) (a) reads as follows :"(1) As from the appointed day(a) His Majesty's Government in the United Kingdom have no responsibility as respects the government of any of the territories which, immediately before that day, were included in British India ; " Section 8 (2) (a) reads as follows :" (2) (a) the said provisions shall apply separately in relation to each of the new Dominions and nothing in this subsection shall he construed as continuing on or after the appointed day any Central Government or Legislature common to both the new Dominions; In this provision of Independence Act, Government and Legislature have been mentioned separately. In section 10, relating to Secretary of State's services, the word "Government" is used to indicate only the Executive Government. Similar is the case with section 14 which makes provision regarding the Secretary of State and the Auditor of Indian Home Accounts. The preamble to the India and Burma (Emergency Provisions) Act 1940, reads :" An Act to make emergency provision with respect to the government of India and Burma ". A perusal of the Act would show that by the expression "government" the Executive Government was intended and meant. The very title of " The India (Central Government And Legislature) Act, 1946", clearly shows that Executive Government and Legislature are treated as two separate things. In view of all these reasons, it becomes clear that the expression " for the purposes of the government of the Dominion" appearing in section 5 has reference only to the executive duties of governing the country under the Constitution Apt of 1935 and has nothing to do with Constitutionmaking under section 8 (1) of the Independence Act. It therefore becomes necessary now to see the powers of the Governor-General under the 1935 Act to issue the Proclamation in question. I have already stated very clearly that the Constituent Assembly has no place in the 1935 Act and therefore the Governor-General cannot exercise any power or jurisdiction over the same. I have also shown that by the omission of section 19 (2) (c) the Governor-General's power to dissolve the Federal Legislature was withdrawn on that very account. I will now go over to the relevant provisions of 1935 Act(a) Under section 12 of 1935 Act, as it stood originally, the Governor-General had special responsibilities for the due discharge of which he could exercise special powers in his individual judgment. This section has since been omitted by the Provisional Constitution Order, 1947. (b) The original section 43 empowered the Governor-General to promulgate Ordinances at any time with respect to certain subjects. This section too has been omitted now.

(c) Under section 44 the Governor-General had the power to enact Acts in certain circumstances even when the Legislature was in existence and was not dissolved. Thus he had the overriding power over the Legislature. This section has also been done away with. (d) Chapter V Part II of 1935 Act contained one section 45 only. The heading of this Chapter is "Provisions in Case of Failure of Constitutional Machinery ". This section gave the statutory authority to the Governor-General to govern the country by means of Proclamation. It was a great power and is relevant to this case. This section too has been omitted now. (e) Section 42 which empowers the Governor-General to issue Ordinances in case of emergency, does not apply to this case. (f) Similarly section 126-A also is irrelevent to the present case. All this clearly shows that there is no provision in the whole 1935 Act under which the Governor-General could issue the Proclamation in question. It was apparently on account of this reason that no provision of law was cited in the Proclamation. This brings us immediately now to the question of prerogative. We have first to understand what is meant by the words " shall represent His Majesty" appearing in section 5, Independence Act. There can possibly be no two opinions on the point that the powers which the Governor-General had under the 1935 Act were far greater than those he has after the passing of the Independence Act. His special power in the discharge of special responsibilities, his individual judgment, his discretion, his powers to supersede Legislature by enacting Acts even when the Legislature was in existence and his power to govern the country by proclamation have all gone under the Independence Act. Section 2 has been omitted while section 3 is greatly curtailed. In spite of all this, his position under the 1935 Act itself before the passing of the Independence Act, is described as follows in the commentary under section 3 at page 11 by Rajaggopala Aiyangar :" The Governor-General of India, as the Governor-General of the Dominions, is not a general agent of the Crown, with power to exercise all the prerogatives of the Crown but is only a special agent armed with such power as is conferred on "him by the constitution and such other prerogative powers as the Crown may lawfully assign to him. Per Higgins, J., in Commonwealth v. Colonial Combing, Etc., Ltd. (31 C L R 421), Musgrave v. Pulido (5 A C 102) and Commercial Cable Co. v. Newfoundland ((1916) 2 A C 610 at p. 616). "For the measure of his powers the words of his Commission and the statute itself must be looked at'. Bonanzo Creek v. Rex ((1916) 1 A C 566 at p. 587). For an instance where delegation of a prerogative is expressly contemplated, see section 295 (2), infra." His position after the passing of the Independence Act can't be better than this. In the case of Sarfaraz Khan v. Crown (P L D (1950) Lah. 384), we have the following important observation :"The Governor-General is the representative, not the agent of His Majesty for the purposes of the government of the Dominion and that being so his act in giving assent to Bills is always symbolic or representative, whether while giving the assent he says or not that he acts in a representative capacity." The learned Advocate-General referred to the dictionary meaning of the word "Represent" to be "To take the place of, for certain purposes". He therefore argued that under section 5 "the Governor-General shall take the place of His Majesty for the purposes of the government of the Dominion". Let us therefore examine the Constitution Act and find out what powers of His Majesty are actually there still. Under the Independence Act, the King has clearly given away all His powers in this country. He has even renounced his style and title as "Indian Imperator" and "Emperot of India". In the case of Gajambal 'Ramalingam and others v. Rukn-ul-Mulk Syed Abdul Wajid and others (A I R (1950) P C 64), their Lordships were pleased to remark as follows :-

"It appears to their Lordships that, in view of the provisions in the Indian Independence Act 1947, and of the notification to which they had last referred, the jurisdiction formerly exercised by His Majesty in or in relation to that part of the territory of the State of Mysore which was known as the Civil and Military Station, Bangalore, came to an end. The Courts of the District Judge and of the Resident ceased to exist. His Majesty was neither the fountain of justice nor had any executive authority in the former Civil and Military Station of Bangalore. In that area, as in the rest of the State of Mysore, the Maharajah alone had sovereign powers and it was for him to make such laws as he thought fit for the administration of justice in his territory. Reference will be made to the laws that he in fact made, but they cannot be regarded as conferring upon His Majesty in Council any jurisdiction. The precise meaning and effect of those enactments and in particular of section 8 of Act XXIV (24) of 1947 upon which the appellants relied are not in all respects easy to determine nor would it be proper for their Lordships to attempt to do so. It is sufficient for them to say that, however they may be interpreted by the Courts of Mysore, they cannot be effective to create and vest in His Majesty in Council a jurisdiction which he has expressly surrendered and renounced." The only provisions of 1935 Act in which His Majesty's name still appears are the following :(a) Sections 3, 48 and 304-relating to the appointment of Governor or Governor-General. (b) Sections 154 and 174-relating to property rights. (c) Sections 240, 2.41, 254, 260, 266, 277, 298 and 306relating to persons in the service of His Majesty. (d) Section 295-refers to the prerogative of mercy or pardon. In this connection it is also worthwhile to see the old and new section 3 of 1935 Act. A consideration of all these provisions of the Constitution Act, would clearly show that even if the dictionary meaning of the word "Represent" is adopted, the Governor-General cannot be said to have greater powers than the Queen, who has in fact renounced all powers in Pakistan. In Halsbury's Laws of England, Third Edition, Volum 5, page 463, para 1025, the following passage appears:-."In Pakistan, where the position may be regarded as transitional, the Queen is not designated as Queen of Pakistan." A question then naturally arises, what after all is the meaning of the expression "Represent" in the context in which it is used in section 5. In my opinion the representation is only a formal and symbolic representation of the Queen, who is the August and Beloved Head of the Commonwealth, who reigns but does not rule. This formal connection is kept up during the transition period in view of a long contact between this contrary and Her Majesty, in the hope expressed in the Cabinet Mission Plan and H.M.G's statement, dated 3rd June 1947, that this country will choose to remain in the Commonwealth. The Governor-General is a creature of the statute and thesefore for his powers and prerogatives we have to look to the statute and Commission of his appointment. Beyond the Commission of appointment and the 1935 Act was brought in line with the Independence Act, he has no other powers. Let us now see the Commission of his appointment. Para 3 is important for our purposes here. It reads as follows :"And we do hereby authorise, and empower you in Our name and on Our behalf to grant to any offender convicted in the exercise of its Criminal Jurisdiction by any Court of Justice within Our territories in Pakistan a pardon either free or subject to such lawful conditions as to you may seem fit."

This has reference to section 295 of the 1935 Act, of which only subsection (2) has been retained after the passing of the Independence Act. As adapted, it reads as follows :"295 (2). Nothing in this Act shall derogate from the right of His Majesty, or of the Governor-General, if any such right is delegated to him by His Majesty, to grant pardons, reprieves, respites or remissions of punishment. This is a specific statutory delegation of the King's prerogative of pardon and mercy. The question naturally arises that if section 5, Independence Act, is a reservation of His Majesty's prerogatives, why was section 295 (2) deliberately retained on the Statute Book ? Why was section 19 (2) (a) and (b) retained ? As stated by me in the preceding pages, the learned Advocate-General at the time of his arguments relied for the question of assent on section 5 also apart from section 6 (3), Independence Act. Why was then section 6 (3) enacted at all, if section 5 was the omnibus section containing all the Royal Prerogatives ? This establishes fully that beyond the statute and the Commision of appointment, the Governor-General has no further powers. The Constituent Assembly was a sovereign body specially created for the purpose of framing the future Constitution of the country. The Governor-General had no power under the statute or the Commission of appointment to dissolve it. If the S British Parliament wanted to give the power of dissolution to the Governor-General under section 5, they should have said so in very clear terms. The Governor-General's powers in connection with the Constitution of the country are no more than what is laid down in section 9, Independence Act. Those powers were also for a temporary period. In fact the order of the Governor-General himself issued on 20th October 1954, only four days before the Proclamation dissolving the Constituent Assembly, makes this position very clear. Relevant portion of it reads as follows :"5. Sub-section (2) of section 295 of the Government of India Act, 1935, lays it down as follows :'Nothing in this Act shall derogate from the right of His Majesty, or of the GovernorGeneral, if any such right is delegated to him by His Majesty, to grant pardons, reprieves, respites or remissions of punishment.' It will be seen that under the authority of this sub-section, the Governor-General is empowered to exercise the royal prerogative of pardon, reprieve, respite or remission only to the extent to which such right has been especially delegated to him. Article III of the Royal Warrant of Appointment of the Governor-General which has reference to this prerogative, delegates this right to the Governor-General in these terms: And we do hereby authorise and empower you in Our name and on Our behalf to grant to any offender committed in the exercise of its Criminal jurisdiction by any Court of Justice within Our territories in Pakistan a pardon either free or subject to such lawful conditions as to you may seem fit.' It is clear from this Article that while to the Governor-General has been delegated the power to grant a pardon to offenders committed by Courts of criminal jurisdiction, the right to grant pardons, reprieves, respites or remissions in cases which are not covered by the terms of Article III has not been delegated to him. It follows, therefore, that the submission made by the petitioner that the order of disqualification passed against him under section 3 of the Public and Representative Offices (Disqualification) Act should be rescinded under section 295 of the Government of India Act, 1935, cannot be accepted." All this discussion clarifies the legal and constitutional position very thoroughly that when the prerogative is merged in the statute, there can be no reserved prerogative. When the prerogative which has once been put on the statute is deliberately removed therefrom, it no longer exists. In this connection we have a very important ruling of the House of Lords in the case of Attorney-General v. De Keyser's Royal Hotel, Limited (Law Rep. 1920, App. Ca. p. 508). The following observations in this case are very important

"In the latter case the Crown is not entitled in virtue of its ancient prerogative apart from statute to take the land of a subject compulsorily. This ancient prerogative is a far narrower thing than has been suggested in argument, and is a right exercised to deal with a concrete emergency ; Hampden's Case." (Page 519). "None the less, it is equally certain that if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules. The prerogative is defined by a learned constitutional writer as 'The residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown'." (Page 526). "The late Master of the Rolls in the following pregnant passage of his judgment put a rather unanswerable question. He said :"Those powers which the executive exercises without Parliamentary authority are comprised under the comprehensive term, of the prerogative. Where, however, Parliament has intervened and has provided by statute for powers, previously within the prerogative, being exercised in a particular manner and subject to the limitations and provisions contained in the statute, they can only be so exercised. Otherwise, what use would there be in imposing limitations, if the Crown could at its pleasure disregard them and fall back on prerogative ?' (Page 538)." "The appellant further contended that all that was done could be done, and was done, independently of any statute, by virtue of the Royal Prerogative alone .There is no object in dealing by statute with the same subject-matter as is already dealt with by the prerogative, unless it be either to limit or at least to vary its exercise, or to provide an additional mode of attaining the same object. Even the restrictions (such as they were) imposed by the Defence Acts on any powers of requisitioning buildings in time of war were in no way inconsistent with an intention to abate the prerogative in this respect, if not absolutely, at least for so long as the statute operates ..According to 'the argument, under the prerogative the subject could claim no compensation for losing the use of his property ; under the statute he could. It is to be supposed that the Legislature intended merely to give the Executive, as advisers of the Crown, the power of discriminating between subject and subject, enriching one by electing to proceed under the statute and impoverishing another when it requisitions under the alleged prerogative ? To presume such an intention seems to me contrary to the whole trend of our constitutional history for over two hundred years." (Pages 561-562). "The growth of constitution liberties has largely consisted in the reduction of the discretionary power of the executive, and in the extension of Parliamentary protection in favour of the subject, under a series of statutory enactments. The result is that, whereas at one time the Royal Prerogative gave legal sanction to a large majority of the executive functions of the Government, it is now restricted within him comparatively narrow limits. The Royal Prerogative has of necessity been gradually curtailed, as a settled rule of law has taken the place of an uncertain and arbitrary administrative discretion. A similar tendency may be traced in the growth of our legal system. Portions of the Common Law have been systematically incorporated in or modified by Acts of Parliament, and in this way the obligations which the law imposes have become more definite, and more certain in their application." (Page 568). "I am further of opinion that the plea of the appellant that the prerogative right of the Crown whatever it may have been, has not been abated, abridged or curtailed by any of the Defence Acts, 1842-1373, or by any other statute, cannot be maintained," (Page 575). In the case of Rober Lyon Moore and others v. Attorney-General for Irish Free State and others (A I R (1935) P C 149), it was held by their Lordships "that whatever might be the position of the King's Prerogative, if it were left as matter of the common law, it was here in this particular respect and in this particular enactment made matter of the

Parliamentary legislation, so that the prerogative was pro tanto merged in the Statute, and gave powers of amending and altering statutory prerogative." Both the parties have made extensive references to so many authorities. I do not think it necessary to encumber my judgment with all those. The principles enunciated by all those rulings are the same which I have quoted above from the Privy Council and the House of Lords' case. It is important also to remember that the right to dissolve the Parliament in England has ceased to be a prerogative since nearly two-and-a-half centuries. It is now a statutory duty. In Halsbury's Statutes, Second Edition, Volume 17, at page 471 we find "The Meeting of Parliament Act, 1694," an Act passed for the frequent meeting and calling of Parliaments. Section 2 of this Act clearly refers to the dissolution of the Parliament. This section reads as follow :"2. Writs to be issued once in three years.---And that within three years at the farthest from and after the dissolution of this Parliament and so from time to time for ever hereafter within three years at the farthest from and after the determination of every other Parliament legal writ under the Great Seal shall be issued by directions of your Majesties your heirs and successors of calling assembling and holding another new Parliament." At page 476 of the same volume we find "The Septennial Act, 1715". Under this Act the duration of the Parliament was fixed for seven years unless sooner dissolved. It reads as follows :"This present Parliament, and all Parliaments that shall at any time hereafter be called, assembled, or held, shall and may respectively have continuance for seven years, and no longer, to be accounted from the day on which by the writ of summons this persent Parliament hath been, or any future Parliament shall be, appointed to meet, unless this present or any such Parliament hereafter to be summoned shall be sooner dissolved by his Majesty, his heirs or successors." At page -555 of the same volume we have got "The Parliament Act, 1911". Under section 7, the Septennial Act 1715 quoted above was amended in so far that the duration of Parliament was to be five years instead of seven. It will thus be clear that the right to dissolve has ceased to be a prerogative right in England since such a very long time. It is therefore difficult to hold that the prerogative which has ceased in England since two-and-a-half centuries has revived in Pakistan after 1947. In the Constitutions of the British Dominions the right of dissolution is a statutory right and has been embodied in the statute. Let us now see Halsbury s Statutes of England, Second Edition, Volume 6. At page 268 we have "The Commonwealth of Australia Constitution Act 1900. Section 28 of this Act at page 273 reads as follows :"28. Duration of House of Representatives.-Every House of Representatives shall continue for three years from the First Meeting of the House, and no longer, but maybe sooner dissolved by the Governor-General." At page 303 we have got "The British North America Act 1867." At page 313, section 50 of this Act reads as follows :"50. Duration of House of Commons.-Every House of Commons shall continue for five years from the day of the return of the writs for choosing the House (subject to be sooner dissolved by the Governor-General), and no longer." At page 458 we have got "The South Africa Act, 1909." At page 470, section 45 of this Act reads as follows :-

"45. Duration of House of Assembly.-Every House of Assembly shall continue for five years from the first meeting thereof, and no longer, but may be sooner dissolved by the Governor-General." So it becomes clear that in all the Dominion Constitutions the right of dissolution is merged in the 'statute and no longer exercised as a prerogative right. In the book "Responsible Government in the Dominions" by Keith, Second Edition, Volume I, at page 83 and 84, we have the following observations :"2. The Governor and the Prerogative How far is a Governor invested with the royal prerogative by the letters patent and Act constituting his office, where such exist, in matters on which the statute law of his territory contains no precise enactment ? The answer to this-query, long and confusedly debated, must be gathered from consideration of the evidence afforded by decisions of the Privy Council in cases where claims were put forward, which in the view of a recent writer on colonial law establishes the principle that Governors are exempt from suit in civil actions for actions of state both in the local and English Courts. It seems, however, impossible to establish this theorem. The leading case is that of Musgrave v. Pulido in which the Governor of Jamaica sought to escape responsibility in an action based on his seizure and detention of the ` Florence ' by the plea that he had acted as Governor in reasonable exercise of his discretion and that the action taken was an act of state. The Judicial Committee repelled, as did the Court below, the contention that this was any answer ; it emphatically asserted that the Governor of a colony in ordinary cases cannot be regarded as a Viceroy, nor can it be assumed that he possesses general sovereign power. His authority is derived from his commission and limited to the powers thereby expressly or impliedly entrusted to him. Let it be granted that for acts of power done by a Governor under and within the limits of his commission, he is protected because in doing them he is the servant of the Crown and is exercising its sovereign authority, the like protection cannot be extended to acts which are wholly beyond the authority confided to him. Such acts, though the Governor may assume to do them as Governor, cannot be considered as done on behalf of the Crown, nor to be in any proper sense acts of state. When questions of this kind arise it must necessarily be within the province of municipal Courts to determine the true character of the acts done by a Governor, through it may be that, when it is established that the particular act in question, is really an act of state policy done under the authority of the Crown, the defence is complete and the Courts can take no further cognizance of it. There can be no doubt of the doctrine of the Privy Council ; a Governor has no special privilege like that of the Crown ; he must show in any Court that he has authority by law to do an act, and what is more important for our purpose, he must show not merely that the Crown might do the act, but that he personally had authority to do the act. In the case in question it might have been pleaded that the action taken could be defended on the basis that it was an act of state against a foreigner ; had this been done, the Privy Council would have had to decide, in the absence of express ratification of the act by the Crown, whether the Governor had sufficient delegation of the royal authority to enable him to commit such an action. As a last resort, the learned Advocate-General argued that the common law of England which confers on the Queen the right of dissolving the Parliament also applies to Pakistan by virtue of section 18 (3), Independence Act. The Constituent Assembly, he argued, was a Legislative body empowered to pass ordinary laws as well as the law of Constitution, and therefore it was subject to common law prerogative. I see no force in this contention. The common law of England does not apply here. The common law is based on principles of justice, equity and good conscience. It is unthinkable that the only legislature of the country, which is also a sovereign body under the Independence Act, could be dissolved on principles of justice, equity and good conscience. Here, on the question of dissolution, we have got a full statutory provision and therefore the common law cannot apply. In this connection reference may be made to the case of Muhammad Ta Raza and others v. Mst. Abbas Bandi Bibi (A I R (1932) P C 158). In a case of the Calcutta High Court reported in A I R (1927) Cal. 496, Rankin, C. J., observed as follows :-

"English common law and statute law as in 1726 was not imported into Calcutta by virtue of any right of sovereignty in the British Crown nor by virtue of the fact that Englishmen at international law or otherwise carried with them their own statutes, but because by the sanction and permission of the sovereign of the place the community was allowed to practise its own law and to introduce in part the laws to which they had been accustomed. These laws were applied even to Englishmen only in part and only with adaptation to the local circumstances." Now I go to Rule 15 of the Constituent Assembly Rules which reads as follows : "Dissolution.---The Assembly shall not be dissolved except by a resolution assented to by at least two-thirds of the total number of members of the Assembly." I have already discussed the weight and value that has to be attached to these rules and I have nothing more to add on that point. There is no provision in the Independence Act for the dissolution of the Constituent Assembly. There is also no provision for setting up a fresh Constituent Assembly by the British Parliament (vide section 6 (4), Independence Act). The people of India were given the r freedom and the independence to frame any Constitution for their country as they liked and to do what they liked with their own Constituent Assembly. The British Government had no more responsibilities for the affairs of this country. In these circumstances Rule 15 was a very proper rule which our Constituent Assembly framed in regard to dissolution. Even the Indian Constituent Assembly had a similar rule 18. At one time the learned Advocate-General argued that the Head of the State could not sit quiet if he saw that the Constituent Assembly was going against the wishes o the people. The answer to this is quite simple. The Constituent Assembly was the representative of the people and by a majority of twothirds they could certainly dissolve the Constituent Assembly under Rule 15. The Head of the State could act only in accordance with the statute and the Commission of appointment. Now I come to section 19 (3) (b), Independence Act. It reads as follows :"(3). References in this Act to the Constituent Assembly of a Dominion shall be construed as references" (b) in relation to Pakistan, to the Assembly set up or about to be set up at the date of the passing of this Act under the authority of the Governor-General as the Constituent Assembly for Pakistan." From this provision the learned Advocate-General wove out an argument by referring to section 32, Interpretation Act, 1889, that the power to set up under the authority of the Governor-General includes the power to dissolve under the authority. The authority to set up, he argued, was not exhausted with the first exercise and was not withdrawn or revoked. For setting it up again dissolution was necessary in order to create an opening for fresh elections. He also relied on para. 21 of His Majesty's Government's statement dated 3rd June 1947. The learned advocate for the petitioner, Mr. Pritt, gave a complete answer to this point. He referred to section 19(2). Independence Act which reads as follows :" 19. (2) References in this Act to the Governor-General shall, in relation to any order to be made or other act done before the appointed day, be construed as references to the Governor-General' of India within the meaning of the Government of India Act, 1935, and so much of that or any other Act as requires references to the Governor-General to be construed as references to the Governor-General in Council shall not apply to references to the Governor-General in this Act." The appointed day is 15th August The Constituent Assembly of Pakistan was created on 26th July. Therefore the expression " Governor-General " used in section 19(3) (b) apparently means the Governor-General of India who no longer exists either here or across the border. This argument therefore completely falls to the ground.

In view of all these reasons, therefore, I am unshaken in my belief that the GovernorGeneral had no power of any kind to dissolve the Constituent Assembly. Under section 8 (1) read with section 6 (2), Independence Act, the Constituent Assembly was a sovereign body created for a special purpose and it was to function till that purpose was completed, unless it was dissolved by a majority of two-thirds of its own members. The true test is always the actual language used and the intention of the framers of the statute must be ascertained only from the language used in the statute. Nothing is to be read into it on the grounds of policy or the necessity supposed to arise in certain circumstances (Privy Council case of Webb v. Outrim (L R 1907 App. Cas. p. 81). nor is the possibility of abuse of a power to be considered as affecting the plain words of the statute Vacher & Sons v. London Society of Compositors (1913 App. Cas. 107 p. 118). Having disposed of the main and the most important objections, I will now deal with the other objections raised against the petition. I will first take up the objection regarding the territorial jurisdiction of this Court. It is argued that this Court has jurisdiction only in Karachi and the Province of Sind, whereas the Federation of Pakistan as well as the Central Ministers pass orders which affect persons and properties in far-flung Provinces like E. Bengal, N. W. F. P., etc., over which this Court has no jurisdiction. Hence this Court cannot issue any kind of writ against the respondents. Section 223-A reads as follows : " 223-A. Every High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases any government within those territories writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them." I see no substance in the objection. If this contention were accepted no High Court in Pakistan can exercise the power of writs against the Federation of Pakistan or the Central Ministers, and the Federal Court of Pakistan have not .yet been given the power to issue writs similar to Article 32(2) of the Indian Constitution. The result will be an absurd one. Section 223-A will be a dead letter so far the respondents are concerned. The words in section 223-A are " any government " and there are only two kinds of government in this country. One is the Provincial Government and the other is the Central Government, or in the words of section 79 C, P. C., the " Province " and the " Federation of Pakistan ". If we exclude the " Federation of Pakistan " from the ambit of " any government " appearing in section 223-A, there will only remain " the Province ". In that case the Constituent Assembly should have used the word " Province " for the words " any government ". Mr. Chundrigar, the learned advocate for the petitioner, argued that for the consideration of this question cases could be divided into four classes, namely :(1) Where the cause of action arises outside the jurisdiction of the Court where the writ petition is pending, i.e., when the order of the Court will have to be exclusively outside the jurisdiction of the Court. No writ can be issued in this case. (2) Writ petition against the authorities or persons whose offices are within the jurisdiction of the Court but the cause of action has arisen outside. In that case also no writ can be issued. (3) Where mere location of offices within the jurisdiction of the Court gives the power to the Court to issue writs. In this case the writ is issued. (4) Writs against the Central Government, Union Government or the Federation whatever you call it. In this case the Constituent Assembly is situated at Karachi within the jurisdiction of this Court, the Proclamation of 24th October was issued at Karachi, the notifications appointing respective Ministers and allocating portfolios to them were issued and published in Karachi, the Ministers took their oaths of office at Karachi, their offices and residences are situated at Karachi, the Central Secretariat of the Federation of Pakistan is situated in Karachi, the seat of the Central Government is at Karachi vide section 290-A

of the Constitution Act read with the Federal Capital Order, 1948, the Budget is to be passed at Karachi, the Ministers draw their salaries and allowances in Karachi and the orders of this Court, if any, will have also to be executed in Karachi. This Court, therefore, in my opinion, has full jurisdiction over this matter. The learned Advocate-General relied on the ruling in the case of Ryots of Garabandho and other villages v. Zamindar of Parlakimedi and another (A I R (1943) P C 164). But the facts of that case are entirely different from the facts of this case. In that case the parties were not subject to the jurisdiction of the Court. The following head note of this ruling is important :"Held, that the lands in. dispute being situate in the mofussil and the ryots and the Special Revenue Officer being residents in the mofussil, the High Court had no jurisdiction to issue a writ of certiorari. The fact that the Board of Revenue as a body was ordinarily resident or located within the town of Madras did not give the High Court jurisdiction to issue the writ of certiorari". Similar are the facts of the case of Sree Meenakshi Mills, Ltd., v. Provincial Textile Commissioner, Madras (AIR(1949)PC307=PLD1949PC129) where it was held as follows:"The jurisdiction of the High Court under section 45 is confined to acts done or to be done within the limits of its ordinary original civil jurisdiction. The High Court of Madras, therefore, has no jurisdiction to direct the Textile Commissioner acting under the Cotton Cloth and Yarn (Control) Order, 1945, to desist from seizing the yarn supplied to weavers at places which are outside the local limits of the ordinary original civil jurisdiction of the Madras High Court, though the Textile Commissioner may have his office in Madras within those limits, for the act with reference to which the relief is asked for is to take place outside those limits: A I R (21) 1934 Mad. 140, Approved". (1943) P C 164 was distinguished in A I R (1953) S C 210. The learned Advocate-General also relied on the case reported in (1951) E. Punjab 174 and another case reported in (1952) E. Punjab 392, but these were over-ruled in the case of Civil Appeals Nos. 118-121 of 1952, reported in A I R (1954) S C 207, where it was held as follows :"While Article 225 of the Constitution preserves to the existing High Courts the powers and jurisdictions which they had previously, Article 226 confers, on all the High Courts new and very wide powers in the matter of issuing writs which they never possessed before. There are only two limitations placed upon the exercise of these powers by a High Court under Article 226 of the Constitution; one is that the power is to be exercised "throughout the territories in relation to which it exercises jurisdiction", that is to say, the writs issued by the Court cannot run beyond the territories subject to its jurisdiction. The other limitation is that the person or authority to whom the High Court is empowered to issue writs "must be within those territories" and this implies that they must be amenable to its jurisdiction either by residence or location within those territories. It is with reference to these two conditions thus mentioned that the jurisdiction of the High Courts to issue writs under Article 226 of the Constitution is to be determined. The Punjab High Court has jurisdiction to issue writ to the Investigation Commission in Delhi investigating under section 5 of the Act 30 of 1947, the case of the petitioners, who were the assessees within the U. P. State and whose original assessments were made by the Income-tax authorities of that State, even though subsequent proceedings, which would have to be taken in pursuance of the report of the Investigation Commission would have to be take by the Income-tax authorities in the U. P., and if a case would have to be stated, it would have to be stated to the High Court at Allahabad. A I R 1953 S C 210, A I R 1943 P C 164, Expl. and Distinguished, A I R 1951 Pb. 74, Reversed". The principles underlying the question of jurisdiction have been set out by their Lordships of the Privy Council in the case of Hamid Hasan Nomani v. Banwarilal Roy and others (A I R (1947) P C 90 = P L D 1947 P C 75), where it was held as follows :-

"The Original Civil Jurisdiction which the Supreme Court of Calcutta possessed over certain classes of persons outside the territorial limits of that jurisdiction has not been inherited by the High Court. The power to grant an information in the nature of quo warranto arises in the exercise of the Ordinary Original Civil Jurisdiction of the High Court. Such jurisdiction is confined to the town of Calcutta. Therefore the High Court has no jurisdiction to grant such information where the person who is called upon to show cause why the information should not be exhibited against him, does not reside and the office which he is alleged to have usurped is not situate, within those limits." The learned Advocate-General has also relied on the case reported in A I R (1952) Cal. 16. But in that case the Union of India was not located within the jurisdiction of Calcutta High Court. Here the Federation of Pakistan is located within the jurisdiction of this Court. Similar was the basis of the ruling reported in A I R (1952) Cal. 757 at page 758. The learned Advocate-General argued that it was open to a Central Minister to go out' of Karachi, say to Dacca or Peshawar, and there pass the orders, in which case this Court will have no jurisdiction. I think this very argument proves the weakness of the respondents' case. If any person wishes to disobey or circumvent the orders of the Court or may do the same, it is not a contingency in which-the order should be refused. In any case it is admitted that this Court has full jurisdiction so far Karachi (the Federal Capital) and the Province of Sind are concerned. If the writ issued by this Court could run in this area as it must, it will be sufficient for the purposes of this case. No further comment appears called for on this point. Now I will take up the objection regarding section 306 of 1935 Act as adapted, operating as a bar to this petition. It reads as follows :"Protection of Governor-General, Governor or Secretary of State.---(1) No proceedings whatsoever shall lie in, and no process whatsoever shall issue .from, any Court in Pakistan against the Governor-General, or against the Governor of a Province, whether in a personal capacity or otherwise, and, except with the sanction of the Governor-General, no proceedings whatsoever shall lie in any Court in Pakistan against any person who has been the Governor-General, His Majesty's representative for the exercise of the functions of the Crown in its relations with Indian States, the Governor of a Province, or the Secretary of State in respect of anything done or omitted to be done by any of them during his term of office in performance or purported performance of the duties thereof." It is argued by the learned Advocate-General that in view of this section the petitioner is not entitled to institute proceedings against respondent: No. 1, the Federation of Pakistan, whose Executive Head the Governor-General is, or against Central Ministers who have been appointed by the Governor-General in his capacity as the representative of Her Majesty on the principle that what you cannot do directly, you are prohibited from doing indirectly. Reliance is placed on the ruling in the case of The Attorney-General of Saskatchewan v. The Attorney-General of Canada and others (A I R (1949) P C 190 at p. 193) which reads as follows:"(14) The first of these questions must be answered in the light of an 'established rule of construction in such cases, viz., that regard must be had to the substance and not to the mere form of the enactment, so that 'you cannot do that indirectly which you are prohibited from doing directly' (per Lord Halsbury in Madden v. Nelson and Fort Sheppard Ry. Co., 1899 A C 626 at p. 627 ; (68 L J P C 148). I regret I cannot accept the contention that this dictum of the Privy Council applies here in this case. Section 306 only gives personal immunity to the Governor or the GovernorGeneral against any action. It cannot be construed to mean that no action of the Governor or the Governor-General can ever be scrutinised by the Court of law. I am fortified in my view by an important ruling of the Bombay High Court in the case of P. V, Rao and others v. Khushaldas S. Advani (A I R (1949) Bom. 277 at pp. 288 and 289). The pertinent passage runs as follows :-

"The next contention put forward by the Advocate General is that there is a complete immunity given to the Governor against being brought before a Court of law, and in asking for a writ against the Provincial Government the petitioner is in effect violating that immunity. It is submitted in the first instance that this Court being the King's Court the Crown cannot be made subject to its writ. This submission is wholly erroneous because the Governor is not the Crown ; he is merely the agent of the Crown in the Province of Bombay; and the English Courts have never recognised the principle that a Governor of a Colony or a dependency cannot be sued in English Courts. Numerous cases are to be found in the books where Governors of Colonies have been successfully sued in Courts in England. Therefore, if the Governor has an immunity at all, that immunity must be found expressly in some statute or legislation. For that purpose reliance is placed on section 306, Government of India Act. Under this section, no proceedings whatever shall lie and no process whatsoever be issued from any Court in India against the Governor of a Province, whether in a personal capacity or otherwise. It is argued that the Provincial Government is really the Governor because under section 49 the executive authority of a Province is exercised on behalf of His Majesty by the Governor, and according to the Advocate-General the Provincial Government and the Governor are interchangeable terms. Therefore, according to him, if immunity is given to the Governor, the same immunity is given to the Provincial Government. In my opinion, the Provincial Government means, under the constitution, the Governor and his Ministers. Before the Independence Act, the Governor had his individual judgment and his discretion and in certain matters he was entitled to act contrary to the advice given by the Ministers or even without taking their advice. Under the Independence Act the Governor has become a constitutional Governor and all his acts must now be taken with the aid and advice of his Ministers. But even so, I agree that the Governor does constitute an important part of the machinery which administers the Province and which is described by the expression "Provincial Government". But, in my opinion, it is a mistake to read section 306 as giving an immunity not only to the Governor but to the Provincial Government also. These are two different concepts, and the immunity to the Governor is not an absolute immunity but it is a personal immunity although it extends both to his private and public acts." On the same point we have another important ruling of the Nagpur High Court in the case of G. D. Karkare v. T. L. Shevde and others (A I R (1952) Nag. 330 at p. 333). Paras 9 and 10 of this judgment read as follows:-"(9) We can now proceed to deal with the second, third and the fourth grounds of the objection. We cannot accede to the contention that because His Excellency the Governor is not amenable to the process of the Court, this Court cannot examine his action in appointing the non-applicant and pronounce upon its legality. The immunity afforded by Article 361 is personal to the Governor. That Article does not place the actions of the Governor purporting to be done in pursuance of the Constitution beyond the scrutiny of the Courts. What the Constitution establishes is supremacy of law and not of men, however high-placed they might be. Unless there be a provision excluding a particular matter from the purview of the Courts, it is for the Courts to examine how far any act done in pursuance of the Constitution is in conformity with it . . . . . (10) If a question about the validity of an enactment assented to by the Governor can be considered and decided in the absence of the Governor, we see no force in the objection that an appointment made by the Governor cannot be questioned in his absence. It is not the rule that relief cannot be granted in proceedings for a writ of quo warranto in the absence of the authority making the appointment. Rex v. Speyer ((1916) K B 595), leaves no room for doubt on that point. In Ashgar Ally v. Birendra Nath (A I R 1945 Cal. 249), in a proceeding for a writ of quo warranto Gentle, J., held the appointment of the Chief Engineer of the Calcutta Corporation, made by the Corporation and approved by the Provincial Government under the Calcutta' Municipal Act (see pp. 250 and 259), invalid in the absence of both, the Government and the Corporation." In this connection we have also a ruling of the Supreme Court of India in the case of Province of Bombay v Khushaldas S. Advani (A I R (1950) S C 222 at p. 246) where it was held as follows :

"(106) On this point, the contentions raised by the learned Attorney-General fall under two heads. The first branch of the argument is that the expression "Provincial Government" occurring in section 3 of the Ordinance means the same thing as the Governor of the Province. This being the position there is complete immunity enjoyed by the Provincial Government in respect of all judicial processes under section 306 (1) of the Constitution Act, and the powers of the High Court itself are restricted and limited in this respect by certain enactments. (108) As regards the first branch of the argument, it may be pointed out at the outset that no definition of the term 'Provincial Government' has been given in the Constitution Act, 1935. Part III of the Act deals with Governors' Provinces. Section 49 (1), which occurs in this part, provides that the executive authority of a Province shall be exercised on behalf of His Majesty by the Governor either directly or through officers subordinate to him' . . . . . (109) The Governor is thus the executive head of a Province and all executive acts are done in his name. This does not mean that Government of a Province is vested solely in the Governor, or that the expressions 'Governor' and "Provincial Government' have the same meaning and connotation in the Constitution Act". In view of all these reasons, this contention raised on behalf of the respondents must fall. I will now take up the objection that the petition for writ does not lie because normal remedies under the ordinary law are available to the petitioner. Since the meeting of the Constituent Assembly was fixed for January 1955 there was ample time for the petitioner to give notice under section 80 C. P. C. and then file a suit for declaration and injunction. I do not see any force in this objection. It is settled law that the alternative remedy should be convenient, beneficial and effectual, i.e., adequate and appropriate. The filing of a regular suit is not at all that kind of remedy. In the first place notice under section 80 itself will take two months to y expire. Then the processes have to be issued and served. Then, as the learned Advocate Mr. Chundrigar pointed out, the Federation of Pakistan usually take a very long time, say about eight or nine months, to file their defence; in the meanwhile one does not know what may happen to the Constitution of the country. I think this objection is altogether baseless. Scores of English and Indian cases were cited on the point by Mr. Chundrigar, and I think the point is so clear that any reference to those cases will mean loss of precious time. I will merely cite a few of those cases:(1) Case of Rashid Ahmed v. The Municipal Board, Kairana (A I R (1950) S. C. 163.). (2) Case of Ahmed Hossain v. The State of Madhya Pradesh and others (A I R (1951) Nagpur 138.). (3)-(1922) 1 K. B. 72 at page 84, in which it was held "that the suggested remedy is so ludicrously inadequate that it is a misuse of language to call it a remedy at all". The same is the case here. This objection must also therefore fail. I will now take up the question regarding the constitutional position of Central Ministers, old and new, in the light of my findings. Respondents 2-3-6 and 9 are the Ministers of the old Cabinet, i.e., before the alleged dissolution of the Constituent Assembly on 24-101954. They were members of the Constituent Assembly. Respondents 4-5-7-8 and 10 on the other hand, are the Ministers who were sworn in after the dissolution. They were not members of the Constituent Assembly. In this connection sections 9 and 10 (1) and (2) of 1935 Act as adapted, are relevant. They read as follows :-"9. Council of Ministers.---There shall be a Council of Ministers to aid and advise the Governor-General in the exercise of his functions. 10. Other provisions as to Ministers.-(1) The Governor-General's Ministers shall be chosen and summoned by him, shall be sworn as members of the council. And shall hold office during his pleasure.

(2) A Minister who for any period of ten consecutive months is not a member of the Federal Legislature shall at the expiration of that period cease to be a Minister." The learned advocates for the respondents have argued, and I would say unfortunately that section 9 is altogether independent of section 10. They have argued that under section 9 the Governor-General shall have a Council of Ministers. It the Federal Legislature is in existence, the Ministers shall be chosen from amongst its members ; but if that is not in existence, it was open to the Governor-General to choose any Ministers he liked. I think section 10 (2) is a complete answer to that kind of extraordinary constitutional theory. Section 10(2) clearly lays down that if a person who is not a member of the Federal Legislature is chosen as Minister in some contingency, it is necessary that he should get himself elected as a member of the Federal Legislature within a period of ten months, otherwise after that period he will no longer remain as a Minister. This clear statutory provision of law thus lays down in most unambiguous terms that the Ministers have to be members of the Federal Legislature. In this connection we should remember that the period under section 10(2) was six months under the 1935 Act. It was increased to ten months in the days of the Quaid-e-Azam in view of certain conditions then obtaining in East Bengal. In any case section 10(2) proves that sections 9 and 10 have to be read together. Section 9 can never be independent of section 10. The scheme of 1935 Act itself shows that if there was to be no Legislature there was to be no Council of Ministers. I am not aware of any instance after 1947, when a Legislature should have been dissolved and the Ministers continued in office. As soon as a Legislature is dissolved, the Mfnisters, who are the members of the Legislature, automatically go out. The learned advocates have argued the reverse of what the real position is. Actually in East Bengal at the present moment even though the Provincial Assembly is not dissolved, the Ministers have been dismissed. After the dissolution of a Legislature the Governor sometimes appoints advisers. But the Advisers do not enjoy the same constitutional position which the Ministers do. They do not take the oath of office ; they exercise no power ; and the Governor is not bound to follow their advice as he is bound to do in the case of Ministers under the 1935 Act as adapted after partition. In fact there is no statutory provision for the appointment of Advisers under the Constitution Act. I have referred above to section 9 and 10 of the 1935 Act as adapted. I have not yet referred to section 10 as amended by the Constituent Assembly on 21-9-1954. I have already held that no assent of the Governor-General was necessary for the Acts of the Constituent Assembly and therefore this new section 10 is a perfectly valid and enforceable law. It reads as follows "10. (1) The Governor-General shall appoint a Member of the Federal Legislature who commands the confidence of the majority of the Members of the Federal Legislature as Prime Minister. The other Ministers shall be appointed by the Governor-General from amongst the Members of the Federal Legislature in accordance with the advice of the Prime Minister. (2) The Governor-General shall appoint from amongst the Members of the Federal Legislature such persons as Minister of State and Deputy Ministers as are recommended by the Prime Minister. (3) The Council of Ministers shall be collectively responsible to the Federal Legislature and the Ministers including the Prime Minister shall cease to hold office on the expression of want of confidence in any one of them by the Federal Legislature. (4) The Prime Minister may, at any time, call upon any Minister, Minister of State or Deputy Minister to resign on or before a date fixed by the Prime Minister. In case the person called upon to resign fails to do so he shall cease to hold his office from that date." It will be noticed from this that subsection (2) of section 10 as it stood after partition has also been deleted, so that it was no longer possible for a non-member to become a Minister. I do not think any further argument is necessary to prove that the Ministers before taking the oath of their office have to be members of the Federal Legislature.

This question being settled, we must now study the constitutional position of respondents 2 to 10. I would argue the point in this manner. The dissolution of the Constituent Assembly was either legal and valid or it was illegal and void. There can possibly be no third alternative. If the dissolution was legal, it means that after 24th October the Federal Legislature is not in existence. If the Federal Legislature is not in existence it means that none of respondents 2 to 10 can remain a member of the Council of Ministers to aid and advise the Governor-General in the exercise of his functions. But if the dissolution is illegal and void, it means that the Federal Legislature continues to exist and the position will be the same as it was before 24th October, 1954, as if the dissolution had not taken place. In that case, only respondents 2, 3, 6 and 9 can remain as Ministers because they are the members of the Constituent Assembly while others are not. Since I have held that the dissolution was illegal and void the proper constitutional position will be that respondents 2, 3, 6 and 9 only can legally remain as Ministers. There remains only one more point to be dealt with. The learned Advocate-General has argued that a writ of mandamus or quo warranto cannot issue against the respondents in view of the following considerations :(1) According to the English law of writs no writ of mandamus or quo warranto has ever been issued or can be issued against the King or His Ministers. (2) It is not appropriate in this case to include respondent No. 1 or respondents 2 to 10 in the term "Person or Authority" used in section 223-A. (3) A writ of mandamus can't be issued unless the petitioner has a clear and specific legal right to demand the performance of any specific legal duty from the respondents. This is not the case here. The respondents are not enjoined by any law to maintain the President of a dissolved Assembly in his chair. (4) Before a petitioner can apply for a writ of mandamus he must prove that he demanded performance of a specific legal duty and that he was refused. (5) A writ of mandamus does not issue when a wrong has been actually done. Here the Constituent Assembly has been dissolved. The petitioner has therefore lost the office of the President and none is at present illegally occupying that office. (6) To sustain a petition for writ the petitioner must establish some definite injury to himself. (7) In case of usurpation of any office under the Crown it is the exclusive right of the King to seek a writ of quo warranto. As respondents 4, 5, 7, 8 and 10 have been appointed Ministers by the Governor-General representing the Queen, no writ of quo warranto can legally issue against them. I will now deal with these points. The law of writs as enunciated by section 223-A is much wider than the English law of writs. Under the English law no writs could be issued against the Crown. Writ of mandamus for instance could only be issued to a person, officer, corporation or inferior Court. The writ of mandamus was abolished by the Administration of Justice (Miscellaneous Provisions) Act, 1938. The mandamus now issued in an action in England is no longer ` a writ of mandamus but a judgment or order having effect equivalent to the writ originally issued. Under section 223-A writs could be issued against any government. In these circumstances, we cannot tie ourselves to the English law of writs. We can have considerable help from Article 226 (1) of the Indian Constitution which reads as follows :"226 (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus,

prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.:" The powers under this Article and section 223-A of our Constitution are 'equally wide. The words "any other purpose" appearing in Article 226 of the Indian Constitution, extend the application of the Article to every case in which any injustice is being done. Section 223-A, on the other hand, does not even mention these words. So it becomes clear that in any case where a wrong is to be redressed section 223-A will apply provided other conditions are fulfilled. I would now like to refer to certain important rulings of the High Courts of India bearing on the point of the issue of writs. In the case of Bhailal rlagadish v. Additional Eeputy Commissioner, Akola and another (A I R 1953 Nag. 89), reported at pages 107 and 108 we have the following passage :"(105) English precedents cannot be regarted as sure guides even though Article 226 makes a reference to the ancient prerogative writs. The mere specification of these writs in Art. 226 connot control the intepretation of that article or compel us to so interpret it as to limit the extent of our powers to that exercisable by the Courts in England in respect of these writs. (106) These writs, namely, habeas corpus, certiorari' prohibition, mandamus and quo warranto' were known as, high prerogative writs. Each of them had its own purpose, its own history and its own procedure. The origin of the writ of habeas corpus is lost in antiquity. It is regarded as the highest remedy in law for any man that is imprisoned The writ of mandamus was a command issuing in the King's name and from the Court of King's Bench, and directed to any person, corporation, or inferior Court of jurisdiction, within the King's dominions, requiring them to do some particular thing specified therein. which appertained to their office and duty. This writ has thus used to compel the admission or restoration of any person to a public office, or to compel the holding of a Court, or to the performance of any other public duty by a person, corporation or an inferior Court concerned. The writ of quo warranto was a writ of right for the King against persons who claimed usurped any office, franchise, liberty or privilege belonging to the Crown to enquire by what authority they maintained their claim, in order to have the right determined. When a writ of this kind was issued, a person concerned had to appear before a Court and justify his claim." In the-case of G. D Karkare v. T. L. Shevde and others (1952 Nag. 330), it was held, as follows :"The power under Article 226 is given not only for the enforcement of the fundamental rights conferred by Part III of the Constitution but also for any other purpose. The enforcement -of legal right and the performance of legal duty cannot be exhaustive of the purposes for which the Court may issue any order, direction or writ under Article 226. The words "for any other purpose" must receive their plain and natural meaning, namely, for any other object which the Court considers appropriate and calls for the exercise of the powers conferred upon it. Though the power of the Court under Article 226 is ordinarily exercisable for enforcement of right or performance of duty, it cannot necessarily be limited to only such cases. Such a limitation cannot be reconciled with the power to issue a writ in the nature of quo warranto which power has been expressly conferred on the Court. In proceedings for a writ of quo warranto the applicant does not seek to enforce any right of his as such, nor does he complain of any non-performance of duty towards him. What is in question is the right of the nonapplicant to hold the office and an order that is passed is an order ousting him from that office. There is no reason to refuse a citizen under a democratic republican Constitution to move for a writ of quo warranto for testing the validity of a High appointment under the Constitution. The office of the Advocate-General is of a public nature. From every point of view it is a matter of grave public concern that the legality of the appointment to a High office under the Constitution is not left in doubt. A I R 1950 Pat. 387, Dissent; (1916) 1 K B 595 relied on.

In this case their Lordships relied on (1916) 1 K B 595. In the case of Gopal Jairam v. State of Madhya Pradesh (A I R 1951 Nag. 181), it was held as follows :"Where the petitioner complaints that because of the inaction of the State Government he has not been able to exercise his rights as a member arid vice-president of the superseded municipal committee, which he would be able to exercise if the committee were reconstituted, this is a kind of case in which a writ of mandamus can issue, though whether to issue it of not would be in the discretion of the Court." In the same volume at page 58 it was held in the case of Sheoshankar v. State Government of Madhya Pradesh and other, as follows :"Ordinarily before a person petitions for a mandamus to enforce the performance of a public duty, or makes, some other demand, he must show that he had made such a demand from the appropriate authority and that the demand was refused or nor met. This is, however, not an inflexible rule. So, when in the particular circumstances, such a demand could not have been met, the absence of a demand has been held to be immaterial. Thus where a petitioner applies under Article 226 for a writ of mandamus directing the State Government not to enforce against him the C. P. and Berar Prohibition Act, 1938, or some sections thereof and to withdraw and cancel certain rules and notifications thereunder and it was found that he had not done any act under the Act nor was any action taken under the Act to his detriment and that there was no demand and refusal of a permit under the Act to him ; Held, that what the petitioner sought was something which the State Government or its agencies could not as things stood, be expected to comply with and hence, in the circumstances of the case, it being idle for him to make a demand upon them, the absence of demand did not affect the tenability of the petition." In the case of Indian Sugar Mills Association through its President Shri Hari Raj Swarup v. Secy. to Government, Uttar Pradesh Labour Department and others (A I R 1951 All. 1), it was held that the power under Article 226 should be used in those clear cases where the rights of a person have been seriously infringed and he has no other adequate and specific remedy available to him. In the case of Fram Nusserwanji Balsara v. State of Bombay and another (A I R 1951 Bom. 210), we have the following important observations at page 225 :"The Advocate-General has argued that the petitioner is not entitled to any relief because he never made a specific demand of these rights against the Government and he never gave an opportunity to Government to comply with any of his demands and, therefore, strictly there was no denial of his rights by Government at the date the petition was filed. To maintain an application under section 45, Specific Relief Act, a demand of justice and its denial is essential before an order can be made under that section. It is true that the orders that the petitioner is now seeking are not confined to section 45 but fall under Article 226 of the Constitution. But even so, we have to consider whether it is open to a petitioner under Article 226, without making a specific demand of his right and without giving an opportunity to the Government to comply with that right, to file a petition . . . Therefore, while in a case of urgency where an immediate order may be necessary the Court may not insist upon compliance with conditions similar to those laid down in section 46, Specific Relief Act, in ordinary cases, in our opinion, the Court must insist upon compliance with those conditions." In the case of Rabindra Nath Chakravart v. State of West Bengal and others (A I R 1954 Cal. 394), it was held as follows :---

"As to whether there was a demand of justice before filing the application under Article 226 the Court has to look to the substance of the matter. Where although there was no formal demand of justice on the part of the petitioner, in point of fact there was a resistance on behalf of the petitioner when the opposite party wanted to take possession under the order for requisition made under section 3 (1) of the West Bengal Act 2 of 1948, it cannot be held that there was no demand of justice on the part of the petitioner and denial on part of the opposite party. A I R 1952 Sc. 16, fol. I have referred to only a few rulings on the point. Applying this law to the present case, we should now see if there is any force in the objections raised on behalf of the respondents. The respondents surely come within the meaning of the words "any government, person or authority" appearing in section 223-A. The petitioner has clear and specific legal rights of a public nature. As the President of the Constituent Assembly he is entitled to a salary, to a free residential house and what is most important, he has a right to perform his public duties as the President of the Constituent Assembly. He has to call the meeting of the Constituent Assembly and carry on its business. As President of the Federal Legislature he has certainly a right to question the Validity of the appointment of persons who are not members of the federal Legislature as Ministers. Even as an ordinary citizen he has the right to question the validity of their appointments. It is the duty of the respondents to see that the petitioner is not in any way interfered with in the exercise of his powers and duties. It has been alleged in the petition and not denied by the respondents, that even the Deputy President of the Constituent Assembly was not allowed to enter the Assembly Building as a police guard was stationed there to resist the entry of the members. The President has his own chamber in the Assembly Building and it is his right to be there. The petitioner has certainly proved definite injury to himself. It has been alleged that a writ of mandamus cannot issue when a wrong is actually done, but here the wrong is continuing to be done. I fail to see how the action of the respondents can possibly be defended on any ground whatsoever. A writ of mandamus can issue.to restore the petitioner to his office as the President of the Constituent Assembly by restraining the respondents from interfering with his duties and obstructing him in the exercise of his functions. In view of all these reasons I allow the petition. A writ of mandamus as prayed for will be issued against all the respondents. The appointment of respondents 4-5-7-8 and 10 being illegal, a writ of qno warranto will issue against them. I further direct that the respondents do bear the petitioner's costs.

ORDER Per Curiam.---A writ of quo warranto will issue against respondents 4, 5, 7, 8, and 10 prohibiting them from exercising the office of Minister, and a writ of mandamus will issue restoring the petitioner to his office as President of the Constituent Assembly by restraining respondents from interfering with his duties and obstructing him in the exercise of his functions. The opponents will bear the cost of the petitioner of this petition. A certificate under section 205, Government of India Act, 1935, is hereby given. A. H.

P L D 1958 Supreme Court (Pak.) 533 Present: Muhammad Munir, C. J., M. Shahabuddin, A. R. Cornelius and Amiruddin Ahmad, JJ Constitutional Criminal Appeal No. 1 of 1957, Criminal Appeal No. 24 of 1957 & Criminal Appeals Nos. 60 and 67 of 1958, decided on 27th October 1958. Constitutional Criminal Appeal No. 1 of 1957 THE STATE.-Appellant Versus DOSSO and another-Respondents (On appeal from the judgment and order of the High Court of West Pakistan, Lahore dated the 9th August 1957, in Writ v. Petition No. 21 of 1957). Criminal Appeal No. 24 of 1957 SABZ ALI and another-Appellants Versus GOVERNMENT OF WEST PAKISTAN and others-Respondents (On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 15th May 1956, in Writ Petition No. 149 of 1956.) Criminal Appeal No. 60 of 1957 THE DISTRICT MAGISTRATE & DEPUTY COMMISSIONER SIBI AT ZIARAT and another-Appellants Versus MALIK TOTI KHAN and another-Respondents (On appeal from the judgment and order of the High Court of West Pakistan, Quetta Circuit, Quetta, dated the 5th August 1957, in Writ Petition No. 17 of 1957). AND Criminal Appeal No. 67 of 1958 THE STATE-Appellant Versus ABDUL LATIF KHAN-Respondent (On appeal from the order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 11th November 1957, in Misc. Application No. 93 of 1954). (a) Constitution--Destruction of, by successful revolutionary change in Government-Effect on prevalent law "-Validity depends upon will of new law-creating organ-Constitution of Pakistan-Abrogation of, by President-Laws Continuance in Force, Order (Post-Proclamation') (I of 1958) Art. II cls. 1, 4 & 7, Art IV cl. I-Effect-Frontier Crimes Regulation (111 of 19013, continues in force-Pending proceedings, on writ

applications based on infraction of a Fundamental right granted by abrogated Constitution, abate-Constitution of Pakistan (1956), Arts. 4, 5, 170.

By the Proclamation of October 7, 1958, the President of Pakistan annulled the Constitution of 2nd March 1956, dismissed the Central Cabinet and the Provincial Cabinets and. dissolved the National Assembly and both the Provincial Assemblies. Simultaneously, Martial Law was declared throughout the country, and, Commander-in-Chief of-.the Pakistan Army, was appointed as the Chief 'Martial Law Administrator: Three days later was promulgated by' the President the Laws Continuance in Force' Order, 1958, the general effect of which was the validation of laws, other than- the late Constitution, that were in force before the Proclamation, and restoration of the jurisdiction of all Courts including the Supreme Court and the High Courts. The Order contained the further direction that the country, thereafter to be known as Pakistan and not the Islamic Republic of Pakistan, should be governed as nearly as may be in accordance with the late Constitution. Each of the four appeals before the Supreme Court involved the question whether the writs-issued by the High Court in respect of orders of reference to a Council of Elders or convictions under S. 11 of the Frontier Crimes Regulation (111 of 1901) on the ground of the invalidity of the latter Regulation as contravening Art. 5 of the late Constitution-had abated under cl. 7 of Art. 1 of the Laws Continuance in Force Order, 1958 promulgated by the President on October 10, 1958. Held (per Muhammad Munir, C. J.,) that since Art. 5 of the late Constitution itself had now disappeared from the new legal order the Frontier Crimes Regulation (111 of 1901) by reason of Article IV of the Laws Continuance in Force Order, 1958, was still in force and all proceedings in cases in which the validity of that Regulation had been called in question having abated, the convictions recorded and the references made to the Council of Elders were good. A victorious revolution or a successful coup d' E' tat is an internationally recognised legal method of changing a Constitution. After a change of that character has taken place, the national legal order, must for its validity depend upon the new law-creating organ. Even Courts lose their existing jurisdictions, and can function only to the extent and in the manner determined by the new Constitution. If the territory and the people remain substantially the same, there is, under the modern juristic doctrine, no change in the corpus or international entity of the State and the revolutionary government and the new Constitution are, according to International Law, the legitimate government and the valid Constitution of the State. [Hans Kelsen: "General Theory of Law & State" translated by Anders Wedberg; 20th Century Legal Philosophy Series pp. 117-118]. Where revolution, is successful it satisfies the test of efficacy and becomes a basic law-creating fact. On that assumption the Laws Continuance in Force Order, however transitory or imperfect, was a new legal order and it was in accordance with that Order that the validity of the laws and the correctness of judicial decisions had to be determined. Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan & Secretary, Finance and Revenue (Revenue Department, -Government of East Pakistan P L D 1957 S C (Pak.) 9 ref. The Order applied to the situation that came into existence under the President's Proclamation of October 7. The laws that were in force after that date were enumerated in Article IV, but- from the list of such laws the Constitution of 23rd March 1956 had been expressly excluded. This meant that when under clause (4) of Article II of the Order the Supreme Court or the High Court was moved for a writ, the ground for the writ, could

only be the infraction of any of the laws mentioned in Article IV, or any right recognised by that Order and not the violation of a right created by the late Constitution. The so-called fundamental rights which were described in Part II of the late Constitution were therefore no longer a part of the national legal order and neither the Supreme Court nor the High Court had under the new Order the authority to issue any writ on the ground of the violation of any of the fundamental rights . . . . . . . Under the new legal Order any law could at any time be changed by the President and therefore there was no such thing as a fundamental right, there being no restriction on the President's law-making power. Under Article 4 of the late Constitution there was a restriction on the power of the legislature to make laws involving breaches of fundamental rights and invalidity attached to all existing laws, customs and usages having the force of law if they were inconsistent with any of the fundamental rights. This test to determine the validity of the laws and the fetters on the power of the legislature to make laws had both disappeared under the new Order. Unless therefore the President expressly enacted the provisions relating to fundamental rights, they were not a part of the law of the land and no writs could issue on - their basis. It was true that Article II provided that Pakistan shall be governed as nearly as may be in accordance with the late Constitution but this provision did not have the effect of restoring fundamental, rights because the reference to Government- in this Article was to the structure and outline of Government and not to the laws of the late Constitution which had been expressly abrogated by Article IV. Article II and Article IV could therefore stand together and there was no conflict between them. But even if some inconsistency be supposed to exist between the two, the provisions of Article IV which were more specific and later must override those of Article II. Position in regard to future applications for writs, therefore is that they lie only on the ground that any one or more of the laws mentioned in Article IV or any other right preserved by the Laws Continuance in Force Order has been contravened. As regards pending applications for writs or writs already issued but which are either sub judice before the Supreme Court or require enforcement, the relevant provision is clause (7) of Article II. This provision means that, excepting the writs issued by the Supreme Court after the Proclamation and before the promulgation of the Order, no writ or order for a writ issued or made after the Proclamation shall have any legal effect unless the writ was issued on the ground that any one or more of the laws mentioned in Article IV or any other right kept alive by the new Order had been contravened. And if there be a pending application or proceeding in respect of a writ which is not covered by clause (4) of Article II, or any other provision of the new Order, that is to say, the application or proceeding relates to a writ sought on the ground that a fundamental right has been contravened, then the application or the proceeding shall abate forthwith. This means that not only the application for the writ would abate but also the proceedings, which require the enforcement of that writ. The abatement must therefore be held to govern all those writs, which were the subject-matter of appeal before the Supreme Court either on certificate or by special leave. No judgment, order, or writ of a High Court can considered to be final when either that Court has certified the case to be a fit one for appeal and proceedings for appeal have been taken or when the Supreme Court itself has granted special leave to appeal from that judgment, order or writ. Cornelius, J., was unable to hold beyond doubt that the concluding words of subsection (7) of S. 2 of the Laws (Continuance in Force) Order, 1958 had the effect of bringing to an abrupt end in the circumstances of the two cases, the proceedings in the High Court which were under-examination before the Supreme Court in Appeals No. 1 of 1957 and 60 of 1958. Per Cornelius, J.-"I am unable to hold beyond doubt that the concluding words of subsection (7) of section 2 of the Order of the 10th October 1958, have the effect of bringing to an abrupt end the proceedings in the petitions before the High Courts commenced by the convicted persons in the two cases here under consideration. I do not therefore consider that it is open to me to reverse the judgment of the High Court in these two cases and to re-call the writs issued by them unless I am satisfied that the view of the

High Court on the point of repugnancy to Article 5 of the Constitution of 1956 is not tenable." His Lordship held that that view was not tenable. (b) Frontier Crimes Regulation (III of 1901), S. 11-Council of Elders ceasing to function-Case on remand may be referred to another Council. (c) Frontier Crimes Regulation (III of 1901), S. II-Deputy Commissioner after referring case to Council of Elders is empowered to issue directions in regard to custody of accused.

(d) "Abatement"-Concept examined. (e) Frontier Crimes Regulation (III of 1901)Whether necessarily an illiberal instrument. (f) Frontier Crimes Regulation (III of 1901), S. 11-Not a discriminatory provision-Constitution of Pakistan (1956), Art. 5. (g) Frontier Crimes Regulation (North-West Frontier Province Amendment) Act (X111 of 1954)-Validity. (h) Constitution of Pakistan (1956), Art. 178-High Court not competent to declare invalid a conviction had in a "special area" though the convicted person was later confined in a place within jurisdiction of the High Court-Prisoners Act (Ill of 1900), Ss. 15 & 16. Constitutional Criminal Appeal No. 1 of 1957. Mushtaq Ahmad, Advocate-General, West Pakistan (Iftikhar-ul-Haq Khan, Advocate, Supreme Court, with him), instructed by Ijaz Ali, Attorney for Appellant. Respondents: not represented. Criminal Appeal No. 24 of 1957. Muhammad Shafi, Advocate, Supreme Court, instructed by Mushtaq Ahmad, Attorney for Appellants. Mushtaq Ahmad, Advocate-General, West Pakistan (Iftikhar-ul-Haq Khan, Advocate Supreme Court, with him), instructed by Ijaz Ali, Attorney for Respondents. Faiyaz Ali, Attorney-General for Pakistan, instructed by Iftikhar-ud-Din Ahmad, Attorney, under O. XIV, r. 1, S. C. R. 1956. Criminal Appeal No. 60 of 1958. Mushtaq Ahmad, Advocate-General, West Pakistan (Iftikhar-ul-Haq Khan, Advocate, Supreme Court, with him), instructed by Ijaz Ali, Attorney for Appellants. Yahya Bakhtiar, Advocate, Supreme Court, instructed by Siddique & Co., Attorneys for Respondents. Criminal Appeal No. 67 of 1958. Mushtaq Ahmad, Advocate-General, of West Pakistan, (Iftikhar-ul-Haq Khan, Advocate, Supreme Court, with him), instructed by Ijaz All, Attorney for Appellant.

Abdul Latif in person. Dates of hearing : October 13 and 14, 1958. JUDGMENT MUHAMMAD MUNIR, C. J.-This order will determine Constitutional Criminal Appeal No. I of 1957, Criminal Appeal No. 24 of 1957 and Criminal Appeals Nos. 60 and 67 of 1958, which arise out of orders made either by the Lahore or by the Peshawar Bench of the High Court of West Pakistan on certain petitions for writs under Article 170 of the late Constitution successfully calling in question either an order referring the case to a Council of Elders or a conviction recorded under S. 11 of the Frontier Crimes Regulation, Act III of 1901. Constitutional Criminal Appeal No. 1 of 1957 is a certified appeal, while the others are by special leave of this Court. The question involved. in each one of them is whether the writ issued by the High Court abates under clause (7) of Article 1 of the Laws Continuance in Force Order, promulgated by the President on October 10, 1958. By the Proclamation of October 7, the President annulled the Constitution of 2nd March 1956, dismissed the Central Cabinet and the Provincial Cabinets and dissolved the National Assembly and both the Provincial Assemblies. Simultaneously, Martial Law was declared throughout the country and General Muhammad Ayub Khan, Commander-in-Chief of the Pakistan Army, was appointed as the Chief Martial Law Administrator. Three days later was promulgated by the President, the Laws Continuance in Force Order, the general effect of which is the validation of laws, other than the late Constitution, that were in force before the Proclamation, and restoration of the jurisdiction of all Courts including the Supreme Court and the High Courts. The Order contained the further direction that the Government of the country, thereafter. to be known as Pakistan and not the Islamic Republic of Pakistan, shall be governed as nearly as may be in accordance with the late Constitution. As we will have to interpret some of the provisions of this Order, it is necessary to appraise the existing constitutional position in the light of the juristic principles, which determine the validity or otherwise of law-creating organs in modern States which being members of the comity of nations are governed by International Law. In judging the validity of laws at a given time, one of the basic doctrines of legal positivism, on which the whole science of modern jurisprudence rests, requires a jurist to presuppose the validity of historically the first Constitution whether it was given by an internal usurper, an external invader or a national hero or by a popular or other assembly of persons. Subsequent alterations in the Constitution and the validity of all laws made thereunder is determined by the first Constitution. Where a Constitution presents such continuity, a law once made continues in force until it is repealed, altered or amended in accordance with the Constitution. It sometimes happens, however, that a. Constitution and the national legal order under it is disrupted by an abrupt political change not within the contemplation of the Constitution. Any such change is called a revolution, and its legal effect is not only the destruction of the existing Constitution but also the validity of the national legal order. A revolution is generally associated with public tumult, mutiny, violence and bloodshed but from a juristic point of view the method by which and the persons by whom a revolution is brought about is wholly immaterial. The change maybe attended by violence or it may be perfectly peaceful. It may take the form of a coup d' E' tat by a political adventurer or it may be effected by persons already in public positions. Equally irrelevant in law is the motive for a revolution, inasmuch as a destruction of the constitutional structure may be prompted by a highly patriotic impulse or by the most sordid of ends. For the purposes of the doctrine here explained a change is, in law, a revolution if it annuls the Constitution and .the annulment is effective. If .the attempt to break, the Constitution fails those who sponsor or organise it are judged by the existing Constitution as guilty of the crime of treason. But if the revolution is victorious in the success that the persons assuming power under the change can successfully require the inhabitants of the country to conform to' the new regime, then the revolution itself becomes a law-creating -fact because thereafter its own legality is judged note by reference to the annulled Constitution but by' reference to its own success: On the same

principle the validity of the -laws to-be made thereafter is judged by reference to the new and not the annulled Constitution. Thus the essential condition to determine whether a Constitution has been annulled is the efficacy of the change. In the circumstances supposed no new State is brought into existence though Aristotle thought otherwise. If the territory and the people remain substantially the same, there is, under the modern juristic doctrine., no change in the corpus or international entity of the State' and. the revolutionary government and the new constitution ace, according to International Law, the' legitimate government and the valid Constitution of the State. Thus a victorious revolution or a successful coup d E'tat is an internationally recognised legal method of changing a Constitution. After a change of the character I have mentioned has taken place, the national legal order must for its validity depend upon the new law-creating organ. Even Courts lose their existing jurisdictions; and can function only to the extent and in the manner determined by the new constitution. While on this subject Hans Kelsen, a renowned modern jurist, says-: "From a juristic point of view, the decisive criterion of a revolution is that the order in force is overthrown and replaced by a new order in a way which the former had not itself anticipated. Usually, the new men whom a revolution brings to power annul only the constitution and certain laws of paramount political significance, putting other norms in their place. A great part of the old legal order remains valid also within the frame of the new order. But the phrase `remains valid', does not give an adequate description of the phenomenon. It is only the contents of these norms that remain the same, not the reason of their validity. They are no longer valid by virtue of having been created in the way the old constitution prescribed. That constitution is no longer in force; it is replaced by a new constitution, which is not the result of a constitutional alteration of the former. If laws, which, are introduced under the old constitution continue to be valid under the new constitution, this is possible only because validity has expressly or tacitly been vested in them by the new constitution. * * * * * * * * * * * * * * * * * * * * The laws which, in the ordinary inaccurate parlance, continue to be valid are, from a juristic viewpoint, new laws whose import coincides with that of the old laws. They are not identical with the old laws, because the reason for their validity is different. The reason for their validity is the new, not the old, constitution, and between the two continuity holds neither from the point of view of the one nor from that of the other. Thus it is never the constitution merely but always the entire legal order that is changed by a revolution. "This shows that all norms of the old order have been deprived of their validity by revolution and not according to the principle of legitimacy. And they have been so deprived not only de facto but also de jure. No jurist would maintain that even after a successful revolution the old constitution and the laws based thereupon remain in -force, on the ground that they have not been nullified in a manner anticipated by the old order itself. Every jurist will presume that the old order-to which no political reality any longer corresponds-has ceased to be valid, and that all norms, which are valid within the new order, receive their validity exclusively from the new constitution, It follows that, from this juristic point- of view, the norms of the old order can no longer be recognised as valid norms. [General Theory of Law & State translated by Anders Wedberg, 20th Century Legal Philosophy Series, Bearing in mind the principle just stated let us now approach the question involved in these cases. If what I have already stated is correct, then the revolution having been successful it satisfies the test of efficacy and becomes a basic law-creating fact. On that assumption the Laws Continuance in Force Order, however transitory or imperfect it may be, is a new legal order and it is in accordance with that Order that the validity of the laws and the correctness of judicial decisions has to be determined. The relevant provisions of this Order are: Article II-1. Notwithstanding the abrogation of the Constitution of the 23rd March 56, hereinafter referred to as the late Constitution by the Proclamation and subject

to any order of the President or Regulation made by the Chief Administrator of Martial Law the Republic to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution . . . . . . 4. The Supreme Court and the High Courts shall have power to issue the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari . . . . . Article IV-Notwithstanding the abrogation] of the late Constitution, and subject to any order of the President or regulation, made by the Chief Administrator of Martial Law, all laws, other than the late Constitution, and all Ordinances, Orders-in-Council, orders other than orders made by the President under the late Constitution, as are set out in the schedules to this order, rules, by-laws, regulations, notifications, and other legal instruments in force in Pakistan or in any part thereof, or having extra-territorial validity, immediately before the Proclamation, shall, so far as applicable and with such necessary adaptations as the President- may see fit to make, continue in force until altered, repealed or amended by competent authority. (2) In this article a law is said to be in force if it has effect as law whether or not the law has been brought into operation. (3) No Court shall call into question any adaptation made by the President under clause "1" The Order applies to the situation that came into existence under the President's Proclamation of October 7. The laws that are in force after that date are enumerated in Article IV, but from the list of such laws the Constitution of 23rd March 1956, has been expressly excluded. This means that when under clause (4) of Article II of the Order the Supreme Court or the High Court is moved for a writ; the ground for the writ can only be the infraction of any of the laws mentioned in Article IV, or any right recognised by that Order and not the violation of a right created by the late Constitution. The so-called fundamental rights which were described in Part II of the late Constitution are therefore no longer a part of the national legal order and neither the Supreme Court nor the High Court has under the new Order the authority-to issue any writ on the ground of the violation of any of the fundamental rights. The very essence of a fundamental right is that it is more or less permanent and cannot be changed like the ordinary law. In Jibendra Kishore Achharyya Chowdhury and- 58 others v. The Province of East Pakistan & Secretary, Finance and Revenue (Revenue) Department, Government of East _Pakistan (P L R 1957 W P 684 (Vol. II): P L D 1957 S C (Pak.) 9), I had the occasion to point out that the very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law and that it is .not only technically inartistic but a fraud on the citizens for the makers of a Constitution to say that a right is fundamental but that it may be taken away by the law. Under the new legal Order any law may at any time be changed by the President and therefore there is no such thing as a fundamental right there being no restriction on the President's law-making power. Under Article 4 of the late Constitution there was a restriction on the power of the legislature to make laws involving breaches of fundamental rights and invalidity attached to all existing laws, customs and usages having the force of law if they were inconsistent with any of the fundamental rights. This test to determine the validity of the laws and the fetters on the power of the legislature to make laws have both disappeared under the new Order. Unless therefore the President expressly enacts the provisions relating to fundamental rights, they are not a part of the law of the land and no writs can issue on their basis. It is true that Article II provides that Pakistan shall be governed as nearly as may be in accordance with the late Constitution but this provision does not have the effect of restoring fundamental rights because the reference to Government in this Article is to the structure and outline of Government and not to the laws of the late Constitution which have been expressly abrogated by Article IV. Article II and Article IV can therefore stand together and there is no conflict between them. But even if some inconsistency be supposed to exist between the two, the provisions of Article IV which are more specific and later must override those of Article II:

The position in regard to future applications for writs therefore is that they lie only on the ground that any one or more of the laws mentioned in Article IV or any other right reserved by the Laws Continuance in Force Order has been contravened. As regards pending applications for writs or writs already issued but which are either sub judice before the Supreme Court or require enforcement, the relevant provision is clause (7) of Article II which provides "All orders and judgments made and given by the Supreme Court between the Proclamation and the promulgation of this order are hereby declared valid and binding on all Courts and authorities in Pakistan, but saving these orders and judgments no writ or order for a writ issued or made after the Proclamation shall hate effect unless it is provided for by this order, and all applications and proceedings in respect of any writ which is not so provided for sate forthwith". Analyzed, this provision means that excepting the writs issued by the Supreme Court after the Proclamation and before the1 promulgation of the Order, no writ or order for a writ issued or made after the Proclamation shall have any legal effect unless the writ was issued on the ground that any one or more of the laws mentioned in Article IV or any other right kept alive by the new order had been contravened, And if there be a pending application or proceeding in respect of a writ which is not covered by clause (4) of Article II, or any other provision of the new Order that is to say, the application or proceeding relates to a writ sought on the ground that a fundamental right has been contravened, then the application or the proceeding shall abate forthwith. This means that not only the application for the writ would abate but also the proceedings which require the enforcement of that writ, The abatement must therefore be held to govern all those writs which were the subject-matte of appeal before the Supreme Court either on certificate or by special leave. No judgment, order or writ of a High Court can be considered to be final when either that Court has certified the case to be a fit one for appeal and proceedings for appeal, have been taken or when the Supreme Court itself has granted special leave to appeal from that judgment, order or writ. I am therefore of the view that the writs issued by the High Court in these cases are not final writs, and that all proceedings in connection with such writs, including the original applications in the High Court, have abated. The Frontier Crimes Regulation had been held by the High Court to be invalid on the ground that it contravened Article 5 of the Constitution and since that Article itself has now disappeared from the new legal order that Regulation by reason of Article IV is still in force and all proceedings in these cases in which the validity of that Regulation had been called in question having abated, the convictions recorded and the references made to the Council of Elders are good. In making this order I have not given effect to the contention raised in Criminal Appeal No. 24 of 1957 that the reference to the Council of Elders was bad because the Deputy Commissioner had not stated in his order that it was inexpedient that the question of guilt or innocence of the accused should be determined by an ordinary Court or the contention in Criminal Appeal No. 60 of 1958 that the reference to the second Council after remand to the original Council was illegal. In the former the reference was not under S. 11 but under S. 15 which does not require any such expediency or inexpediency as is mentioned in S. 11 and in the latter the remand to the original Council j proved infructuous as the Council declined to function after the remand. I have also rejected the argument in the first of these appeals that after a case is referred to a Council, the Deputy Commissioner ceases to have the jurisdiction to detain an accused person in custody. Every Deputy Commissioner acting in criminal proceedings under the Regulation is necessarily ' a Magistrate and as such is competent to issue directions as to the custody of the accused. Parties will bear their own costs throughout. SHAHABUDDIN, J.-These I are appeals against the decisions of the High Court of West Pakistan, Constitutional Criminal No. 1 of 1957 on a certificate granted by the

High Court and the other three by special leave. In stating the facts giving rise to these appeals it is convenient to take up Criminal Appeals Nos. 60 & 67 of 1958 first. A case of murder against Malik Toti Khan and Mehraban Khan, respondents in Criminal Appeal No. 60 of 1958, and several others was referred by the District Magistrate and the Deputy Commissioner, Sibbi, under S. 11 of the Frontier Crimes Regulation to a Council of Elders, who while finding the others guilty held that these respondents were not guilty. Under S. 11 (3) the Deputy Commissioner could accept the finding or remand the case to the same Council of Elders for a further finding or refer it to another Council of Elders. He adopted the second of the above courses but the Council of Elders after keeping the case pending for sometime expressed their inability to give an opinion on the ground that the parties had approached them and they did not have an open mind on the question. The case was then referred to another Council of Elders (Special Jirga) who found the respondents guilty, whereupon the Deputy Commissioner convicted them under S. 302/149, P. P. C. and sentenced them to rigorous imprisonment for five years and a fine of Rs. 500 each. The respondents then applied to the High Court for a writ. ,or habeas corpus and certiorari on the ground that the provisions of the Frontier Crimes Regulation enabling the executive authorities to refer criminal cases to a Council of Elders were void under Art. 4 of the Constitution of the Republic of Pakistan, being repugnant to Art. 5 of that Constitution. This contention was accepted by the High Court. The learned Judges held that as the provisions referred to above could be enforced under subsection (4) of S. 1 of the Regulation only against Pathans and Baluchis and against such other class of persons the local Government may notify and as this was not a reasonable classification those provisions were ultra vires of Art. 5 of the Constitution. The convictions and sentences were set aside, and the respondents were ordered to be treated as undertrial prisoners, it being left to Government to refer their cases to a Court of law. The State has preferred this appeal by special leave, which was granted for considering whether the above said provisions of the Frontier Crime Regulation were unconstitutional by reason of Art. 5 of the Constitution. A case of criminal breach of trust against the respondent in Criminal Appeal No. 67 of 1958 Abdul Latif Khan said to have been committed in Peshawar was referred by the Deputy Commissioner of Peshawar under the Frontier Crimes Regulation to a Council of Elders. An application was made by him to the High Court for a writ of certiorari on the same ground as in the first mentioned case and the High Court accepted that application had issued the writ prayed for. This appeal (Cr. A. No. 67/58) was preferred by the State with the special leave granted by this Court for considering whether Ss, 11 to 20 of the Frontier Crimes Regulation were repugnant to Art. 5 of the Constitution. The respondents in Cr. A. No. 1 of 1957 Dosso and Muhammad Khan who were convicted by the District Magistrate Loralai in the special areas under. S. 376 read with S. 12 (2) of the Frontier Crimes Regulation and sentenced to five years' rigorous imprisonment each on the basis of an award by a Jirga (Council of Elders) and were detained in jail at Machh which is outside the special area and within the jurisdiction of the High Court, applied to that Court for an 'appropriate writ for their being set at liberty on the ground that they were being illegally detained. The learned Judges for the reason given in the case mentioned above of Malik Toti Khan and Mehraban Khan via. that the relevant provisions of the Frontier Crimes Regulation were void being repugnant to Art. 5 of the Constitution, held that the convictions of Dosso and Muhammad Khan were without jurisdiction; but they found themselves unable to set them aside as the trial had taken place, in special areas which under Art. 178 of the Constitution was not within their jurisdiction. They however ordered their release on the ground that they were illegally detained. A certificate was granted to the State to enable it to appeal to this Court. The appellants Sabz Ali and Muhammad Akbar in appeal No. 24 of 1957 were committed to the Court of Session under Ss. 302 & 307, P. P. C. but the Public Prosecutor withdrew from the prosecution under S. 15, Frontier Crimes Regulation, whereupon as required under that provision the Sessions Judge stayed the proceedings and the Deputy Commissioner referred the case to a Council of Elders consisting of three Magistrates and a non-official. The appellants applied for a writ directing that the trial be not proceeded with under the Frontier Crimes Regulation, that the reference to the

Council of Elders be quashed and that the respondents should be tried in a Court of law. The contentions were (1) that a- trial before the Council of Elders deprived them of their fundamental right of consulting a counsel given under Art. 7 of the Constitution; (2) that their detention being by a Deputy Commissioner was illegal as under the said Article detention could be only with the authority of a Magistrate; (3) that the reference was invalid as it did not expressly say that the Deputy Commissioner considered it expedient to have petitioners tried in a Court of law and that (4) the Council of Elders was illegally constituted as three of the four members were Magistrates. The learned Judges held that the Frontier Crimes Regulation did not become unlawful because it did not allow the appearance of counsel and that Art. 7 of the Constitution could be treated as part of every law relating to the trial. of an offence. They, therefore, gave a direction that no evidence should be heard or recorded before the accused were given an opportunity of defending themselves by a pleader. As for the second-contention their view was that the Deputy Commissioner was acting as a Magistrate. The other two contentions also were not accepted. Absence of the word 'inexpedient' in the reference did not, they held, make it invalid and as far as the composition of the Council of Elders was concerned they found that as long as the members were Pathans or Baluchis their being Magistrates did not matter. Special leave was granted to consider the last three questions i.e., contentions 2 to 4 mentioned above. Though in' this case the question that the Frontier Crimes Regulation was in conflict with Art. 5 of the Constitution was not raised yet there was a reference to the fundamental right under Art. 7. In the other three cases the main question was whether the Frontier Crimes Regulation was in conflict with Article 5 of the Constitution. While these appeals stood posted to the 13th October for hearing the President abrogated the Constitution by a Proclamation issued on the 7th; and then on the 10th he promulgated "the Laws (Continuance in Force) Order, 1958 which for the sake of convenience will be referred to hereafter as `the nevi order' empowering all the Courts in existence immediately before the Proclamation toJ1 continue in being and exercise their powers and jurisdiction subject to the provisions of the said Order. Its relevant provisions with reference to which the points raised before us have to be considered are these. "2(1) Notwithstanding the abrogation' of the Constitution of the 23rd March 1956, hereinafter referred to as the late Constitution, by the Proclamation and subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law the Republic to be known henceforward as Pakistan, shall be 'governed as nearly as may be in accordance with the late Constitution. (2) Subject as aforesaid all Courts in existence immediately before the Constitution shall continue in being and, subject further to the provisions of this Order, in their .powers and jurisdictions. (4) The Supreme Court and the High Courts shall have power to issue the writs of habeas corpus, mandamus prohibition quo warranto and certiorari. (7) All orders and judgments made or given by the Supreme Court between the Proclamation and Promulgation of this Order are hereby declared valid and binding on all Courts and authorities in Pakistan, but saving those orders and judgments no writ or order for a writ issued or made after the Proclamation shall have effect unless it is provided for by this Order, and all applications and proceedings in respect of any writ which is not so provided for shall abate forthwith. 3 (1) No Court or person shall call or permit to be called in question(i) the Proclamation; 4 (1) Notwithstanding the abrogation of the late Constitution and subject to any Order of .the President or Regulation made by the Chief Administrator of Martial Law, all laws, other than the late Constitution, and all Ordinances, Orders in Council, Orders other than Orders made by the President under the late

Constitution, (such orders made by the President under the late Constitution as are set out in the Schedule to this Order, Rules, bye-laws, Regulations, Notifications, and other legal instruments in force in Pakistan or in any part thereof, or having extra-territorial validity, immediately before proclamation, shall, so far as applicable and with such necessary adaptations as the President may see fit to make, continue in force until altered, replaced or amended by competent authority". It was contended for the State by the learned Attorney-General and. the learned Advocate-General that as the late Constitution was no longer in force, Art. 5 of that Constitution did not apply and the Frontier Crimes Regulation, which comes within the expression `all laws' in paragraph 4 (1) of the new order having been validated thereunder was applicable, subject only to the limitation indicated therein and not to the provisions of the late Constitution, which is specifically excluded in the said clause. Mr. Bakhtayar for the respondents in Criminal Appeal No. 60 of 1958, on the other hand, argued that the fundamental rights are preserved by `the new order' as according to its Art. 2 (1) Pakistan `shall be governed as nearly as may, be in accordance with the late Constitution'. According to hire the expression `govern' includes governance by laws also. The respondent in Cr. A. No. 67 of 1958 who appeared in person had nothing to say on the question while the respondents in Cr. A. No. 1 of 1957 did not appear. The learned advocate for the appellants in Cr. A. No. 24 of 1957 did not address us on the question of fundamental rights, but confined his arguments only to the contention that the order of reference was invalid as the Deputy Commissioner did not expressly say that he considered it inexpedient to allow the case to be tried in a Court of law. This point, which is raised on the provisions of the Frontier Crimes Regulation will be considered after the main point stated above is dealt with. According to the Proclamation which is not and cannot be called or permitted to be called in question as well as in actual effect the late Constitution stands abrogated, and the new order under which the Courts are exercising their respective jurisdictions at present takes its place with regard to the matters to which it relates. The adoption in the new order of any of the provisions of the late Constitution does not affect the abrogation, as those provisions, as pointed out by Hans Kelsen in his book General Theory of Law and State (translated by Anders Wedberg, 20th Century Legal Philosophy Series)- relied on by the learned Attorney-General, receive validity only from the new Order. In the words of the learned author "the laws, which in the ordinary inaccurate parlance, continue to be valid are, from a juristic view point, new laws whose import coincides with that of the old laws. They are not identical with the old laws, because the reason for their validity is different. The reason for their validity 4s the new, not the old constitution, and between the two continuity holds neither from the point of view of the one nor from that of the other". Therefore, for such provisions to have. in the new Order the same effect as in the old, there must be a clear indication in the new order that they were adopted with that intention. Viewing the provisions oh the new order from this standpoint I am unable to agree with Mr. Bakhtayar that fundamental rights are preserved by it. It is true that under Art. 2 (1) "Pakistan shall be governed as nearly -as may be in accordance with the late Constitution", but there is also a specific provision in the same Order, Art. 4 (1) which validates all laws in force immediately before the Proclamation other than the late Constitution. This specific exclusion of the late Constitution means that it is not amongst the laws, which have received validity from the new Order and therefore none of its provisions can affect the laws validated in Art. 4 (1) which includes the Frontier Crimes Regulation. The words in Art. 2 (1)1 relied on by Mr. Bakhtayar have to be taken to refer rather toy the machinery of Government than to legislation and matters, affecting the validity of laws. Art. 2 (1) and Art. 4 (4) should be' read together and so read they do not conflict with each other. ' It was then contended by Nor. Bakhtayar that this might be so with regard to a future applications for writs, but as in these cases the High Court had issued the writ when the late Constitution was in force, we should not interfere at this stage. This argument overlooks clause (7) of Art. 2 of the new Order where under pending applications and proceedings in respect of any of the writs not provided for by the new order, shall abate forthwith. The writs provided for by the new order i.e., those mentioned in clause (4) of Article 2 cannot be utilised to enforce the fundamental rights conferred by

the late Constitution, as, for reasons already stated, those rights no longer exist as such. The, fact that the High Court has issued the writs and only appeals are pending in this Court does not save the orders of the High Court as in the above-mentioned clause "all applications and proceedings in respect of any writ which is not so provided for shall abate forthwith". In the present cases, the entire proceedings are before this Court in virtue of the special leave granted in three of them and the certificate of the High Court in the fourth. In Appeals Nos. 1 of 1957 and 60 and 67 o '1958, therefore, the applications and proceedings in respect of the writs which were based on Art. 5 of the late Constitution have to be regarded as having abated. It was however contended in Appeal No. 60 of 19.58 that the Deputy Commissioner Sibi having once remanded the case to the Jirga, which had given its award had no jurisdiction to send it again to a second Jirga. This point was not raised specifically in the application, nor does it appear to have been raised before the High Court. However, there is no force in it. Section 11 (3) no doubt empowers the Deputy Commissioner to adopt only one of the courses indicated in it, but the order of remand. in this case proved infructuous as the Jirga concerned was unable to reconsider the matter. Had it given an award on a reconsideration of the case the Deputy Commissioner would not have had jurisdiction to refer the case to a second Jigra. The result, therefore, is that tht convictions and sentences imposed on the respondents in Appeals Nos. 1 of 1957 and 60 of 1958 and the order of the Deputy Commissioner, Peshawar, referring the case of the respondent in Appeal No. 67 of 1958 to a Jirga get restored in consequence of the abatement. In Cr. A. No. 24 of 1957 the proceedings in respect of the writ have to be taken as having abated only as far as' the direction given- by the High Court that no evidence shall be heard and recorded before the appellants have been given an opportunity of defending themselves by a pleader is concerned, because that direction was based on Art. 7 of the late Constitution. But the other questions to consider which special leave was granted arise on the provisions of the Frontier Crimes Regulation independent of the late Constitution. , The learned advocate' for the appellants however pressed only one of those three points, viz., that in the absence of a finding of the Deputy Commissioner that it was inexpedient that they should be tried by a Court of law, the order of reference to a Jirga was not valid. I see no force in this argument. As already stated, the reference in this case, was made under S. 15 of the Frontier 'Crimes Regulation which is to the effect that when a trial before a Court of Session the Public Prosecutor at any time before an order of conviction or acquittal withdraws from the prosecution the, Sessions Judge shall stay proceedings and the Deputy Commissioner shall refer' the case to a Council of Elders. There is nothing in this section requiring the Deputy Commissioner to determine the question of expediency. He has no choice as he is bound to make a reference. This appeal has to be dismissed in respect of this contention. The result will be that the trial of the appellants before the Jirga will proceed according to the Frontier Crimes Regulation and the direction of the High Court referred to above will have no effect. I would determine these appeals in the manner indicated above _ and pass no order, as to costs. CORNELIUS, J.-I agree with the resulting order proposed in these cases by my Lord the Chief Justice, with whom my learned brothers have concurred, but as on certain points I find myself, with great regret, unable to accede to the reasoning which has prevailed with my Lord and my learned brothers, it is necessary that I should give my own reasons for varying the orders made in these four cases by the learned Judges of the High Court of West Pakistan, in my own words. It will be convenient to state, at the outset, the nature of the orders, which came under consideration in each of these cases in the High Court. In Constitutional Criminal Appeal No. 1 of 1957, which has been preferred by the State against Dosso and Muhammad Khan, the position was that Dosso and Muhammad Khan had been convicted under the Frontier Crimes Regulation, 1901 by the Deputy Commissioner of Loralai, a "special area" excluded from the jurisdiction of the High Court (as well as of this Court) by Article 178 of the late Constitution (to which I shall refer hereafter as the Constitution of 1956), and had been sentenced to imprisonment of certain terms. They were undergoing

imprisonment in a jail at Machh in Baluchistan, which is within the jurisdiction of the High Court as well as of this Court. It was represented before the High Court by Dosso and Muhammad Khan that their detention at Machh was illegal, on the major ground that the provisions of the Regulation relating to criminal references were void by operation of Article 4 of the Constitution of 1956, as these provisions involved discrimination on grounds of race. Article 5 of the Constitution of 1956, which declared that all citizens were equal before the law and were entitled to equal protection of law, was cited in this behalf. A Division Bench of the High Court allowed the petition which was for a writ of habeas corpus on the ground that the High Court had jurisdiction in respect of persons detained within their territorial jurisdiction, and as for the conviction, it was held to be without valid legal sanction having been obtained by a proceeding under section 11 and other relevant provisions of the Regulation, which were repugnant to Article 5 and consequently were void under Article 4 of the Constitution of 1956. A number of questions arose out of the case. The first was whether the Jailer of the Machh jail was acting in compliance with a valid warrant in detaining the two petitioners. This question does not appear to have received any consideration at the hands of the learned Judges. The second question is whether in the absence of jurisdiction in respect of things done within the "special areas" in which Loralai is included, the High Court acted properly in declaring that the conviction by the Deputy Commissioner of Loralai was "an illegal order". . Criminal Appeal No. 24 of 1957 has been brought by Sabz Ali and Muhammad Akbar, by special leave granted to them to consider the following questions, namely, (i) whether Sabz Ali's detention by order of the Deputy Commissioner was legal; in view of the fact that he was being tried by a jirga, (if) whether the Deputy Commissioner's order referring the case to jirga was legal, in the absence of' an expression of an opinion that trial in the ordinary Courts was "inexpedient", and (iii) whether the constitution of the jirga was proper in view of a certain decision by the Supreme Court, notwithstanding that it was in compliance with an Act of the North-West Frontier Province passed in 1954. The first question had been agitated before the High Court, which had held that the detention of Sabz Ali was under the orders of a Magistrate and that those orders were not rendered unlawful by the fact that the case had been preferred to a jirga for enquiry and report. As regards the second question of fact the reply of the High Court was that the reference to jirga had been made under section 15 of the Regulation and necessarily implied that the Deputy Commissioner had decided that it was inconvenient to have the question of the guilt or innocence of the accused persons tried by the ordinary Courts. On the third question, the learned Judges were of the view that the constitution of the jirga, which consisted of three Magistrates and one non-official was not illegal. The High Court decided one further matter, namely, that the petitioners were entitled to be defended by a lawyer at the trial, and made a direction accordingly acting under Article 7 of the Constitution of 1956. This question will also require to be considered in this judgment. Criminal Appeal No. 60 of 1958 has been brought by the Deputy Commissioner of Sibi and the Superintendent of the Central Jail at Machh to call in question the writ granted by the High Court of West Pakistan, in favour of two convicted persons Malik Toti Khan and Mehrban Khan, setting aside the convictions and sentences awarded by the Deputy Commissioner under the Regulation and directing him not to refer the case against these two persons to a jirga, while leaving it open to the authorities to proceed against them in the ordinary Courts. This case related to a settled area in Baluchistan, i.e., not a "special area", and the facts were as follows. A case instituted against Malik Toti Khan, Mehrban Khan and I1 other persons for the murder of one Zarif, had been referred to the district jirga, which found certain persons to be guilty, but recommended the acquittal of the two appellants. The Deputy Commissioner "did not feel satisfied" in regard to the jirga's proceedings, upon which the recommendation in favour of Malik Toti Khan and Mehrban Khan were based. He accordingly remanded the case to the same jirga, which at first asked for time, but after some five months, when the case again came before the same jirga, the members returned it to the Deputy Commissioner expressing "inability to submit a final award as they thought that their minds had been greatly prejudiced by the approach of different persons on behalf of the parties". Thereupon, the Deputy Commissioner constituted a special jirga of four persons from other areas, which made different recommendations, and in particular reported that Malik Toti Khan and Mehrban Khan were accomplices and abettors in the murder of Zarif. The Deputy

Commissioner accepted this recommendation after having obtained from the special jirga replies to various objections raised to their report by the different accused persons and other parties to the case. He convicted Malik Toti Khan and Mehrban Khan along with other persons and sentenced them to undergo terms of imprisonment. This was on the 22nd April 1957, and on the 5th of August 1957, the High Court of West Pakistan issued the writ of certiorari mentioned above. They held that the provisions of the Frontier Crimes Regulation under which the enquiry had been made into the question of the guilt or innocence of Malik Toti Khan and Mehrban Khan were void, as offending against the provision of Article 5 of the Constitution of 1956, on two grounds. The first ground accepted by the learned Judges was that the Regulation was intended to apply in the first instance to Pathans and Baluchis, and being based principally on recial or tribal considerations, could not be regarded as falling within the rule of reasonable classification. The learned Judges also referred to the power given by the Regulation to extend its provisions, and inferred therefrom with respect to the discrimination effected by the Regulation that "classification may be wholly arbitrary and capricious at the sweet will of the executive". The second ground on which these provisions were held to be discriminatory was that the executive authority viz., the Deputy Commissioner had an unfettered discretion as to the choice of persons "belonging even to Baluch or Pathan tribes as to whether their cases should go to a regular Court of law or to a jirga". It was held that the choice was arbitrary and was not governed by any guiding principle applicable to its exercise by the executive authorities. Special Leave to Appeal was granted to consider whether the provisions in question did indeed contravene the provisions of Article 5 of the Constitution of 1956. It may conveniently be mentioned here that it was stated at the Bar by Mr. Yahya Bakhtiar for the respondents that by a notification issued many years ago, the application of the Regulation to f` British Baluchistan" was put on a territorial basis, thus excluding discrimination 'on the ground of race. Criminal Appeal No. 67 of 1958, relates to the North-West Frontier Province, like the appeal of Sabz Ali and Muhammad Akbar. It is brought by the State against one Abdul Latif Khan who is an accused person in a case of embezzlement in the capacity of treasurer to the Government treasuries at Peshawar, Charsadda, and Naushera. The case against him was referred by the Deputy Commissioner, Peshawar to a jirga consisting of the City Magistrate, Peshawar, the Assistant Commissioner, Peshawar, the Assistant Secretary, Public Works Department, Peshawar and an Assistant Secretary in the Finance Department of the North West Frontier Province Government. The High Court of West Pakistan upon motion by Abdul Latif Khan held that the relevant provisions of the Regulation offended against Article 5 of the Constitution of 1956, and granted a writ as prayed. All the three learned Judges who heard the case were of the opinion that section 11 of the Regulation offended against the equality clause, because there were no well-defined rules to guide and control the discretion vested in the executive authorities to withdraw a case from the ordinary Courts and refer it to a jirga for trial. Two of them held that there was no discrimination such as to offend against Article 5 by reason of subsection (4) of section 1 of the Regulation providing for application in the first instance to Pathans and Baluchis, and such other clauses as the Provincial Government with the previous sanction of the Governor-General in Council, might declare to be subject thereto. It may be noted here that all the three learned Judges who heard the case have mentioned that by a notification published many years ago, the provisions in question were extended to all persons residing in the territories included in the North-West Frontier Province, which was absorbed in the Province of West Pakistan in 1955. In this case also leave was granted to consider whether the relevant provisions of the Regulation were repugnant to Article 5 of the Constitution of 1956. The cases, before the Court thus fall into two classes. Two of them relate to orders of reference to jirgas by Deputy Commissioners. The other two relate to orders of conviction by Deputy Commissioners and therefore to what might be described as completed proceedings. The cases of Sabz Ali and of Abdul Latif Khan fail in the first category, but the orders made in these cases are not by any means similar. In Sabz All's case, it has been held that the reference to the jirga was valid under law and should be allowed to proceed except that, by way of enforcement of Article 7 of the Constitution of 1956, a direction has been made that the accused persons should be allowed, the benefit of counsel at the trial. In the latter case, on the other hand, the finding of .the High Court

is that the reference- is illegal because it was made under a law offending against Article 5 of the Constitution of 1956, and they have directed that it should not be proceeded with. The question common to both these cases is whether today, and for the future, which is important since the trial in each case is yet to commence, the law allows of the making of references to jirgas, and the other consequential proceedings provided for by the Regulation. For, as from the 7th October 1958, a great change has come about in respect of the fundamental law of Pakistan. On that date, the President of Pakistan made a Proclamation whereby he abrogated the Constitution, and declared Martial Law in the entire country. On the 10th October, 1958, however, the President, acting in the capacity assumed under the Proclamation, made an Order providing for the continuance of laws which is Order (Post-Proclamation) No. 1 of 1958 and is described as the Laws (Continuance in Force) Order, 1958. This Order is deemed to have taken effect upon the making of the aforesaid Proclamation and proceeds to declare in section 2 that "the Republic, to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution", this however being expressly made "subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law". Then in section 4 it is declared that "notwithstanding the abrogation of the late Constitution" all laws other than the late Constitution and all Ordinances and other legal instruments, a number of which were expressly mentioned, were to continue to have legal force, "until altered, repealed or amended by competent authority" and in the section itself it was provided that the validity was to be "subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law". The Frontier Crimes Regulation is a law, which was in force immediately before the Proclamation, and as such, this law is saved by section 4, which however expressly does not retain the provisions of the Constitution of 1956 as law. Now, the question in the first two cases viz., those of Sabz Ali and of Abdul Latif Khan is whether the provisions of the Regulation are to be applied according to their tenor and without reference to Articles 5 and 7 of the Constitution of 1956 which are included in Part 11 of that Constitution under the heading "Fundamental Rights". Article 4 in that part provided that every law and every custom or usage having the force of law should be void to the extent of its inconsistency with the Fundamental Rights. It is clear that these Fundamental Rights and the supporting Article 4 have not been retained as law, whereas the provisions of the Regulation have been so retained. This is so far as section 4 of the President's Order of the 10th October 1958, goes, but we were invited to say that because, by that Order, it is also provided that the country "shall be governed as' nearly as may be in accordance with the late Constitution", therefore, the Fundamental Rights, being related generally to all matters within the province of Government, should be deemed to have been kept alive. The argument is 'attractive, but does not take into account the discrepancy between the direct provision in the Order, which makes the Frontier Crimes Regulation a law with effect from the 7th October 1958 (in continuance of its previous existence as law under other instruments up to the 7th October 1958), and the equally direct exclusion of the provisions of the Constitution of 1956, from the laws of Pakistan. The Order does not furnish any indication, which might tend to weaken the primary and basic proposition upon which the Order itself is based, namely that the Constitution of 1956 is abrogated. To say that the Government of the country shall be carried on "in accordance with the late Constitution" is not equivalent to giving new life to that Constitution, or accepting that any of its provisions retained the slightest validity, of their own force. For that Constitution, as well as for the new dispensation, which replaced it, the date 7th October 1958, marks a point of no return. The abrogation of the Constitution of 1956 represents an irrevocable act of the Supreme authority by which it was performed. It has a definitive effect in relation, both to that Constitution, as well as to the order of things, which has replaced it. Consequently, the words in section 2 of the Order, viz., "in accordance with the late Constitution" only mean that in matters affecting the Government of the country, for which no provision is made in any instruments issued under the authority of the new regime, where guidance is needed, it is to be sought by reference to the wording of provisions contained in the Constitution of 1956 applicable in the like case. The direction is one, which operates by reference to a previous instrument, without giving validity to that instrument. Equally, the supreme authority may have declared that in some particular respect the actions of the Government would be in accordance with some provision contained in the Government of India Act, 1935, or other constitutional instrument, or even in a constitution of some other country. By the

Constitution of 1956, the highest authority of an overriding character, governing all laws and legislation in the country, had been given to the principles, which were set out and enumerated as Fundamental Rights in Part II thereof. No law could be made in contravention of those rights on pain of invalidity. That prohibition is obviously not intended to continue, for the Order gives overriding power now to the President and the Chief Administrator of Martial Law to make Orders and Regulations contrary to anything appearing from the words used in the Constitution of 1956. Therefore, there is no room for the argument that the Frontier Crimes Regulation must still, in the new order of things, conform to the requirements of Part II of the Constitution of 1956. It derives its validity afresh from the Order, and its vires must be tested by reference to that Order only. On that basis, it is clear that the Regulation may be applied, as from the 7th October 1958, according to its terms. In the case of Sabz Ali a reference to jirga had been made, which must be held to be valid under the existing law. The direction by the High Court in Sabz Ali's case that he should be allowed to be defended by counsel at the jirga trial, being founded on Article 7 of the Constitution of 1956, is today without force and must therefore be set aside. The other questions arising in that case present little difficulty. It was said that the detention of one of the accused persons under the orders of the Deputy Commissioner, pending the proceedings before the jirga was illegal, because such detention should, after the making of the reference, be solely within the jurisdiction of the jirga. The argument is fallacious for, it does not appear that such a jurisdiction vests in the jirga, and since the function of the jirga is to enquire into the matter and report to the Deputy Commissioner as to the guilt or innocence of the accused persons, upon which recommendation the Deputy Commissioner is empowered to act in one of several ways, it seems clear that the duty of deciding as to whether or not the accused person shall remain in custody pending the disposal of his case, still inheres in the Deputy Commissioner despite the reference to the Jirga. It is o course perfectly clear that all Deputy Commissioners are Magistrates, and in that capacity qualified to order the detention of persons accused of criminal offences. The second point, as to the validity of the reference for lack of expression of an opinion as to the expediency of trial before the ordinary Courts is equally, of no weight, for the reference in this case was under section 15 of the Regulation which by its terms enables a Deputy Commissioner to instruct a Public Prosecutor to withdraw from a prosecution before a Court of Sessions at any time prior to the making of a final order in the case, with the object that the case may be referred to a jirga, and thereupon the Sessions Court is required to stay proceedings and the Deputy Commissioner is required to refer the case to a jirga. The law does not require any declaration as to inexpediency or otherwise. The third question raised was as to the constitution of the jirga i.e., whether it was constituted in accordance with the Pathan or Baluch usage. It seems that out of the jirga members nominated, three were stipendiary Magistrates. The High Court has held that this circumstance by itself did not vitiate the constitution of the jirga so long as it was convened "according to the Pathan, Baluch or other usage". Reference was also made to Act XIII of 1954 passed by the North-West Frontier Province Legislative Assembly providing that jirgas should consist of three or more persons, whether officials or otherwise, convened by the Deputy Commissioner and presided over by a section 30 Magistrate. At a later stage in this judgment, I propose to consider the purpose and effect of this amendment at length, but at this point I think it is sufficient to say that like the Frontier Crimes Regulation of 1901, this amending Act of 1954, is law having full validity in the new dispensation and therefore it is not open to any party today to challenge the legality of a reference to a jirga, so long as that jirga is constituted in accordance with the law as at present in force: Reference was made in the arguments to the decision of this Court in the case Crown v. Ghulam Muhammad Khan of Lundkhowar (P L D1956 F C 197), where also the jirga had included a majority of officials, but no reference was made during the arguments in that case to Act X111 of 1954 mentioned above, as will appear from the following observations of my Lord the Chief Justice in his judgment :"It seems to us to be clear that this letter has the effect of amending the Regulation, and that for that reason it was ultra vires the Provincial Government. Neither before the Court of the Judicial Commissioner nor in the concise statement or arguments before us was any provision mentioned under which the

Provincial Government could amend the procedure laid down in the Regulation for the Constitution of the Council of Elders". (The letter in question had been issued by the N.-W. F. P. Government to ail Deputy Commissioners directing them to form jirgas of competent Magistrates and where a sufficient number, that is to say three, of competent Magistrates were not available to appoint Tehsildars in lieu). That judgment clearly does not provide authority for holding that the 9onstitution of the jirga in the case of Sabz Ali is not in accordance with law, since there is a valid legislative enactment under which such a jirga may be appointed. Accordingly; it would seem that the appeal of Sabz Ali and Muhammad Akbar should fail, and, further more, the direction that these persons must be allowed the benefit of counsel before the jirga, must be cancelled as not being valid in law. In the case of Abdul Latif Khan, also, the jirga was composed of officials. By itself, that circumstance does not affect the legality of its constitution. The other questions raised in this case as to the effect of Article 5 of the Constitution of 1956 upon the relevant provisions of the Regulation, is no longer, since the 7th October 1958, a living issue in view of the lapse of Article 5 along with other Fundamental Rights enumerated in the Constitution of 1956. These conclusions are sufficient for holding that the writ issued in this case by the High Court must be set aside, and the case against Abdul Latif Khan should be allowed to proceed before the jirga to which it has been referred by the Deputy, Commissioner. In the view, which I am inclined to take regarding .the effect of the Order of the 10th October, 1958, upon completed proceedings of prior date, it will be necessary for me later in this judgment to examine the question whether indeed the relevant provisions of the Frontier Crimes Regulation offended against Article 5 of the Constitution of 1956. But as to the case of Abdul Latif Khan, I am of the opinion that the appeal of the State should be allowed and the writ issued by the High Court should be withdrawn. I proceed now to the consideration of the cases of Dosso and Malik Toti Khan, both of which come from that part of West Pakistan Province, which was previously described as Balouchistan. The first question, which arises is whether these two appeals can continue, in face of the provisions contained on the, Order of the 10th October 1958. In other words, is it within the expression and the intention of that Order that proceedings of the nature of these two appeals should be continued to a proper conclusion, or is it by expression and intention, the effect of that Order upon these appeals, that they should abate? It is on this point that I find myself with regret, at variance with the view which has found favour with my Lord the Chief Justice and my learned brethren. The point falls to be considered upon the reading and interpretation of subsections (4) to (7) of section 2 of the Order of the 10th October 1958. These provisions are reproduced below:"(4) The Supreme Court and the High Courts shall have power to issue the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. (5) No writ shall be issued against the Chief Administrator of Martial Law, or the Deputy Chief Administrator of Martial Law, or any person exercising powers or jurisdiction under the authority of either. (6) Where a writ has been sought against an authority which has been succeeded by an authority mentioned in the preceding clause, and the writ sought is a writ provided for in clause (4) of this Article, the Court notwithstanding that no writ may be issued against an authority so mentioned may 'send to that authority its opinion on a question of law raised. (7) All orders and judgments made or given by the Supreme Court between the Proclamation and the proclamation of this Order are hereby declared valid and binding on all Courts and authorities in Pakistan, but saving those orders and judgments no writ or order for a writ issued or made after the Proclamation shall have effect unless it is provided for by this Order, and all applications and

proceedings in respect of any writ which is not so provided for shall abate forthwith". The particular words whose effect is to be judged are the words at the very end of subsection (7) proving that "all applications and proceedings in respect of any writ which is nod' so provided for shall abate forthwith". It is necessary for the purpose of this judgment to ascertain which is meant by the expression "abate" in this sentence and further what "applications and proceedings" are to suffer abatement. The expressions "abate" and "abatement" do not appear to be capable of being defined generally with any exactness. They are used in a number of legal contexts, and their effect in each case may be gauged with precision, either from the context or from the terms of the relevant statute. The incidents of abatement vary from law to law. In several forms of law, one prominent feature of abatement is that the proceedings may be revived upon the happening of certain events, and the performance of certain conditions, so that it might be thought that in such cases, abatement is not a final conclusion, but has the effect of keeping the matter in a state of suspense, pending certain developments.

It seems scarcely possible to apply that conception of abatement to the provision here under examination. Every circumstance combines to create the impression that the provision is for an immediate and peremptory cessation, beyond hope of recall. It for that reason all the more necessary that it should be ascertained with precision, what applications and proceedings are Mended by this Order to suffer immediate and final cessation. Abatement is ordinarily a concept of the procedural law. It takes effect frequently upon a proceeding becoming defective by the death or loss of capacity of any of the parties to a cause or matter. It may be based upon a defect of form, i.e., the plea may be raised on account of an informality or it may be founded upon a change or transfer of interest. The common cases of abatement in the Civil Law arise upon the death or bankruptcy of the party or upon the devolution of the estate in dispute. In all these cases there is provision for substitution of parties and for the proceedings to continue thereafter. In the law of election petitions a petition abates upon the death of a sole or the last surviving petitioner, but it may be revived by a competent person entitled to pursue it. In affiliation proceedings, i.e., proceedings commenced by a mother to obtain maintenance for an illegitimate child from the putative father, it has been held that the proceedings abate upon the death of the mother, because only the mother is competent to commence them and equally they abate upon the death of the putative father. In these cases, the abatement is final. Proceedings in lunacy are abated by the death of the patient, and they remain so until a personal representative has been duly constituted, when they may be , revived. These are the familiar cafes in which the law provides for abatement, but it is clear also that abatement may take place by operation of law. The last sentence in subsection (7) of section 2 of the Order of the 10th October 1958, is clearly such a law. It remains to consider what particular applications and proceedings are liable to abatement by the operation of this law. The proceedings with which we are concerned, namely, the convictions obtained in the two cases here under consideration, derive their force and owe their validity to the Constitution of 1956, and their validity would ordinarily fall to be judged against the provisions of that Constitution. The Order of the 10th October 1958 does not explicitly have any retrospective operation, and one would therefore hesitate, on the strength of a possible interpretation of the Order to declare the invalidity of anything done or suffered so long as the Constitution of 1956 was in force and operation. On the other hand, should the implication be clear, the Order of the 10th October 1958, must necessarily prevail over anything appearing in the Constitution of 1956 or anything seeming to have validity only by reference to the provisions of that Constitution. We have been asked to declare that the proceedings instituted in the High Court to challenge the convictions in the two cases presently under discussion are being continued in this Court upon appeal, that these are proceedings "not so provided for", within the meaning of the last sentence in subsection (7) of section 2 of the Order of the 10th October 1958, and that they must consequently abate forthwith.

I have read with great care the reasons advanced in the judgments of my Lord the Chief Justice and my learned brethren which favour that conclusion, but I find myself still in doubt upon the question, and since the decision involves a question of the liberty of the subject, I feel that, consistently with the long accepted rules governing the interpretation and application of statutes, which is a matter strictly within the judicial field, it is my duty to refrain from coming to a conclusion in the sense desired by the learned Attorney-General arguing for the State. I shall state my reasons as briefly as may be. To accept the proposition advanced by the Attorney-General amounts to holding that the provision in question provides for abatement of a proceeding not on the ground of procedural defect or lack of capacity or competency, but by reason of the cancellation of the Fundamental Rights which took effect from the 7th October 1958, so that as from that date, the validity of any law still in force was not to be judged in relation to those rights. Now, it will be clear from the discussion above in the cases of Sabz Ali and Abdul Latif Khan that, with reference to proceedings which on a date after the 7th October 1958 are still pending proceedings under section 11 of the Frontier Crimes Regulation, there can be no manner of doubt that the validity of these proceedings is not to be judged in the light of any of the Fundamental Rights enumerated in the Constitution of 1956, as from the 7th October 1958. But it is equally clear that up to that date, the duty of the Courts was plainly to declare any law, which did not comply with the said Fundamental Rights, to be invalid. Therefore, any words contained in the Order of the 10th October 1958, which are to have the effect of nullifying that duty as applying up to the 7th October 1958, must be words of the clearest possible import, since they would be words having retrospective operation in respect of the high judicial authority of the superior Courts. That authority has been maintained and continued by the Order of the 10th October 1958, and as has been seen, in relation to the questions before the Court, there are no words in the Order, which may be thought to have retrospective operation. Therefore, I hesitate to accept an interpretation which would involve retrospective deprivation of the jurisdiction and annulment of the duty of the High Courts, existing on a date in the past, when under the then prevailing instruments, that jurisdiction and that duty were plain for all to see. Secondly, I do not recollect having found the expression "abatement" to be ever used in relation to the failure of a proceeding resulting from the failure of the right upon v, hick it T was based. Abatement ordinarily follows upon defect of form or procedure or loss of capacity in parties, and it may not be safe to assume that the meaning of the word "abate" as used in the Order of the 10th October 1958 is so widely different from the generally accepted senses of that word, as is claimed by the learned Attorney-General. It is true that if by the Order of the 10th October 1958, any law has been wholly destroyed or deprived of effect whatsoever, then the issue of a writ to enforce any right provided for by such law becomes impossible. Any application or proceeding that may be pending whose purpose may be to obtain enforcement of such a right must therefore fail by reason of the right no longer being available, and not by reason of procedural or formal defects, or loss of capacity etc. The Order of the 10th October 1958, could have been worded to provide that no writ should issue in such cases, although it might have been thought that such a provision was superfluous. But, does the last sentence in subsection (7) of section 2 make any such provision? I note that the words are not that "no writ which is not provided for shall abate forthwith" but they read "no writ which is not so provided for shall abate forthwith" and immediately it becomes clear that there is a reference, by the use of the word "so", to something which has been stated earlier. That something is contained in the immediately foregoing clause in subsection (7) of section 2 which reads as follows:"no writ or order for a writ issued or made after the Proclamation shall have effect unless it is provided for by this Order . . . . . ." It therefore becomes necessary to examine the Order to see what kinds of writs have been expressly provided for, and it is in my opinion a reasonable assumption that when the words ` unless it is provided for" are used what is meant is something stronger than a conclusion based upon mere inference, as to the provision. One must look diligently first for express provision, and if such be lacking, then for provision by

implication of a strong and necessary character directly affecting not the right sought to be enforced by the writ, but the competency of the writ itself. The search for expression in the above-mentioned sense need not take one far a field. In subsection (4) of section 2, it is expressly, stated that the Supreme Court and the High Courts shall have power to issue writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is clear that there is provision empowering the issue of writs by the Courts mentioned, and also for the kinds of writs, which these Courts may issue. By the operation of the prohibitive provisions in subsection (7), writs other than the writs provided for in subsection (4) cannot issue. But to the power given by subsection (4) there are exceptions contained in subsections (5) and (6). The Courts mentioned are expressly debarred from issuing writs of any of the kinds mentioned in subsection (4) against the Chief Administrator of Martial Law, the Deputy Chief Administrator of Martial Law, and any person exercising power or jurisdiction under the authority of either. Specifically then, the Order makes a prohibitive provision, in respect of every kind of writ against these authorities, and therefore under subsection (7) any writs directed to any of these authorities shall have no effect. In subsection (6) there is a further provision, saving the authorities specified in subsection (5) from receiving writs in the capacity of successors to some other authority, against whom it was competent for the Courts mentioned to issue writs. When such a replacement takes place, the proceedings do not immediately terminate, or become terminable. The Court may continue the proceeding, but at the conclusion thereof, if it is of the opinion that ordinarily a writ should have issued, it may instead send its opinion upon a point of law arising in the case, to the successor authority. These matters, appearing from within section 2 itself, furnish direct instances of writs provided for as well as writs not provided for by that section. Still bearing in mind that abatement is an incident applicable ordinarily to procedure and on grounds of formality or capacity, to which may be added the ground of immunity, I think it is plain that the expression "any writ which is not so provided for shall abate forthwith" is capable of full application to matters specifically expressed within section 2 of the Order of the 10th October 1958. 1 have read the remainder of that Order with great care for the purpose of determining whether it contains any other words having a strong and necessary implication of the abatement of a writ; and in especial a writ, i.e., as a specific process or machinery by which law is enforced. If the concluding words in subsection (7) of section 2 of the Order had been devoid of meaning or application unless they were understood to bring about a termination of writs and proceedings relating thereto, which had the effect of enforcing rights which have ceased to be available after the 7th October 1958, although they were available and had in fact been enforced in relation to a matter concluded long before that date, I might have felt it necessary to accept that the words must have the latter meaning, but I find in section 2 itself, sufficient material to indicate what was meant by the draftsman in using the expression "unless it is provided for by this Order" and the further expression "which is not so provided for". One final reason for my being in a state of doubt upon this question may be added in brief. It is that the validity of writs issued prior to the 7th October 1958, under the provisions of the Constitution of 1956 does not appear to be generally hit by anything contained in subsection (7) aforesaid, on the interpretation for which the learned Attorney-General has contended before us. Only those of such writs which happen to be still subject to legal revision upon the coming into force of the new regime are sought to be avoided on the basis of this interpretation, and this, not on any consideration whether they were rightly or wrongly granted at the time when they were issued in the eye of the law as then in force, but merely because they happen to be pending by virtue of having been appealed against. It is, in my view, more reasonable to infer, especially since the Order of the 10th October 1958, does not appear, by expression, to have retrospective effect, that as to matters which were concluded during the period which finally terminated on the 7th October 1958, the intention of the Order is that the law in force during that period, at the relevant time, should be allowed to prevail. For, it remains further to be said with reference to a number of Fundamental Rights enumerated in Part II of the Constitution of 1956 that they do not derive their entire validity from the fact of having been formulated in words and enacted in that Constitution. A number of these rights are essential human rights which inherently belong to every citizen of a country

governed in a civilised mode, and speaking with great respect, it seems to me that the view pressed before us by the learned Attorney-General involves a danger of denial of these elementary rights, at a time when they were expressly assured by writing in the fundamental law of the country, merely because that writing is no longer of any force. For these reasons, I am unable to hold beyond doubt that the concluding words of subsection (7) of section 2 of the Order of the 10th October 1958, have the effect of bringing to an abrupt end the proceedings in the petitions before the High Court commenced by the convicted persons in the two cases here under consideration. I do not therefore consider that it is open to me to reverse the judgment of the High Court in these two cases and to recall the writs issued by them unless I am satisfied that the view of the High Court on the point of repugnancy to Article 5 of the Constitution of 1956 is not tenable. The provisions of the Frontier Crimes Regulation with reference to the trial of crimes commence with section 11 and, as has been indicated already, they consist in the main of directions enabling executive officers where they think "it is inexpedient that the question of the guilt or innocence of any person or persons accused of any offence, or of any of several persons so accused should be tried by a Court of any of the classes mentioned in' section 6 of the Code of Criminal Procedure 1898" to refer the question to a Council of Elders (otherwise known as a jirga) and to require the Council to come to findings upon the questions arising. Upon receipt of those findings, the authority is to take requisite action which may be in the nature of acquittal or discharge, or of a remand to the same jirga, pr a reference to another jirga, and if the Deputy Commissioner convicts the accused person he must do so in accordance with a finding of not less than three-fourths of the members of the jirga. There are special provisions regarding sentences which are in the main lower than those provided by the Penal Code, and do not include a sentence of death. Power is given to the Deputy Commissioner acting through the Public Prosecutor to withdraw any case from a Court of Session and the law requires that when this power is exercised the case shall be referred to jirga. By section 48, appeals are prohibited, but by section 49 the Commissioner is empowered to revise all decisions in criminal cases inquired into by jirga, and to exercise the powers of an Appellate Court in the case as well as the power of enhancing any sentences. Final validity is given to a finding of a jirga on a question of fact where the finding has been accepted by the Deputy Commissioner by a provision barring interference by the Commissioner unless there has been a material irregularity or defect in the proceedings or such a procedure as is calculated to occasion miscarriage of justice. These provisions are materially different from those contained -in the Code of Criminal Procedure, and while in some respects, they might be thought to be less liberal than the latter provisions, in other respects, e.g. the binding nature of a finding of fact by a three-fourths majority of a jirga and in the matter of sentences, it may be thought that they are more advantageous to the accused person. The right of trial by one's equals or "peers" which is embodied in the mode of trial by jury, as known to British justice, is not one, which has been easily or cheaply won. It is certainly very highly valued in countries where it prevails, as affording a guarantee for the subject against the possibility of official oppression through the modes of justice. In the Frontier Crimes Regulation, this right is allowed to a very great extent. It is not a right which is allowed to the majority of the citizens of Pakistan. Indeed with the exception of a few districts in East Pakistan the right of trial by jury is practically non-existent in this country. Again, the punishments awardable under the Frontier Crimes Regulation certainly make a greater concession to principles of humanity than those laid down by the Penal Code in operation all over Pakistan, as well as in most areas to which the Frontier Crimes Regulation applies. The absence of a right of appeal might be thought to be an illiberal provision. Yet it must be remembered that a sentence awarded by a Deputy Commissioner under the Frontier Crimes Regulation, upon the recommendation of a jirga does not merely present an isolated punitive action taken by the States against an erring subject. It must be regarded as an equation of all the considerations to which the parties attach importance with reference to a crime committed in their midst as well as considerations applying more directly to the administration of areas where the maintenance of law and order is no easy matter, e.g. the effect upon family and tribal feelings, the possible result in regard to the maintenance of good order within the affected area and adjacent areas and the interests of public policy generally. The correction of an order having this nature and quality cannot lie within the

four corners of a precise appeal as understood in the Code of Criminal Procedure. I had occasion to consider this question, though not in the same context as in this case, in an earlier case before the Federal Court of Pakistan, which is published as Samundar v. Crown (PLD 1954 F C 228). I there expressed the opinion that if the trial of offences under section 1 I of the Regulation "can be regarded as a mode of justice at all, it is certainly not such a mode as is operated through the ordinary Courts of justice acting in accordance with the law of procedure and of evidence, but is rather to be assimilated to, and included among the agencies of the general administration". The question for decision in that case had been formulated as being "whether .the Commissioner or the Deputy Commissioner can be regarded as a Court of justice, or whether on the contrary these officers are not to be regarded as part of the administrative agency established for the settlement of criminal cases, under the special conditions obtaining in Frontier areas". With reference to decrees in civil matters which may be referred to jirga under section 8 of the Regulation, I made the following observation:"Obviously, such a decree is no simple decree of the Civil Court of general jurisdiction. It is essentially to be regarded as an instrument embodying a settlement of rights between the contestants, which also satisfies the interests of public policy, by which can only be understood, in relation to any unsettled or frontier area, the general administrative policy of the Government". These observations have some relevancy to this case. Even though the discussion of this question is confined to my judgment in the present cases, and the conclusion does not form the basis of the decision of the Court, yet it may be of some use in elucidating the matter in some later case. I conceive that it is by no means illogical, and from the point of view both of justice as well as of sound administration generally, it may in certain areas be by no means unwise, that the power to revise decisions by a Deputy Commissioner upon recommendations by a jirga should be placed in the hands of a higher executive authority, and that it should not be confined within the four corners of an appeal. Consequently if the conditions which make inquiry by jirga into criminal offences an appropriate mode of investigation of such offences for the purpose of imposition of punishment by the State be postulated, then I do not think that it can be denied that the mode of reviewing of convictions and sentences which has been laid down in the Frontier Crimes Regulation is appropriate to the requirements. That in certain areas the conditions which rendered it necessary to maintain a system of investigation of crimes for the purpose of imposing punishments at the hands of the State, in the manner which was traditional in those areas, still continue to exist can hardly be denied. If there be any doubt or difficulty, in the matter, it will in my opinion be found to affect only the question of the area within which or the persons to whom such a system may appropriately be applied. It is common knowledge that as the power of the British extended from Bengal in the East to the Khyber Pass in the West, in a period extending over something like a hundred years the British Administrators left behind them settled areas, and by successive stages, brought under their administration further areas which had up to that time been under less elaborate administration, and in some cases under no administration at all. In course of time, the eastern provinces of India, which had been for a considerable time under British Administration, came to be distinguished by the designation of "Regulation Provinces", and towards the west there were added one by one, provinces, which were known as "non-Regulation Provinces". In the Regulation Provinces the head of each district was known as the Collector and District Magistrate, thereby emphasising that he derived his powers from the revenue and criminal laws. In the non-Regulation Provinces, the head of the district was designated "Deputy Commissioner" emphasising his capacity as the local agent of the Government, and pointing to the possession of a high degree of initiative and freedom of action in the interests of firm and sound administration. The Punjab and the North-West Frontier Provinces were for a great many years treated.; as non-Regulation Provinces. Beyond the North-West Frontier Province were the "tribal areas" where the processes of government were distinctly loose and power was largely deposited in the hands of tribal leaders, whose actions were subject to supervision and correction by the representative of the suzerain power described as the Political Agent. A remnant of this arrangement may still be found in the "special areas" for which there was specific provision in the Constitution of 1956. It is agreed that in the "special areas" justice is administered by the jirga system

alone. The Constitution of 1956 barred the jurisdiction of the High Court and the Supreme Court in respect of the special areas. The North-West Frontier Province and Baluchistan were the particular areas where the non-Regulation provinces marched with the tribal areas, and where the new modes of trial of crimes under the Criminal Procedure Code came into contact directly with the earlier and more primitive modes operated through jirgas. A reasonable basis for the application of a measure of elasticity in dealing with crime arising within these areas was provided by reason of their being populated largely by people whose emancipation from their traditional modes of administration of justice was as yet partial, about the time when the present Frontier Crimes Regulation was enacted. When to these conditions are added the considerations that the areas in question are but sparsely populated for the most part, and that the population is largely nomadic, so that movement over the borders between the tribal areas and the provinces on the east and those areas and foreign countries on the west was constant, it wilt easily be appreciated that the decision as to whether in a particular case arising in the marginal areas, the more expedient course would be to sand the case for investigation to a jirga rather than to have it tried by one of the regular Courts, was by no means easy to make. It would involve in probably a majority of cases considerable knowledge and experience of the ways of life and habits of thought and degree of development of the parties to the case as well as of the witnesses, .and generally of the conditions prevailing among the people of the locality. To say that in every such case the authority charged with the exercise of the discretion should act so as to preserve only the recognised overriding principles of criminal justice as applied in the regular Courts e.g. of giving the benefit of every doubt to the accused, of presuming him to be innocent until he was proved to be guilty by evidence of a clearly admissible character, etc, would be to place too great a restraint upon the decision and a restraint whose operation could not by any means be regarded as advantageous to either the administration of justice or the administration of the area in general. If a legislature in such conditions left it to the head of the local administration to decide whether in a particular case, there being concurrent jurisdiction, he should not allow the case to go before the ordinary Courts, but should have it investigated by a jirga, it would be hardly possible to condemn the provision as one designed merely to enable discrimination to be made between one person and another or one class and another within the area. As regards the question of discrimination between races, which has been discussed in some of the judgments under appeal, it falls to be observed that since notifications were made many years ago extending the provisions of the Frontier Crimes Regulation to the entire Province of Baluchistan, the statute cannot now be assailed upon this particular ground. The High Court judgments are agreed that by placing it within the power of the Commissioner or the Deputy Commissioner to decide that a case should go before a jirga and be withdrawn from the jurisdiction of the ordinary Courts, the law has placed a naked and uncontrolled power of an arbitrary nature in their hands which was capable of producing inequality as between citizens placed in exactly similar circumstances. In coming to this conclusion, they have in my opinion overlooked the full force and effect of the words requiring that before taking a decision to this effect, the authorities should have formed the opinion that it is inexpedient that the case should go before the ordinary Criminal Courts. These authorities would be expected to exercise the power thus given to them by reference to all the considerations arising in relation to each case coming before them for an order under section 11. The word "inexpedient" is clearly not to be understood as making it a mere matter of short-sighted policy to gain a particular result. Expediency in this context is a matter to be judged widely in relation to all applicable considerations. It has been urged that in many cases, the authorities have acted - merely because they wished to secure a conviction and knew that the evidence was such as would not satisfy a Court operating under the Code of Criminal -Procedure and the rules of evidence under the Evidence Act. But that is clearly not the same thing as saying that the authority was anxious to secure the conviction of an innocent person. There is an illuminating sentence in the judgment of the High Court in the case of Khair Muhammad Khan v. The Government of West Pakistan, which is printed in the paper-book of Sabz Ali's appeals, where speaking of the procedure adopted by jirgas, the learned Judge observes as follows:-

"In practice even the Council holds what are called secret and open inquiries. It examines witnesses informally and visits the spot or its neighbourhood often incognito to ascertain the truth". The difference between the attitude of a jirga when entering upon an investigation and that of a Court acting under the Code of Criminal Procedure and the law of evidence appears with great clearness in this statement. Only too often the ordinary Court considers that its d4ty is merely to produce a judgment upon strictly admissible evidence. A Court, which goes out of its way to ascertain the truth only too frequently falls into error, which may be visited by one of the corrective processes known to the ordinary criminal law. But for a jirga acting honestly, there is no duty except that ascertaining the truth by whatever means may be available to them, and there can be no doubt that in the Frontier areas, those means can hardly be confined with any hope of success within the rigid requirements of the aw of evidence and the Code of Criminal Procedure. Therefore, it may be a fallacy to suppose that by reference of a case to jirga, ascertainment of the truth is prejudiced. On the other hand, it might often be made easier. It follows that such a reference is not necessarily to the disadvantage of an accused person and certainly it can only rarely be so in a-case where such person is innocent. This is not say that the power under section 11 is not capable of abuse. Indeed, in one of the cases which have come under examination in these appeals, it does appear that the conditions which I may compendiously describe as "frontier conditions" are wholly absent, and the crime alleged has been committed not merely in a settled area but in old settled towns, and in all probability involves no evidence other than that of persons living in settled areas. The crime alleged is one of misappropriation of money, involving no violence. It may be a matter for consideration in revision by the Commissioner whether the reference in the case is appropriate, but a mere abuse of a statute is y certainly not sufficient for avoiding the statute on any ground relatable to such a provision as Article 5 of the Constitution of 1956. For these reasons, I am of the view that section 11 of the Regulation is not a discriminatory provision inasmuch as treats of actual conditions existing in the areas in question, where the two separate jurisdictions, namely, the modern and the traditional, are both necessary, and the exercise of a choice as to which jurisdiction should apply to a particular case is entrusted to highly responsible officers, who are required by the statute to act upon a principle of expediency, having regard to the general administration of the area including the dispensation of justice in the particular case. A word may be added regarding the new practice of appointing officials and Magistrates to be as members of jirga. Such a procedure may be thought to be inconsistent with the views expressed above as to the need for the jirga system in frontier areas. The appointment of Magistrates is now being' made under a legislative sanction which has become a part of the Regulation itself, and the Regulation as a whole not being contrary to the requirements of Article 5 of the Constitution of 1956, it follows that this amendment is equally saved. It may appear that this amendment does not in fact implement the purposes which underlay the enactment of the Regulation, but y that question does not affect the vires of the legislation. Moreover, it may be that the legislature has resorted to this device in order to introduce into the jirga system 'some of the practices and principles which lie at the foundation of the administration of justice by the ordinary Courts. In that view, the provision may be one in aid of gradual modernisation of ideas of justice in the areas concerned. These reasons are sufficient for the disposal of the case of Malik Toti Khan and Mehrban Khan. It has not been shown to our satisfaction that the reference of the case by the Deputy Commissioner to a special jirga after the failure of the previous order of remand to the first jirga constitutes an illegality so as to vitiate the order of conviction (vide section 11 (3) of the x Regulation). In any case, that is a matter, which the Commissioner is competent to deal with. Accordingly, on the view I take, the appeal of the District Magistrate of Sibi against Malik Toti Khan and Mehrban Khan should be allowed and the writ issued by the High Court should be recalled.

In the case of Dosso and Muhammad Khan, the position is materially different in so far as the trial and all proceedings up to the conviction were held in a "special area" over which the High Court had no jurisdiction. It follows that the High Court had no authority to decide whether the trial and conviction were legal or otherwise. The only matter of which they could be seized was whether these persons were properly held in custody by the Jailer at Machh. For the decision of that question the learned Judges should have referred to sections 15 & 16 of the Prisoners' Act of 1900. The Jailer at Machh was competent to give effect to a warrant for the detention of these two persons, according to the tenor of the warrant. Such a warrant under the official signature of a proper officer is by itself sufficient authority for holding these persons in custody. The judgment in the case does not show that the warrant was ever examined, much less that it was found to suffer from defect of any kind, and consequently the order for release of these two persons was clearly incorrect. It must accordingly be set aside and the appeal allowed for that purpose. AMIRUDDIN AHMAD, J.-These four appeals arise out of orders made by the High Court of West Pakistan on petitions for issue of writs against convictions and orders made under the Frontier Crimes Regulation (III of 1901). As the orders of the High Court are based on Articles of the Constitution of 23rd March 1956 relating to Fundamental Rights given under Part of the said Constitution and the points involved are similar, the four appeals were heard together. Appeal No. 1 of 1957 is a certificated appeal from the Quetta Circuit of the High Court, in which the respondents were convicted under section 376 of the Pakistan Penal Code and sentenced to five years' rigorous imprisonment by the District Magistrate of Loralai in the special areas, on the basis of an award by a jirga under the Frontier Crimes Regulation, but confined in the Machh Jail within the jurisdiction of the High Court. The High Court refused the prayer for quashing of conviction and sentences, but held that it was a detention under an illegal order as being repugnant to Article 5 of the Constitution and void under Article 4, and therefore the consequent detention was also illegal and as it was within the jurisdiction of the Court, a writ of habeas corpus was issued. Criminal Appeal No. 60 of 1958 is by special leave of this Court from an order of the Quetta Circuit of the High Court. In this case the respondents were convicted by the District Magistrate and Deputy Commissioner, Sibi, on the basis of an award by the Council of Elders under the Frontier Crimes Regulation for instigating the murder of one Zarif and complicity in it under section 302 read with section 109 of the Pakistan Penal Code and sectenced to five years' rigorous imprionment with a fine of Rs. 500. The convictions and sentences were set aside by the High Court as being repugnant to Articles 5 & 4 of the old Constitution and the respondents were directed to be treated as under-trial prisoners. Criminal Appeal No. 67 of 1958 is by special leave of this Court against an order of the Peshawar Bench of the High ` Court. The respondent was charged with offences under sections 409 & 420 of the Pakistan Penal Code and the case was referred by the Deputy Commissioner to the Council of Elders under the Frontier Crimes Regulation. The respondent applied for an injunction in a civil suit before the Sub-Judge for restraining the Government from taking action under section 11 of the Frontier Crimes Regulation, but the prayer was refused. The High Court on appeal granted temporary injunction and proceedings before the jirga came to a halt. The respondent then filed a petition under section 223-A of the Government of India Act, which gave the powers of issuing a writ to the High Court similar to those given by Article 170 of the Constitution of 1956, and the Peshawar Bench of the High Court quashed the proceedings before the jirga holding sections 11 to 20 of the Frontier Crimes Regulation as repugnant to Article 5 of the Constitution of 1956 and holding that the reference to the jirga was void. Criminal Appeal No. 24 of 1957 is by special leave of this Court from an order of the High Court of West Pakistan, Lahore. In this case the original prosecution was started before the Sessions Court, but on the application of the Public Prosecutor under section 15 of the Frontier Crimes Regulation the case was withdrawn and referred to a jirga. The charge was under section 302 read with section 34 of the Pakistan Penal Code of the

murder of one Shah Zaman and was pending before the jirga, when the respondent applied for a writ of habeas corpus against his detention during trial. The High Court refused the issue of writ, but a direction was given that the respondent was Rot to be denied the right to consult, and be defended by, a legal practitioner, which was given by Article 7 of the Constitution of 1956. These appeals came up for hearing before the Court on the 13th October 1958, when a radical change had been effected in the Government of the country, which had a far reaching effect on the laws of the land. The President of Pakistan, by a proclamation dated the 7th October 1958 (1) abrogated the Constitution of 23rd. March 1956 ; (2) dismissed the Central and Provincial Governments with immediate effect ; (3) dissolved the National Parliament and Provincial Assemblies ; and (4) placed the whole country under Martial Law and appointed the then Commander-in-Chief as the Chief Martial Law Administrator of Pakistan. On the 10th October 1958, the President promulgated the Laws (Continuance in Force) Order, which was to take effect immediately upon the making of the proclamation of 7th October 1958. We are now to decide these appeals in the light of the change in the law brought about by the new Order becoming effective. According to Continental Legal thought in Philosophy and Jurisprudence as represented by Hans Kelsen such a change has the effect of changing not merely the Constitution but the entire legal order. The laws that have been continued by the sub-,g sequent order are not identical with the old laws, because the reason for their validity is different and the continued laws receive their validity exclusively from the new order, subject to limitations put by the new order. Article II of the Continuance of Laws Order provides that notwithstanding the abrogation of the Constitution and subject to any order of the President and Regulation made by the Chief Administrator of Martial Law, Pakistan shall be governed as nearly as may be in accordance with the late Constitution. By clause 4 of the said Article the Supreme Court and the High Courts shall have power to issue the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari, except as to orders made under the authority of the Chief or the Deputy Chief Administrator of Martial Law. By clause 7 of the said Order, all orders and judgments of the Supreme Court made between the promulgation and the proclamation of the Order were declared to be valid and binding, but except these orders and judgments no writ or order for a writ issued or made after the proclamation was to have effect unless provided for by this Order and all applications and proceedings in respect of any writ, which is not so provided for, shall abate forthwith. By Article IV of the Laws (Continuance in Force) Order, all laws other than the late Constitution subject to any order of the President or Regulation made by the Chief Administrator of Martial Law were continued. The result is that with the abrogation of the late Constitution the Fundamental Rights given i1-1 Part II of that Constitution, on the basis of which the writ petitions in these appeals were decided, are also abrogated. As an appeal is a continuation of the proceedings, the writ petitions, which originated these pending appeals, must also be deemed to be pending. Now we have to see whether there is any provision in the Laws (Continuance in Force) Order saving these writ petitions. Clause 7 of Article 11 of the Laws (Continuance in Force) Order says that no writ or order for a writ issued or made after the proclamation shall have effect unless it is provided for by this order. The Order only provides for issue of writ in clause 4 of Article II, and in view of the legal position that by the new Order having become effective, the new laws are not identical with the old laws, it must be held that writs can only be issued now in respect of rights given under the continued laws in the new Order, and not to enforce rights including Fundamental Rights given by the Constitution now abrogated.

It was argued in one of the appeals on behalf of the respondent that as under Article II of the Order, Pakistan is to be governed as nearly as may be in accordance with the late Constitution, the Fundamental Rights in Part II of the said Constitution are still available to the petitioners for writ. I am unable to accept that Fundamental Rights have been saved. The word `governed' relates to the structure and manner of Government, which has been changed by the dissolution of the legislative bodies and the dismissal of the Ministries, and the' words in the Article have not the effect of reviving the Funda-1 mental Rights. This view finds support also from the language of Article IV, clause 1 of the said Order. One of the arguments raised in Appeal No. 24 of 1957 was that the order of reference to jirga made by the Deputy Commissioner does not say that it was expedient to make such a reference. The question of expediency arises only when the reference is made under section 11 of the Frontier Crimes Regulation, but in this case it was at the instance of the Public Prosecutor and the reference was made under section 15, subsection (2) of the Regulation, which leaves .no option with the Deputy Commissioner to refuse when asked to make a reference. In Appeal No. 60 of 1958 it was argued that the Deputy Commissioner having once remanded the case to a jirga was incompetent under the Frontier Crimes Regulation to make a second order of remand. I am unable to accept this proposition, as the first remand became ineffective, the jirga having expressed their inability to submit their final award, as they thought that their minds were greatly prejudiced by the approach of different persons on behalf of the parties and returned the case. In the circumstances I think the second remand was competent. These appeals, which must be deemed to be a continuation of the proceedings originated by applications for writ before the High Court, and not provided for by the Order, abate under Article II, clause 7 of the Order. The result is that the parties are relegated to the position at which they were at the date at which the applications for writs in these appeals were made. As by the Laws (Continuance in Force) Order, the Frontier Crimes Regulation along with other laws has been continued freed from the trammels imposed by the late Constitution, I would order that the convictions and sentences in Appeal No. 1 of 1957 and Appeal No. 60 of 1958 will stand, and the trials before the jirga in Appeal No. 67 of 1958 and Appeal No. 24 of 1957 will proceed in accordance with the provisions of the Frontier Crimes Regulation. ORDER OF THE COURT In accordance with the judgments of the majority, the proceedings for writs in each of these cases are held to have abated. The result is that the direction made by the High Court in the case of Sabz Ali and another (Criminal Appeal No. 24 of 1957) and the writs issued by the High Court in the other three cases are hereby set aside. There will be no order as to costs. A. H. Order accordingly.

P L D 1972 Supreme Court 139 Present: Hamoodur Rahman, C. J., Muhammad Yaqub Ali, Sajjad Ahmad, Waheeduddin Ahmad and Salahuddin Ahmed, JJ Criminal Appeal No. 19 of 1972 Miss ASMA JILANI-Appellant Versus THE GOVERNMENT OF THE PUNJAB AND ANOTHER----- Respondents (On appeal from the judgment and order of Lahore High Court, Lahore, dated the 15th January 1972, in Writ Petition No. 1538 of 1971). Criminal Appeal No. K-2 of 1972 Mst. ZARINA GAUHAR-Appellant Versus THE PROVINCE OF SIND AND 2 OTHERS-Respondents (On appeal from the judgment and order of the High Court of Sind & Baluchistan, Karachi, dated the 18th February 1972, in Constitutional Petition No. 40 of 1972). Criminal Appeals Nos. 19 and K-2 of 1972, decided on 20th April 1972. (a) Constitution--------------Annulment and abrogation of Constitution by a successful Military revolution-Principle laid down in Dosso's case [P L D 1958 S C (Pak.) 533] that "where a Constitution and the national legal order under it is disrupted by an abrupt political change not within the contemplation of the Constitution, then such a change is a revolution and its legal effect is not only the destruction of the Constitution but also the validity of the national legal order, irrespective of how or by whom such a change is brought about"-Held, wholly unsustainable and cannot be treated as good law either on the principle of stare decisis or otherwise-Martial Law-Nature and scope of Proclamation of Martial Law does not by itself involve abrogation of civil law and functioning of civil authorities and certainly does not vest the Commander of the Armed Forces with the power of abrogating the fundamental law of the country-Commander of Armed Forces ; bound by his oath to defend the Constitution-Doctrine of "legal positivism" propounded by Hans Kelsen--Examined-[State v. Dosso P L D 1958 S C (Pak.) 533 overruled]. The precise question before the Supreme Court was whether the High Courts had jurisdiction under Article 98 of the Constitution of Pakistan (1962) to enquire into the validity of detention under the Martial Law Regulation No. 78 of 1971 in view of the bar created by the provisions of the Jurisdiction of Courts (Removal of Doubts) Order, 1969. The further question was whether the doctrine enunciated in the case of State v. Dosso P L D 1958 S C (Pak.) 533 was correct. The successive manoeuvrings for usurpation of power under the Pseudonym of Martial Law, it was urged, were neither justified nor valid nor had even reached the effectiveness to merit the legal recognition that was given to them in the case of State v. Dosso. Held, that in laying down a novel juristic principle of such far-reaching importance the Chief Justice in the case of State v. Dosso proceeded on the basis of certain assumptions, namely :-

(1) "That the basic doctrines of legal positivism", which he was accepting, were such firmly and universally accepted doctrines that "the whole science of modern jurisprudence" rested upon them ; (2) that any "abrupt political change not within the contemplation of the Constitution" constitutes a revolution, no matter bow temporary or transitory the change, if no one has taken any step to oppose it ; and (3) that the rule of international law with regard to the recognition of States can determine the validity also of the States' internal sovereignty. These assumptions were not justified. Kelsen's theory was, by no means, a universally accepted theory nor was it a theory which could claim to have become a basic doctrine of the science of modern jurisprudence, nor did Kelsen ever attempt to formulate any theory which "favours totalitarianism". Kelsen was only trying to lay down a pure theory of law as a rule of normative science consisting of "an aggregate or system of norms". He was propounding a theory of law as a "mere jurists' proposition about law". He was not attempting to lay down any legal norm or legal norms which are "the daily concerns of Judges, legal practitioners or administrators". Kelsen in his attempt to evolve a pure science of law as distinguished from a natural science attached the greatest importance to keeping law and might apart. He did not lay down the proposition that the command of the person in authority is a source of law. Kelsen's attempt to justify the principle of effectiveness from the standpoint of international law cannot also be justified, for, it assumes "the primacy of international law over national law." In doing so he has overlooked that for the purposes of international law the legal person is the State and not the community and that in international law there is no "legal order" as such. The recognition of a State under international law has nothing to do with the internal sovereignty of the State, and this kind of recognition of a State must not be confused with the recognition of the Head of a State or Government of a State. An individual does not become the Head of a State through the recognition of other States but through the municipal law of his own State. The question of recognition of a Government from the point of view of international law becomes important only when a change in the form of Government also involves a break in the legal continuity of the State, or where the question arises as to whether the new Government has a reasonable expectancy of permanence so as to be able to claim to represent the State. The observations of the Chief Justice in Dosso's case are not correct that upon the principles of international law if the territory and the people remain substantially the same there is "no change in the corpus or international entity of the State and the revolutionary Government and the new State are, according to international law, the legitimate Government and the valid Constitution of the State". This proposition does not find support from any principle or international law. According to Oppenheim's view as propounded in his book on International Law if the revolutionary Government is ineffective and or has no "reasonable expectancy of permanence" and/or does not "enjoy the acquiescence of the population", then the international community may well refuse to recognise it, even though its territorial integrity remains unchanged and its people remain substantially the same. The criticism therefore, is true that the Chief Justice of the Supreme Court not only misapplied the doctrine of Hans Kelsen, but also fell into error in thinking that it was a generally accepted doctrine of modern jurisprudence. Even the disciples of Kelsen have hesitated to go as far as Kelsen had gone. In any event, if a grund-norm is necessary, Pakistan need not have to look to the Western legal theorists to discover it. Pakistan's own grund-norm is enshrined in its own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March 1949. This has not been abrogated by any one so far, nor has this been departed or deviated from by any regime, military or civil. Indeed, it cannot be, for, !t is one of the fundamental principles enshrined in the Holy Quran:

Say, 'O Allah, Lord of sovereignty. Thou givest sovereignty to whomsoever Thou pleasest ; and Thou takest a Nay sovereignty from whomsoever Thou pleasest. Thou exaltest whomsoever Thou pleaaest and Thou abasest whomsoever Thou pleasest.-Holy Quran, Pt. 3, Chap. III, A1 'Imran, Ay. 27-The basic concept underlying this unalterable principle of sovereignty is that the entire body politic becomes a trustee for the discharge of sovereign functions. Since in a complex society every citizen cannot personally participate in the performance of the trust, the body politic appoints State functionaries to discharge these functions on its behalf and for its benefit, and has the right to remove the - functionary so appointed by it if he goes against the law of the legal sovereign, or commits any other breach of trust or fails to discharge his obligations under a trust. The functional Head of the State is chosen by the community and has to be assisted by a Council, which must hold its meetings in public view and remain accountable to public. It is under this system that the Government becomes a Government of laws and not of men, for no one is above the law. It is this that led Von Hammer, a renowned orientalist, to remark that under the Islamic system "the law rules through the utterance of justice, and the power of the Governor carries out the utterance of it. The principle enunciated in Dosso's case, therefore, is wholly unsustainable, and it cannot be treated as good law either on the principle of stare decisis or even otherwise. Now to judge the validity of the events that took place on and from the 24th of March 1969. Oar the 24th of March 1969, Field-Marshal Muhammad Ayub Khan, the then President of Pakistan, wrote a letter to the Commander-in-Chief of the army expressing his profound regret for coming to the conclusion that "all civil administration and constitutional authority in the country has become ineffective" and admitting after reciting the unhappy state of events that had taken place in the country earlier, that "it is beyond the capacity of the civil Government to deal with the present complex situation, and the defence forces must step in." In these circumstances, he thought that there was no option left for him but "to step aside and leave it to the defence forces of Pakistan, which today represent the only effective and legal instrument, to take over full control of the affairs of the country", and finally called upon the Commander-in-Chief to do the needful. This was followed by a Broadcast over the Radio network at 7-15 p.m., of the 25th of March 1969. There was nothing either in this letter or in this broadcast to show that he was appointing General Agha Muhammad Yahya Khan as his successor-in-office or was giving him any authority to abrogate the Constitution which he had himself given to the country in 1962. Both these merely called upon the Commander-in-Chief of the army to discharge his legal and constitutional responsibility not only to defend the country against external aggression but also to save it from internal disorder and chaos. He did not even proclaim Martial Law. Nevertheless, the Commander-in- Chief on the very same day. namely, the 25th of March 1969, on his own proclaimed Martial Law throughout the length and breadth of Pakistan and assumed the powers of the Chief Martial Law Administrator. He also abrogated the Constitution, dissolved the National and Provincial Assemblies and declared that all persons holding office as President, members .of the President's Council, Ministers, Governors of Provinces and members of their Council of Ministers shall cease to hold office with immediate effect. Existing laws and Courts were, -however, preserved with the proviso that no writ or other order shall be issued against the Chief Martial Law Administrator or any person exercising powers or jurisdiction under the authority of the Chief Martial Law Administrator. It is clear that under the Constitution of 1962, Field-Marshal Muhammad Ayub Khan had no power to hand over power to anybody. Under Article 12 of the Constitution he could resign his office by writing under his hand addressed to the Speaker of the National Assembly and then under Article 16 as soon as the office of President fell vacant the Speaker of the National Assembly had to take over as the acting President of the Country and an election had to be held within a period of 90 days to fill the vacancy. Under Article 30 the President could also proclaim an emergency if the security or economic life of Pakistan was threatened by internal disturbances beyond the power of a Provincial Government to control and may be for the present purposes that he could also proclaim Martial Law if the situation was not controllable by the civil

administration. It is difficult, however, to appreciate under what authority a Military Commander could proclaim Martial Law. Martial Law, in the present times in England, has acquired various senses. In its original sense ft is perhaps now only identifiable in the law relating to the enforcement of discipline in the forces at home and abroad. In this sense this branch of Martial Law is now better known as "military law" and is in time of peace enforced under various statutes, such as the Army Act, the Navy Act and the Air Force Act. It derives its authority from these statutes passed by the civil law-making bodies. In International Law Martial Law means the powers of a military commander in war time in enemy territory as part of the jus belli. In this sense as the Duke of Wellington once said in the House of Lords it is "neither more nor less than the will of the General who commands the army". We must distinguish clearly between Martial Law as a machinery for the enforcement of internal order and Martial Law as a system of military rule of a conquered or invaded alien territory. Martial Law of the first category is normally brought in by a proclamation issued under the authority of the civil Government and it can displace the civil Government only where a situation has arisen in which it has become impossible for the civil Courts and other civil authorities to function. The Imposition of Martial Law does not of its own force require the closing of the civil Courts or the abrogation of the authority of the civil Government. The maxim inter armes teges silent applies in the municipal field only where a situation has arisen in which tit has become impossible for the Courts to function, for, on the other hand, it is an equally well-established principle that where the civil Courts are sitting and civil authorities are functioning the establishment of Martial Law cannot be justified. The validity of Martial Law is, in this sense, always a judicial question, for, the Courts have always claimed and have in fact exercised the right to say whether the necessity for the imposition of Martial Law in this limited common law sense existed. From the examination of the various authorities on the subject one is driven to the conclusion that the Proclamation of Martial Law does not by itself involve the abrogation of the civil law and the functioning of the civil authorities and certainly does not vest the Commander of the Armed Forces with the power of abrogating the fundamental law of the country. It would be paradoxical indeed if such a result could flow from the invocation in the aid of a State of an agency set up and maintained by the State itself for its own protection from external invasion and internal disorder. If the argument is valid that the proclamation of the Martial Law by itself leads to the complete destruction of the legal order, then the armed forces do not assist the State in suppressing disorder but actually create further disorder, by disrupting the entire legal order of the State. It is, therefore, not correct to say that the proclamation of Martial Law by itself must necessarily give the Commander of the armed forces the power to abrogate the Constitution, which he is bound by his oath to defend. Per Yaqoob Ali, J.-However, effective the Government of a usurper may be, it does not within the National Legal Order acquire legitimacy unless the Courts recognize the Government as de jure. International law is not concerned with these considerations. If a rebel Government has succeeded in gaining effective control over people and territory the other States may recognize it. But will the same rule apply to the municipal Courts. East Pakistan today provides a classic example of a successful revolution which destroyed the National Legal Order and became a new law-creating fact. East Pakistan has declared its self-independence and became a separate State under the name of Bangla Desh. Pakistan claims that East Pakistan is a part of Pakistan, but a. large number of States have already recognized it as an independent State. New Courts and Government services have been constituted in Bangla Desh which do not operate under the Legal Order of Pakistan. On these facts if a dispute arises involving the determination whether the new Government of East Pakistan is de jure, will the municipal Courts of West Pakistan confer recognition on it, because a victorious revolution is a legal method of changing the Constitution and the new order has become efficacious as the individuals whose behaviour the new order regulates actually behave by and large in conformity with new order. The answer is obvious. While under International law, East Pakistan has become an independent State, the municipal Courts

of Pakistan will not confer recognition on it or act upon the legal order set up by the rebel Government. Yahya Khan's Government, therefore, remained de facto and not de jure up to 20th December 1971, when he stepped aside. Kelsen invests revolutionary Government with legal authority on the basis of a presupposed norm that the victorious revolution and successful coup d'etat are law-creating facts. This is in the realm of a theory and not a part of the national legal order of any State. No municipal Court will, therefore, rely on it as a rule. It is a statement of law by Mr. Kelsen to which a large number of jurists have taken exception. What Kelsen has said about the legitimacy of norm and legal authority of a revolutionary Government must be read separately and not mixed up. While revolution may destroy the existing national legal order because after the change the reality of the State has, disappeared from behind that order, it does not follow that the legal order, which replaces it, is the expression of the superior will of one or more revolutionaries who staged victorious revolution or successful coup d'etat. This is explained by Kelsen himself in the remark, that "the efficacy of the entire legal order is a necessary condition for the validity of every single norm of the order. A conditio sine qua non, but not a conditio per quam. The efficacy of the total legal order is a condition, but not the reason for the validity of its constituent norm. These norms are valid not because the total order is efficacious, but because they are created in a constitutional way." So, after a change is brought by a revolution or coup d'etat, the State must have Constitution and subject itself to that order. Every single norm of the new legal order will be valid not because the order is efficacious, but because it is made in the manner provided by the constitution of the State. Kelsen, therefore, does not contemplate an all omnipotent President and Chief Martial Law Administrator sitting high above the society and handing its behests downwards. No single man can give a constitution to the society which. in one sense, is an agreement between the people to live together under an Order which will fulfil their expectations, reflect their, aspirations and hold promise for the realisation of themselves. It must, therefore, embody the will of the people which is usually expressed through the medium of chosen representatives. It must be this type of constitution from which the norms of the new legal order will derive their validity. If this appraisal of Kelsen is correct, then the decision in the case State v. Dosso upholding the validity of the Laws (Continuance in Force) Order must be held to be erroneous. A person who destroys the national legal order in an illegitimate manner cannot be regarded as a valid source of lawmaking. May be, that on account of his holding the coercive apparatus of the State, the people and the Courts are silenced temporarily, but let it be laid down firmly that the order which the usurper imposes will remain illegal and Courts will not recognize its rule and act upon them as de jure. As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper; he should be tried for high treason and suitably punished. This alone will serve as a deterrent to would-be adventurers. (b) Constitution of Pakistan (1952)----------- Art. 2(2)-Term "Law" Concept of "Law". Legal theorists have spent a great deal of time and energy in elucidating the concept of law. Some Continental jurists think of them as dictates of reason, others as commands, yet others would have us believe that whatever is habitually obeyed is law. Even the American jurists are not unanimous. Justice Cardoso makes an exception in the case of statutes, in so far as they are clear, and precedents which are clearly in point. Jerome Frank on the other hand thinks that Gray's view is not sufficiently radical. The task of a Judge in the circumstances, is not an easy one. But is it necessary for him to define law? Law itself is not a legal concept, for, what is law is really a theoretical question. Conclusions of law do not depend upon the definition of law nor are legal judgments based on definitions of law and, in fact, as Sir Ivor Jennings has said in his Article on the Institutional Theory published in Modern Theories of Law, Oxford University Press. 1933 (page 83) "the task which many writers on Jurisprudence attempt to fulfil in defining law is a futile one", for, according to him, "law has no definition except in a particular context." So far as a Judge is concerned, if a definition is necessary, all that

he has to see is that the law which he is called upon to administer, is made by a person or authority legally competent to make laws and the law is capable of being enforced by the legal machinery. Per Yaqoob Ali, J. "Law" was not defined in the Constitution. It is, therefore, for the Courts to lay down what 'law' is, and if any decree, or behest of Yahya Khan expressed as a Martial Law Order, Martial Law Regulation or Presidential Order or Ordinance, does not conform to the meaning of the term 'Law' in Article 2 of the Constitution of Pakistan (1962) these Regulations, Orders and Ordinances will be void and of no legal effect. In introduction to "Law in the Making" C. K. Allen mentions two antithetic conceptions of growth of law : (i) law Is which is imposed by a sovereign will ; and (ii) law which .develops within society of its own vitality. He criticises Austin who defined "law" as the will of the sovereign and points out that whatever be the constitutional instrument which secures observance and enforcement of law-and some sanction of this kind is certainly indispensable--there is no historical justification for the view that this power always and necessarily must be a determinate, "human superior" which at the same time createsall law. It is impossible in every form of society governed by law to disengage and personify a "sovereign" as thus understood, with the artificial precision which Hobbes and Austin assume. Salmond describes "law" as body of principles recognised and applied by the State in the administration of justice as the rules recognised and acted upon by Courts of justice. All the theories of law are at one in viewing law as consistent of rules. Such rules are regarded by natural law as dictates of reason, to positivism as decrees of the sovereign and by realism as the practice of the Courts. The central notion of the natural law theory is that there exist objective moral principles which depend on the essential nature of the universe and which can be discovered by natural reason, and that ordinary human law is only truly law in so far as it conforms to these principles. These principles of justice and morality constitute the natural law which is valid of necessity, because the rules for human conduct are logically connected with truths concerning human nature. Diametrically opposed to the theory of natural law is the positivist or imperative theory of law. It seeks to define law not by reference to its condition. but according to the formal criteria which differentiate legal rule from other source such as those of morals, etiquette, and so on. It is a type of command, it is laid by a political sovereign and is enforceable by sanction. Realism, like positivism, looks on law as the expression of the will of the State as made through the medium of the Courts. According to Holmes law is really what the Judge decides. This great American Judge sowed the seed of the American realism in a famous paper in which he put forward. a novel way of looking at law. If one wishes to know what law is, he said, one should view it through the eyes of a bad man, who is only concerned with what will happen to him if he does certain things. The prophecies of what the Courts will do to the bad man, in the opinion of Justice Holmes, is what he means by the law. In "A Grammar of Politics" Laski adds: "To those for whom law is a simple command, legal by virtue of the source from which it comes, it is not likely that such complexities as these will be popular. We are urging that law is, in truth, not the will of the State, but that from which the will of the State derives whatever moral authority it may possess . . . . It assumes that the rationale of obedience is in all the intricate facts of social organisation and in no one group of facts. It denies at once the sovereignty of the State, and that more subtle doctrine by which the State is at once the master and the servant of law by willing to limit itself to certain tested rules of conduct. It insists that what is important in law is not the fact of command, but the end at which that command aims and the way it achieves the end. Pakistan is an Islamic Republic. Its ideology is enshrined in the Objectives Resolution of the 7th April 1949, which inter alia declares "wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah". We should, therefore, turn more appropriately to Islamic Jurisprudence for the definition of

"Law". One method of defining "Law" is to know its source. In Shari'at laws have divine origin. They are contained in the Holy Qaran, and Hadith, namely, precepts and actions of the Holy Prophet, peace be upon him. The other sources are Ijma' Consensus and juristic deductions including Qiyas : Analogy, Istihsen or Juristic Equity, Public Good, Istidlal : Reason and Ijtihad ; Juristic Exposition. While Juristic Deductions are judge-made laws, Ijma' is based on the doctrine of Imam Shafi'i that "the voice of the people is the voice of God", and is the most fruitful source of law-making in Shariat. In the present day context the Legislative Assemblies comprising of chosen representatives of the people perform this function. Thus, in Islamic Jurisprudence, the will of a sovereign, be he the monarch, the President or the Chief Martial Law Administrator is not the source of law. The people as delegatee of the sovereignty of the Almighty alone can make laws which are in conformity with the Holy Quran and Sunnah. The preponderant view appears to be that law is not the will of a sovereign. Law is a body of principles-called rules or norms-recognised and applied by the State in the administration of justice as rules recognised and acted upon by the Courts of justice. It must have the contents and form of law. It should contain one or more elements on which the different theories of law are based, and give expression to the will of the people whose conduct and behaviour the law is going to regulate. The will of the people is nowadays often expressed through the medium of Legislature comprising of the chosen representatives of the people. The will of a single man howsoever laudable or sordid is a behest or a command, but is certainly not law as understood in juristic sense. (c) Constitution of Pakistan (1962)-----Courts having given full effect to Constitution of 1962 and having adjudicated upon rights and duties of citizens in accordance with laws thereof, all laws made and acts done by Government thus acquired not only de facto validity but also de jure validity by reason of unquestioned recognition extended to them by Courts of highest jurisdiction in the country. The Courts in the country gave full effect to the Constitution of 1962 and adjudicated upon the rights and duties of citizens in accordance with the terms thereof by recognizing this law constitutive medium as a competent authority to exercise that function as also enforced the laws created by that medium in a number of cases. Thus all the laws made and acts done by the various Governments, civil and military, became lawful and valid by reason of the recognition given to them by the new Constitution and the Courts. They had not only de facto validity but also acquired de jure validity by reason of the unquestioned recognition extended to them by the Courts of highest jurisdiction in the country. The validity of the acts done thereunder are no longer, therefore, open to challenge. (d) Court duty of-----------No duty cast on Courts to enter upon purely academic exercises or to pronounce upon hypothetical questions Court's judicial function: to adjudicate upon real and present controversy formally raised before it by litigant-Court would not suo motu raise a question and decide it. The Courts do not decide abstract hypothetical or contingent questions or give mere declarations in the air. There is no duty cast on the Courts to enter upon purely academic exercises or to pronounce upon hypothetical questions. The Court's judicial function is to adjudicate upon a real and present controversy which is formally raised before it by a litigant. If the litigant does not choose to raise a question, however, important it might be, it is not for the Court to raise it suo motu. (e) Stare decisis-Doctrine of stare decisis----------Flexible in its application -Law cannot stand still nor can the Courts and Judges be mere slaves of precedents.

In spite of a Judge's fondness for the written word and his normal inclination to adhere to prior precedents one cannot fail to recognise that it is equally important to remember that there is need for flexibility in the application of this rule, for, law cannot stand still nor can the Judge, become mere slaves of precedents. The rule of stare decisis does not apply with the same strictness in criminal, fiscal and constitutional matters where the liberty of the subject is involved or some other grave injustice is likely to occur by strict adherence to the rule. Per Yaqoob Ali, J.-Stare decisis is the rule of expediency and public policy and is not inflexible and will not be applies where injustice is done or injury caused. This rule will also not apply if the language is not ambiguous. It will apply where two interpretations are open and Court having adopted one interpretation it may not depart from it, if it upsets contracts, titles and marriages, etc. (f) Bias---------Bias in Judge-Mere association with drafting of a law-Does not necessarily disqualify a Judge from interpreting that law in the light of arguments advanced before him. (g) Jurisdiction---------- Superior Courts are Judge of their own jurisdiction. The Courts undoubtedly have the power to hear and determine any matter or controversy which is brought before them, even if it be to decide whether they have the jurisdiction to determine such a matter or not. The superior Courts are, as is now well settled, the Judges of their own jurisdiction. This is a right which has consistently been claimed by Supreme Court and other Courts of superior jurisdiction in all civilised countries. (h) Proclamation of Martial Law, 1969---------- Provisional Constitution Order 1969; Jurisdiction of Courts (Removal of Doubts) Order [President's order 3 of 1969] and Martial Law Regulation 78 [C. M.L.As.'] of 1971-Military rule sought to be imposed upon country by General Agha Muhammad Yahya Khan by Proclamation of Martial Law, 1969-Entirely illegal-Presidential Order 3 of 1969, being a sub-constitutional legislation, could not curtail jurisdiction conferred by Constitution of Pakistan (1962) upon Supreme Court and High Courts-Presidential Order 3 of 1969 ; an unconstitutional document Martial Law Regulation 78 ; not only invalid and illegitimate but also incapable of being sustained even on ground of necessity. From the examination of the various authorities on the subject one is driven to the conclusion that the Proclamation of Martial Law does not by itself involve the abrogation of the civil law and the functioning of the civil authorities and certainly does not vest the Commander of the Armed Forces with the power of abrogating the fundamental law of the country. It would be paradoxical indeed if such a result could flow from the invocation in the aid of a State or an agency set up and. maintained by the State itself for its own protection from external invasion and internal disorder. If the argument is valid that the proclamation of the Martial Law by itself leads to the complete destruction of the legal order, then the armed forces. do not assist the State in suppressing disorder but actually create further disorder, by disrupting the entire legal order of the State It is therefore not correct to say that the proclamation of Martial Law by itself must necessarily give the Commander of the armed forces the power to abrogate the Constitution, which he is bound by his oath to defend. If this be so, then from where did General Agha Muhammad Yahya Khan acquire the right to assume control of the reins of Government? Field-Marshal Muhammad Ayub Khan did not appoint him as his successor by his letter of the 24th March 1969. He merely called upon him to perform his "constitutional and legal duty to restore order" in the country. If this was his authority, then the only authority he got was to restore order and nothing

more. Even the imposition of Martial Law by his proclamation is of doubtful. validity, because the proclamation should have come from the civil authorities and it was only then that under the proclamation the Commander of the armed forces could have moved into action. There is no provision in any law which gives the Commander of the armed forces the right to proclaim Martini Law, although he has like all other loyal citizens of the country a bounden duty to assist the State, when called upon to do so. If the magnitude of the insurrection is so great that the Courts and the civil administration are unable to function, the military may exercise all such powers that may be necessary to achieve their objective and in doing so may even set up Military Tribunals to promptly punish wrong-doers but this, whether done throughout the country or in a restricted area within the country, merely temporarily suspends the functioning of the civil Courts and the civil administration. As soon as the necessity for the exercise of the military power is over, the civil administration must, of necessity, be restored, and assume its normal role. It is not without significance that after the so-called imposition of Martial Law in 1969 the Martial Law Authorities had no occasion to fire even a single shot and found the conditions so normal that the civil administration never ceased to function and all the Courts continued to sit for all purposes. In fact the situation was so normal that within a few days the reality had to be accepted and even the Constitution was brought back except in so far as it had been purported to be altered by the creation of the office of President and the assumption of that office by the Chief Martial Law Administrator. Protection was also purported to be given to the acts of all Martial Law Administrators and their subordinates acting under their orders to save them from the consequences of their otherwise illegal acts. If Martial Law was by itself a sufficient legal cover then why was this special protection necessary. This country was not a foreign country which had been invaded by any foreign army with General Agha Muhammad Yahya Khan at its head nor was it an alien territory which had been occupied by the said army. The question of imposition of "military rule" as an incident of jus belli of international law could not, in the circumstances, possibly have arisen. The only form of martial law, therefore, that could possibly have been imposed in this country, assuming that such a state of large scale disorder had come to prevail in the country as was suggested by Field-Marshal Muhammad Ayub Khan in his letter of the 24th of March 1969, was a martial law of the kind which could be imposed under the English common law and was imposed by the British from time to time in 1919 in Amritsar, Lahore and Gujranwala, in 1921 in the areas inhabited by the Moplas, in 1930 in Sholapur, in 1942 in areas occupied by Hurs in Sind and in 1953 in Lahore. Under these martial laws there was, of course, no question of abrogation of any Constitution or of the introduction of military rule in supersession of the civil administration normally functioning in other parts of the country. Looked at, therefore, either from the constitutional point of view or the Martial Law point of view whatever was done in March 1969, either by Field-Marshal Muhammad Ayub Khan or General Agha Muhammad Yahya Khan was entirely without any legal foundation. It was not even a revolution or a military coup d'etat in any sense of those terms. The Military Commander did not takeover the reins of Government by force nor did he oust the constitutional President. The constitutional President out of his own free will and accord in response to the public's demand, stepped aside and called upon the Military Commander to restore law and order, as he was bound to do both under the law and under the Constitution. On the stepping aside of the constitutional President the constitutional machinery should have automatically come into effect and the Speaker should have taken over as Acting President until fresh elections were held for the choice of a successor. The political machinery would then have moved according to the Constitution and the National and Provincial Assemblies would have taken steps to resolve the political disputes, if any, if the Military Commander had not by an illegal order dissolved them. The Military Commander, however, did not allow the constitutional machinery to come into effect but usurped the functions of Government and started issuing all kinds of Martial Law Regulations, Presidential Orders and even. Ordinances. Therefore, there can be no question that the military rule sought to be imposed upon the country by General Agha Muhammad Yahya Khan was entirely illegal. The Presidential Order No. 3 of 1969 is a sub-constitutional legislation and it could not have curtailed the jurisdiction that was given to the High Courts and to the Supreme

Court by the Constitution of 1962, for, that jurisdiction was preserved even by the Provisional Constitution Order. Looking at the matter, therefore, from any point of view, whether, from the strictly legal and constitutional side, or on the basis of the principle of implied authority or even in terms of the so-called legal order purported to be created by the Provisional Constitution Order of 1969 itself, the conclusion cannot be escaped that the Presidential Order No. 3 was an unconstitutional document, General Agha Muhammad Yahya Khan had no authority to pass such legislation taking away the powers of the Courts in his capacity as President under the Provisional Constitution Order. The Martial Law introduced by him was illegal and, therefore, even as Chief Martial Law Administrator he was not competent to validly pass such laws, and it certainly was in excess of the implied authority, if any, given to him by the letter of Field-Marshal Muhammad Ayub Khan dated the 24th of March 1969. The Martial Law Regulation No. 78 gives very wile powers to the Chief Martial Law Administrator and a Zonal Martial Law Administrator and even a Deputy Martial Law Administrator to detain a person without trial for any length of time, without giving him any reasons for such detention or any opportunity even of making any representation against such a detention. These are indeed very extraordinary powers for taking away the most cherished right of a citizen in a most arbitrary manner. They provide no machinery for seeking any redress against any possible abuse or misuse of power or for making any representation or even for an appeal from Ceaser to Ceaser. Both the Presidential Order No. 3 of 1969 and the Martial Law Regulation No. 78 of 1971 were made by an incompetent authority and, therefore, lacked the attribute of legitimacy which is one of the essential characteristics of a valid law. The Presidential Order No. 3 of 1969 was also invalid on two additional grounds, namely, that it was a Presidential Order, which could not in terms of the Provisional Constitution Order itself amend the Constitution so as to take away the jurisdiction conferred upon the High Courts under Article 98 of the Constitution of Pakistan 1962 and that it certainly could not, in any event, take away the judicial power of the Courts to hear and determine questions pertaining even to their own jurisdiction and this power could not be vested in another authority as long as the Courts continued to exist. Per Yaqoob Ali, J.-As both President's Order No. 3 of 1969 and Martial Law Regulation 78 were intended to deny to the Courts the performance of their judicial functions, an object opposed to the concept of law, neither would be recognised by Courts as law. Martial Law is of three types: (i) the law regulating discipline and other matters determining the rule of conduct applicable to the Armed forces. The present case is not concerned with it; (ii) law which is imposed on an alien territory under occupation by an armed force. The classic function of this type of martial law was given by the Duke of Willington when he stated in the House of Lords that "Martial Law is neither more nor less than the will of the General who commands the Army. In fact, Martial Law means no law at all." This case is also not concerned with this type of Martial law; and (iii) law which relates to and arises out of a situation in which the civil power is unable to maintain law and order and the Military power is used to meet force and re-create conditions of peace and tranquility in which the civil power can re-assert its authority. The Martial Law Regulations and Martial Law Orders passed under this type of Martial Law must be germane only to the restoration of peace and tranquillity and induced during the period of unrest. In practice, the Martial Law imposed by Yahya Khan belonged to the second category. A large number of Martial Law Regulations and Martial Law Orders passed by him between 25th. March 1969 and 20th March 1971, had no nexus with civil disturbances. In fact, peace and tranquility was restored in the country within a few days of his stepping in. Martial Law should, therefore, have come to an end, but the entire structure of Institutions of Pakistan including superior Courts were made to appear by Yahya Khan as merely the expression of his will which a victorious military commander imposes on an alien territory to regulate the conduct and behaviour of its subjugated populace. Neither Pakistan was a conquered territory, nor the Pakistan Army commanded by Yahya Khan was an alien force to justify the

imposition of this type of Martial Law. The Martial Law imposed by Yahya Khan was, therefore, in itself illegal and all Martial Law Regulations and Martial Law Orders issued by him were on this simple ground void ab initio and of no legal effect. (i) Interpretation of statutes---------Legislation-Illegal and illegitimate legislation-Doctrine of necessity-Illegal usurpation of power by a Military adventurer-All laws enacted during such regime illegal -Everything done during such intervening period both good and bad cannot, however, be treated in the same manner-Recourse could be had to the doctrine of necessity to condone the illegality and validate certain legislation in order to sane the country from greater chaos and the citizens from further difficulties. The grabbing of power and installing himself as the President and Chief Martial Law Administrator of Pakistan by General Agha Muhammad Yahya Khan by the Proclamation of 1969 having been declared by the Supreme Court to be entirely illegal. The question arose whether everything (legislative measures and other acts) done during his illegal regime, whether good or bad, can be treated in the same manner and branded as illegal and of no effect. Held : Grave responsibility, in such circumstances, rests upon Courts not to do anything which might make confusion worse confounded or create a greater state of chaos if that can possibly be avoided consistently with their duty to decide in accordance with law. Acts done by those actually in control without lawful authority may be recognized as valid or acted upon by the Courts within certain limitations, on principles of necessity. There is no doubt that a usurper may do things both good and bad, and he may have during the period of usurpation also made many Regulations or taken actions which would be valid if emanating from a lawful Government and which may well have, in the course of time, affected the enforcement of contracts, the celebration of marriages, the settlement of estates, the transfer of property and similar subjects. All these cannot be invalidated and toe country landed once again into confusion? Such a principle, has also been adopted in America in various cases which came up after the suppression of the rebellion of the Southern States and the American Courts too adopted the policy that where the acts done by the usurper were "necessary to peace and good order among citizens and had affected property or contractual rights they should not be invalidated", not because they were legal but because they would cause inconvenience to innocent persons and lead to further difficulties. Recourse therefore has to be taken to the doctrine of necessity where the ignoring of it would result in disastrous consequences to the body politic and upset the social order itself but one has to disagree with the view that this is a doctrine for validating the illegal acts of usurpers. This doctrine can be Invoked in aid only after the Court has come to the conclusion that the acts of the usurpers were illegal and illegitimate. It is only then that the question arises as to how many of his acts, legislative or otherwise, should be condoned or maintained, notwithstanding their Illegality in the wider public interest. This principle would be called a principle of condonation and not legitimization. Applying this test the Court condoned (1) all transactions which are past and closed, for, no useful purpose can be served by re-opening them, (2) all acts and legislative measures which are in accordance with, or could have been made under, the abrogated Constitution or the previous legal order, (3) all acts which tend to advance or promote the good of the people, (4) all acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment of, the objectives mentioned in the Objectives Resolution of 1954. The Court would not, however, condone any act intended to entrench the usurper more firmly in his power or to directly help him to run the country contrary to its legitimate objectives. The Court would not also condone anything which seriously impairs the rights of the citizens except in so far as they may be designed to advance the social welfare and national solidarity.

Per Yaqoob Ali, J.-The Laws saved by the doctrine of State necessity do not achieve validity. They remain illegal, but acts done and proceedings undertaken under invalid laws may be condoned on the conditions that the recognition given by the Court is proportionate to the evil. to be averted, it is transitory and temporary in character and does not imply abdication of judicial review. (j) Maxim-------Salus populi cot suprema lox (the safety of the people is the supreme law). (k) Maxim----- Inter arms leges silent (in the midst of arms the laws are silent). Salmond on Jurisprudence ; George Whitecross Paton's Textbook on Jurisprudence ; Sir Ivor Jennings' Article on Institutional Theory in "Modern Theories of Law", 1933, p. 63 ; Dias' book on Jurisprudence, 3rd Edn., p. 93 ; Professor Lauter pacht's Article on Kelsen's Pure Science of Law in "Modern Theories of Law", 1933 ; Halsbury's Laws of England, 3rd Edn., Vols. 7 & 22, pp 260, 802 ;Corpus Juris Secundum, Vol. 21, para. 193 ; The Daily Pakistan Times, 11th November 1968 ; Laski's State in Theory and Practice, p. 27; Garner's Treaties on Political Science and Government, p.155; G. C. Field's Lectures on Political Theory, pp. 74-75; Dean Roscoe Pound's magnum opus on Jurisprudence, Vol. 1i, Part 3, p. 305; Frigowg's Supreme Court in American History, pp. 76-82; Professor Julius Stone's Treaties on the Legal System and Lawyers' Reasoning, 1964 Edn., p. 121 ;Modern Law Review, Vol. 26, p. 35; Oppenhelm's International Law, Vol. I, p. 127 1 Holy Quran, Pt. 3, Ch. 3, A1 'Imran, Ay. 27 ; Article by Sir William Holdsworth in Law Quarterly Review, Vol. 18, p. 117 ; Hansard, Vol. CXV, Col. 880 ; A. V. Dicey's Law of the Constitution, p. 287 ; Blackstone's Commentaries, Vol. I, p. 381 ; Commentaries on the Constitution of the United States by Chester James : Grodus on De jure belli et pacis, Book 1, Chap. 4 ; Lakamani & Ola v. Attorney-General (West), Nigeria ref. In S. A. de Smith on Constitutional and Administration Law; The Attorney-General of the Republic. v. Mustafa Ibrahim and others 1964 C L R 195; 18 Law. Ed. 281; 87 Law. Ed. 1; 90 Law. Ed. 688; "A Grammar of Politics" by Laski; Yick Wo v. Hopking ; Law In The Making by C. K Allen; Modern Theories of Law, pp. 107-108; Friends Not Masters by Muhammad Ayub Khan and Fundamental Law of Pakistan, p. 598 by Brohi. State v. Dosso P L D 1958 S C (Pak.) 533 ; Federation of Pakistan v. Mould Tamizuddin Khan P L D 1955 F C 240; Yusuf Patel v. The Crown P L D 1955 F C 387; Presidential Reference No. 1 of 1955 P L D 1955 F C 435 ; Fazlul Qadir Chowdhury anti others v. Muhammad Abdul Hague P L D 1963 S C 486; Syed Abul A'ala Maudoodi and another v. The Government of West Pakistan and another P L D 1964 S C 673; The Government of East Pakistan v. Mrs. Rowshan Bijoy Shaukat Ali Khan P L D 1966 S C 286; Malik Ghulam Jilani v. The Government of West Pakistan and another P L D 1967 S C 373; The Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri P L D 1969 S C 14; Province of East Pakistan v. Muhammad Mehdi Ali Khan P L D 1959 S C (Pak.) 387; Iftlkharuddin and another v. Muhammad Sarfaraz and another P L D 1961 S C 585; Muhammad Afzal v. The Commissioner, Lahore Division P L D 1963 S C 401; Ch. Tanbir Ahmad Siddiky v. Government of East Pakistan P L D 1968 S C 185; (1966) 1 W L R 1234 ; The. Governors of the Campbell College Belfast v. Commissioner of Valuation for Northern Ireland (1964) 2 A E R 705 ; The Attorney-General of the Commonwealth of Australia v. Reginam and others (1957) 2 A E R 45 (P C) ; Waterside Worker's Federation v. Alexander 25 C L R 434 ; Tilonka v. Attorney-General of Natal 1907 A C 93 ; Rex v. Allen (1921) 2 I R 241 ; Ex parte : Marias 1902 A C 109; Wolfe Tone's case (1798) 27 St. Tr. 614; Ex parte : Milligan 4 Wallace 121 ; Texas v. E. Constitution 77 U S S C R 375 (Lawyers' Edition); Mir Hassan and another v. The State P L D 1969 Lah. 786; Muhammad Ismail v. The State P L D 1969 S C 241; Mian Fazal Ahmad v. The State 1970 S C M R 650; Marriott's English Political Institutions, 1938 Edn., p. 293; Madzimbamuto v. Lardner-Burke and another (1968) 3 A E R 561 ; Texas v. White (1868) 7 Wallace 733; Horn v. Lockhart (1873) 17 Wallace 850; Baldy v. Hunter

(1897) 171 U S 388; Uganda v. Commissioner of Prisons ; ex parte Matovu 1966 E A L R 514. Criminal Appeal No. 19 of 1972 M. Anwar. S. M. Zafar and Ijaz Hussain Batalvi, Senior Advocates Supreme Court instructed by M. A. Rahman, Advocate-on-Record for Appellant. M. B. Zaman, Advocate-General Punjab (M. Farani, A. G. Chowdhury and R. S. Sidhwa, Advocates Supreme Court with him) instructed by Ijaz Ali, Advocate-on-Record for Respondent No. 1. Nemo for Respondent No. 2. Under Order XLV, Supreme Court Rules: Yahya Bakhtiar, Attorney-General for Pakistan (A. A..Zari, Advocate Supreme Court with him) instructed by Ifiikharuddin Ahmad, Advocate-on-Record. A. H. Memon, Advocate-General Sind, Muhammad Ahmad Mirza, Advocate-General Baluchistan, Fakhre Alam, Advocate-General Peshawar (present up to 22-3-1972). A. K. Brohi (present up to 24-3:1972), instructed by Fazal Hussain, Advocate-on-Record and Sharifuddin Peerzada, Senior Advocate Supreme Court Amicus curiae. Criminal Appeal No. K-2 of 1972 Manzoor Qadir and Ijaz Hussain Batalvi, Senior Advocates Supreme Court (Mashir Ahmad Pesh Imam, Advocate Supreme Court with them) instructed by M. A. Rahman, Advocate-on-Record for Appellant. Abdul Hafiz Memon. Advocate-General Sind instructed by Shafiq Ahmad, Advocate-on-Record (present only on 16-3-1972) for Respondent No. 1. Nemo for Respondent No. 2. Yahya Bakhtiar, Attorney-General for Pakistan instructed by Masud Akhtar, Advocate-on-Record for Respondent No. 3. Dates of hearing: 16th, 17th, 18th and 20th to 25th March 1972.

JUDGMENT HAMOODUR RAHMAN, C. J.-Thesetwo appeals, by special leave, have been heard together, as they involve common questions of law. Criminal Appeal No. 19 of 1972 (Miss Asma Jilani v. Province of Punjab) arises nut of a judgment of a learned Single Judge of the Lahore High Court, dismissing a petition under Article 98 (2) (b) (i) of the Constitution of 1962 filed to question the validity of the detention of the father of the petitioner. Malik Ghulam Jilani, the detenu in this case, eras arrested at Karachi under an order dated the 22nd of December 1971, purported to have been issued in exercise of powers conferred by clause (b) of sub-rule (1) of rule 32 read with rule 213 of the Defence of Pakistan Rules, 1971. This was the order that was originally challenged in the High Court. The High Court admitted the petition for regular hearing and issued notice to the Government of the Punjab for the 31st of December 1971. A day earlier on the 30th of December this order was rescinded and substituted by another order of the same day purported to have been issued by the Martial Law Administrator, Zone 'C', in exercise of the powers said to have been conferred on him by Martial Law Regulation No. 78.

The petition already filed was allowed to be amended on the 31st of December 1'971, by addition of fresh grounds attacking the legality of the second order of detention. When the petition came up for hearing on the lath of January 1972, the Government raised a preliminary objection that the High Court could not assume jurisdiction in the matter, because of the bar contained in the jurisdiction of Courts (Removal of Doubts) Order, 1969, promulgated by the last Martial Law regime. The High Court relying on an earlier decision of this Court in the case of State v. Dosso (P L D 1958 S C (Pak.) 533) held that the Order of 1969 was a valid and binding law and that, as such, it had no jurisdiction in the matter by reason of the provisions of clause 2 of the abovementioned Order. Leave was granted in this case to consider : (1) as to whether the doctrine enunciated in the case of State v. Dosso was correct, (2) even if correct, whether the doctrine applied to the facts and circumstances in which Field Marshal Ayub Khan transferred power to General Agha Muhammad Yahya Khan, and (3) if the source of power assumed by General Agha Muhammad Yahya Khan was illegal and unconstitutional then whether all legislative and executive acts done by him including the imposition of Martial Law and the promulgation of Martial Law Regulations and Orders were illegal. Criminal Appeal No. K-2 of 1972 (Mrs. Zarina Gauhar v. Province of Sind and others) arises out of an order of a High Court dismissing an application under section 497 of the Code of Criminal Procedure read with Article 98 of the Constitution of 1962, challenging the arrest of Mr. Altaf Hussain Gauhar, Editor-in-Chief, Dawn, Karachi, during the night between the 4th and 5th of February 1972, from his house without any warrant and his subsequent detention under an order purported to have been issued by the Martial Law Administrator, Zone 'D' under Martial Law Regulation No. 78. In this case too a Division Bench of the High Court of Sind & Baluchistan sitting at Karachi dismissed the application on the 10th of February 1972, holding that the Court has no jurisdiction to grant relief against Martial Law Orders for substantially the same reasons as were given by the, Lahore High Court in the case of Malik Ghulam Jilani. Leave was granted by a Bench of this Court sitting at Karachi on the 24th of February 1972, as the petition for leave to appeal raised the same questions of law which had been raised in the petition filed by the daughter of Malik Ghulam Jilani, and the appeal was ordered to be heard at Lahore by the Full Court Along with the appeal in the case of Malik Ghulam Jilani. Although the main question for decision in these appeals is whether the High Courts had jurisdiction under Article 98 of, the constitution of 1962 to enquire into the validity of the detentions complained of in these cases 9n view of the 'oar created by the provisions of the Jurisdiction of Courts (Removal of Doubts) Order, 1969 (Presidential Order No. 3 of 1969), learned counsel appearing for the appellants have very adroitly analysed the political vicissitudes through which this unfortunate country has passed since 1954 in order to highlight their contention that the successive manoeuvrings for usurpation of power under the pseudonym of Martial Law were neither justified nor valid roe had ever reached the stage of effectiveness to merit the legal recognition that yeas given to them in the case of The Stare, v Dosso. Mr. Manzoor Qadir appearing for the appellant in Criminal Appeal No. K-2 of 1972 has even gone to the extent of inviting us to lay down, if necessary, new norms and examine the foundations of the norms themselves in order to determine the nature, scope and content of the "law" in accordance with which we are bound by our oaths to administer justice and according to which a citizen is entitled to demand justice in term" of the solemn undertaking contained in clause (2) of Article 2 of the Constitution, which is as follows:(2) In particular-(a) no action detrimental to the life, liberty, body, reputation or property of ant parson shall be taken except in accordance with law;

(b) no person shall be prevented from, or be hindered in, doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do." But when it was pointed out to him that the problem of defining the "law" has become so engulfed in philosophical perplexities that it was well-nigh impossible to lay down any precise definition of the terra, he contented himself by referring to the definitions givers by the jurists of the American realist school of thought who by and large subscribe to the view that law is that which the Courts recognise as law. He adopts the definition of professor J. C. Gray that "the law of the State or of any organised body of men is composed of the rules which the Courts, that is, the judicial organs of that body, lay down for the determination of legal rights and duties". He also Quotes from Salmond on Jurisprudence and George Whitecross Paton's text book on Jurisprudence to show that jurists of other countries too hold the same view. This may be a perfectly good definition from the legal practitioners' point of view but legal theorists have spent a great deal of time and energy in elucidating the concept of law. Some Continental jurists think of them as dictates of reason, others as commands, yet others would have us believe that whatever is habitually obeyed is law. Even the American jurists are not unanimous. Justice Cardozo snakes an exception in the case of statutes, in so far as they are clear, and precedents which are clearly in point. Jerome Frank on the other hand thinks that Gray's view is not sufficiently radical. The task of a Judge in the circumstances, is not an easy one. But is it necessary for him td define law? Law itself is not a legal concept, for, what is law is really a theoretical question. Conclusions of law do not depend upon the definition of law nor are legal judgments based on definitions of law and, in fact, as Sir Iver Jennings has said in his Article on the Institutional Theory published in Modern Theories of Law, Oxford University Press, 1933 (page 83) "the task which many writes on Jurisprudence attempt to fulfil in defining law is a futile one', for, accordingto him, "law has no definition except in a particular context" So far as a Judge is concerned, if a definition is necessary, all that he has to see is that the law which he is called upon to administer is made by a person or authority legally competent to make laws and the law is capable of being enforced by the legal machinery. This, in my view, brings in the notion both of legitimacy and efficacy. It is interesting to note that Dias in his book on Jurisprudence, Third Edition (page 93) describes legislation as "law made deliberately in a set form by an authority, which the Courts have accepted as competent to exercise that function." This brings in, of course, the concept of the legitimacy of laws but in addition to this Dias also thinks that there are other factors such as "adaptability, effectiveness, consonance with morality and the socio-political background", which might influence the Courts in giving recognition to laws, He, however thinks that "effectiveness" is not a condition of the "law-quality" of its enactments or even of itself, because. "the validity of laws and of the law constitutive medium are separate questions." According to him, "the effectiveness of the legislative authority is not a condition of the validity either of laws or even of itself. It is a factor which in time induces the Courts to accept such authority, and it is not the only one." The thesis of Dias is thus the same as that now adopted by the learned counsel; namely, that "the legality of the law-constitutive medium only comes about when the Courts accept, or are made to accept it." From this it is argued that the power of pronouncing upon the validity of a law is an inherent power vested in the superior Courts as a necessary conmoitant of the judicial power itself and, therefore, any law, which purports to take away that power Itself and seeks to stultify the functioning of the Courts, cannot be recognised as a "law" in the strict juristic sense. It is further pointed out that this principle has also been consistently followed by the superior Courts in this country. Thus in the case of Federation of Pakistan v. Moulvi Tamizuddin Khan (P L D 1955 F C 240) the Federal Court, quite undeterred by the disastrous consequences that were likely to ensue, claimed that it had the right "to expound the law in complete in difference to any popular reaction", even if the result is disaster", and declared a constitutional amendment made by the sovereign

Constituent Assembly of Pakistan invalid on the ground that it had not received the assent of the Governor-General, although admittedly the consistent practice of the Constituent Assembly since its inception had been that constitutional provisions enacted by it were not put up for the assent of the Governor-General and no Governor-General had hithertofore objected to this practice. In consequence of this decision it was found that a large number of constitutional enactments of the Constituent Assembly, which had not received the assent of the Governor-General, were likely to become invalid. The Governor-General, therefore, sought to validate such acts by indicating his assent with retrospective effect by means of an Ordinance called the Emergency Powers Ordinance No. 9 of 1955. The Federal Court again in the case of Yusuf Patel v. The Crown (P L D 1955 F C 387) declared the Emergency Powers Ordinance itself to be invalid, as the Governor-General was not, under the Independence Act, an authority competent to legislate in the constitutional field which was the exclusive reserve of the Constituent Assembly. The disaster, which was apprehended in the case of Moulvi Tamizuddin Khan, had occurred. The Governor-General had unconstitutionally dissolved the Constituent Assembly. Proceedings taken to question the validity of the Governor-General's action by invoking the jurisdiction of the High Court under section 223-A of the Government of India Act were held to be incompetent, because, that section itself had been incorporated in the Government of India Act by a resolution of the Constituent Assembly which had not, according to the practice up to that time prevailing, been formally put up for the assent of the Governor-General, though tacitly accepted and acted upon in a large number of cases. Thereafter when the Governor-General attempted to validate a vast body of such constitutional legislations, which had been passed between 1947 and 1954, retrospectively by an Ordinance, the Ordinance itself was struck down. In desperation the Governor-General in his turn invoked the advisory jurisdiction of the Federal Court under section 213 of the Government of India Act vide Governor-General's Reference No. 1 of 1955 (P L D 1955 F C 435), and asked the Court to find a solution for the "constitutional" impasse created by the judgments of the Court itself. The Federal Court again came to his rescue and although no "law" of any kind could be found to meet the situation, it invoked in aid "the supreme principle of necessity embodied in the maxim salus populi est suprema lex", and on the basis thereof evolved a new political formula for the setting up of a new Constituent Assembly, even though this very maxim when used in support of the contention of Moulvi Tamizuddin Khan that the invalidation of a large number of constitutional laws merely on the ground of want of formal assent of the Governor-General would cause "disaster" and create a "Constitutional impasse" had not found favour with the Court. The object of the learned counsel in referring to these decisions is presumably to suggest that from this day onwards whatever constitutional developments took place were not strictly legal. The 1956-Constitution, under which the principle of parity was accepted and the country was divided into two Provinces of East and West Pakistan, was, it is alleged, a Constitution framed by an illegally constituted body which was, under the threat of refusal of assent, also coerced into electing General Iskander Mirza as the first President of Pakistan under the Constitution. The process of illegality thus set in motion led in its turn to the illegal usurpation of power by the President so elected under the said Constitution abrogating the Constitution and declaring Martial Law on the 7th of October 1958. This was followed three days later by the promulgation of the Laws (Continuance in Force) Order on the 10th of October 1958. Within a few days thereafter a case which has now become a cause celebre under the title of the State v. Dosso, came up for hearing on the 13th of October 1958. The main question agitated there was as to whether the proceedings, which were for a writ of habeas corpus and/or certiorari had abated by reason of the provisions of the. Laws (Continuance in Force) Order, 1958. The Court on the very next day, i. e. the 14th of October 1958, announced its decision that they had abated but when giving its reasons for the decision on the 23rd of October 1958, went on also to accord legal recognition to the Martial Law itself by describing it as a successful revolution and, therefore, a fresh law creating organ. The very next day, however, the new law creator himself, who had purported to give the Laws (Continuance in Force) Order, 1958 under his command and the authority of the Martial Law proclaimed by him, was deposed by the Chief

Administrator of Martial Law created in exercise of the same power. The latter subsequently, without creating any new organic law, quietly assumed the office of President also and continued to function as such until 1960 when he managed to secure a so-called mandate by some sort of a referendum to frame a Constitution. This Constitution was framed by him and came into operation from the 7th of June 1962. The country by and large accepted this Constitution and even the Judges took oath under the fresh Constitution. Two Presidential elections were held under this Constitution, the erstwhile Commander-in-Chief was elected on both occasions. National and Provincial Assemblies were set up and the country continued to be governed in accordance with its terms until the 25th of March 1969. The Courts in the country also gave full effect to this Constitution and adjudicated upon the rights and duties of citizen in accordance with the terms thereof by recognizing this Law constitutive medium as a competent authority to exercise that function as also enforced the laws created by that medium in a number of cases. (Vide Mr. Fazlul Qadir Chowuhury and others v. Mr. Muhammad Abdul Haque (P L D 1963 S C 486). Syed Abut A'ala Maudoodi and another v. The Government of West Pakistan and another (P L D 1964 S C 673), The Government of East Pakistan v. Mrs. Roshan Bijoy Shaukat Ali Khan (P L D 1966 S C 286), Malik Ghulam Jilani v. The Government of West Pakistan and another (P L D 1967 S C 373) and The Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (P L D 1969 S C 14). Thus even according to the arguments advanced by the learned counsel appearing for the appellants all the laws made and acts done by the various Governments, civil and military, became lawful and valid by reason of the recognition given to them by the new Constitution and the Courts. They had not only de facto validity but also acquired de jure validity by reason of the unquestioned recognition extended to them by the Court of highest jurisdiction in the country. The validity of the acts done thereunder are no longer, therefore, open to challenge, even under the concept of law propounded by the realist school of jurists and adopted by the learned counsel for the appellants. The question, however, with which we are now concerned is whether we should extend similar recognition on the basis of the principle enunciated in the case of State v. Dosso to what happened on and after the 25th of March 1969, and recognise as valid laws the Jurisdiction of Courts (Removal of Doubts) Order, 1969 (President's Order No. 3 of 1969), which purports to takeaway even our power to consider this question, and the Martial Law Regulation No. 78 promulgated on the 17th of April 1971, under which the detenus before us are now being detained. In the above-mentioned case, as already pointed out, the question which fall to be determined was as to whether the writs issued by the High Court had abated by reason of the provisions of clause (7) of Article 2 of the Laws (Continuance in Force) Order promulgated on the 10th of October 1958, after the abrogation of the 1956-Constitution and the declaration of Martial Law by the then President, the late Mr. Iskander Mirza. From the report of the judgment in Dosso's case it does not appear that the question of the validity of the abrogation of the Constitution, or of the promulgation of Martial Law or of the Laws (Continuance in Force) Order, 1958, was directly put in issue. The learned Attorney-General, who then appeared for one of the respondents therein, has categorically stated from the Bar that he was not even allowed to raise this question. This Court, nevertheless, entered upon an appraisal of the constitutional position and purporting to apply the doctrine of "legal positivism" propounded by Hans Kelsen, came to the conclusion that where "a Constitution and the national legal order under fit is disrupted by an abrupt political change not within the contemplation of the Constitution", then such a change "is called a revolution and its legal effect Is not only the destruction of the existing Constitution but also the validity of the national legal order." Therefore any change, no matter how or by whom brought about, whether by violence or non-violent coup d'etat or even by a person already in a public position, is "in law a revolution if it annuls the Constitution and the annulment is effective". (The underlining is mine). Under this theory it was held that if persons assuming power under such a change "can successfully require the inhabitants of the country to conform to the new regime, then the revolution itself becomes a law-creating fact, because thereafter its own legality is judged not by reference to the annulled Constitution but by

reference to Its own success." Thus the validity of the laws made thereafter has to be judged by reference to the new dispensation and not the annulled Constitution. This theory was further sought to be fortified on the basis that even according to the international law "a victorious revolution or a successful coup d'etat is an internationally recognised legal method of changing a Constitution." Learned counsel appearing in support of the appellants as also the learned counsel who have assisted the Court as amicii curiae have challenged the correctness of this theory and have contended that no such wide proposition had been propounded by Hans Kelsen and even if it had been it would be the solitary view of Hans Kelsen which has not been subscribed to by any other legal theorist. Indeed, it has been pointed out that Professor Lauterpacht in his Article on Kelsen's Pure Science of Law published in the Modern Theories of Law, Oxford University Press, 1933, goes to the extent of describing Kelsen as "an iconoclast" amongst jurists. In any event, it is contended that the Court in Dosso's case went even beyond Kelsen himself and the theory propounded by this Court actually amounts to making a rule of international law a rule of decision in the field of municipal law. The learned Chief Justice who delivered the main judgment of the majority comprising the Court, it is urged, was fully aware that, even according to Kelsen, "the essential condition to determine whether a Constitution has been annulled is the efficacy of the change" but did not wait to see whether that efficacy had, in fact, been attained by the change to which he was giving legal recognition. The case, it is further pointed out, was heard and decided within six days of the promulgation of the Martial Law and within three days of the promulgation of the Laws (Continuance in Force) Order. It was too early yet to hazard even a guess as to its efficacy. Indeed had the learned Chief Justice waited a few more days he would have seen that the efficacy was non-existent. This was more than amply demonstrated by the removal of the so-called successful law-creator himself the very next day after the publication of the judgment of the Court. Where then, it is said, was "the essential condition" for the recognition of the change ? On general principles too learned counsel have attempted to show that the theory of Hans Kelsen was itself not sound in several respects and the criticisms levelled against his doctrines were so forceful that he himself had been compelled later to modify his views. The learned Attorney-General appearing for the State has made no serious attempt to support the reasonings in Dosso's case or to justify the theories of Hans Kelsen apart from referring to one or two passages from some other jurists who too had apparently advanced the view that the de facto sovereign may, in certain circumstances, also be treated as the de jure sovereign but what he has most strenuously contended is that the law laid down in Dosso's case has now become the law of the land. It has been re-armed in various subsequent decisions and thus acquired a position which cannot be now reversed after 13 years. The decision in Dosso's case is now, according to him, the legal order and that has to be followed. He has also invoked in aid the principle of stare decisis to support his contention that the law laid down in that case should not now be changed. It is true that the decision in Dosso's case did come up for consideration subsequently in several other cases and the Court re-affirmed its decision. The first of these was the case of the Province of East Pakistan v. Muhammad Mehdi Ali Khan (P L D 1959 S C (Pak.) 387) and it may be worth while to quote what the learned Chief Justice himself stated with regard thereto :"I may now take up the question whether there are sufficient grounds for reviewing or revising the view taken by this Court in the case of Dosso. In approaching that question the first thing to be seen is what that case actually decides. In the judgment that was under appeal in that case some provisions of the Frontier Crimes Regulation had been held to be void because of their being inconsistent with a fundamental right and, before the appeal came up for hearing, the Laws (Continuance in Force) Order was promulgated by the President. The Court held that after the coming into force of that Order no law could be declared or held to be void merely because it came into conflict with a fundamental right and that all pending applications for writs in which a law by

reason of Part II of the Constitution had to be found to be void in order to grant the relief prayed for by a party had abated by force of clause (7) of Article 2 of that Order. The Court arrived at this result by reading Article 2(4) with Article 4(1) of the Order and by holding that after the promulgation of that Order Part 11 of the late Constitution had ceased to be available to adjudge the invalidity of the laws that were in force immediately before the Proclamation. The matter had not then been so fully and ably argued as now, but despite the ingenious and at times far-fetched arguments addressed, I am convinced more than before that case was rightly decided." It will be observed from the above that the question of the validity of the Laws (Continuance in Force) Order, 1958, itself was not directly under challenge in Dosso's case but what was being contended there was that, in spite of the said Order, "all pending applications for writs, in which a law by reason of Part 11 of the Constitution (1956) had to be found to be void in order to grant the relief prayed for by a party, had abated by force of clause (7) of Article 2 of that Order. The Court, as has been pointed out by the learned Attorney-General himself who appeared on behalf of one of the respondents in that case, in fact, proceeded on the assumption that the Laws (Continuance in Force) Order was a valid law and heard no arguments challenging the validity of the said Order itself. The observations in that judgment, based upon the theory of Hans Kelsen were, therefore, more in the nature of obiter dicta. Dosso's case next came up for consideration again in the case of Ifiikharuddin and another v. Muhammad Sarfaraz and another (P L D 1961 S C 585=(1962) 2 P S C R 197). There too the propriety of an Order passed under Martial Law Regulation No. 72 was called in question and the Government pleaded immunity to jurisdiction. Again, the vires of the Laws (Continuance in Force) Order was not put in issue but all that was contended was as to whether the word "governed" referred to in that Order included also the legislative functions of Government. The Court by a majority judgment differed from the majority in Dosso's case and held that it was unable to agree that the words "all laws" referred to In that Order did not include the Constitution or so much of it as had been re-introduced by the Laws (Continuance in Force) Order. The majority judgment with which I concurred, observed :"The correct position is that in Article 2 of the Laws (Continuance in Force) Order, the Constitution had already been adopted, though with some modifications, but with a different status, and by Article 4 a provision was being made of a different category with respect to all other sub-constitutional laws. Read in this way, there is no inconsistency whatsoever between the two Articles as was suggested in Dosso's case. As a matter of fact, it is only if we adopt the construction put upon Article 4 in Dosso's case that an inconsistency between Article 4 and Article 2 is created and it is an accepted principle that we should lean in favour of a construction that puts a consistent interpretation on the different parts of a statute. S. A. Rahman, J. who wrote a separate judgment, although he concurred in the order proposed by the majority, too observed as follows:"In Dosso's case, the actual decision of this Court was that fundamental rights as embodied in Chapter II of the late Constitution, were no longer part of the law of the land, after the promulgation of the Laws (Continuance in Force) Order, 1958. That question does not fall for determination in the instant case, in the face of the pre-emptory provisions of the Martial Law Regulation No. 72 and the fact that the vires of the Ordinance No. XXIII of 1959 are not being assailed before us. The question is an important one and not free from difficulty. We did not bear the learned Attorney-General fully, on this aspect of the case and if Dosso's case requires re-consideration, in this respect, the question must be reserved for decision for a more appropriate occasion. Some doubts had. therefore, begun to be cast by the Supreme Court, as then constituted, on the correctness of the decision in Dosso's cave even from 1961, but unfortunately this question was not brought before this Court in the same concrete form in which it

has now come before us, by any one and since this Court like the Supreme Court of the United States of America strictly confines itself, as observed by Muhammad Munir. C. 1. himself in the case of the Province of East Pakistan . v. Mehdi All Khan, at page 407, "to pronounce for or against the litigated right or liability by determination of the law applicable to the facts though its decision may have repercussions on a statute or a part of it in respect of future cases," the occasion to reconsider the decision in Dosso's case never arose. The Courts do not decide abstract hypothetical or contingent questions or give mere declarations in the air. "The determination of an abstract question of constitutional law divorced from the concrete facts of a case", as observed by the same learned Chief Justice, "floats in an atmosphere of unreality; it is a determination in vacuo and unless it amounts to a decision settling rights and obligations of the parties before the Court it is not an instance of the exercise of judicial power." There is no duty cast on the Courts to enter upon purely academic exercises or to pronounce upon hypothetical questions. The Court's judicial function is to adjudicate upon a real and present controversy which is formally raised before it by a litigant. If the litigant does not choose to raise a question, however, important it might be, it is not. for the Court to raise it sue motu. The matter thus remained where it was to this day, as no one raised the question before the Court. The learned Attorney-General has placed very strong reliance upon a decision of this Court in the case of Muhammad Afzal v. The Commissioner, Lahore Division (P L D 1961 S C 401). in which the main judgment was written by myself, to support his contention that I too had given my clear approval to the derision in Dosso's case. Again, the question that arose fur decision in that case was as to whether Martial Law Orders issued by a Zonal Martial Law Administrator, which purported to make provisions inconsistent with the provisions of the Constitution of 1956 and other existing laws, were of any legal effect and could validly take away the rights of citizens acquired under the latter provisions. The main argument was built up again upon the language of Articles 2 and 4 of the Laws (Continuance in Force) Order without challenging the validity of the said Order itself and this Court held the impugned Martial Law Orders to be incompetent to the extent they were repugnant to the existing laws, even under the Scheme of the Laws (Continuance in Force) Order, 1958, and it is in that ,connection that I stated as follows:"If as observed in the majority judgment of this Court in the case of the State v. Dosso and another, a successful revolution is an internationally recognised legal method of changing a Constitution and that the revolution itself constitutes a new law creating organ whose will thenceforward becomes the law, then did not the Laws (Continuance in Force) Order, 1958, which was the expressed will of the Revolution of October 1958, become thenceforward the fundamental law of the country and an instrument of a constitutional nature for both the law-giver as well as those who were to be governed in accordance with its terms?" It will be noticed that this passage begins with the important word "if" and by no means constitutes an unqualified acceptance of the principles enunciated in Dosso's case. Indeed it was not necessary for me in that case to pronounce upon the validity or ,the invalidity of the Laws (Continuance in Force) Order because all that I was attempting to do in that case was to take advantage of the principle enunciated in Dosso's case and put the Martial Law Administrator himself within the "straight jacket" of his own legal order which Dosso's case stated that he had created, and it was on that basis that I held that within the framework of that legal order itself "the law-giver" himself was bound, if it was a legal order and, therefore, he could not act outside that legal framework. It is not correct, therefore, to say that I too gave my apps oval to the majority decision in Dosso's case. We come next to the case of Ch. Tanbir Ahmad Siddiky v. Government of East Pakistan (PLD 1968 S C 185), on which the learned Attorney-General has placed strong reliance, for showing that by now the rule in Dosso's case had become so firmly

entrenched as to acquire the status of a stare decisis. He quotes the observations of Cornelius, C. J. which are as follows: "The pronouncement of the Supreme Court that writs for enforcement of the Fundamental Rights under the 1956-Constitution were not competent by reason of the Laws Continuance in Force) Order, was an interpretation of that Order, which bad effect as a part of that Order. To put it differently, that legal pronouncement became a part of Martial Law and had the effect that throughout the period that Martial Law was in operation, a period of over 3 years during which an enormous number of executive actions were performed on the basis of laws of origin prior to the Martial Law as well as of laws made during the period of Martial Law, all in the belief sustained by the view of the Supreme Court that such actions were immune to challenge on the basis of Fundamental Rights in the Constitution of 1956. To hold to the contrary today, if that were possible, would have the effect of disturbing a great many things done during the period of Martial Law, affecting individuals and institutions and in certain cases the whole of a Province, which things were valid in the period they were done, and have formed the basis of further actions by the authorities as well as by the citizens concerned. The period of Martial Law was governed by its own source of law, namely,- the Revolution of the 7th October 1958, and the actions that were done and brought to completion in that period, in compliance with laws derived from the said source are all covered by the Martial Law of which the decision in the case of Dosso, as confirmed in the case of Mehdi Ali Khan, was an essential part. The principle of stare decisis can have no more direct application than to the judicial interpretation of a major instrument by which the governance of an entire country was controlled during a limited period, and within the terminal points of that period. On general grounds, therefore, it is not open to this Court to, review its decision in the case of Dosso." In this case again the only question argued was that fundamental rights had become unenforceable by reason of the provisions of the Laws (Continuance in Force) Order, 1958. The validity of the Laws (Continuance in Force) Order itself was not challenged but only the correctness of the interpretation given to its terms in Dosso's case was sought to be re-agitated. It is only in this connection that the learned Chief Justice thought that the principles of stare decisis could be legitimately applied to the interpretation given by the Supreme Court to the provisions of the said Order. What then is this principle of stare decisis and does it apply to this Court?-Learned counsel appearing for the appellants as well as the learned counsel appearing as amicii curiae have, of course, contended that the principle is not applicable to this Court which is not bound by its earlier decisions. Indeed, they contend that the Constitution of 1962 and even the earlier Constitution of 1956 had specifically provided in conformity with the universally accepted principle that the Court of ultimate jurisdiction must always have the power to review its own decisions (vide Article 62 of the 1962-Constitution). Even otherwise it is contended that the rule of stare decisis is merely a rule of expediency and not "a universal inexorable command". It has many exceptions to it, for, the doctrine cannot be allowed to become a "dead hand" nor should the law be submerged in "still waters in which there are only stagnation and depth." It is further pointed out that even the House of Lords of the United Kingdom has now recognised the wisdom underlying the freedom from the binding force of precedents In the case of Courts of ultimate jurisdiction. It no longer adheres to this rule and has altered its former practice under which it considered itself bound by its earlier decisions. [Vide (1966) 1 W L R 1234]. I am not unmindful of the importance of this doctrine but in spite of a Judge's fondness for the written word and his normal inclination to adhere to prior precedents I cannot fail to recognise that 9t is equally important to remember that there is need for flexibility in the application of this rule, for law cannot stand still nor can we become mere slaves of precedents. As observed in Halsbury's Laws of England, Third Edition, Volume 22 at page 802, paragraph 1690, "the supreme appellate Court will, however, not shrink from

overruling a decision, or series of decisions, which establish a doctrine plainly outside a statute and outside the common law, when no title and no contract will be shaken, no person can complain, and no general course of dealing be altered by the remedy of a mistake; and, where the course of practice is founded upon an erroneous construction of an Act of Parliament, there is no principle which precludes, at any rate that tribunal, from correcting the error, although the construction of a statute of doubtful meaning, once laid down and accepted for a long period of time, ought not to be altered unless the House of Lords can say positively that it is wrong and productive of inconvenience." To more or less the same effect is the principle enunciated in the Corpus Juris Secundum, Volume 21, paragraph 193, in these words :"The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the Court, and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong be the result . . . . . The doctrine of stare decisis cannot be invoked to sustain, as authority, a decision which is in conflict with the provisions of the state Constitution; or a decision which is in conflict with a previous statutory enactment to which the decision makes no reference, and. which is made without reviewing or construing the statute, and in such a case the statute should be followed rather than the, decision . . . . . " Again at paragraph 215 it is opined that"the doctrine of stare decisis cannot control questions involving the construction and interpretation of the organic law at least where no rule of property is involved, or at least that the doctrine does not apply with the same force to decisions on constitutional questions as to other decisions, and while previous decisions will not be entirely disregarded and, may, in case of doubt, control the views of the Court, they will be considered merely as authorities tending to aid in arriving at a proper conclusion, and not as a rule to be followed without inquiry." It will thus be seen that the rule of stare decisis does not apply with the same strictness in criminal, fiscal and constitutional matters where the liberty of the subject is involved or some other grave injustice is likely to occur by strict adherence to the rule. Following this principle the House of Lords of the United Kingdom in the case of the Governors of the Campbell College Belfast v. Commissioner of Valuation for Northern Ireland ((1964) 2 A E R 705) set aside a decision which had held the field in Northern Ireland for 50 years by ruling that "the doctrine of stare decisis had but little application " in a case of a fiscal nature, where the decision "was plainly wrong, and had not been supported before the House." That was a case of an interpretation of a fiscal provision which bad been followed throughout those 50 years and on the "faith of which businessmen and women, settlors and donors, may have made their dispositions" but even so the noble Lords felt that there was an equally important principle which, should not be overlooked, namely, that "where taxes or rates had been illegally demanded and paid on a clearly wrong construction of a statute justice demands that the illegal impost, however innocently made, should be terminated unless there is some very good reason to the contrary." Similarly in the case of the Attorney-General of the Commonwealth of Australia v. Reginam and others ((1957) 2 A E R 45 (P C)) the Privy Council reversed a decision given in 1918 by the High Court of Australia in the case of Waterside Workers Federation v. Alexander (25 C L R 434), although they were conscious of the fact that "no one can doubt that it is a formidable question, why for a quarter of a century no litigant has attacked the validity of this obviously illegitimate union?--Why in Alexander's case itself was no challenge made?-How came it that in a series of cases, which were enumerated in the majority and the dissensient judgments, it was assumed without question that the provisions now impugned were valid?" Notwithstanding this, they felt that whatever the reason may be "the question of the applicability of the

doctrine of stare decisis to matters of far-reaching constitutional importance" would require consideration of the High Court of Australia itself. Thus indicating that the High Court of Australia might in view of the patent illegality discovered by the Judicial Committee itself wish to reconsider its decision in Alexander's case. Upon these principles it has become necessary for me now to consider whether the wide principle enunciated in Dosso's case is so "plainly wrong" that it can be said to be "totally unsustainable", because, otherwise, in view of the high esteem I have and have always had for the profound legal learning and sound judgment of the learned author of the main opinion in Dosso's case I would not venture to depart from his views. Learned counsel appearing for the appellants as well as the learned counsel appearing as amicii curiae have assailed this decision on a number of grounds. Mr. Manzoor Qadir has confined himself to saying that the legal theory of Hans Kelsen was misread and misapplied, because, the revolution contemplated by Kelsen was a revolution which completely disintegrated the old legal order and brought about a permanent ,transformation in the new body politic. Temporary or transitory changes were not even upon Kelsen's own principles, which clearly postulated the condition of efficacy of the change as a necessary test, qualified to be classed in the category of a revolution. Mr. Anwar rejects the theory off-hand as being totally unacceptable. According to him, if any grund-norm was necessary for Pakistan it was to be found in the Objectives Resolution of 1954 which is a document which still holds the field and each of the successive regimes has attempted to justify its action on the ground that whatever was happening in the country when it took over was an attempt to subvert those very objectives and it had to step in merely to bring the country back on the rails by fulfilling those objectives. Mr. Brohi is of the view that the fallacy underlying the decision in Dosso's case lies in the fact that it has accepted a purely legal theory of law as a question of law itself, although it was nothing more than "a question about law" and no legal judgment could possibly be based on such a purely hypothetical proposition. He is further of the view that the Court in making the impugned observations proceeded clearly upon the assumption that (a) the revolution, if any, had succeeded and (b) that its own authority was derived from the Laws (Continuance in Force) Order. Both these assumptions were wrong. The question as to whether the revolution, if any, had in fact succeeded in creating an effective legal order was a question of fact and had to be decided as such objectively. It was not even gone into. The decision was, therefore, purely an ad hoc decision, which cannot be treated as binding. Mr. Sharifuddin Peerzada, on the other hand. attacks the decision on a number of grounds which may be summarised as follows ; (1) The decision was given in haste and against the principles .of natural justice, because, no opportunity at all was given to learned counsel appearing for the respondents to argue the contrary. (2) The decision was vitiated by bias at least in the learned Chief Justice who, as he himself has subsequently disclosed, had a hand in the drafting of the Laws (Continuance in Force) Order (vide Article of the learned Chief Justice published in the Pakistan Times newspaper on the 11th of November 1968). It is contended that he should not have sat on this Bench, as he had already committed himself to granting legal recognition to the Regime and its Laws (Continuance in Force) Order. (3) Being a Municipal Court it should not have made a rule of international law regarding recognition of States the basis of its decision. (4) The Court's interpretation of Kelsen's doctrine was absolutely incorrect. (5) In any event, the theory of Kelsen is not a universally accepted theory and should not have been applied to the circumstances then prevailing in Pakistan.

(6) The doctrine of necessity as a validating factor was not even noticed. The learned Attorney-General, as earlier indicated, has made no serious attempt either to justify the correctness of this decision or to controvert that whatever was done by either late Iskander Mirza or Field Marshal Ayub Khan was proper and legal. Indeed, he has dubbed them both as "usurpers" and even gone to the extent of characterising Governor-General late Ghulam Mohammad as the first "Guy Fawkes of Pakistan" but his main contention has been that whatever the merits or demerits of their vagaries Dosso's case had given them legal recognition and that being now the law of the land propounded by the highest Judicial authority and consistently recognised thereafter must prevail, no matter whether it "amounts to an invitation to revolution" or "serves as an encouragement to military adventurers" or "sounds the death-knell of the rule of law", as suggested by learned counsel on the other side. The learned Attorney-General vigorously maintains that it makes no difference, for, it is now too firmly established to be altered or departed from whether it be on the principle of "stare decisis", as observed by Cornelius, C. J. in the case of Tanvir Ahmed, or upon general principles. Hans Kelsen, it is furthermore contend ed, is not the only legal theorist who thought that the de facto sovereign can also be regarded in the juridical concept as also the de jute sovereign in certain circumstances. He too supports the theory that an "abrupt disruption of a legal order" may well be characterised as a revolution, no matter what the motive or the means employed, peaceful or violent, if it in fact annuls the existing order and "the annulment is effective." He quotes a passage from Harold, J. Laski's book on the State in Theory and practice (page 27) to show that the latter too held the view that those "who control the use of the Armed Forces of the State are in fact the masters of its sovereignty." Similarly he cites from Garner's Treaties on Political Science and Government (page 155) to maintain that the "sovereign who succeeds in maintaining his power usually becomes in the course of time the legal sovereign . . . . . . somewhat as actual possession in private law ripens into legal ownership through prescription." G. C. Field's Lectures on Political Theory (pages 74-75) are also referred to by the learned Attorney-General to point out that "legal sovereignty is not a separate thing which can be conferred or constituted in a different way from other kinds of sovereignty. Sovereignty, in any sense, is constituted by consent, the development of the habit of obedience, and by that alone." He has also utilized some observations of Dean Roscoe Pound from his magnum opus on Jurisprudence (Vol. 11, Part 3, page 305), where it has been opined that "in case of an ultimately successful insurrection the Courts deriving from it would uphold acts of the insurgents from the beginning and Courts of other countries would do the same" He has also recounted the story of the American General Cadwaladar, who had flouted Chief Justice Taney and refused to respond to the writ of habeas corpus issued by him. This action of the General was, it is said, supported even by President Lincoln on the ground that due to the state of insurrection then prevailing in the Southern States the President had lawfully authorized the General to suspend the writ of habeas corpus. The Chief Justice questioned the right of the President to do so. The President instead of replying to the Chief Justice referred the matter to the Congress which, after considerable deliberations. "begrudgingly", approved the President's proclamation, out of the high esteem it had for the President, and legalised his suspension of the writ. But soon thereafter, realizing the danger of the abuse of that power, passed another law adding provisos to the power of the President to suspend the writ of habeas corpus even in times of war. Under these provisos even In times of war the army officers in charge of prisoners were required to supply a list of all non-military persons held in detention in military prison to a civilian Court and they could detain them only until the next civilian grand jury met in the local Court House of that area. If the grand jury did not indict such a detained person then the local Civil Judge could order the military authorities to bring the man before the Court for hearing and discharge. (Vide Fribourg's Supreme Court in American History, pages 76-82).

While I must compliment the learned Attorney-General for his great industry in discovering these extracts, T regret I cannot agree with him that they in any way, support the broad principle sought to be adumbrated by him. With due respect to the learned Attorney-General I must point out that the passages quoted by him do not, when read in their proper context convey the sense which he wishes to put upon them. The theory that Herold Laski was putting forward was merely this that every State and every Government must have, of necessity, the legal power to use the armed forces of the State whenever its authority is threatened. Where it cannot do so "it must either change the law or abdicate". The purpose here sought to be pointed out was that "the armed forces of the State are there to protect, so far as may be, its sovereignty from invasion" and "it is the possession of this legal right to resort to coercion which distinguishes the Government of the State from the Government of all other associations". Professor Herold Laski was by no means advocating the theory that the Commander-in-Chief of the country who, in fact controls "the use of the armed forces", is in the ultimate resort the real master of the sovereignty of the State. On the other hand, Laski's thesis appears to me to be that the control of the armed forces of the State is an essential element of the sovereignty of the State and that the armed forces are under the command of the State. Once the State loses that command it becomes ineffective and must either then change the law or abdicate. Similarly, the passage read from Garner's Political Science and Government occurs in a paragraph which bears the sub-heading of "de jure sovereignty". It begins with these very significant words, namely, that "de jure sovereignty on the other hand has its foundation in law, not in physical power alone and, the person or body of persons by whom it is exercised can always show s legal right to rule". It is in this context that he propounded the theory that even a sovereign in actual control must show a legal right to rule, i. e. his "physical power and mastery ought for rest upon legal rights" and not that legal rights depends upon physical power and mastery. The de facto sovereign, according to Garner, could become de jure only "by election or ratification'" by the people. The physical force that he possesses can never by itself give him the legal right to convert his de facto claim into a de jure claim. It ii not also unimportant that the paragraph in question from which the citation has been made by the learned Attorney-General closes with these meaningful words:"There is, as Bryce well observed, a natural and instinctive opposition to submission to power which rests only on force." G. C. Field also was only propounding the proposition that actual or de facto sovereignty becomes de jure by "consent and the development of the habit of obedience", and by that alone. "We begin", says Field, "to talk about legal sovereignty only when this habit has been definitely established." Roscoe Pound, as is well known, thinks of the sovereign as "that particular organ or that complex or system of organs, which exercises its (State's) governmental functions" and with regard to civil war it is interesting to note that what he has to say is as follows:"A body of citizens may throw off their legal subjection for the time being and set up a new de facto internal sovereignty.. But if the insurgents are put down, the legal subjection is treated as uninterrupted. So one may be subject in law and yet not in fact. The law would hold him a subject, and yet he may have thrown off for a time his habitual obedience." Internal sovereignty, according to him, therefore, is the aggregate of the powers of internal control possessed by the ruling organs of the society and under the American system he thinks that the sovereign is the ultimate repository of power", which can change the Constitution. None of the learned authors cited, therefore, support the" proposition of the learned Attorney-General and it seems to ma that the farthest that these learned authors have gone is to expound that where a de facto sovereign has, in fact, got his position confirmed by an election or ratified by the people by habitual obedience over a

sufficiently long period of time there alone he can claim to have acquired de jure sovereignty as well. Let me now take up for consideration the criticisms levelled against the principles propounded in the judgment of the then learned Chief Justice in Dosso's case at pages 538 to 540. For this purpose I shall assume (without admitting) that the impugned observations were not merely obiter dicta, even though after reading the whole judgment with great care I regret that I have not been able to discover therein any reference to any argument advanced on behalf of the respondents with regard to the vires of the Laws (Continuance in Force) Order, 1958, itself. All that I have been able to discover is that it was sought to be contended that even under its provisions the fundamental rights given by the Constitution of 1956 to the citizens of this country still survived, particularly since the said Order was not given retrospective operation. Great reliance was also placed on the provisions of Article 2 of the said Order which, it was contended, had saved the -fundamental rights by providing "that Pakistan shall be governed as nearly as may be fn accordance with the late Constitution". The learned Attorney-General who, as already stated, appeared for one of the respondents in the said case, has also corroborated the criticism and stated at the Bar of this Court that he was not allowed to argue this particular question. It also appears that there is no finding in this judgment as regards the effectiveness of the new regime. The criticism, therefore, that the Court started with certain assumptions does not appear to be wholly unjustified. As I have indicated earlier, Martial Law was imposed and the Constitution was abrogated by the then, President who had himself been appointed under the Constitution of 195-6, on the 7th of October 1958, and it was be who by his Proclamation of' the 7th of October 1958, abrogated the Constitution, dismissed the Central and Provincial Governments, dissolved the National Parliament and Provincial Assemblies, abolished all political parties, provided that until alternative arrangements are made Pakistan will come under Martial Law and appointed the then Commander-in-Chief of the Army as the Chief Martial Law Administrator. This Proclamation was made in his capacity as President and Head of the State by invoking in aid his "foremost duty before God and the people of Pakistan to maintain the integrity of Pakistan". Under this Order, therefore, he continued as President and in that capacity on the 10th of October 1958, issued the Laws (Continuance in Force) Order, 1958. Article 2 of this Order reads as follows :"2(1) Notwithstanding the abrogation of the Constitution of the 23rd March 1956, hereinafter referred to as the late Constitution, by the Proclamation and subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law the Republic, to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution. (2) Subject as aforesaid all Courts in existence immediately before the Proclamation shall continue in being and, subject.. further to the provisions of this Order, in their powers and. jurisdictions. (3) The law declared by the Supreme Court shall be binding on all Courts in Pakistan. (4) The Supreme Court and the High Courts shall have power to issue the writs of habeas corpus, mandamus, prohibition, quo warrant.. and certiorari. (5) No writ shall be issued against the Chief Administrator of Martial Law, or the Deputy Chief Administer-for of Martial Law, or any person exercising powers or jurisdiction under the authority of either. (6) Where a writ has been sought against an authority which has been succeeded by an authority mentioned in the preceding clause, and the writ sought is a writ provided for in clause (4) of this Article, the Court notwithstanding that no writ may be issued against an authority so mentioned may send to that authority its opinion on a question of law raised.

(7) All orders and judgments made or given by the Supreme Court between the Proclamation and the promulgation of this Order are hereby declared valid and binding on all Courts and authorities in Pakistan, but saving those orders and judgments no writ or order for a writ issued or made after the Proclamation shall have effect unless it is provided for by this Order, and all applications and proceedings in respect of any writ which is not so provided for shall abate forthwith." It will be observed that under these provisions there was no bar to the issuance of a writ of the kinds mentioned in clause (4) against any person exercising power or jurisdiction under the authority of the President, who was a distinct and separate superior functionary from the Chief Martial Law Administrator. The absolute bar was only to the issuance of writs against "the Chief Administrator of Martial Law or the Deputy Chief Administrator of Martial Law or any person exercising powers and jurisdiction under the authority of either". Under clause (7) the judgments of the Courts already given in writ matters were declared to be valid and binding on all Courts and authorities but with regard to future orders a bar was provided unless the writ was of a kind which had been provided for by the Order itself, and applications and proceedings in respect of any writ which was not so provided for in the Order, were to abate. In Dosso's case the respondents had applied to the High Court for writs of habeas corpus and certiorari for quashing certain orders issued by the Deputy Commissioner referring certain cases pending against the respondents therein for trial before the Council-of-Elders (Special Jirga) and for their release from detention. The High Court had granted them those reliefs and appeals against the said orders filed in the Supreme Court by the State were pending decision. The writs, therefore, were of the nature which were permitted by clause (4) of Article 2 of the Laws (Continuance in Force) Order, 1958, and were certainly not directed against either the Chief Administrator of Martial Law or the Deputy Chief Administrator of Martial Law or any person exercising powers and jurisdiction under the authority of either. Nevertheless, the Court held that by reason of the provisions of clause (7) of Article 2 all those writs had abated. If the question of the vires of the Laws (Continuance in .Fore) Order or the validity of the imposition of the Martial Law had not been raised, it was not necessary for the Court to give a certificate of validity in that behalf, but the Court thought fit to do so without even noticing that under the theory pronounced by Hans Kelsen himself efficacy was a pre-condition to the validity of the acts of a de facto sovereign. There is nothing in any law or either in Kelsen's book to show that this decision is of a purely subjective nature or that this too depends upon :he will of the de facto holder of power. In the circumstances .vas it not incumbent upon the Court to decide this question Objectively before pronouncing that the de facto holder of power had also become the de jure sovereign and a proper law-creating agency. Into this exercise the Court, unfortunately, did no enter. The criticism, therefore, that the Court started with the basic assumption that the President, who had usurped power and whose will, it was said, bad become a new law-creating medium, had acquired effective control by the habitual obedience rendered to his commands by the citizens of the country over a reasonable period of time. The actual facts, on the other hand, disclose a different picture, for, they do show that the very next day after the publication of the judgment of the Court that individual himself was placed under arrest and packed out of the country. Where then was the efficacy of his will to which the Court had already given legal recognition ?-He was replaced by a creature of his own creation, namely, the Chief Administrator of Martial Law who, it has to be pointed out, created no other legal order himself. He did not abrogate the Laws (Continuance in Force) Order, 1958, but continued to function thereunder, although he subsequently assumed also the role of the President. Even on the theory propounded by the learned Chief Justice himself was this subsequent change also a successful revolution? If so, by what test, because, on this occasion there was no annulment of any Constitution or of the grund-norm, of any kind.. which had been created by President Iskander Mirza?----What was, we may well ask, the grund-norm after the deposition of lskandar Mirza himself ?-----

intricate and difficult questions may arise in considering the questions relating to the validity of the regime from the day Field Marshal Ayub Khan took over and until his de facto regime received de jure recognition by his election as President under the Constitution of 1961, but it is unnecessary for our present purposes to enter into this challenging exercise----It will be sufficient for the present to point out that it does appear to us that the legal recognition given in Dosso's case to what was done by President Iskander Mirza was, to say the least, premature. It is also true that the learned Chief Justice In an article published in the Pakistan Times on the 11th of November 1968, under the heading of "Days I remember" admitted that in spite of the Proclamation of Martial Law on the 7th of October 1958, he "did not stop the Supreme Court from functioning", because, he felt, "that the Supreme Court on being properly moved still had the right to say whether what had happened was legal or Illegal". (The underlining is mine). The next morning, however, the Zonal Martial Law Administrator of Lahore met him and told him that the Courts, including the Supreme Court, had lost their jurisdiction but a few hours later he received a summon from the President to proceed to Karachi where he was told that the intention of the regime was to keep the existing laws and the jurisdiction of the civil authorities alive. He was then shown a draft of the Laws (Continuance in Force) Order, 1958, whereby this intention was sought to be given effect. He suggested "certain modifications, particularly with reference to the superior Court's powers to issue writs and validation of the judgments which had been delivered after the Proclamation". I take it that these were accepted, for, they do in fact find place in the formal order that was ultimately promulgated on the 10th of October 1958. According to his own version, even at this time a doubt arose as to whether there was a President of the country or not but he himself posed the question "whether the army had been inducted into power by the President or whether it had acquired such power on its own"?---This evidently then silenced the Chief Administrator of Martial Law, for, the army had, in fact, been called in by the President. The learned Chief Justice was, therefore, clear about the legal status of the Chief Administrator of Martial Law and since his interpretation was accepted the Order of 1958 was issued In the name of the President. Learned counsel have sought to argue from this that the esteemed Chief Justice was thereby personally committed to give judicial recognition to the aforesaid Order of 1958 and was, therefore, disqualified from sitting on the Bench which heard Dosso's case. I am not inclined to agree with this view, for, having regard to the long experience of the learned Chief Justice as a member of the various Benches of superior Courts in this country and his vast judicial experience I am certain that he was, notwithstanding his association in the drafting of the Order, quite capable of keeping an open mind and expressing his independent judgment. Mere association with the drafting of a law does not necessarily disqualify a judge from interpreting that law in the light of the arguments advanced before him. Nevertheless, with utmost respect to the learned Chief Justice, I do feel that in laying down a novel juristic principle of such far-reaching importance he did proceed on the basis of certain assumptions, namely :---(1) "that the basic doctrines of legal positivism". which he was accepting, were such firmly and universally accepted doctrines that "the whole science of modern jurisprudence" rested upon them ; (2) that any "abrupt political change not within the contemplation of the Constitution" constitutes a revolution, no matter how temporary or transitory the change, if no one has taken any step to oppose it ; and (3) that the rule of international law with regard to the recognition of States can determine the validity also of the States' internal sovereignty.

These assumptions were, in my humble opinion, not justified. As I have earlier indicated Kelsen's theory was, by no means, a universally accepted theory nor was it a theory which could claim to have become a basic doctrine of the science of modern jurisprudence, nor did Kelsen ever attempt to formulate any theory which "favours totaliterianism". Professor Julius Stone in his Treatise on the Legal System and Lawyers' Reasoning, 1964 Edition, page 121, observes as follows :"We would defend Kelsen, as vehemently as he himself, against the reproach that his theory favours totalitarianism. Yet we have to add that the above sins of pride in purity have contributed much to the confusion which has led leading minds, in perfect good faith, to make such a charge. But for the over-weening claim to monopolise both juristic and lawyers' concerns, it would be clear that analytical jurisprudence, being only a limited phase of merely juristic concern, could not assume to decide or influence greatly the mortal struggle between totalitarianism and democracy. It is now clear to the world from such late publications as What is Justice ? (1957), as it may always have been to his intimates, that he is a convinced liberal democrat, and that 'purity' in this aspect of his thinking marches with commitment to freedom as a lawyer-citizen. We personally, therefore, deplore the charge, and its echo and re-echo. Professor Kelsen could help to quiet it by renouncing even -more clearly the impression he long gave that he regards the scope of the pure theory of law as exhausting the jurist's and the lawyer's concerns." Kelsen has done so but unfortunately he still continues to be grievously misunderstood. He was only trying to lay down a pure theory of law as a rule of normative science consisting of "an aggregate or system of norms". He was propounding a theory of law as a "mere jurists' proposition about law". He was not attempting to lay down any legal norm or legal norms which are "the daily concerns of Judges, legal practitioners or administrators"', In his early works this distinction was not made clear but in 1960 he attempted in his book "Rechtslehre" to clarify the confusion by pointing out, as Julius Stone observes, "that the propositions of the pure theory of law are mere jurists' propositions about law and that they do not bind the Judge, in the way in which legal norms bind him". Hs also insisted throughout that the efficacy of the norm is an essential condition of its recognition in its nomodynamic aspect and this efficacy must be (a) "by and large" and (b) "in terms of conformity with principles of society to the norms, and the regular execution of sanctions for nonconformity." But he does not even now provide us with any guideline as to how his basic norm acquires validity. He frankly admits that this is a "meta-legal question and, therefore, incapable of any clear scientific declaration." Julius Stone thinks that in attempting to try to demonstrate the legal validity of Kelsen's original "grand-norm" subsequently redesignated by Kelsen himself as the "apex-norm" would be "to try to hoist oneself by one's own boot-straps". Professor Stone observes that in Kelsen's theory "the apexnorm is neither legally valid nor invalid ; it is a hypothesis. How is the worth of such a hypothesis to be assessed ? Will it depend, for instance, on the extent to which the norms of the legal system of the particular society can be derived from it ? Or will it depend on how far the apex-norm, or a system of norms dependent on it, meet some extraneous test, such as efficacy or observance of the system as a whole by the society?" Kelsen's position even now, as I shall presently endeavour to show, is not very clear, and as some critics seem to think "a whole idea of this basic norm still remains shrouded in mystery". (Vide Modern Law Review, Vol. XXVI, p. 35). He sometimes characterises it as a "hypothesia" or a "postulate" and then again as something existing purely "in the juristic consciousness" and as nothing more than an "ultimate hypothesis of positivism". It is, therefore, only a "thought norm" which could hardly be recognised as a legal norm furnishing a criteria of legal validity in any legal system. To give it the status of a legal norm or of a legal rule was thus, in my opinion, unjustified.

Kelsen in his attempt to evolve a pure science of law as distinguished from a natural science attached the greatest importance to keeping law and might apart. He did not lay k down the proposition that the command of the person in authority is a source of law. He, as Professor Leuterpacht observe in the Modern Theories of Law at page 117, considered that the command was only "a condition which the law posits .for the creation of duties of other persons just as the private agreement is a condition for the validation of a more general rule of law relating to the observance of contract . . . . . . In both cases the expression of will-as commanded or as agreed upon-constitutes a concretization of the general rule of law." He rebelled against the earlier conception or theories which put the State above the law and the most conspicuous of his theories was the "doctrine of the identity of a State and law". He considered the State merely as "a normative ordering coextensive with the normative ordering of the legal system". It was, by no means, his purpose to lay down any rule of law to the effect that every person who was successful in grabbing power could claim to have become also a law-creating agency. His purpose was to recognise that such things as revolutions do also happen but even when they are successful they do not acquire any valid authority to rule or annul the previous 'grand-norm' until they have themselves become a legal order by habitual obedience by the citizens of the country. It is not the success of the revolution, therefore, that gives it legal validity but the effectiveness it acquires by habitual submission to it from the citizens. The initial hypothesis, if a hypothesis is necessary, therefore, still remains, even under the theory of Kelsen, the ultimate will of the people as manifested by their habitual submission and not, as suggested in Dosso's case, the success of the revolution. Kelsen's attempt to justify the' principle of effectiveness from the standpoint of International Law cannot also be justified, for, it assumes "the primacy of International Law over National Law." In doing so he has, to my mind, overlooked that for c the purposes of International Law the legal person is the State and not the community and that in International Lave there is no "legal order" as such. The recognition of a State under International Law has nothing to do with the internal sovereignty of the State, and this kind of recognition of a State must not be confused with the recognition of the Head of a State or Government of a State. An individual does not become the Head of a State through the recognition of other States but through the municipal law of his own State. The question of recognition of a Government from the point of view of International Law becomes important only when a change in the form of Government also involves a break in the legal continuity of the State or where the question arises as to whether the new Government has a reasonable expectancy of permanence so as to be able to claim to represent the State (Vide Oppenheim's International Law, Vol. I, page 127). Thus where there is no break in the legal continuity of the State itself, no question of recognition of an internal Government of a State arises, although according to international practice whenever a new Head of a State assumes office the other States are as a matter of courtesy "notified and usually recognise the new Head by some formal act as a message of congratulation". (Oppenheim, Vol. I, page 126). In this view of the matter I cannot find any cogent reason for giving any primacy to International Law over national law. So far as the former is concerned, even Hans Kelsen himself was in difficulty in finding a grand-norm for it. I am also unable to agree with the learned Chief Justice that upon the principles of International Law if the territory and the people remain substantially the same there is "no change in the corpus or international entity of the State and the revolutionary Government and the new State are, according to International Law, the legitimate Government and the valid Constitution of the State". With great respect I must point out that this proposition does not find support from any principle of International Law. According to Oppenheim's view as propounded in his book on International Law if the revolutionary Government is ineffective and or has no "reasonable expectancy of permanence" and/or does not "enjoy the acquiescence of the population", then the international community may well refuse to recognise it, even though its territorial integrity remains unchanged and its people remain substantially the same.

With the utmost respect, therefore, I would agree with the criticism that the learned Chief Justice not only misapplied the doctrine of Hans Kelsen, but also fell into error in thinking that it was a generally accepted doctrine of modern jurisprudence. Even the disciples of Kelsen have hesitated to go as far as Kelsen had gone. In any event, if a grund-norm is necessary for us I do not have to look to the Western legal theorists to discover one. Our own grund-norm is enshrined in our own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March 1949. This Resolution has been described by Mr. Brohi as the "corner stone of Pakistan's legal edifice" and recognised even by the learned Attorney-General himself "as the bond which binds the nation" and as a document from which the Constitution of Pakistan "must draw its inspiration". This has not been abrogated by any one so far, nor has this been departed or deviated from by any regime, military or Civil. Indeed, 9t cannot be, for, it is one of the fundamental principles enshrined in the Holy Qur'an; Say, 'U Allah, Lord of sovereignty. Thou givest sovereignty to whomsoever Thou pleasest ; and Thou takest away sovereignty from whomsoever Thou pleasent. Thou exaltest whomsoever Thou pleasest and Thou abasest whomsoever Thou pleasest. (Pt. 3, Ch. 3, Al 'Imran, Ay, 27.) The basic concept underlying this unalterable principle of sovereignty is that the entire body politic becomes a trustee for the discharge of sovereign functions. Since in a complex society every citizen cannot personally participate in the performance of the trust, the body politic appoints State functionaries to discharge these functions on its behalf and for its benefit, and bas the right to remove the functionary so appointed by it if he goes against the law of the legal sovereign, or commits any other breach of trust or fails to discharge his obligations under a trust. The functional Head of the State is chosen by the community and has to be assisted by a Council which must hold its meetings in public view and remain accountable to public. It is under this system that the Government becomes a Government of laws and not of men, for, no one is above the law. It is this that led Von Hammer, a renowned orientalist, to remark that under the Islamic system "the law rules through the utterance of justice, and the power of the Governor carries out the utterance of it." This trust concept of Government filtered into Europe through Spain and even as early as 1685 John Locke rejected Hobbes' leviathan and propounded the theory that sovereignty vested in the people and they had the right not only to decide as to who should govern them but also to lay down the manner of Government which they thought to be best for the common good. Government was, therefore, according to Locke, essentially a moral trust which could be forfeited if the conditions of the trust were not fulfilled by the trustee or trustees, as the case may be. The trustees under this concept of ours are referred to as "those who are in authority among you" (Pt. 4, Ch. 4, Ay, 60; Al-Nisa, p. 207) which again negates the possibility of absolute power being vested in a single hand, for, the reference as clearly to a plurality of persons and to an authority properly constituted by law. Upon this analysis, I am, with the utmost respect for the then learned Chief Justice, unable to resist the conclusion that he erred both in interpreting Kelsen's theory and applying the same to the facts and circumstances of the case before him. The principle enunciated by him is, in my humble opinion, wholly unsustainable, and I am duty bound to say that it cannot bet treated as good law either on the principle of stare decisis or even otherwise. This disposes of the arguments of the learned counsel on both sides relating to the principle enunciated in Dosso's case. Unfettered by this decision I propose now to judge the validity of the events that took place on and from the 24th of March 1969. On the 24th of March 1969, Field Marshal Muhammad Ayub Khan, the then President of Pakistan, wrote a letter to the Commander-in-Chief of the army expressing his profound

regret for coming to the conclusion that "all civil administration and constitutional authority in the country has become ineffective" and admitting after reciting the unhappy state of events that had taken place in the country earlier, that "it is beyond the capacity of the civil Government to deal with the present complex situation, and the defence forces must step in." In these circumstances, he thought, that there was no option left for him but "to step aside and leave it to the defence force of Pakistan, which today represent the only effective and legal instrument, to take over full control of the affairs of the country", and finally called upon the Commander-in-Chief to do the needful in the following words :"It is your legal and constitutional responsibility to defend the country not only against external aggression but also to save it from internal disorder and chaos. The nation expects you to discharge this responsibility to preserve the security and integrity of the country and to restore normal, social, economic and administrative life." This was followed by a Broadcast over the Radio network at 7-15 p. m., of the 25th of March 1969 which again after narrating the events which had led him to this conclusion, concluded with a parting request to his countrymen "to appreciate the delicate situation and assist your brethren in the defence forces in every conceivable manner to maintain law and order." There was nothing either 'in this letter or in this broadcast to show that he was appointing General Agha Muhammad Yahya Khan as big successor-in-office or was giving him any authority to abrogate the Constitution which he had himself given to the country in 1962. Both these documents merely called upon the Commander-in-Chief of the army to discharge his legal and constitutional responsibility not only to defend the country against external aggression but also to save it from internal disorder and chaos. He did not even proclaim martial law. Nevertheless, the Commander-in-Chief on the very same day, namely, the 25th of March 1969, on his own proclaimed Martial Law throughout the length and breadth of. Pakistan and assume the powers of the Chief Martial Law Administrator. He also abrogated the Constitution, dissolved the National and Provincial Assemblies and declared that all persons holding office as President, members of the President's Council, Ministers, Governors of Provinces and members of their Council of Ministers shall cease to hold office with immediate effect. Existing laws and Courts were, however, preserved with the proviso that no writ or other order shall be issue against the Chief Martial Law Administrator or any person exercising powers or jurisdiction under the authority of the Chief Martial Law Administrator. Although by the Proclamation of Martial Law the office of President had ceased to exist yet the General by another Proclamation of the 31st of March 1969, purported to assume the office of President of the Islamic Republic of Pakistan with retrospective effect from the 25th of March 1969. Thereafter, only on the 4th of April 1969 a Provisional Constitution Order was enacted whereby the Constitution of 1962, was by and large restored, and it was provided that the country was to be governed as nearly as may be in accordance with its terms subject to the Proclamation of Martial Law and subject to any Regulation or Order that may be made from time to time by the Chief Martial Law Administrator (Vide Article 3(1)). The office of President was reintroduced by clause (2) of the same Article in the following terms :"The Chief Martial Law Administrator shall be the President of Pakistan hereinafter referred to as the President, and shall perform all functions assigned to the President of Pakistan by and under the said Constitution or by or under any law." This clearly indicated that the President was a subordinate functionary created by the Chief Martial Law Administrator, although he was himself to hold the same office, because, the powers of the President were limited to performing the functions assigned to him under the abrogated Constitution or under any law. By the other clauses almost all the fundamental rights were taken away and the Courts were debarred from issuing any order against any Martial Law Authority. Power was given to the President by Article 4 to issue Ordinances but provisions in law providing for reference of a

detention order to an advisory Board were declared to be of no effect by Article 7 (2), and by Article 8 the President was also given the power to make orders for making such provisions "including constitutional provisions", as he may deem fit for the administration of the affairs of the State. The first question, therefore, that arises is as to whether General Agha Muhammad Yahya Khan acted legally in declaring Martial Law, abrogating the Constitution, making new constitutional provisions and assuming the office of President It is clear that under the Constitution of 1962 Field Marshal Muhammad Ayub Khan had no power to hand over power to anybody. Under Article 12 of that Constitution he could resign his office by writing under his hand addressed to the Speaker of the National Assembly and then under Article 16 as soon as the office of President fell vacant the Speaker of the National Assembly had to take over as the acting President of the country and an election had to be held within a period of 90 days to fill the vacancy. Under Article 30 the President could also proclaim an emergency if the security or economic life of Pakistan was threatened by internal disturbances beyond the power of a Provincial Government to control and I will assume for the present purposes that he could also proclaim Martial Law if the situation was not controllable by the Civil administration. It is difficult however, to appreciate under what authority a Military Commander could proclaim Martial Law. Even in 1958 the Martial Law was proclaimed by the President. In my view, the Military Commander had no power also to abrogate the Constitution, although the learned Attorney-General has contended that the Proclamation of Martial Law by its own intrinsic force gave him the right to do so. even apart from anything said in Dosso's case. This argument necessitates an examination into the nature and scope of Martial Law itself. Does the imposition of Martial Law ipso facto annul and abrogate everything and give the Military Commander the power to do anything he likes ?--Is Martial Law synonymous with military rule within the territorial limits of a national entity ?- Is the imposition of. Martial Law necessarily a coup d'etat or a revolution disintegrating the legal order itself?-Does the imposition of Martial Law absolve the Military Commander from the oath or affirmation that he takes under the Army Act at the time of his appointment as an officer to "be faithful and bear true allegiance to the Constitution and the Islamic Republic of Pakistan ?" Martial Law, as pointed out by Sir William Holds-worth in his Article published in the Law Quarterly Review, Vol. 18, page 117, in England originally meant the law administered by the Court of the Constable and Marshal who had "jurisdiction over heraldry over words spoken to the disparagement of men of honour, and over contracts relating to war made out of the realm." Later they also acquired jurisdiction over a case of death or murder committed beyond the sea and over the offences and miscarriages of soldiers contrary to the laws and rules of the army. The Courts of Constable and Marshal, however, disappeared in course of time and the Marshal's jurisdiction, it appears, is now confined to merely some formal matters relating to pedigrees, escutcheons pennons and coat-armours. Martial Law, in the present times in England, has acquired various senses. In its original sense it is perhaps now only identifiable in the law relating to the enforcement of discipline in the forces at home and abroad. In this sense this branch of Martial Law is now better known as "military law" and is in time of peace enforced under various statutes, such as the Army Act, the Navy Act and the Air Force Act. It derives its authority from these statutes passed by the civil law-making bodies. In International law Martial Law means the powers of a military commander in war time in enemy territory as part of the jus belli. In this sense as the Duke of Wellington once said in the House of Lords it is "neither more nor less than the will of the General who commands the army." (Hansard, Vol. CXV, Col. 880). Can Martial law in this form be exercised within the country ? The position in England today, as mentioned in Halsbury's Laws of England, Vol. 7, Third Edition, page 260, is as follows;--

"The Crown may not issue commissions in time of peace to try civilians by martial law; but when a state of actual war, or of insurrection riot, or rebellion amounting to war, exists, the Crown and its officers may use the amount of force necessary fn the circumstances to restore order, and this use of force is sometimes termed martial law. When once this state of actual war exists the civil Courts have no authority to call in question the actions of the military authorities; but it is for the civil Courts to decide, if their jurisdiction is invoked. whether a state of war exists which justifies the application of martial law. The powers, such as they are, of the military authorities cease and those of the civil Courts are resumed ipso facto with the termination of the state of war; and, in the absence of an Act of Indemnity the civil Courts may inquire into the legality of anything done during the state of war; even if there is an Act of Indemnity couched in the usual terms, malicious acts will not be protected." Under the Constitution of France, however, there is a procedure available for a "Declaration of a State of Siege", under which the authority vested in the civil power for the maintenance of order and police passes entirely to the army (autorite militaire), in consequence of tumult or insurrection in any part of the country. On the proclamation of such a state of siege the constitutional guarantees become suspended and the Government of the affected area is temporarily placed under the control of the military. "Martial Law" in this sense, namely, the suspension of the ordinary law and the temporary Government of a country or a part of it by the military is, according to A. V. Dicey (vide Law of the Constitution, page 287), "utterly unknown to the law of England", for, it has nothing equivalent to the French "declaration of State of siege". This does not, however, exclude the possibility of the armed forces being employed, even under the Laws of England, for the suppression of riots, insurrection and rebellion, but in this sense, according to Dicey, Martial Law is just "a name for the common law right of the Crown and its servants to repel force by force in the case of invasion, insurrection, riot or generally of any violent resistance to the law." He considers this right to be "essential to the very existence of orderly Government" and, as being as such "most assuredly recognised in the most ample manner by the law of England." This right has, however, according to him, "no special connection with the existence of an armed force," but pertains to the right of the Crown to put down breaches of peace for which purpose he may call upon any subject, whether civilian or soldier, to assist "as a matter of legal duty". So far as England is concerned, no occasion has arisen to enforce even this type of common law martial law in the country since the civil wars of the Seventeenth Century, but martial law has been enforced in this form during the past century in South Africa, Southern Ireland, Palestine and parts of British India. Nevertheless, even in such cases the degree of freedom given to the military to exercise force has varied with the circumstances of each case. The test of interference always has been the necessity of performing the duty of repelling force and restoring order. In exceptional circumstances, the military may in such eventualities also find it necessary to set up Military Tribunals to try civilians and offenders may even be condemned to death but in every case the action taken has to be judged by the test of necessity. The Tribunals so set up are neither judicial bodies nor Courts Martial under the Army, Navy or the Air Force Acts but are merely bodies set up to advise the Military Commander as to 'the action he should take. The English Courts also maintain that it is not the proclamation of Martial Law which justifies the use of force but rather the events which have created a situation in which the use of force in this form has become justified. Blackstone in his Commentaries, Vol. I, page 381, describes this kind of Martial Law "only as temporary exerescences bred out of the distemper of the State". From the above it is clear that we must distinguish clearly between Martial Law as a machinery for the enforcement of internal order and Martial Law as a system of

military rule of a conquered or invaded alien territory. Martial Law of the first category is normally brought in by a proclamation issued under the authority of the civil Government and it can displace the civil Government only where a situation has arisen in which it has become impossible for the civil Courts and other civil authorities to function. The imposition of Martial Law does not of its own force require the closing of the civil Courts or the abrogation of the authority of the civil Government. The maxim inter armes leges silent applies in the municipal field only where a situation has arisen in which it has become impossible for the Courts to function, for, on the other hand, it is an equally well-established principle that where the civil Courts are sitting and civil authorities are functioning the establishment of Martial Law cannot be justified. The validity of Martial Law is, in this sense, always a judicial question, for, the Courts have always claimed and have in fact exercised the right to say whether the necessity for the imposition of Martial Law in this limited common law sense existed. In this connection it may be worthwhile quoting a passage from the opinion of the Earl of Halsbury in the case of Tilonko v. Attorney-General of Natal (1907 A C 93) which came up as an application for special leave to appeal by Tilonko who had been indicted before a Court Martial, sitting under a declaration of Martial Law, for the crimes of sedition and public violence. He objected to the jurisdiction of the Military Court on the ground that he was not a military man and had not been taken in the field of battle, as he had never taken up arms against the Government. He also questioned the validity of the imposition of Martial Law on the ground that the state of the country was not such as to justify it. The Government on the other hand claimed that the Court could net go behind the Proclamation. But the Noble Earl observed : "The notion that martial law exists by reason of the proclamation-an expression which the learned counsel has more than once used-is an entire delusion. The right to administer force against force in actual war does not depend upon the proclamation of martial law at all. It depends upon the question whether there is war or not. If there is war, there is the right to repel force by force but it is found convenient and decorous, from time to time, to authorize what are called Courts to administer punishments, and to restrain by acts of repression the violence that is committed in time of war, instead of leaving such punishment and repression to the casual action of persons acting without sufficient consultation, or without sufficient order or regularity in the procedure in which things alleged to have been done are proved . . . . . But the question whether war existed or not may, of course, from time to time be a question of doubt, and if that had been the question in this case, it is possible that some of the observations of the learned counsel with regard to the period of trial, and the course that has been pursued, might have required consideration" This establishes beyond doubt that the Courts in England have always claimed the right in case of doubt to decide as to whether a state of war or insurrection exists which can justify the imposition of Martial Law. Similarly in the case of Rex v. Allen ((1921) 21 R 241) the question arose for consideration whether Allen, a civilian, arrested after the proclamation of Martial law in Ireland, within the proclaimed area, in possession of arms and ammunition, was rightly convicted by a Military Court. The Chief Justice specifically formulated and dealt with, amongst others, the two following questions ; (1) Was there a state of war in the area included in the Lord Lieutenant's proclamation justifying the application of Martial Law ? and (2) Could the military Court act having regard to the fact that the Courts of justice in the area were open? On the first question the Court, after going into evidence, came to the conclusion that at the time of the proclamation a State of war did actually exist and continued to exist at the time of the arrest of John Allen. On the next question too, after an exhaustive review of all earlier decisions, it found that when the "regular Courts were open so that criminals might be delivered over to them to be dealt with according to the ordinary law there was not any right in the Crown to adopt any other course or proceeding" bat

relying on an earlier decision of the Privy Council in the case of Ex parte: Marias (1902 A C 109 ) held that where a system of guerilla warfare had come to be adopted by the rebels it could not be said that the "Courts were able to sit for all purposes" and to discharge their ordinary functions without hindrance. In saying so they by-passed an earlier decision of the same Court in Wolfe Tone's case ((1798) 27 St. Tr. 614) where, according to Dicey (p. 294), the Court granted a writ of habeas corpus to Wolfe Tone who had admittedly participated in the French invasion of Ireland and thus stopped his execution ordered by a military Court. The American view, as given in the Corpus Juris, Secundum, Vol. 93 at page 117, is clearly to the same effect that "the validity of Martial Law is always a judicial decision." The American Courts from the case of Ex parte : Milligan (4 Wallace 121) decided in 1866 have consistently maintained that "Martial rule can never exist where the Courts are open, and in the proper and unobstructed exercise of their jurisdiction." (Vide Commentaries on the Constitution of the United States by Chester James Antieau). The case of R. S. Sterling, Governor of the State of Texas v. E. Constantin (77 U S S C R 375 (L. Edn.)) also makes interesting reading. In this case the District Court of the United States for the Eastern District of Texas had passed an interlocutory order prohibiting the Governor, the Adjutant-General and the Commanding Officer of the Military District from enforcing their military or executive orders regulating or restricting the production of petroleum under a proclamation of Martial Law. The Supreme Court went into the question in detail on evidence first to consider as to whether there was a state of war or not and as to whether the Military Courts could adjudicate upon the rights of civilians when the ordinary Courts were functioning, and came to the conclusion that there was "no room for doubt that there was no military necessity which, from any point of view, could be taken to justify the action of the Governor in attempting to limit complainants' oil production, otherwise lawful ..... There was no exigency which justified the Governor in attempting to enforce by executive or military order the restriction which the District Judge has restrained pending proper enquiry. If it be assumed that the Governor was entitled to declare a state of insurrection and to bring military force to the aid of civil authority, the proper use of that power in this instance was to maintain the Federal Court in the exercise of its jurisdiction and not to attempt to override It; to aid in making its process effective and not to nullify it, to remove, and not to create, obstructions to the exercise by the complainants of their rights as judicially declared". From this examination of the authorities I am driven to the conclusion that the Proclamation of Martial Law does not by itself involve the abrogation of the civil law and the functioning of the civil authorities and certainly does not vest the Commander of the Armed Forces with the power of abrogating the fundamental law of the country. It would be paradoxical indeed if such a result could flow from the invocation in the aid of a State of any agency set up and maintained by the State itself for its own protection from external invasion and internal disorder. If the argument is valid that the proclamation of the Martial Law by itself leads to the complete destruction of the legal order, then the armed forces do not assist the state in suppressing disorder but actually create further disorder, by disrupting the entire legal order of the state. I cannot, therefore, agree with the learned Attorney-General that the proclamation of Martial Law by itself must necessarily give the Commander of the armed forces the power to abrogate the Constitution, which he is bound by his oath to defend. If this be so, then from where did General Agha Muhammad Yahya Khan acquire the right to assume control of the reins of Government? Field Marshal Muhammad Ayub Khan did not appoint him as his successor by his letter of the 24th March 1969. He merely called upon him to perform his "constitutional and legal duty to restore order" in the country. If this was his authority, then the only authority he got was to restore order and nothing more.

Even the imposition of Martial Law by his proclamation is of doubtful validity, because the proclamation should have come from the civil authorities and it was only then that under the proclamation the Commander of the armed forces could have moved into action. I am not aware of any document or of any provision in any law which gives the Commander of the armed forces the right to proclaim Martial Law, although I am prepared to concede that he has like all other loyal citizens of the country a bounden duty to assist the State, when called upon to do so. If the magnitude of the insurrection is so great that the Courts and the civil administration are unable to function, the military may exercise all such powers that may be necessary to achieve their objective and in doing so may even set up Military Tribunals to promptly punish wrong-doers but this, whether done throughout the country or in a restricted area within the country, merely temporarily suspends the functioning of the civil Courts and .the civil administration. As soon as the necessity for the exercise of the military power is over, the civil administration must, of necessity, be restored, and assume its normal role. It is not without significance that after the so-called imposition of Martial Law in 1969 the Martial Law Authorities had no occasion to fire even a single shot and found the conditions so normal that the civil administration never ceased to function and all the Courts continued to sit for all purposes. In fact the situation was so normal that within a few days the reality had to be accepted and even the Constitution was brought back except in so far as it had been purported to be altered by the creation of the office of President and the assumption of that office by the Chief Martial Law Administrator. Protection was also purported to be given to the acts of all Martial Law Administrators and their subordinates acting under their orders to save them from the consequences of their otherwise illegal acts. If Martial Law was by itself a sufficient legal cover then why was this special protection necessary. This country was not a foreign country which had been invaded by any foreign army with General Agha Muhammad Yahya Khan at its head nor was it an alien territory which had been occupied by the said army. The question of imposition of "military rule" as an incident of jus bells of international law could not, in the circumstances, possibly have arisen. The only form of Martial Law, therefore, that could possibly have been imposed in this country, assuming that such a state of large scale disorder had come to prevail in the country as was suggested by Field Marshal Muhammad Ayub Khan in his letter of the 24th of March 1969, was a Martial Law of the kind which could be (imposed under the English common law and was imposed by the British from time to time in 1919 in Amritsar, Lahore and Gujranwala, in 1921 in the areas inhabited by the Moplas, in 1930 in Sholapur, in 1942 In areas occupied by Hurs in Sind and in 1953 in Lahore. Under these Martial Laws there was, of course, no question of abrogation of any Constitution or of the introduction of military rule in supersession of the civil administration normally functioning in other parts of the country. Looked at, therefore, either from the constitutional point of view or the Martial Law point of view whatever was done in March 1969, either by Field Marshal Muhammad Ayub Khan or General Agha Muhammad Yahya Khan was entirely without any legal foundation. It was not even a revolution or a military coup d'etat in any sense of those terms. The Military Commander did not take over the reins of Government by force nor did he oust the constitutional President. The constitutional President out of his own free will and accord in response to the public's demand, stepped aside and called upon the Military Commander to restore law and order, as he was bound to do both under the law and under the Constitution. On the stepping aside of the Constitutional President the constitutional machinery should have automatically come into effect and the Speaker should have taken over as Acting President until fresh elections were held for the choice of a successor. The political machinery would then have moved according to the Constitution and the National and Provincial Assemblies would have taken steps to resolve the political disputes, if any, if the Military Commander had not by an illegal order dissolved them. The Military Commander, however, did not allow the constitutional machinery to come into effect but usurped the functions of Government and started issuing all kinds of Martial Law Regulations, Presidential Orders and even Ordinances.

It was in this state of affairs that the nature and scope of the Martial Law imposed in 1969 first came up for consideration before the Lahore High Court in the case of Mir Hassan and another v. The State (P L D 1969 Lah. 786). The question that fell to be decided there was as to whether the transference of certain criminal cases; during the pendency of applications under section 561-A of the Code of Criminal Procedure in the High Court-; in exercise of powers assumed under Martial Law Regulation No. 42, promulgated during the pendency of the said cases, was valid or not and as to whether the High Court had jurisdiction to enquire into the question of the validity of such transfer. A Full Bench of the High Court, after an exhaustive review of the opinions of jurists and the relevant law on the subject, came to the conclusion that the Martial Law imposed in 1969 was of the kind described by English authors as the Martial Law which can be imposed in exercise of the common law right vested in a State to suppress disorder and insurrection, and it was not of the type of military rule which can be enforced in an alien country by an invading or occupying army. The learned Judge, who delivered the main judgment, after examining the provisions of the letter of Field Marshal Muhammad Ayub Khan, the proclamation issued by General Agha Muhammad Yahya Khan and the Provisional Constitution Order promulgated on the 4th of April 1969, came to the conclusion that the "Martial Law was not imposed by the Chief Martial Law Administrator after having wrested power from the constitutional Government by force". In the circumstances, upon the public declarations of Field Marshal Muhammad Ayub Khan and General Agha Muhammad Yahya Khan themselves there was nothing to suggest that "the existing machinery for dispensing justice was found wanting or that it was to be subject to curbs or that a state of affairs was to be brought about in which the will of the Martial Law Commander was to be imposed." I entirely approve of these observations, for they conform with my own conclusions which I have expressed earlier and, therefore. There can be no question that the military rule sought to be imposed upon the country by General Agha Muhammad Yahya Khan was entirely Illegal. Incidentally It may also be pointed out here that this particular aspect of the question was not considered in Dosso's case and, as such, the principles therein laid down did not debar the High Court from going into this question. The High Court was fully entitled to consider whether what happened in 1969 was either a revolution or a coup d'etat within the meaning in which they were considered in Dosso's case. The judgment of the High Court in the above-mentioned case was not challenged by the then regime by any appeal to this Court but it resorted to the device of nullifying its effect by promulgating a Presidential Order called the Jurisdiction of Courts (Removal of Doubts) Order, 1969. This was published in the Gazette, Extraordinary of Pakistan on the 30th of June 1969. Since the validity of this Order has been called in question before us it is necessary that both this Order and the Provisional Constitution Order of the 4th April 1969, should be set out herein In extenso:I. PROVISIONAL CONSTITUTION ORDER, 1969 "In pursuance of the Proclamation of the 25th March 1969, and of all powers enabling him in that behalf, the Chief Martial Law Administrator is pleased to make and promulgate the following Order:1.- (1) This Order may be called the Provisional Constitution Order, 1969. (2) It shall come into force at once and be deemed to have taken effect immediately upon the making of the Proclamation on the 25th day of March 1969, hereinafter referred to as the Proclamation. (3) It extends to the whole of Pakistan. 2. Save as otherwise provided in this Order, the provisions of this Order shall be in addition to and not in derogation of the Proclamation and shall be read and construed accordingly.

3.-(1) Notwithstanding the abrogation of the Constitution of the Islamic Republic of Pakistan brought into force on the 8th day of June 1962, hereinafter referred to as the said Constitution, by the Proclamation and subject to any Regulation or Order made, from time to time, by the Chief Martial Law Administrator, the State of Pakistan, shall, except as otherwise provided in this Order, be governed as nearly as may be in accordance with the said Constitution. (2) The Chief Martial Law Administrator shall be the President of Pakistan, hereinafter referred to as the President, and shall perform all functions assigned to the President of Pakistan by or under the said Constitution or by or under any law. (3) Paragraphs 2, 4, 5, 6, 7, 8. 9, 13, 14, 15 and 17 of the Fundamental Rights set out in Chapter I of Part II of the said Constitution shall stand abrogated and all proceedings pending in any Court, in so far as they are for the enforcement of those Rights shall abate. (4) No judgment, decree, writ, order or process whatsoever shall be made or issued by any Court or tribunal against the Chief Martial Law Administrator or a Deputy Chief Martial Law Administrator or any Martial Law Authority exercising powers or jurisdiction under the authority of either. 4.-(1) An Ordinance promulgated by the President or by the Governor of a Province shall not be subject to the limitation as to its duration prescribed in the said Constitution. (2) The Provisions of clause (1) shall also apply to an Ordinance which was in force -immediately before the issue of the Proclamation. 5. No Court, tribunal or other authority shall call or permit to be called in question(a) the Proclamation; (b) any Order made in pursuance of the Proclamation or any Martial Law Regulation or Martial Law Order; or (c) any finding, sentence or order of a Special Military Court or a Summary Military Court. 6.-(1) No appeal shall lie to the Supreme Court from any judgment, final order or sentence of a High Court !n criminal proceedings except when the High Court(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life; or (b) has withdrawn for trial before itself any case from any Court subordinate to its authority, and has in such trial convicted the accused person and sentenced him as afore. said; or (c) certifies that the case involves substantial question of law as to the interpretation of the said Constitution; or (d) has imposed any punishment on any person for contempt of the High Court. (2) Save as provided in clause (1), the Supreme Court, a High Court and all other Courts and tribunals shall have and exercise the same powers and jurisdiction as they had immediately before the issue of the Proclamation. 7.-(1) Nothing in this Order or in any law shall prejudice the operation of any Martial Law Regulation made by the Chief Martial Law Administrator or by any person having authority from him to make Martial Law Regulations and where any Ordinance made

under Article 4 or any other law is repugnant to such Regulation, the Regulation shall prevail. (2) Any provision 9n any law providing for the reference of a detention order to an Advisory Board shall be of no effect. 8. The President may, by Order, make such provisions, including constitutional provisions, as he may deem fit for the administration of the affairs of the State. A. M. YAHYA KHAN, General, Chief Martial Law Administrator, Pakistan."

4th April 1969.

II. JURISDICTION OF COURTS (REMOVAL OF DOUBTS) ORDER, 1969 "No. F. 24 (1)/69-Pub.-The following order made by the President is hereby published for general information:THE JURISDICTION OF COURTS (REMOVAL OF DOUBTS) ORDER, 1969 President's Order No. 3 of 1969 Whereas doubts have arisen as to whether the Supreme Court pr g High Court has power to issue any writ, order, notice or' other process to or against a Special Military Court or a Summary Military Court, or in relation to any proceedings of, or any jurisdiction exercised by, any such Military Court, or any Martial Law Authority; And whereas it is necessary to remove such doubts; Now, therefore, in pursuance of the Proclamation of the 25th day of March 1969, and in exercise of all powers enabling him fn that behalf, the President and Chief Martial Law Administrator is pleased to make and promulgate the following Order:-1.-(1) This Order may be called the Jurisdiction of Courts (Removal of Doubts) Order, 1969. (2) It shall come into force at once and shall be deemed to have taken effect on the 25th day of March 1969. 2. This Order shall have effect notwithstanding anything contained in the Provisional Constitution Order, or any Martial Law Regulation, or any other law for the time being in force. 3.-(1) No Court, tribunal or other authority, including the Supreme Court and a High Court, shall---(a) receive or entertain any complaint, petition, application or other representation whatsoever against, or in relation to the exercise of any power or jurisdiction by, any Special Military Court or Summary Military Court, or any Martial Law Authority or any person exercising powers or jurisdiction derived from Martial Law Authority; (b) call or permit to be called in question in any manner whatsoever any finding, sentence, order, proceeding or other action of, by or before a Special Military Court or a Summary Military Court or any Martial Law Authority or any person exercising powers or jurisdiction derived from a Martial Law Authority; (c) issue or make any writ, order, notice or other process whatsoever to or against, or in relation to the exercise of any power or jurisdiction by a Special Military Court or a Summary Military Court, or any Martial Law Authority or any person exercising powers or jurisdiction derived from a Martial Law Authority. (2) Any decision given, judgment passed, writ, order, notice or process issued or made, or thing done in contravention of clause (1) shall be of no effect.

(3) If any question arises as to the correctness, legality or propriety of the exercise of any powers or jurisdiction by a Special Military Court or a Summary Military Court or a Martial Law Authority or any other person deriving powers from a Martial Law Authority, it shall be referred to the Chief Martial Law Administrator whose decision thereon shall be final. Explanation.-"Martial Law Authority" means the Chief Martial Law Administrator and includes a Deputy Chief Martial Law Administrator, a Zonal Martial Law Administrator, a Sub-Administrator of Martial Law or any person designated as such by any of them. 4. If any question arises as to the interpretation of any Martial Law Regulation or a Martial Law Order, it shall be referred to the Martial Law Authority issuing the same for decision and the decision of such Martial Law Authority shall be final and shall not be questioned in any Court, Tribunal or other authority, including the Supreme Court and a High Court. A. M. YAHYA KHAN, H. PK.. H. J., General, President and Chief Martial Law Administrator." It will be noticed that the latter Order is described in the Gazette as an Order made by the President, although its Preamble states that it is being made :"In exercise of all powers enabling him in that behalf, the President and Chief Martial Law Administrator is pleased to make and promulgate the following Order." It is signed by General A. M. Yahya Khan, who is described both as President and Chief Martial Law Administrator. The former Order has been issued as an Order only of the Chief Martial Law Administrator and is signed as such. It has become necessary to point out these facts, because, the argument has been advanced that the second Order is only a Presidential Order made in exercise of the powers given to the President either under Article 3 or Article 8 of the Provisional Constitution Order and, therefore, an order of a Sub-constitutional nature which could not alter or amend the Constitution itself. This right having been specifically reserved for the Chief Martial Law Administrator by the express language of Article ?(1) of the Provisional Constitution Order. The Constitution could, therefore, it is argued be amended only by a "Regulation or Order made by the Chief Martial Law Administrator" and by no other means and by no one else, because, under the scheme of the Provisional Constitution Order itself the President was a subordinate authority created by the Martial Law and his functions were limited to the performance of "functions assigned to the President of Pakistan by or under the said Constitution or by or under any law". Article 8 of this Order was, it is said, not repugnant to the provisions of clause (1) of Article 3 and did not override the same, because, it could be given a harmonious interpretation by limiting the power of making orders by the President thereunder to orders of a constitutional nature necessary for the administration of the affairs of the State but only to the extent they did not conflict with the Constitution or those parts of it which bad been preserved by the Provisional Constitution Order or were not inconsistent with any Martial Law Regulation. The mere description given under the signature in the above-quoted Order No. 3 of 1969 or in the Preamble did not alter its true character or give to it the status of a Martial Law Regulation which alone could amend or alter the Constitution. It was and remained a Presidential Order and a sub-constitutional legislation. It is further pointed out that in this respect the Provisional Constitution Order of 1969 also makes a radical departure from the Laws (Continuance in Force) Order of 1958. Under the latter the President as well as the Chief Administrator of Martial Law could

both amend the Constitution but under the former only the Chief Martial Law Administrator could do so. The intention was, therefore, clear and under the principle of expressio unius est excluslo alterius there was no scope for holding that the Constitution could be amended by a Presidential Order. The learned Attorney-General has attempted to draw our attention to a number of Orders issued in exercise of the powers given under section 8 of the Provisional Constitution Order to show that where an Order was made in exercise of this power it was expressly so mentioned but the mere recital of this fact in a particular Order does not necessarily mean that the non-recital of the said fact would give an order described and published in the Gazette as a Presidential Order a higher status. We have also discovered that no set practice was followed during this period for even Ordinances were made in the purported exercise of powers under the Proclamation and all other powers vested in that behalf in the President and the Chief Martial Law Administrator and were signed by the person concerned under the description of "President and Chief Martial Law Administrator". The official description of the legislative measure is, therefore, the only safe indication available of its true nature. I am, therefore, unable to agree with the learned Attorney-General that this Presidential Order could have amended the Constitution and taken away, as it has purported to do, the jurisdiction of the High Courts to even receive or entertain any complaint, petition, application or other representation whatsoever against, or in relation to the exercise of any power or jurisdiction by any Special Military Court or Summary Military Court or any Martial Law Authority or any person exercising power or jurisdiction derived from the Martial Law Authority under Article 98 of the Constitution of 1962, which had been preserved even by the Provisional Constitution Order of 1969. This provision, as very appropriately pointed out by Mr. Brohi, strikes at the very root of the judicial power of the Court to hear and determine a matter, even though it may relate to its own jurisdiction. The Courts undoubtedly have the power to hear and determine any matter or controversy which is brought before them, even if it be to decide whether they have the jurisdiction to determine such a matter or not. The superior Courts are, as is now well settled, the Judges of their own jurisdiction. This is a right which has consistently been claimed by this and other Courts of superior jurisdiction in all civilised countries and it is on the basis of this very right that this Court itself went into the question of the validity of the Martial Law in Dosso's case. If Muhammad Munir, C. J. in 1958 could feel that the Courts "on being properly moved still had the right to say whether what had happened was legal or illegal" then what has happened since to take away that right. What was done in 1958 can still be done even though the result might well be different. Learned Attorney-General does not seriously dispute the correctness of the contention that "judicial power" is different from "jurisdiction" and so far as judicial power is concerned it must exist in Courts as long as the Courts are there. In fact, he has been bold enough, and I admire him for his boldness, in characterising these provisions of the Presidential Order No. 3 of 1969, which seek to take away the judicial power itself as "absurdities". He frankly concedes that the Courts have and must have the power to determine all questions of their own jurisdiction. It is a proposition so well-settled that no one can challenge it. The learned Attorney-General has, however, sought to contend that where there is a written Constitution the Courts are themselves creatures of the Constitution and have only such jurisdictions as the Constitution chooses to confer upon them. I have no cavil with this proposition, as I have myself in several cases indicated, that the Constitution can confer or restrict the jurisdiction of even superior Courts but this is not the same thing as saying that it can also restrict or curtail the judicial power, because, that in effect would be denying to the Court the very function for which it exists, i.e. to decide a controversy even if it relates to its own jurisdiction. In the view that I have taken of the Presidential Order No. 3 of 1969 that it is a sub-constitutional legislation I cannot but hold that it could not have curtailed the jurisdiction that was given to the High Courts and to this Court by the Constitution of 1962, for, that jurisdiction was preserved even by the Provisional Constitution Order,

Looking at the matter, therefore, from any point of view, whether, from the strictly legal and constitutional side, or on the basis of the principle of implied authority as suggested by Mr. A Manzoor Qadir, or even in terms of the so-called legal order purported to be created by the Provisional Constitution Order of 1969 itself, I cannot escape the conclusion that the Presidential Order No. 3 was an unconstitutional document. General Agha Mohammad Yahya Khan had according to me, no authority to pass such legislation taking away the powers of the Courts in his capacity as President under the Provisional Constitution Order. The Martial Law introduced by him was illegal and, therefore, even as Chief Martial Law Administrator he was not competent to validly pass such laws, and it certainly was in excess of the implied authority, if any, given to him by the letter of Field Marshal Muhammad Ayub Khan dated the 24th of March 1969. The High Courts were, therefore, wrong in thinking that they had no jurisdiction to enquire into this matter. I come now to the Martial Law Regulation No. 78 which was promulgated on the 17th of April 1971. This too has to be quoted in extenso. It reads as follows:"MARTIAL LAW REGULATION BY CHIEF MARTIAL LAW ADMINISTRATOR, PAKISTAN Restriction of Movements of Suspected Persons, Restriction Orders and Detention Orders, Regulation. REGULATION No. 78 1. The Chief Martial Law Administrator or a Martial Law Administrator or a Deputy Martial Law Administrator authorised by the Martial Law Administrator concerned in this behalf. If satisfied with respect to any particular person, that with a view to preventing him from acting in a seditious manner or in a manner prejudicial to the security, the public safety or interest or the defence of Pakistan. maintenance of public order, Pakistan's relations with any other power the maintenance of peaceful conditions In any part of Pakistan the maintenance of essential supplies and services, it Is necessary so to do, may make an order ;(a) directing such person to remove himself from Pakistan in such manner, by such time and by such route as may be specified In the order, and prohibiting his return to Pakistan ; (A) directing that he be detained ; (c) directing that he shall not remain within any specified area In Pakistan except on the conditions and subject to the restrictions specified in the order or to be specified by an authority or a person specified in the order ; (d)"requiring him to reside or remain in such place or within such area in Pakistan as may be specified In the order or to proceed to a place or area within such time as may be specified in the order ; (e) requiring him to notify his movements or to report himself or both to notify his movements and report himself in such manner at such times and to such authority or person as may be specified In the order ; (f) imposing upon him such restrictions as may be specified in the order in respect of employment or business, in respect of his association or communication with other persons, and in respect of his activities in relation to the dissemination of news or propagation of opinions ;

(g) prohibiting or restricting the possession or use by him of any such article or articles as may be specified is the order --(h) otherwise regulating his conduct in regard to any matter as may be specified in the order; Provided that no order shall be made under clause (a) of this paragraph against any citizen of Pakistan and by any person other than the Chief Martial Law Administrator. 2. Any order made under paragraph I may require the person against whom it is made to enter into a bond, with or without sureties, for the due observance of the restrictions and conditions specified in the order. 3. If any person remains in any area or place or fails to leave any area or place fn contravention of an order made under paragraph 1 he may be removed from the area or place by any police officer or "other person acting on behalf of the Chief Martial Law Administrator or a Martial Law Administrator or a Deputy Martial Law Administrator authorised by the Martial Law Administrator concerned in this behalf. 4. A person who is ordered to be detained under this Regulation shall be detained in such place and under such conditions as to maintenance, discipline and punishment for breaches of discipline, as the Chief Martial Law Administrator or a Martial Law Administrator or a Deputy Martial Law Administrator authorised by the Martial Law Administrator concerned in this behalf may from time to time determine. 5. The Chief Martial Law Administrator or a Martial Law Administrator or a Deputy Martial Law Administrator authorised by the Martial Law Administrator concerned in this behalf. if has reason to believe that a person in respect of whom an order under clause (b) of paragraph 1 has been made, has absconded or, is concealing himself so that the order cannot be executed, may(a) make a report in writing of the fact to a Magistrate of the first class having jurisdiction in the place where the said person was ordinarily residing and thereupon the provisions of sections 87, 88 and 89 of the Code of Criminal Procedure, 1898 (Act V of 1898) shall apply in respect of the said person and his property as if he were a person against whom a warrant had been issued by the Magistrate and was absconding; and (b) by notified order direct the said person to appear before such officer, at such place and within such period as may be specified in the order; and if the said person fails to comply with such direction he shall, unless he proves that it was not possible for him to comply with the direction. and that he had, within the period specified in the order, informed the officer of the reason which had rendered compliance impossible and also of his whereabouts, be punishable with rigorous imprisonment for a term which may extend to seven years, or with fine, or with both. 6. (a) If any person contravenes any order made under this Regulation, he shall be punishable with rigorous imprisonment for a term which may extend to five years, or with fine, or with both. (b) Where by reason of a contravention of an order made under this Regulation, a bond executed under paragraph 2 has been forfeited, the Court having jurisdiction to try the person who had contravened the order may call upon any person bound by the bond to pay the penalty thereof or to show cause why it should not be paid, and if sufficient cause is not shown -and the penalty is not paid, the Court may proceed to recover the same in the same manner, as a Court proceeding on the forfeiture, of a bond under the Code of Criminal Procedure, 1898 (Act V of 1893). A. M. YAHYA KHAN GENERAL, Commander-in-Chief, Pakistan Army and

Chief Martial Law Administrator. Rawalpindi, the 9th April 1971. " This gives very wide powers to the Chief Martial Law Administrator and a Zonal Martial Law Administrator and even a Deputy Martial Law Administrator to detain a person without r trial for any length of time, without giving him any reasons for such detention or any opportunity even of making any re-presentation against such a detention. These are indeed very extraordinary powers for taking away the most cherished right of a citizen in a most arbitrary manner. They provide no machinery for seeking any redress against any possible abuse or misuse of power or for making any representation or even for an appeal from Ceaser to Ceaser. Learned counsel for the appellants contend that since the Provisional Constitution Order preserves Article 2 of the Constitution of 1962 and the Fundamental Right No. 1 given thereunder has not been abrogated, this measure even if it can be regarded as a `law' is void. Article 2, as earlier indicated, assures a citizen that "no action detrimental to the life, liberty, body. reputation or property of any person shall be taken except in accordance with law", and Fundamental Right No. 1 guarantees that "no person shall be deprived of life or liberty save in accordance with law." What is `law' has already been dealt with earlier in this judgment-so now I have to decide whether Martial Law Regulation No. 78 is a valid law. since I have already held that neither President's Order No. 3 of 1969 has succeeded in taking away that jurisdiction nor can the promulgation of Martial Law by itself produce that effect. It is interesting to note that the impugned Regulation itself does not contemplate the ouster of the jurisdiction of the ordinary Courts of the land, for, the intrinsic evidence of its own terms is to the contrary. Paragraph 6(b) thereof clearly contemplates that if any person contravenes any order made under this Regulation he shall be tried by a "Court having jurisdiction to try the person". This can only mean the ordinary criminal Courts, for, no other machinery is provided for punishment In the case of such contravention. Again clause (a) of paragraph 5 speaks of a "Magistrate of the First Class" and refers to certain provisions of the Code of Criminal Procedure. Does this not mean that where a Court has tried anyone for the contravention of any order made under the Regulation the ordinary incidents of appeal and revision will also be attracted as a normal consequence of such a trial? The question of exclusion of the jurisdiction of the Courts, therefore, does not arise in terms of this Regulation. If it arises at all it arises under the Presidential Order No. 3 of 1969 with which I have already dealt. However, as this question has been raised, regarding the validity of Martial Law Regulation No. 78, I must point out that it follows from what I have said earlier that it was made by an authority whose legal competence we have not been able to recognise on the ground of want of legal authority and the unconstitutional manner of arrogation of power. The learned Attorney-General, however, insists that even this regime had received the legal recognition of this Court and, therefore, it had also acquired de jure authority to make laws. Reference in this connection has been made to two decisions. The first was in the case of Muhammad Ismail v. The State (P L D 1969 S C 241) in which the judgment was delivered again by myself. The only question raised in this case was as to whether after the promulgation of Martial Law on the 25th of March 1969, and the enactment of the Provisional Constitution Order on the 4th of April 1969, this Court continued to retain the jurisdiction conferred upon it by the Constitution of 1962 to entertain petitions for special leave to appeal in criminal proceedings in view of the fact that the Provisional Constitution Order did not specifically provide for any appeal by special leave. No question was raised in this case as to the validity of the Martial Law or of the Provisional Constitution Order. The only question argued was whether on a proper construction of the language of this order an appeal for special leave in criminal proceedings was still within the competence of this Court. The Court held that upon a proper construction of the terms of the Order the Jurisdiction to entertain and hear appeals by special leave in criminal matters had not been taken away and that the

jurisdiction given to it by Article 58 of the 1962-Constitution remained unaffected. There was no question, therefore, of any conscious application of the mind of the Court to the question of the validity of the regime or the legality of the Provisional Constitution Order nor was this Court called upon to give any decision thereon as the latter order had manifested no intention to alter that jurisdiction and there was no conflict between the two. It is not correct, therefore, to say that this decision in any way constitutes a conscious recognition in law of the new regime. The next case referred to is that of Mian Fazal Ahmad v. The State (1970 S C M R 650). In this case, which was a petition for special leave from an order of the Lahore High Court dismissing an application under section 561-A of the Code of Criminal Procedure for quashment of certain criminal proceedings pending investigation by the police, the High Court had admitted the petition and directed the police not to put up any challan in any Court. The police did not do so but instead of submitting a challan before a criminal Court placed the matter before a Military Court and the. latter convicted the petitioner. Thereupon the petitioner moved the High Court, for taking action against the D S. P. in contempt for disobedience of its order. The High Court dismissed the application of the petitioner. and this Court by a very brief order dismissed the petition for special leave observing that "when the Military Court took cognizance of the offence and imposed a penalty on the petitioner the learned Judge in the High Court was right in dismissing the petitioner's application under section 561-A of the Code of Criminal Procedure." No other reason was given for the order. Again, this does not show that the legality of the order of transfer of the case to the Military Court was ever challenged. The High Court's order was upheld possibly on the ground that the proceedings which were sought to be quashed by the original petition having been terminated by the transfer of the case to the Military Court, there was no further need of its quashment, and no question of commitment of the D. S. P. in contempt arose, as he had not violated the order of the High Court. In these circumstances, it can hardly be urged that this constitutes a conscious legal recognition of the military regime of 1969. Questions in dispute in these cases were entirely different and had nothing whatever to do with the question now before us. It s incorrect, therefore, to say that this Court had given any legal recognition to the regime of General Agha Muhammad Yahya Khan. The question, therefore, is still at large and has for the first time now been raised before this Court in this specific form. The learned Attorney-General's contention that even the tacit approval given by this Court by not questioning suo motu the various Martial Law Regulations made by the regime concerned during this period of 2J years is itself sufficient to preclude this Court from going into this question now, is not, in my opinion, tenable. The Courts, as I have already indicated, are not called upon to suo motu raise a controversy and then decide it. They can only do so if a litigant raises the controversy in a concrete form, as it has now been done before us. `-The Court", says Mr. Eaton Drome, has authority to expound the Constitution only in cases presented to it for adjudication. Its Judges may see the President usurping powers that do not belong to him, Congress exercising functions it is forbidden to exercise, a State asserting rights denied to it. The Court has no authority to interfere until its office is invoked in a case submitted to it in the manner prescribed by law." (Vide Marriot's English Political Institutions, 1938 Edn., p. 293). Incidentally it may also be mentioned here that a great deal. that has been said about the oath of Judges is also not germane to the question now before us, for, in the view I take of the duty of a Judge to decide a controversy that is brought before him it cannot be said that any Judge of this Court has violated his oath which he took under the Constitution of 1962. He was not called upon to take any other oath thereafter and is still no doubt bound by that oath and will stand by it. But it must not be overlooked that since his own powers are limited to deciding a controversy properly brought before him by a litigant or on his behalf, an equal duty lay on the gentlemen of the Bar as well to raise this question. This was never done and it may be pertinent to point out that even the learned gentlemen of the Bar, except the learned Attorney-General, who have now argued this case, actively, at some stage or the other, co-operated with the various Martial Law regimes either as High Commissioner, Minister,

Attorney-General, or Advocate-General. So far as this Court is concerned it has always acted in accordance with its oath and will continue to do so whenever a controversy is brought before it, no matter what the consequences. Reverting now to the question of the legality of the Presidential Order No. 3 of 1969 and the Martial Law Regulation No. 78 of 1971 it follows from the reasons given earlier that they were both made by an incompetent authority and, therefore, lacked the attribute of legitimacy which is one of the essential: characteristics of a valid law. The Presidential Order No. 3 of 1969 was also invalid on two additional grounds, namely, that it was a Presidential Order, which could not in terms of the Pro visional Constitution Order itself amend the Constitution so as to take away the jurisdiction conferred upon the High Court under Article 98 and that it certainly could not, in any event, take away the judicial power of the Courts to hear and determine questions pertaining even to their own jurisdiction and this power could not be vested in another authority as long as the Courts continued to exist. This does not, however, dispose of the case, for we are again presented by the learned Attorney-General with the argument that a greater chaos might result by the acceptance of this principle of legitimacy. He has reminded the Court of the grave consequences that followed when in Moulvi Tamizuddin Khan's case a similar argument was spurned by the Federal Court and "disaster" brought in. I am not unmindful of the grave responsibility that rests upon Courts not to do anything which might make confusion worse confounded or create a greater state of chaos if that can possibly be avoided consistently with their duty to decide in accordance with law. Some of the learned counsel appearing on the other side at first advocated that we should totally ignore this argument but Mr. Manzoor Qadir and Mr. Sharifuddin Pirzada frankly conceded that within certain limits validation can be given to certain acts of even a de facto usurper of power either on the ground of state necessity or implied authority. Mr. Anwar sought at one stage to disassociate himself with this view but when it was pointed out to him that the result would then be that even the Legal Framework Order (No. 2 of 1970) and the elections held thereunder would also become invalid, he too hesitated and thought that that might be going too far. Mr. Brohi on the other hand, is prepared to concede only this much that an usurper may be given the limited power of acting within the framework of the Constitution, but nothing beyond that. This is a difficult question to decide and although I have for my guidance the example of our own Federal Court, which in Governor-General's Reference No. 1 of 1955 invoked the maxim of salus populi suprema lax to create some kind of an order out of chaos, I would like to proceed with great caution, for, I find it difficult to legitimize what I am convinced is illegitimate. I shall, therefore, first examine some other decisions which have been cited at the Bar before I begin to formulate my own views in the matter. I have been referred to the decision of the Privy Council in the case of Madzimbamuto v. Lardner-Burke and another ((1968) 3 A E R 561) where Lord Pearce in a very elaborate dissenting judgment accepted that acts done by those actually in control without lawfull authority may be recognized as valid or acted upon by the Courts within certain limitations, on principles either of necessity or implied mandate, particularly where the enquiry is being made ex post facto, because, common sense dictates that every thing done during the intervening period, whether good or bad, cannot be treated in the same manner. In support of this proposition the noble lord refers also to a passage from Grotius' book on De Jure Belli et Pacis (Book 1, Ch. 4) where the following principle is enunciated :-"Now while such a usurper is in possession, the acts of Government which he performs may have a binding force, arising not from a right possessed by him, for no such right exists, but from the fact that one to whom the sovereignty actually belongs, whether people, king, or senate, would prefer that measures promulgated by him should meanwhile have the force of law, in order to avoid the utter confusion which would result from the subversion of laws and suppression of the Courts."

There is no doubt that a usurper may do things both good, and bad; and he may have during the period of usurpation also made many Regulations or taken actions which would be valid if emanating from a lawful Government and which may well have, In the course of time, affected the enforcement of contracts, the celebration of marriages, the settlement of estates, the transfer of property and similar subjects. Are all these to be invalidated and the country landed once again into confusion? Such a principle, it appears, has also been adopted in America In various cases which came up after the suppression of the rebellion of the Southern States and the American Courts roc adopted the policy that where the acts done by the usurper were "necessary to peace and good order among citizens and bat affected property or contractual rights they should not be invalidated", not because they were legal but because they would cause inconvenience to innocent persons and lead to further difficulties. Vide Texas v. White ((1868) 7 Wallace 733), Horn v, Loekhurt ((1373) 17 Wallace 850) and Baldy v. Hunter ((1897) 171 U S 388). Lord Pearce himself indicated 3 limitations for the validation! of such acts, namely :-"(1) So far as they are directed to and reasonably required: for ordinary orderly running of the State ; (2) so far as they do not impair the rights of citizens under the lawful Constitution ; and (3) so far as they are not intended to and do not in fact directly help the usurpation and do not run contrary to the policy of the lawful Sovereign." The judgments of the Court of Appeal in Rhodesia in the same case and of a: Court in Uganda in the case of Uganda v. Commissioner of Prisons, Ex Parte Matovu (1966 E A L R - 514) have also been cited before us but I do not propose to deal with them, as they seem mainly to draw their inspiration from Hans Kelsen and the decision in Dosso's case. There is, however, another case from Nigeria where the military take over was not accepted as legitimate but condoned as a "manifestation of necessity" and not as "revolutionary breach of legal continuity''. On this basis even the fundamental rights guaranteed by the pre-existing constitution were also maintained in the case of Lakamani and 0la v. Attorney General (West), Nigeria. (Unfortunately the full report of this decision is not available but it is referred to in S. A. de Smith's book on Constitutional and Administrative Law). We have also in this connection been referred to a case from Cyprus sub-nomine. The Attorney-General of the Republic v. Mustafa Ibrahim and others (1964 C L R 196) where the Supreme Constitutional Court of Cyprus also applied the doctrine of necessity to validate a certain legislation which was otherwise to consistent with certain Articles of the Cyprus Constitution on the ground that they would be justified "if it can be shown that it was enacted only in order to avoid consequences which could not otherwise be avoided, and which if they had followed, would have inflicted upon the people of Cyprus, whoa the Executive and Legislative organs of the Republic are bound to protect, inevitable irreparable evil end furthermore if it can be shown that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by the enactment in question, was not disproportionate to the evil avoided" This the Court thought was its duty to do in view of its "all important and responsible function of transmitting legal theory into living law; applied to the acts bf daily life fur the preservation of social order" I too am of the opinion that recourse has to be taken to the doctrine of necessity where the ignoring of it would result in disastrous consequences to the body politic and upset the social order itself but I respectfully beg to disagree with the view that this is a doctrine for validating the illegal acts of usurpers In my humble opinion, this doctrine can be invoke in aid only after the Court has come to the conclusion that the acts of the usurpers were illegal and illegitimate. It is only then that the question arises as to how many of his acts, legislative or otherwise, should be condoned or maintained,

notwithstanding their illegality in the wider public interest. I would call this a principle of condonation and not legitimization. Applying this test I would condone (1) all transactions which are past and closed, for, no useful purpose can be served by reopening the n, (2) all acts and legislative measures which are in accordance with, or could have been made under, the abrogated Constitution or the previous legal order, (3) all acts which tend to advance or promote the good of the people, (4) all acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment of. in our case, the objectives mentioned In the Objectives Resolution of 1954. I would not, however, condone any act intended to Entrench the usurper more firmly in his power or to directly help him to run the country contrary to its legitimate objectives. I would not also condone anything which seriously impairs the rights of the citizens except in so far as they may be designed to advance the social welfare and national solidarity. Applying these tests to the President's Order No. 3 of 1969 and Martial Law Regulation No. 78 of 1971 lam not in a position to say that they fall in either of the categories mentioned above, although the learned Attorney-General has very strenuously contended that when Martial Law Regulation No. 78 was enacted a state of rebellion was prevailing in East Pakistan. Even if that was so, the Regulation could well have been restricted to the territories in which such a state of grave disorder prevailed. There is no evidence before us that there wag arty danger of such large scale disorder in West Pakistan. Furthermore, even if reasonable powers of preventive detention were necessary in West Pakistan to meet the case of any individual the security of Pakistan Act was available and at the time the impugned order of detention was actually made even the Defence of Pakistan Rules were available. Both of these contain ample provisions for detaining a person without trial. I am not in a position, there. fore, to say that Martial Law Regulation No. 78 was necessary for the ordinary orderly running of the State or for promoting the good of the people of West Pakistan. This Regulation cannot thus in my opinion, be justified even on the ground of necessity. It is interesting to note that one of the detenus before us; namely, Malik Ghulam Jilani, was originally arrested under rule 32 read with rule 213 of the Defence of Pakistan Rules "with a view to preventing him from acting in a manner prejudicial to security, public safety and interest and defence of Pakistan." It was only subsequently that the order of detention was substituted by an order under Martial Law Regulation No. 78, but this too added no new grounds and all that it stated was that "whereas dl is necessary to prevent Malik Ghularn Jilani son of late Khan Bahadur Nazar Muhammad Khan, resident of 131/L-1, Gulberg III, Lahore, from acting in a manner prejudicial to security, public safety and interest, and defence of Pakistan". It is obvious therefore, from these orders themselves that what could be done under Martial Law Regulation No. 78 could also be done under the Defence of Pakistan Rules. The only object of converting the order into an order under Martial Law Regulation No. 78 was to deprive the Courts of their jurisdiction to entertain any application against such detention under the terms of President's Order No. 3 of 1969. The latter Order too was clearly unnecessary, for, there is nothing to indicate that the Courts were, in any way, subverting the authority of Government or doing anything which could, by any stretch of imagination, be considered to be objectionable. In these circumstances, I have, for the reasons given above, come to the conclusion that both these orders were not only Illegitimate but were also incapable of being maintained on the ground of necessity. The result which follows from this conclusion is that both the detentions were, in my view, illegal and the High Court should have declared the impugned orders of detention to be void and of no legal effect. It remains now for me only to consider another argument advanced by the le rued Attorney-General that the attack is directed really against the present regime and not against the regime of General Agha Muhammad Yahya Khan. The learned counsel, on the other side, have all protested that this is not so but in order to leave no room for doubt I wish to make it clear that this decision is confined to the question in issue before this Court, namely, the validity of the Presidential Order No. 3 of 1969 and

Martial Law Regulation No. 78 of 1971 and has nothing whatsoever to do with the validity of the present regime. I am fully conscious of the fact that there were very important differences which may well have a bearing on this question. The circumstances may well have been totally dissimilar. Again since the preparation of this judgment further developments have taken place of which I am entitled to take notice. The National Assembly has met and ratified the assumption of power by the new President who is an elected representative of the people and the leader of the majority party in the National Assembly as now constituted. The Assembly has also, it is said, ratified an interim Constitution. Its terms are not known to the Court as yet but these developments may well hive radically altered the situation. However, since this question is not before this Court I refrain from expressing any definite opinion with regard thereto. Before I conclude this judgment I feel it my duty also to place on record my appreciation of the very able assistance given to this Court by all the learned counsel concerned. In particular I wish to express my gratitude to both Mr. A. K. Brohi and Mr. Sharifuddin Pirzada for the enormous amount of research undertaken by them and the willing assistance rendered by them as amicus curiae in spite of their heavy engagements elsewhere. In the result, therefore, I would allow both these appeals and declare both the impugned orders of detention to be void and without legal effect: The detenus should now be set at liberty forthwith unless they are being detained under any other order passed under any valid law.

MUHAMMAD YAQUB ALI, J.-These two appeals one filed by Miss Asma Jilani and the other by Mrs. Zarina Gauhar arise oat of habeas corpus 'petitions tiled by the first named in the; Punjab High Court for the release of her father Malik Ghulam Jilani and by the second named in the Sind Baluchistan High Court for the release of her husband Mr. Altaf Gauhar. Malik Ghulam Jilani was taken into custody on the 20th December 1971, by the order of the Governor of the Punjab under rule 32, sub-rule (1), clause (b) read with rule 213 of the Defence of Pakistan Rules, 1971, on the ground that it was necessary to prevent him from acting in a manner prejudicial to security, public safety, interest and Defence of Pakistan. On the 23rd December 1971, Miss Asma Jilani, filed a habeas corpus petition under Article 98(2)(b)(i) of the Constitution of 1962 questioning the detention of her father on more than one ground. A learned Judge issued rule to the respondent for :the 31st December 1971 to show cause as to why the order of detention be not set aside. On the 30th December 1971, the Governor rescinded the order of detention and simultaneously, ,in his capacity as Martial Law Administrator, Zone 'C', passed .an order under Martial Law Regulation 78, directing that Malik Ghulam Mint be detained in his house situated in Gulberg III, Lahore, till further orders under such Police custody as the District Magistrate, Lahore, may deem necessary. He was -further restrained from making any speech, statement or utterance which may be seditious or prejudicial to the security, the public safety or interest, the defence of Pakistan, the maintenance of public order, Pakistan's relations with any other power, the maintenance of peaceful conditions in any part of Pakistan or the maintenance of essential supplies and services ; he shall not meet any person without the prior approval of the District Magistrate, Lahore, except the present inmates of the said house :and shall be responsible to bear his own expenses including that of medical aid. On the 31st December 1971, Miss Asma Jilani obtained permission to file supplementary grounds in support of the habeas corpus petition and attacked the legality and propriety of the fresh order of detention. The case came up for hearing on 15th January 1972, before Shafiur Rahman, J.-whereupon the Advocate-General appearing for the respondent raised a preliminary objection that the High Court could not assume jurisdiction because of the bar captained in the Jurisdiction of Courts Removal of Doubts) Order 3 of 1969.

In reply the counsel for the petitioner contended that Martial Law Regulation 78 under which Malik Ghulam Jilani was being detained was not a part of the law of the land having been promulgated by a person who had usurped power by "waging war against Pakistan" and that he took power from Ayub Khan in violation of the provisions of the Constitution of 1962, to protect and defend which Constitution both Ayub Khan and Yahya Khan had taken oaths. It was further maintained that the provisions of Martial Law Regulation 78 and the Jurisdiction of Courts (Removal of Doubts) Order 3 of 1969, were controlled by Article 2 of the 1962-Constitution which envisaged due process of law. The petition was dismissed by the learned Judge on account of the bar contained in the Jurisdiction of Courts (Removal of Doubts) Order 3 of 1969 excluding the jurisdiction of Courts. including the High Courts and the Supreme Court to call in question any order passed by a Martial Law authority. Mr. Altaf Gauhar was taken into custody on the night between 4th and 5th February 1972, from his residence in Karachi., under the order passed by the Martial Law Administrator,, Zone `D', under Martial Law Regulation 78. It was provided in the order that Mr. Altaf Gauhar was to be detained for a period of six months and committed to the custody of the Superintendent, Central Prison, Karachi. This part of the order,, of detention was, however, not implemented, and he was detained, in a private bungalow in Karachi, but no one knew his whereabouts. Later on, he was taken to a rest house in the Sihala Police Training School and lodged there. On the following morning Mrs. Zarina Gauhar filed a habeas corpus petition in the High Court of Sind & Baluchistan under Article 98(2)(b)(i) of 1962-Constitution calling in question the detention of her husband as without lawful authority. It was pleaded that the arrest of Mr. Altaf Gauhar in an unknown place was without lawful authority as no warrant of arrest was served upon him or shown to him. nor the authority under which he may have been detained in custody was disclosed. It was further urged : (i) that even if it was hereafter urged that Mr. Altaf Gauhar was detained under Martial Law Regulation 78 the detention was illegal and without lawful authority inasmuch as the Martial Law Regulation 78 itself does not constitute the law of the land ; (ii) that Martial Law, even if It be the will of an individual, Martial Law Ruler, who seizes power, is not a heritable commodity and vanishes with the original proclaimer, ceasing to exercise power for any reason and that there was no separate and independent Proclamation of Martial Law or Emergency by the present Chief Martial Law Administrator ; and (iii) that the exercise, by a civilian, of Martial Law powers is fundamentally opposed to the concept of Martial Law which signifies Military rule. On the 7th February 1972, the petition was admitted the hearing by a Division Bench and a rule issued to the respondent for a date to be fixed in office. On the 11th of February: 1972, Mrs. Zarina Gauhar filed an application under section 497, Cr. P. C., read with Article 98(2)(b)(i) of 1962-Constitution for granting interim bail to Mr. Altaf Gauhar during the pendency of the hearing of the habeas corpus petition. The petition for bail was heard on the 18th February 1972,. and dismissed by Dorab F. Patel and Imdad Ally H. Agha, JJ.,with the observation that the counsel for the petitioner had failed to pursuade them that the Court had jurisdiction to grant rule against Martial Law order. For the same reasons the habeas corpus too was dismissed. In declining to interfere with the orders passed by Martial Law authorities, the High Courts of the Punjab and the Sind-Baluchistan relied on the judgment of this Court in the State v. Dosso and others (P L D 1958 S C (Pak.) 533). The following observations of Muhammad Munir, C. J.-were relied upon as conclusive and the validity of the Jurisdiction of Courts (Removal of Doubts) Order 3 of 1969 and Martial Law Regulation 78 of 1971;

"Thus a victorious revolution or a successful coup d'etat is an internationally recognised legal method of changing a Constitution. After a change of the Character, I have mentioned has taken place, the national legal order must for its validity depend upon the new law-creating organ. Even Courts lose their existing jurisdictions, and can function only to the extent and in the manner determined by the new Constitution." In support of the petition for leave to appeal, it was inter alia contended that the dictum in Dosso's case require consideration and that even if the view expressed in it was accepted as correct no victorious revolution or successful coup d'etat had taken place on the 25th March 1969, when Field Marshal Muhammad Ayub Khan stepped aside from the office of the President and invited General Agha Muhammad Yahya Khan as Commander-in-Chief of the Pakistan Army to perform his constitutional and legal duty and defend the country from internal disorder and chaos which was beyond the capacity of the Civil Government. It was questioned how could the Commander-in-Chief in those circumstances be said to have staged a victorious revolution, or a successful coup d'etat. Appeal was made by the learned counsel also to the oath taken both by Field Marshal Muhammad Ayub Khan and General Agha Muhammad Yahya Khan to preserve, protect and defend the 1962-Constitution which inter alia provided that "If the President was unable to perform the functions of his office, the Speaker of the National Assembly shall act as President and shall perform the functions of the President". The assumption of the office of the President ; abrogation of the 1962-Constitution ; and the dissolution of the National and Provincial Assemblies by General Agha Muhammad Yahya Khan by the Proclamation issued by him on the 26th March 1969, were, on this premises, claimed to be unlawful acts which Courts of Justice will not recognize. All the Martial Law Regulations and Orders promulgated by him as President and as Chief Martial Law Administrator which were not relatable to immediate restoration of law and order were on the same ground claimed to be unconstitutional, invalid and of no legal effect. Leave to appeal was granted as questions of fundamental importance involving interpretation of the 1962-Constitution and correctness of the decision in the State v. Dosso were involved. Before proceeding further we may notice briefly the constitutional developments which took place in Pakistan after it came into being on the 14th August 1947, consisting of two wings, namely, the Province of East Bengal in the East, and the Provinces of the Punjab, N.-W. F. P., Sind and Baluchistan in the West. The constitutional structure of the State was based on the Indian Independence Act, 1947 (10 and 11 Geo. 6, Ch. 30) and the Government of India Act, 1935 (26 Geo. 5, Ch. 2) as adopted by the Provisional Constitution Order, 1947. A constituent Assembly composed of Members from both Wings who had been elected earlier was to act both as the Constitution-making body and as Federal Legislature of Pakistan. These constitutional Instruments provided for a Federal Government and distribution of powers between the Executive. Legislative and Judicial organs of the State which is an essential element of a democratic State. Pakistan was faced with innumerable difficulties from the very start. Firstly, there was an influx of nearly ten million people from the Indian dominion who had as a result of violent disturbances which accompanied Partition of the sub-continent were uprooted from their hearths and homes and entered Pakistan as destitute refugees. The rehabilitation and settlement of these refugees pre-empted most of the time of the Government for a number of years. Secondly, Quaid-i-Azam Muhammad Ali Jinnah, Founder of Pakistan, in whom people had implicit faith and who served as a symbol of the unity of the Nation died in September 1948. He was succeeded by Khawaja Nazimuddin, who was then the Chief Minister of the Province of East Bengal. On the 11th September 1951, Khan Liaqat Ali Khan, the first Prime Minister, on whom the political mental of Quaid-i-Azam had fallen and who commanded obedience of the people throughout the country was assassinated. A tussle for grabbing power among persons who held positions of advantage in the Government thereupon ensued and under its weight the foundation of the State started quivering. Eventually Mr. Ghulam

Muhammad, an ex-Civil Servant, who was holding the portfolio of Finance became the Governor-General and Khawaja Nazimuddin as Leader of the majority party in the Constituent Assembly assumed the Office of the Prime Minister. In April 1953, Mr. Ghulam Muhammad dismissed Khawaja Nazimuddin and his Cabinet although he commanded clear majority in the Constituent Assembly and made another civil servant Mr. Muhammad Ali Bogra, Pakistan's Ambassador to the United States of America, as the Prime Minister. Among others General Muhammad Ayub Khan, Commander-in-Chief of Pakistan Army, joined his Cabinet as Defence Minister. This was the first constitutional mishap of Pakistan as Governor-General Mr. Ghulam Muhammad was only a constitutional head. He had to act on the advice given to him by the Prime Minister and under the Constitutional Instruments (Indian Independence Act, 1947, and the Government of India Act, 1935) he had no legal authority to dismiss the Prime Minister and assume to himself the role of a sovereign. On the 7th March 1949, the Constituent Assembly passed the Objectives Resolution which embodies the "will" of the historically first Legislature of the country. The Resolution declared as under ; "In the name of Allah, the Beneficent, the Merciful; Whereas sovereignty over the entire universe belongs to God Almighty alone and the authority which he has delegated to the State of Pakistan 'through its people for being exercised within the limits prescribed by him is a sacred trust; This Constituent Assembly representing the people of Pakistan resolves to frame a constitution for the sovereign independent State of Pakistan; Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed ; Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accord with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah; Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures; Whereby the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed; Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes; Wherein the independence of the judiciary shall be fully secured; Wherein the integrity of the territories of the Federation, its independence and all its rights including its sovereign rights on land, sea and air shall be safeguarded; So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity." Counsel for the appellants and the amicus curiae named the Resolution as Grund-norm of Pakistan. The Attorney-General appearing for Martial Law Administrator, Zone `D', described, it as an Instrument which embodied the ideology of Pakistan and which was the only bond of its unity. By 1954, the draft of the Constitution based on the Objectives Resolution had been prepared with the assent of the leaders of the various parties in the Constituent

Assembly when on the 24th October 1954, Mr. Ghulam Muhammad knowing full well that the draft Constitution was ready, by a Proclamation, dissolved the Constituent Assembly, and placed armed guards outside the Assembly Hall. This was the second great mishap of Pakistan. The order of the Governor-General was challenged by Maulvi Tamizuddin Khan, President of the Constituent Assembly, in the Chief Court of Sind by a Writ Petition filed under section 223-A of the Government of India Act, 1935, which was added by the Government of India (Amendment) Act, 1954, passed by the Constituent Assembly, on 16th July 1954. It empowered the High Courts to issue Writs of mandamus, certiorari, quo warranto and habeas corpus. The order passed by Mr. Ghulam Muhammad was challenged as unauthorised by the Indian Independence Act or the Government of India Act, void and of no legal effect. In defence of the Writ Petition, the Governor-General and the Members of the newly-constituted Cabinet, cited as respondents, Inter alia pleaded that the Chief Court of Sind had no jurisdiction to issue a Writ under the Government of India (Amendment) Act, 195-1, as it had not received the assent of the Governor-General. A Full Bench of the Chief Court overruled the objection raised by the respondents and held that the order dissolving the Constituent Assembly was illegal and issued a Writ restraining the Governor-General; his newly appointed Cabinet Ministers; their agents and servants from implementing or otherwise giving effect to the Proclamation of 24th October 1954, and from interfering directly or indirectly with the functions of the Constituent Assembly. The Governor-General and his Ministers thereupon filed an appeal in the Federal Court being Constitutional Appeal 1 of 1955 reiterating the objection that the Government of India (Amendment) Act, 1954, did not become a law as it had not received the assent of the Governor-General. By a majority judgment delivered by Muhammad Munir, C. J. the appeal was allowed and the writ petition was dismissed on the finding that the Constituent Assembly when it functioned under subsection (1) of section 8 of the Indian Independence Act acted as Legislature of the Dominion within the meaning of section 6 of the Act and that under subsection (3) of the later section, the assent of the Governor-General was necessary to all legislation and that since section 223-A of the Government of India Act under which the Chief Court of Sind issued the Writ had not received such assent, it was not yet law and, therefore, that Court had no jurisdiction to issue the Writs. Cornelius, J. (as he then was) differed with this view and recorded a dissenting judgment holding that neither the British sovereign nor the Governor-General as such was a part of the Constituent Assembly. The assent of the Governor-General was, therefore, not necessary to give validity to the laws passed by the Constituent Assembly. With great respect to the learned Chief Justice the interpretation placed by him on sections 6 and 8 of the Indian Independence Act, 1947, as a result of which the appeal was allowed, is ex facie erroneous though we do not propose to examine in detail the reason given in the judgment. Apart from the political cataclysm which the Proclamation of the 24th October, by Mr. Ghulam Muhammad brought into being a large number of laws passed by the Constituent Assembly which had from the very beginning not been placed before the Governor-General for assent were declared by the Court in the case of Maulvi Tamizuddin Khan as invalid. To meet this disaster the Governor-General purporting to act under section 42 of the Government of India Act promulgated an Ordinance called the Emergency Powers Ordinance IX of 1955 by which he sought to validate and to give retrospective effect to thirty-five constituent Acts which had been passed by the Constituent Assembly under subsection (1) of section 8 of the Indian Independence Act, 1947 (10 and 11 Geo. 6, Ch. 30). He also added a proviso to section 176 of the Government of India Act, 1935, forbidding "the bringing of suits or other proceedings against the Government or any Minister or Officer of the Government in respect of or arising out of anything done or omitted to be done by the Governor-General or by the Government or by any person under or in consequence of the Governor-General's

Proclamation under section 102 of the Government of India Act, 1935, which had been issued simultaneously with the Ordinance". On the 15th April 1955. the Governor-General summoned a Constituent Convention for the 10th May 1955, for the purpose of making provision as to the Constitution of Pakistan, and on the following day issued a Proclamation assuming to himself until other provision was made by the Constituent Convention such powers as were necessary to validate and enforce the laws that were needed to avoid a breakdown in the constitutional and administrative machinery of the country or to preserve the State and maintain the Government of the country in its existing condition, and in exercise of those powers retrospectively validated and declared enforceable the laws mentioned in the Schedule to the Emergency Powers Ordinance, 1955. The question of the validity of section 2 of the Emergency Powers Ordinance, 1955, came up before the Court in the case of one Asif Panel (P L D 1955 F C 387) within a few days of the decision in Maulvi Tamizuddin Khan's case. On the short ground that under section 42 of the Government of India Act, 1935, the Governor-General had no power to make by Ordinance any provision as to .the Constitution of the country. The Emergency Powers Ordinance IX of 1955 was held to be invalid whereupon the Governor-General made a Special Reference to the Federal Court which was answered on the 16th May 1955. Dealing with the validity of this action the Court expressed the opinion that the Constituent Assembly and not the Constituent Convention as was proposed to be set up by the Governor-General would be competent to exercise all powers conferred by the Indian Independence Act, 1947, and secondly that in the situation presented In the Reference, the Governor-General had during the interim period the power under the common law, special or state necessity of retrospectively validating the laws listed in the Schedule to the Ordinance, 1955, and all those laws now decided upon by the Constituent Assembly or during the aforesaid period shall be valid and enforced in the same way on which day they purported to have come into force. Cornelius, J.-as he then was differed with the opinion of the Court that the Governor-General could on the basis of the State necessity validate the laws which were declared invalid by the Federal Court and opined that there was no provision in the Constitution and no rule of law applicable to the situation, by which the .Governor-General can, in the light of the Court's decision in the case of Usif Patel by Proclamation or otherwise, validate laws enumerated in the Schedule to the Emergency Powers Ordinance, 1955, whether temporarily or permanently. In accordance with the opinion given by the Federal Court, a new Constituent Assembly was elected and it eventually succeeded in framing a Constitution which came into force on the 23rd March 1956. The Constitution provided for a federal Government with equal representation of peoples of both the Wings in the National Assembly (Article 44). Fundamental rights and an independent judiciary to enforce those rights were guaranteed. Article 5 provided that all citizens are equal before law and are entitled to equal protection of law and that no person shall be deprived of life or liberty save in accordance with law. Provision was made for preventive detention for a period not exceeding three months unless the Board consisting of persons, appointed by the Chief Justice of Pakistan in the case of a person detained under a Central Act and a Board consisting of persona nominated by the Chief Justice of the High Court of the Province in the case of a person detained under a Provincial Act reported that there was a sufficient cause for such detention. The Federal Government was to be headed by a President who under Article 35 (1) could be impeached on a charge of violating the Constitution or gross misconduct. He was to act as a constitutional head and under Article 37 was to act in accordance with the advice of the Cabinet or the appropriate Minister or Minister of State. To confer autonomy on the; Provinces, Article 107 provided that Provincial Legislature shall have an exclusive power to make laws with respect to any matter not enumerated in Federal, Provincial and Concurrent Lists. A National Assembly was yet to be elected under the 1956 Constitution when Mr. Iskander Mirza who had become the first President by a Proclamation issued on the 7th

October 1958, abrogated the Constitution; dissolved the National and. Provincial Assemblies and imposed Martial Law throughout the country : General Muhammad Ayub Khan, Commander-in-Chief of the Pakistan Army, mss appointed as the Chief Administrator of Martial Law. This was the third great mishap which hit Pakistan like a bolt from the blue. On the 10th October 1958, Mr. Iskander Mirza issued the Laws (Continuance in Force) Order (1 of 1958) which inter alia provided; "(1) Notwithstanding the abrogation of the Constitution of the 23rd March 1956, and subject to any order of the President or Regulation made by the Chief Administrator of Martial Law, the Republic, to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution." On the 13th October 1958, Criminal Appeals State v. Dosso and three other connected matters came up for hearing before the Court. The respondents in these cases were convicted by Council-of-Elders under the Frontier Crimes, Regulation 3 of 1901. The High Court of West Pakistan (Quetta Seat) 'set aside their convictions on the finding that Frontier Crimes Regulation being repugnant to Article 5 of the Constitution, the convictions were bad in law. The question raised by the Court was whether under Article 7 of the Laws (Continuance in Force),Order, 1958, the writs issued by the High Court under Article 170 of the Constitution setting aside the convictions of the respondents had abated. Delivering the majority judgment of the Court Munir, C. J. held that as Article 5 of the late Constitution itself had now disappeared from the new Legal Order, the Frontier Crimes Regulation (III of 1901) was by reason of Article IV of the Laws (Continuance in Fore) Order, 1958, still in force and all proceedings in cases in which the validity of that Regulation had been called in question having abated the convictions of the respondents recorded by the Council-of-Elders was good. The conclusion reached by the learned Chief Justice proceeded on the following reasons; "As we will have to interpret some of the provisions of this Order, it is necessary to appraise the existing constitutional position in the light of the juristic principles which determine the validity or otherwise of law-creating organs in modern States which being members of the comity of nations are governed by International Law. In judging the validity of laws at a given time, one of the basic doctrines of legal positivism, on which the whole science of modern jurisprudence rests, requires a jurist to presuppose the validity of historically the first Constitution whether it was given by an internal usurper, an external invader or a national hero or by a popular or other assembly of persons. Subsequent alterations in the Constitution and the validity of all laws made thereunder is determined by the first Constitution. Where a Constitution presents such continuity, a law once made continues in force, until it is repealed, altered or amended in accordance with the Constitution. It sometimes happens, however, that a Constitution and the national legal order under it is disrupted by an abrupt political change not within the contemplation of the Constitution. Any such change is called a revolution, and its legal effect is not only the destruction of the existing Constitution but also the validity of the national legal order. A revolution is generally associated with public tumult, mutiny, violence and bloodshed but from a juristic point of view the method by which and the persons by whom a revolution is brought about is wholly immaterial, The change may be attended by violence or it may be perfectly peaceful. It may take the form of a coup d'etat by a political adventurer or it may be effected by persons already in public positions. Equally irrelevant in law is the motive for a revolution, inasmuch as a destruction of the constitutional structure may be prompted by a highly patriotic Impulse or by the most sordid of ends. For the purposes of the doctrine here explained a change is, in law, a revolution if it annuls the Constitution and the annulment is effective. If the attempt to break the Constitution fails those who sponsor or organise it are judged by the existing Constitution as guilty of the crime of treason. But if the revolution is victorious in the sense that the parsons assuming power under the change can successfully require the inhabitants of the country to conform to the new regime, then the revolution itself becomes a law-creating fact because thereafter its own legality is judged not by reference to the annulled Constitution but by reference to its own success. On the same principle

the validity of the laws to be made thereafter is judged by reference to the new and not the annulled Constitution. Thus the essential condition to determine whether a Constitution has been annulled is the efficacy of the change. In the circumstances supposed no new State is brought into existence though Aristotle thought otherwise. If the territory and the people remain substantially the same, there is, under the modern juristic doctrine, no change in the corpus or international entity of the State and the revolutionary Government and the new constitution are, according to International Law, the legitimate Government and the valid Constitution of the State. Thus a victorious revolution or a successful coup d'etat is an internationally recognised legal method of changing a Constitution. After a change of the character I have mentioned has taken place, the national legal order must for its validity depend upon the new law-creating organ. Even Courts lose their existing jurisdictions, and can function only to the extent and in the manner determined by the new Constitution. While on this subject, Hans Kelsen, a renowned modern jurist, say;-"From a juristic point of view, the decisive criterion of a revolution is that the order in force is overthrown and replaced by a new order in a way which the former had not itself anticipated. Usually, the new men whom a revolution brings to power annul only the constitution and certain laws of paramount political significance, putting other norms in their place. A great part of the old legal order remains valid also within the frame of the new order. But the phrase 'remains valid', does not give an adequate description of the phenomenon. It is only the contents of these norms that remain the same, not the reason of their validity. They are no longer valid by virtue of having been created in the way the old constitution prescribed. That constitution is no longer in force; it is replaced by a new constitution which is not the result of a constitutional alteration of the former. If laws which are introduced under the old constitution continue to be valid under the new constitution, this is possible only because validity has expressly or tacitly been vested in them by the new constitution . . . . . . The laws which, in, the ordinary inaccurate parlance, continue to be valid are, from a juristic viewpoint, new laws whose import coincides with that of the old laws. They are not identical with the old laws, because the reason for their validity is different. The reason for their validity is the new, not the old, constitution, and between the two continuity holds neither from the point of view of the one nor from that of the other. Thus It is never the constitution merely but always the entire legal order that is changed by a revolution. "This shows that all norms of the .old order have been deprived of their validity by revolution and not according to the principle of legitimacy. And they have been so deprived not only de facto but also de jure. No jurist would maintain that even after a successful revolution the old constitution and the laws based thereupon remain in force, on the ground that they have not been nullified in a manner. anticipated by the old order itself. Every jurist will presume that the old order-to which no political reality any longer corresponds-has ceased to be valid, and that all norms, which are valid within the new order, receive their validity exclusively from the new constitution. It follows that, from this juristic point of view, the storms of the old order can no longer be recognised as valid norms. (General Theory of Law and State translated by Anders Wedberg, 20th Century Legal Philosophy Series, pp. 117-118). Bearing in mind the principle just stated let us now approach the question involved in these cases. If what I have already stated is correct, then the revolution having been successful it satisfies the test of efficacy, and becomes a basic law-creating fact. On that assumption the Laws (Continuance in Force) Order, however transitory or imperfect it may be, is a new legal order and it is in accordance with that order that the validity of the laws and the correctness of judicial decisions has to be determined." The rest of the judgment dealing with the interpretation of the Laws (Continuance in Force) Order and their effect on pending cases with which we are not concerned.

The judgment in State v. Dosso set the seal of legitimacy on the Government of Iskander Mirza though he himself was deposed from office by Muhammad Ayub Khan, a day after the judgment was delivered on the 23rd October 1958, and he assumed to himself the office of the President. The judgments In the cases Maulvi Tamizuddin Khan ; Governor-General Reference 1 of 1955 and The State v. Dosso had profound effect on the constitutional developments in Pakistan. As a commentator has remarked, a perfectly good country was made into a laughing stock. A country which came into being with a written Constitution providing for a parliamentary form of Government with distribution of State power between the Executive, Legislature, and the Judiciary was soon converted into an autocracy and eventually degenerated into military dictatorship. From now onwards people who were the recipients of delegated sovereignty from the Almighty, ceased to have any share in the exercise of the State powers. An all omnipotent sovereign now ruled over the people in similar manner as the alien commander of the army who has conquered a country and "will" alone regulates the conduct and behaviour of the subjugated populace. Martial Law remained in force till the 7th of June 1962, when in pursuance to a Mandate he had obtained by some kind of referendum Muhammad Ayub Khan gave a Constitution to the country. Under it he himself became the first President ; revoked the Proclamation of 7th October 1958 and lifted Martial Law. By and large the people accepted the Constitution and among others the Judges of the Supreme Court and High Courts took oath of office under this Constitution. All legislative and administrative acts of Martial Law authorities and the President between 7th October 1958, and 7th June 1962, were validated by this Constitution. Some were continued as Central Acts while others were repealed. Article 250 inter alia provided : Where a law is repealed ; the repeal shall not affect the previous operation of the law or anything duly done or suffered under the law, affect any right, privilege or liability, any penalty etc. Action taken under all Martial Law Orders, Martial Law Regulations, Presidential Orders and Ordinances issued between 7th October 1958 to 7th June 1962, were thereby validated. In early 1965 Muhammad Ayub Khan was re-elected as President. The general impression in the country was that the election was rigged. Towards the end of 1958, an agitation started against his despotic rule and the undemocratic Constitution which he had imposed on the country. the agitation gathered momentum every day and was accompanied by widespread disturbances throughout the country. In February 1969, Muhammad Ayub Khan called a round table conference of political leaders for resolving the political issues which had led to the disturbances. A solution was near insight, when all of a sudden Muhammad Ayub Khan decided to relinquish the office of the President and asked the Defence Forces to step in as it was "beyond the capacity of the Civil Government to deal with the present complex situation. In the letter written to the Commander-in-Chief on the 24th March 1969, Muhammad Ayub Khan said; "It is your legal and constitutional responsibility to defend the country not only against external aggression, but also to save it from internal disorder and chaos. The nation expects you to discharge this responsibility to preserve the security and integrity of the country and to restore normal social, economic and administrative life, let peace and happiness be brought back to this anguished land of 120 million people." The Mandate given by the outgoing President to the Commander-in-Chief was thus to fulfil his constitutional responsibilities; to restore law and order; and to carry out his legal duty in this behalf. Muhammad Yahya Khan. Commander-in-Chief, who had taken an oath, that he will be faithful to the Constitution of 1962 and to Pakistan, however, in disregard of his constitutional and legal duty by a Proclamation issued on the 26th March 1969, abrogated the Constitution; dissolved the National and Provincial Assemblies and imposed Martial Law throughout the country. This was the fourth great constitutional mishap which befell Pakistan in less than 16 years. On the 31st March 1969, Yahya Khan promulgated the Provisional Constitution Order which with some variations followed the scheme of the Laws (Continuance in Force) Order, 1958. It was provided that no judgment, decree, writ or process whatsoever shall

be made or issued by any Court or tribunal against the Chief Martial Law Administrator, Deputy Chief Martial Law Administrator or any Martial Law authority exercising power or jurisdiction under the authority of either (Article 3). Article 5 provided that; "5. No Court, tribunal or other authority shall call or permit to be called in question: (a) the Proclamation ; (b) any order made in pursuance of the Proclamation or any Martial Law Regulation or Martial Law Order ; or (c) any finding, sentence or order of a Special Military Court or a Summary Military Court. Article 7 (2) laid down that : "Any provision in any law providing for the reference of a detention order to any Advisory Board shall be of no effect". On 30th of June 1969, a Full Bench of the Punjab High Court in the case Mir Hassan and others v. The State (1) declared that Martial Law Regulation 42 by which the case pending against the petitioner under section 5 (2) of the Prevention of Corruption Act It of 1947 in the Court of a Special Judge was transferred to a Military Court was, in view of the Provisional Constitution Order and Martial Law Regulation 3, without jurisdiction and of no legal effect. It was observed by the learned Judges: " Article 2 of Constitution (1962), declares that `every citizen of Pakistan is entitled to the protection of the law and to be treated in accordance with law and only in accordance with law . . . . .' The Article provides that no person shall be deprived of life, liberty, body, reputation or property without due process of law. It further declares that any public functionary or person taking any action affecting the life, liberty, body, property or reputation of a person or affecting his profession, trade or business must rely on some law to justify his action. In other words, every public functionary or person must show legal authority for interference with the right of another person. Thus a direction or order by a public functionary would be invalid if it does not have the backing of a valid contemporaneous law. The Chief Martial Law Administrator by preserving Article 2 of the 1962-Constitution had made it clear once for ail that the intention of the Government was to act in accordance with law. Therefore, the action of any authority including Martial Law authority howsoever high (1) P L D 1969 Lah. 786 he may be, if it had not the backing of a constitutional provision was not immune from being struck down by the Courts of the country." To overcome the decision of the High Court the Chief Martial Law Administrator on the same day promulgated Jurisdiction of Courts (Removal of Doubts) Order 3 of 1969. Articles 3 and 4 of the Order provided: "3. (1) No Court, tribunal or other authority, including the Supreme Court and a High Court, shall -(a) receive or entertain any complaint, petition, application or other representation whatsoever against, or in relation to the exercise of any power or jurisdiction by, any Special Military Court or Summary Military Court, or any Martial Law Authority or any person exercising powers or jurisdiction derived from Martial Law Authority; (b) call or permit to be called in question in any manner whatsoever any finding, sentence, order, proceeding or other action of, by or before a Special Military Court or a Summary Military Court or any Martial Law Authority or any person exercising powers or jurisdiction derived from a Martial Law Authority ; (c) issue or make any writ, order, notice or other process whatsoever to or against, or in relation to the exercise of any power or jurisdiction by, a Special Military Court or a Summary Military Court, or any Martial Law Authority or any person exercising powers or jurisdiction derived from a Martial Law Authority.

(2) Any decision given, judgment passed, writ, order, notice or process issued or made, or thing done in contravention of clause (i) shall be of no effect. (3) If any question arises as to the correctness, legality or propriety of the exercise of any powers or jurisdiction by a Special Military Court or a Summary Military Court or a Martial Law Authority or any other person deriving powers from a Martial Law Authority, it shall be referred to the Chief Martial Law Administrator whose decision thereon shall be final. (4) If any question arises as to the interpretation of any Martial Law Regulation or a Martial Law Order, it shall be referred to the Martial Law Authority issuing the same for decision and the decision of such Martial Law Authority shall be final and shall not be questioned in any Court, Tribunal or other authority, including the Supreme Court and a High Court." The Order was given retrospective effect from 25th March 1969, and was to override anything contained in the Provisional Constitution Order, any Martial Law Regulation or any other law for the time being in force. If any question arose as to the interpretation of any Martial Law Regulation or any Martial. Law Order. it was to be referred to the Martial Law authority issuing the same and the decision of the said authority will be final and cannot be questioned in any Court, tribunal or any other authority including the Supreme Court or a High Court. On the 30th March 1970, Yahya Khan promulgated the Legal Framework Order and under its provisions, elections were held in December 1970, to the National and Provincial Assemblies under the supervision of a Judge of this Court acting as the Chief Election Commissioner. After a good deal of political manoeuvring, the National Assembly was summoned by Muhammad Yahya Khan for the 3rd March 1971. However, shortly before that he postponed the session indefinitely. Awami League, the dominant political party of East Pakistan and who held a clear majority in the National Assembly reacted to this decision very sharply. To meet the situation Military action was taken on the 25th March 1971, which lasted for several months. These strong measures had, however, no effect on the events which were shaping fast in the Eastern Wing. It led to an armed surrection by Awami League and their supporters. On the 20th November 1971, Indian Armed Forces attacked East Pakistan and on 3rd December 1971, they attacked all along the West Pakistan border and the cease-fire line in Kashmir. On the 16th December Pakistan Army in East Pakistan surrendered to the Indian Army and with the fall of Dacca on that day, the curtain fell on the illegal regime of Muhammad Yahya Khan for ever. He resigned his office on the 20th December 1971, and was placed under arrest. The history of the constitutional mishaps which befell Pakistan between 1953 and 1969 bringing ruination, and untold miseries to its 120 million people, forms the overcast background against which the Court is required to answer the questions which fall for decision in the two appeals. Firstly, weather the proclamation of the 26th March 1969, abrogating the 1962 Constitution, became a law creating fact, and the Courts lost their exiting jurisdiction could function only to the extent and in the manner determined by the "Laws" promulgated by Muhammad Yahya Khan ; secondly, what is "Law" and what should be its form and content to obtain recognition from Courts of justice; thirdly, whether the Executive and Legislative organs of the State can deny to the Courts, the performance of their judicial functions; and, fourthly, what is the true import of Hans Kelsen's Theory on which the decision in The State v. Dosso is based and whether it would be acted upon by Municipal Courts. The arguments raised by Mr. Manzur Qadir, counsel for Mrs. Zarina Gauhar, may be paced in three different sections : (i) that the abrogation of the Constitution of 1962 and imposition of Martial Law by General Muhammad Yahya Khan by Proclamation of March 1969, for purposes other than immediate restoration of law and order was unconstitutional and did not at any point of time acquired legal sanctity ; (ii) that enforceability of laws is dependent on their recognition by Courts and only "those laws" promulgated by Agha Muhammad Yahya Khan may be recognized by Courts as are

covered by the doctrine of State necessity ; and (iii) that "laws" which purport to deprive Courts of their legal functions and are repugnant to the basic laws of Pakistan viz. Objectives Resolution of the 7th March 1949, are void and of no legal effect. Mr. M. Anwar appearing for Miss Asma Jilani went a step further and pleaded that notwithstanding the consequences, all legislative measures adopted by Agha Muhammad Yahya Khan being tainted with illegitimacy should be discarded enmass. The Attorney-General conceded that the decision in State v. Dosso did not lay down the law correctly and stated that it encouraged revolutions and was a standing invitation to future adventurers. He, however, maintained that as a large number of laws were promulgated and actions taken under them both during the regime of Muhammad Ayub Khan and Muhammad Yahya Khan, the Court may uphold those laws under the doctrine of stare decisis. He also conceded that clause (a) of Article 3 of the Jurisdiction of Courts (Removal of Doubts) Order 3 of 1969 in so far as it purported to deprive the citizens from approaching Courts of law by providing that no Court will "receive" any complaint, petition, application or other representation whatsoever was a bad law as it purported to deprive the Courts of their judicial functions which include the jurisdiction to determine whether their jurisdiction to entertain a cause is excluded bylaw. He further agreed that "law" is that which is recognized by Courts and relied on the order passed by this Court in Mian Fazal Ahmad v. The State (1970 S C M R 650) in which a Bench of this Court declined to give leave to appeal from the order of the High Court of Punjab, whereby a petition filed by the petitioner under section 561-A, Cr. P. C. in that case to call in question the registration of a case against him under the Sea Customs Act was dismissed on the ground that in the meantime a Military Court had tried and convicted him. It was argued that this Court having already recognized President's Order 3 of 1969 as a law, should not go behind that decision. As regards the legality of the Proclamation of the 26th March 1969, issued by Muhammad Yahya Khan; the Attorney-General relied on the theory that habitual obedience by people makes the de facto rule of a usurper de jure. Finally, the Attorney-General posed the question that if the "Laws" promulgated by Muhammad Yahya Khan were illegitimate, as contended by the counsel for the appellants, what will happen to the elections to the National Assembly and the Provincial Assemblies which were held under the Legal Framework Order promulgated by Yahya Khan on 30th March 1970. The Advocates-General for the Provinces of Punjab, Sind, N. W. F. P. and Baluchistan did not address the Court. Mr. A. K. Brohi (amicus curiae) first argued the question that Courts of law are, as a matter of legal obligation, bound by the dictates of the 1962-Constitution and have not been absolved of that legal obligation by taking cognizance of the ties authority destructive of the established legal order. He also questioned the nature of the new legal order based on the system officially described as Martial Law. In his opinion this system was not regulated by any set of legal principles known to jurisprudence and was merely contingent on the will and whim of one man. If so, then what was the legal status of Courts which accept that their authority stems from one man of unbridled will? He referred in this respect to the oath of office taken by the Judges under the 1962-Constitution and maintained that Judges have since then not taken any oath per contra or by means of any legal or formal document accepted or declared their allegiance to any other source of legal authority. He also attacked the decision in Dosso's case and analysed Kelsen's theory on which that decision is based. It was argued that Kelsen's theory that a victorious revolution and successful coup d'etat are law-creating facts is a mere theory of law as distinguished from law itself. The function of a theory of law is to explain or to describe the nature of law or the nature of a legal system. It is, however, itself not a part of legal system or the law which it seeks to describe. This according to Mr. Brohi was the central fallacy in the judgment given by Muhammad Munir, C. J. He referred to a remark by Kelsen in "What is justice" (page 268) "the propositions of jurisprudence are not themselves norms. They establish neither duties nor rights. Norms by which individuals are obligated and empowered issue only from the law-creating authority. The jurist, as the theoretical exponent of the law, presents these norms in propositions that have a purely descriptive sense, statements which only describe the "ought" of the legal norm. It

is of the greatest importance to distinguish clearly between legal norms which comprise the object of jurisprudence and the statements of jurisprudence describing that object. These statements were called "rule of law" in contradistinction to the "legal norms" issued by the legal authority. Mr. Brohi next referred to the decision in the case of Madzimbamuto v. Lardner Burke ((1968) 3 All E R 561) in which Kelsen's theory of effectiveness was applied. This case is mentioned by some authors as the grund-norm case. He pointed out that the decision fn this case was the maximum success which Kelsen could have conceivably envisaged. Mr. Brohi further explained the nature of Martial Law (i) as a law regulating discipline and other matters determining the rules of conduct applicable to the Armed Forces; (ii) law which is imposed on an alien territory under occupation by an Armed Force of which the classic definition was given by the Duke of Willington when he stated in a debate in the House of Lords in 1851 as follows; "Martial Law is neither more nor less than the will of the General who commands the Army. In fact, Martial Law means no law at all." and (iii) law which relates to and arises out of a situation in which the Civil power is unable to maintain law and order and thus of necessity the Military power has to resort to the use of force In order to re-create conditions of tranquillity in which the civil power can re-assert its authority. Reference was made to decided cases that the Courts of law have the authority to determine the Jurisdiction for the imposition of this type of Martial Law and also to make pronouncements regarding its valid continuance on its objective analysis of factual situation, i.e., whether the Civil power is really unable to assert itself in the maintenance of law and order and the continued presence of the military power is essential (R. V. Strickland) (i). In this connection Mr. Brohi referred to the Proclamation of Martial Law, and the radio broad. c Sat of Muhammad Ayub Khan in which he said ; "The whole nation demands that General Yahya Khan, the Commander-in-Chief of Pakistan Army, should fulfil his constitutional responsibilities"...That "the security of the country demands that no impediment be placed in the way of the defence forces and they should be enabled to carry out freely their legal duties," and the letter he wrote to Muhammad Yahya Khan on 24th March 1969 to which reference has already been made earlier. He also referred to the first speech of Muhammad Yahya Khan in which he said : "My sole aim in imposing martial law is to protect life, liberty and property of the people and put the Administration back on the rails" and again "it is my firm belief that a sound, clean and honest administration is a pre-requisite for sane and constructive political life and for the smooth transfer of power to the representatives of the people elected freely and Impartially on the basis of adult franchise. It will be the task of these elected representatives to give the country a workable constitution and find a solution of all other political, economic and social problems that have been agitating the minds of the people". This document in the opinion of Mr. Brohi leaves no doubt that the Martial Law which was imposed on the 26th March 1969, fell in the third category. The various actions taken by Yahya Khan under the umbrella of Martial Law, however, proved that in practice the Martial Law imposed by him fell in the second category. That is, law which is imposed by invading army on a conquered territory, because it is only then as stated by the Duke of willington that the will of the army commander is law. 1f this be so, then the entire structure of all institutions in Pakistan including the superior Courts are merely an expression or aspect of one man's will, which a victorious military commander imposes no an alien territory and subjugated populace. Continuing Mr. Brohi pointed out that the characteristic of all forms of civilised Government is that the structural distribution of power is regulated by law in a manner that every functionary, no matter so highly placed, Is the servant of the law, should a system of Government exist in which power is regulated and derived not from law, but from force such a system cannot claim to be a legal system of Government whatever else it may be. Dealing with the transfer of power by Muhammad Ayub Khan to Muhammad

Yahya Khan he said that with the abrogation of 1963 Constitution not only the legal limitations on the exercise of power, but also the legal basis and source of power disappeared. Power conferred by the 1962-Constitution on the President vested in Muhammad Ayub Khan only by virtue of the Constitution. He had no other source of power outside it. His capacity to exercise transfer of power was thus contingent on the continuance of the 1962-Constitution. The transfer of power to the Commander-in-Chief by Muhammad Ayub Khan was to perform his constitutional obligations to restore law and order. He had no capacity to transfer total power of the State to Muhammad Yahya Khan. His act in transferring power to Yahya Khan was, therefore, a nullity. In any case the transfer was to be a limited power, ad hoc and temporary under which Yahya Khan could not have conceivably enjoyed unlimited power. Lastly, Mr. Brohi argued that in Pakistan the real sovereign is God Almighty and the State of Pakistan has a limited power of which it is a recepient as a trustee or a delegatee. On this hypothesis he argued that the will of one man was repugnant to the grund-norm of Pakistan, viz. the Objectives Resolution and in Pakistan no single man could be the sole repository of state power. He referred to a passage from his book "The Fundamental Laws in Pakistan" that according to the Western Jurisprudence, legal sovereign are the people who give the first constitution; that in Pakistan the first sovereign is God Almighty and the power received from Him as a delegatee or a trustee is to be exercised by chosen representatives of the people and not by the will of one man. Mr. Sharifuddin Pirzada (amicus curiae) supported the views expressed by Mr. A. K. Brohi that the abrogation of the 1962Constitution by Yahya Khan was illegal and in excess and abuse of the mandate given to him by Ayub Khan. Yahya Khan acted against his oath of office that he will be faithful to the Constitution and owe allegiance to Government of Pakistan. The decision in State v. Dosso was challenged by him on the grounds :-(i) that it was given in complete violation of rule of natural justice. Mr. Yahya Bakhtiar, the present Attorney-General, who was then counsel for Toti was not then allowed to challenge the vires of the Laws (Continuance in Force) Order (1 of 1958) ; (ii) Munir, C. J. disclosed after retirement that the decision was not based on judicial considerations ; (iii) the decision was even fn disregard of oath of office of the Judges. He referred in this connection to the decision of the Court in Fazlul Quader Chowdhury v. Mr. Mohammad Abdul Haq ; (iv) the decision purported to legalise the so-called revolution without any conditions which authorised absolutism and sanctioned that might is right ; (v) interpretation of Kelsenian theory of grund-norm in the judgment is absolutely incorrect. He pointed out that Kelsen has revised his own theory of grund-norm which is now called apex norm. (vi) that "effectiveness" was not the only criterion of legitimacy ; and (vii) that the doctrine of state necessity was overlooked by the Court. As regards illegal usurpation of power by Yahya Khan, Mr. pirzada referred to cases from Uganda, Nigeria, Rhodesia and Cyprus. Two other points were made by Mr. Pirzada (i) that the doctrine of stare decisis has no application to the present case; and (ii) that Kelsen's theory on which the decision in Dosso's case is based is adversely criticised by some well-known jurists. He also traced the history of Martial Law promulgated in the sub-Continent between 1804 to 1953. He relied among others on the following decided cases : (1) 18 Lawyers Edition 281 1 (2) 87 Lawyers Edition 1 ; and (3) 90 Lawyers Edition 688.

We will first deal with the validity of the Proclamation issued on the 26th March 1969, abrogating the Constitution of 1962 and imposing Martial Law throughout the country. The legal mandate was to restore law and order, but in practice Yahya Khan used it for the purpose of setting up his personal rule. His will was to be the supreme law and all national institutions including Courts of justice were to function to the extent and in the manner permitted by him. He, accordingly, issued a large number of Martial Law Orders and Martial Law Regulations and Presidential Orders and Ordinances which were not at all germane to his "Constitution" and "Legal" duties. Though Dacca fell on the 16th December 1971, and East Pakistan declared itself an independent State under the name Bangla Desh, Yahya Khan had the draft of a Constitution prepared which was to be promulgated on the 20th December 1971, by a proclamation. Article 16 of the draft Constitution which was printed by the Government of Pakistan, Ministry of Law and Parliamentary Affairs (Law Division) provided :"16. Notwithstanding anything contained in this Constitution : (a) the first President of Pakistan under this Constitution shall be General Agha Muhammad Yahya Khan, H.Pk., H.J.; (b) General Agha Muhammad Yahya Khan, H.Pk., H. J., may continue to hold also the post of Commander-in-Chief of the Pakistan Army for a period not exceeding five years commencing on the date of coming into force of this Constitution ; and Article 260 which should be read in continuation of Article 16 provided further that the Commander-in-Chief of the Pakistan Army may declare Martial Law and shall be revoked only by the Commander-in-Chief. After Martial Law is imposed "(4) It shall be within the power of the Commander-in-Chief of the Pakistan Army who shall be the Chief Martial Law Administrator to suspend for the duration of the Martial Law, or any shorter period as may be specified, the operation of specified provisions of this Constitution, but the said Principal Authority shall not have power to abrogate this Constitution." These two provisions of the Constitution which Yahya Khan proposed to impose on the country provide historical evidence of his mala fide intention not to transfer power to the people although he made them believe all along that he was holding the office of President temporarily to arrange smooth transfer of power to the people. In view of the facts narrated above, it cannot be maintained that the people had by and large, knowingly accepted the Government of Yahya Khan and his Order as legal and by habit given obedience to his Government. He had staged no victorious revolution or a successful coup d'etat. The Kelsenian theory of the change of the basic norm did not, therefore, apply to the facts in which Yahya Khan had come to assume the State powers. He obligated the people to obey his behests, but in law they incurred no obligation to obey him. Another view is that the Judges of Municipal Courts who have takes oath of office to preserve, protect and defend the Constitution will not break the oath and declare that because of the superior will of the usurper they have been relieved from their legal obligations. If the Judges find the executive organ of the State unwilling to enforce their decrees and orders, the only course open to them is to vacate their office. Those who are desirous of serving the usurper may take office under the Legal Order imposed by him, but this depends upon the discretion and personal decision of the Judges and has no legal effect. If they adopt the second course they will be acknowledging that "might" is "right" and become collaborators with the usurper. The same result is achieved if they foreswear their oath and accept as valid the destruction of the national order and confer recognition on the legislative, administrative, and executive acts of the usurper. In Fazlul Quader Chowdhry v. Mr. Muhammad Abdul Haque (PLD 1963 S C 486 ) this Court observed : ----

"The reasons why the Judges of the Supreme Court and the High Courts have to take a similar oath can in my opinion be found within the simple provisions of Article 58. It is there provided for all persons in Pakistan that in my case where it becomes necessary for them to assert in their interest, any provisions of the Constitution, they shall have access to the High Courts and through the High Courts to the Supreme Court as of right, and these two Courts are bound by their oath and duty to act so as to keep the provisions of the Constitution fully alive and operative, to preserve it in all respects safe from all defeat or harm, and to stand firm in defence of its provisions against attack of any kind. The duty of interpreting the Constitution is, in fact a duty of enforcing the provisions of the Constitution in any particular case brought before the Courts in the form of litigation." It should be remembered in this connection that, however, effective the Government of a usurper may be, it does not within the National Legal Order acquire legitimacy unless the Courts recognize the Government as de jure. International law is not concerned with these considerations. If a rebel Government has succeeded in gaining effective control over people and territory the other States may recognize it. But will the same rule apply to-the Municipal Courts. East Pakistan today provides a classic example of a successful revolution which destroyed the National Legal Order and became a new law creating fact. East Pakistan has declared its self independence and became a separate State under the name of Bangla Dash. Pakistan claims that East Pakistan is a part of Pakistan, but a large number of States have already recognized it as an independent State. New Courts and Government services have been constituted in Bangla Desh which do not operate under the Legal Order of Pakistan. On these facts if a dispute arises involving the determination whether the new Government of East Pakistan is de jure, will the Municipal Courts of West Pakistan confer recognition on it, because a victorious revolution is a legal method of changing the Constitution and the new order has become efficacious as the individuals whose behaviour the new order regulates actually behave by and large in conformity with new order. The answer is obvious. While under International law, East Pakistan has become an independent State, the Municipal Courts of Pakistan will not confer recognition on it or act upon the legal order set up by the rebel Government. The Kelsen theory on which the Attorney-General relied for the proposition that the Government of Yahya Khan was de jute and the "laws" promulgated by him are valid is, therefore, wholly inapplicable to Municipal Courts. Yahya Khan's Government, therefore, remained de facto and not de jute up to 20th December 19.71, when he stepped aside. To determine whether the Martial Law Orders, Martial Law Regulations, Presidential Orders and Ordinances issued by him may be recognised by Courts, we must first turn to the definition of "law" as Article 2 of the Constitution of 1962, which remained operative either by its own vitality or by virtue of the Provisional Constitution Order dated 30th March 1969, provided in unequivocal terms ; "2.-(1) To enjoy the protection of law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. (2) In particular(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except !n accordance with law ; (6) no person shall be prevented from, or be hindered in, doing that which is not prohibited by law-; and (c) no person shall be compelled to do 'that which the law does not require him to do." "Law" was not defined in the Constitution. It is, therefore, for the Courts to lay down what 'law' is, and if any decree, or behest of Yahya Khan expressed as a Martial Law Order, G Martial Law Regulation or Presidential Order, or Ordinance, does not conform

to the meaning of the term 'law' in Article 2 these Regulations, Orders and Ordinances will be void and of no legal effect. In Introduction to "Law In the Making" C. K. Allen mentions two antithetic conceptions of growth of law t (i) law is which is Imposed by a sovereign will ; and (ii) law which develops within society of its own vitality. He criticises Austin who defined "law" as the will of the sovereign and points out that whatever be the constitutional Instrument which secures observance and enforcement of law -and some sanction of this kind is certainly indispensable-there is no historical justification for the view that this power always and necessary be determinate, "human superior" which at the same time creates all law. It is Impossible in every form of society governed by law to disengage and personify a "sovereign" as thus understood, with the artificial precision which Hobbs and Austin assume. Salmond describes "law" as body of principles recognized and applied by the State in the administration of justice as the rules recognised and acted by Courts of justice. All the theories of law are at one in viewing law as consistent of rules. Such rules are regarded by natural law as dictates of reason, by positivism as decrees of the sovereign and by realism as the practice of the Courts. The central notion of the natural law theory is that there exist objective moral principles which depend on the essential nature of the universe and which can be discovered by natural reason, and that ordinary human law is only truly law in so far as it conforms to these principles These principles of justice and morality constitute the natural law which is valid of necessity, because the rules for human conduct are logically connected with truths concerning human nature. Diametrically opposed to the theory of natural law is the positivist, or imperative theory of law, it seeks to define law not by reference to its condition, but according to the formal criteria which differentiate legal rule from other source such as those of morals, etiquette. and so on. It is a type of command, it is laid by a political sovereign and is enforceable by sanction. Realism, like positivism, looks on law as the expression of the will of the State as made through the medium of the Courts. According to Holmes law is really what the Judge decides. This great American Judge sowed the seed of the American realism in a famous paper in which he put forward a novel way of looking at law. If one wishes to know what law is, he said, one should view it through the eyes of a bad man, who is only concerned with what will happen to him if he does certain things. The prophecies of what the Courts will do to the bad man, in the opinion of justice Holmes, is what he means by the law. Paton defines "law" as the rules recognised and acted by Courts of justice. Dugit's definition is as follows;-"Men live together in groups and societies ; they are dependent upon, solidarist with, one another. They have common needs which they cats satisfy only by a common life and, at the same time, they have different needs the satisfaction of which they assure by the exchange of reciprocal services. The progress of humanity is assured by the continuous growth, in both directions, of individual activity. Man, so placed in society, has the obligation to realize this progress, because in so doing he realizes himself. From the imminent force of things, therefore, there arises a rule of conduct which we may postulate as a rule of law." Roscoe Pound states that more than one reason led American realists which define law in terms of judicial process. One is the central position of the Court in the Anglo-American legal system and the concrete character of a legal precept in that system as a product of the Courts rather than of the universities. Again, economic determinism and psychological realism lead to scrutiny of the work of individual Judges, and skeptical relativism leads to discounting of norms and rules and authoritative guides to determination. Certainly the judicial process (to which today we must add the administrative process) is something of which a theory of the subject-matter of jurisprudence must take account. Kelsen has developed the theory of "Pure Law" His method and approach to law are essentially those marked out by Kant. He does not regard law as the sum total of legal

rules. Neither does he regard it as a command or psychological process or even a social reality. In his view, it is the produce of a mental operation. The norm which lies at the basis of his system although not arbitrary is purely relativist and hypothetical. He claims that his initial hypothesis transforms the "might" into "law". His theory on "Pure Law" eliminates the elements of ethics, politics, psychology, sociology and history. Dias says that many writers while admiring Kelsen's structure, point out, that he provides no guidance whatever to a person in the actual application of the law. Thus, he shows how, in the process of concretising the general norms it may be necessary to make a choice either in decision or interpretation. The Judge or the official concerned is already aware of that necessity. His need is for some guidance as to how he should make his choice. The answer is not to be found in Kelsen's teachings, but in value considerations of one sort or another which Kelsen sedulously eschews. In "What is Justice" Kelsen at page 268 himself says; "If jurisprudence is to present law as a system of valid norms, the propositions by which it describes its object must be "ought" propositions, statements in which an "ought", not an "is", is expressed. But the propositions of jurisprudence are not themselves norms. They establish neither duties nor rights. Norms by which individuals are obligated and empowered issue only from the law-creating authority. The jurist, as the theoretical exponent of the law. presents these norms in propositions that have a purely descriptive sense, statements which only describe the "ought" of the legal norm. It is of the greatest importance to distinguish clearly between legal norms which comprise the object of jurisprudence and the statements of jurisprudence describing that object. These statements may be called "rules of law" in contradistinction to the "legal norms" issued by the legal authority." Dias proceeds that "a legal order is not merely the sum total of laws, but includes doctrines, principles, and standards, all of which are accepted as "legal" and which operate by influencing the application of rules. Their validity is not traceable to the grund-norm of the order. Are these, then, to be lumped with values and banished from a theory of law, even though they are admitted to be "legal"? If so, it is a grave weakness in any such theory." Scandanavian school is opposed both to Salmond and Kelsen. It believes that there is no such things as rules, but that conformity with a rule consists really in habitual behaviour accompanied by a feeling of being bound to act in this habitual way. Professor Goodhart differs with Kelsen in refusing to regard basic rules (norms) as hypothesis. According to him a norm is nonetheless a rule-a customary rule -acceptance and observance of which finds expression in social practice and the general attitude of society. Discussing the classic approach of the pure jurist to the problem of law as that of Kelsen, Laski in "The State in Theory and Practice" points out : "The human mind, it may be said, revolts from a jurisprudence as bare and as formal as this. It remembers the long medieval effort to identify law with the will of God, the stoic notion of law as the voice of universal reason, the famous phrase of Utpian which makes of law the science of distinguishing between right and wrong in human conduct. It rejects the idea of law as that behind which there is found the sovereign power of the state . . . . . Law, to be law, it is widely felt, must correspond with something more valid than the will of an authority which grounds its claim to respect upon nothing more than the coercive power at its disposal". Laski proceeds to say : "We must not make it mean more than it announces itself as meaning. It is, so to speak, an abstract conceptualism in which, for certain clearly defined purposes, law is divorced from justice and made simply a final term in a hierarchy of wills behind which it is impossible to go. The jurist here is engaged on a purely formalistic analysis. He excludes from his field of discourse all considerations of what is ethically right or socially expedient and considers only as law that which emanates from a will whose source may be traced to the sovereign." In "A Grammar of Politics" Laski adds : "To those for whom law is a simple command, legal by virtue of the source from which it comes, it is not likely that such complexities as

these will be popular. We are urging that law is, In truth, not the will of the State, but that from which the will of the State derives whatever moral authority it may possess . . . It assumes that the rationale of obedience. is in all the intricate facts of social organisation and in no one group of facts. It denies at once the sovereignty of the State, and that more subtle doctrine by which the State is at once the master and the servant of law by willing to limit itself to certain tested rules of conduct. It insists that what is important in law is not the fact of command, but the end at which that command aims and the way it achieves the end. It sees society, not as a pyramid in which the State sits crowned upon the summit, but as a system of co-operating interests through which, and in which, the individual finds his scheme of values. It argues that each individual scheme so found gives to the law whatever of moral rightness it contains. "And" Any other view is seeking to Invest coercive authority with ethical content on grounds which analysis shows to be simply the fact of the power to coerce. That power may how its way to success, but 9t does not, by the fact of the victory, become a moral agent. We argue, rather, that our rules of conduct are justified only as what they are in working induces our allegiance to them". The brief survey of the definition of "Law" will not be complete without quoting the observations of Mr. Justice Matthews in the case Yick Wo. v. Hogking; "When we consider the nature and the theory of our institutions of Government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law but in our system, while sovereign powers are delegated to the agencies of Government, sovereignty itself remain with the people, by whom and for whom all Government exists and acts. And the law is the definition and limitation of power. It is indeed, quite true, that there must always be lodged some where, and in some person or body, the authority of final decision ; and, in many cases of mere administration the responsibility is purely political, no appeal lying expert to the ultimate tribunal of the public judgment, exercised either is the pressure of opinion or by means of the suffrage. But the fundamental to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are monuments showing the victorious progress of the race in securing the men the blessings of civilization under the reign of just and equal, laws, so that, in the famous language of the Massachusetts Bill of Rights, the Government of the Commonwealth "may be a Government of laws and not of men". For, the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of salary itself." Pakistan is an Islamic Republic. Its ideology is enshrined in the Objectives Resolution of the 7th April 1949, which inter alia declares wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah. We should, therefore, turn more appropriately to Islamic Jurisprudence for the definition of "law". One method of defining "law is to know its source. In Shari'at law have divine origin. They are contained in the Holy Quran, and Hadith. namely, precepts and actions of the Holy Prophet (peace be upon him). The other sources are Ijma` : Consensus and juristic deductions including Qiyas ; Analogy, Istihsan or Juristic Equity, Public Good, Istidlal ; Reason and Ijtihad ; Juristic Exposition. While Juristic Deductions are judge-made laws, Ijma' is based on the docrtine of Imam Shafi'i that "the voice of the people is the voice of God", and is the most fruitful source of law-making in Shariat. In the present day context the Legislative Assemblies comprising of chosen representatives of the people perform this function. Thus, In Islamic Jurisprudence, the will of a sovereign, be he the monarch, the President or the Chief Martial Law Administrator is not the source of law. The people as delegatee of the Sovereignty of the Almighty alone can make laws which are in conformity with the Holy Quran and Sunnah. A remark may be added that often the head of the State or a Province of the State is included in the composition of Legislature and if the Assembly is not sitting he may enact Ordinances which are temporary and expire when the Assembly meets.

I have burdened this order with different theories of law not only for the purpose of finding out the essential qualities of law, but also because during the last thirteen years or more we have so much gone astray from the rule of law that not only the common man, but the lawyers and Judges alike need to refresh their minds about the true import and form of law. The preponderant view appears to be that law is not the will of a sovereign. Law is a body of principles called-rules or norms recognised and applied by the State in the administration justice as rules recognised and acted upon by the courts of justice. It must have the content and the form of law. It should contain one or more elements on which the different theories of law are based, and give expression to the will of the people whose conduct and behaviour the law is going to regulate. The will of the people is nowadays often expressed through the medium of Legislature comprising of the chosen representatives of the people. The will of a single man howsoever laudable or sordid is a behest or a command, but is certainly not law as understood in juristic sense. Let us now examine the provisions of Presidential Order 3 of 1969 and Martial Law Regulation 78 of 1971 to determine whether they are at all laws in juristic sense. ' As mentioned earlier, a Full Bench of the High Court of West Pakistan (Lahore Seat) had in the case of Mir Hassan hold that the order transferring his case under the Prevention of Corruption Act II of 1947 from the Court of the Special Judge to a Military Court was illegal. It was reasoned by the learned Judges:" .Article 2 of the 1962-Constitution was kept intact. It declares that `every citizen of Pakistan is entitled to the protection of the law and to be treated in accordance with law and only in accordance with law . . .' The Article provides that no person shall be deprived of life, liberty, body, reputation or property without due process of law. It further declares that any public functionary or person taking any action affecting the life, liberty, body, property or reputation of a person or affecting his profession, trade or business must rely on some law to justify his action. In other words, every public functionary or- person must show legal authority for interference with the right of another person. Thus a direction or order by a public functionary would be invalid if it does not have the backing of a valid contemporaneous law. The Chief Martial Law Administrator by preserving Article 2 of the 1962 Constitution had made it clear once for all that the intention of the Government was to act in accordance with law. Therefore, the action of any authority including Martial Law Authority howsoever high he may be, if it had not the backing of a constitutional provision was not immune from being struck down by the Courts of the country." The judgment was announced in this case on the 30th June 1969. On the same day President's Order 3 of 1969 was issued. The purport of this order was to deny to the Courts the performance of their judicial functions. It did not contain a body of principles which may be recognized and acted upon by the Courts. It reflected only the will of the Chief Martial Law Administrator who ordained that no action taken by him or by any Martial Law Authority howsoever, unjust such action may be, shall be open to judicial review. In view of its offensive provisions, the Attorney-General conceded that Article 3 in so far as it laid down that "No Court, tribunal or other authority, including the Supreme Court and a High Court, shall-(a) receive' any complaint, petition, etc., was not a law, because it is essentially within the Jurisdiction of Courts to determine whether their jurisdiction to try a dispute is barred by law. The same reasons applied to Art. 4 which denied to Courts the function of interpretation of laws. Martial Law Regulation 78 of 1971 inter alia provides: "1. The Chief Martial Law Administrator or a Martial Law Administrator or a Deputy Martial Law Administrator authorised by the Martial Law Administrator concerned in this behalf, if satisfied with respect to any particular person, that with a view to preventing him from acting in a seditious manner or in a manner prejudicial to the security, the public safety or interest or the defence of Pakistan, the maintenance of public order, Pakistan's relations with any other power, the maintenance of peaceful

conditions in any part of Pakistan, the maintenance of essential supplies and services, it is necessary so to do, may make an order ; (a) . . (b) directing that he be detained ; There were already two laws in the field on the same subject, Safety Act of Pakistan and the Defence of Pakistan Rules, 1965. These Rules were framed under the Defence of Pakistan Ordinance during the 1965 war with India, and re-enacted during the 1971 war. The provisions of these two laws are similar to the provisions of Martial Law Regulation 78. What was then the necessity for promulgating Martial Law Regulation 78. The reason is not far to seek. An order passed under the Public Safety Act or the Defence of Pakistan Rules could be challenged in the High Court under Article 98 of the Constitution. It was so held by this Court in the case of Malik Ghulam Jilani and Shorish Kashmiri. An order passed under Martial Law Regulation 78 by a Martial Law authority could not, however, be challenged by virtue of Presidential Order 3 of 1969. The object with which this Regulation was issued was therefore to interfere with the judicial functions of Courts. As both President's Order No. 3 of 1969 and Martial Law Regulation 78 were intended to deny to the Courts the performance of their judicial functions, an object opposed to the concept of law. Neither would be recognised by Courts as law. We may now turn to the methodology of law-making during the Martial Law which was imposed by Yahya Khan on the 26th March 1969. Pakistan came into being with a written Constitution-Government of India Act, 1935 (26 Geo. 5, Ch. 2) and the India Independence Act, 1947 (10 & 11 Geo. 6, Ch. 30). These constitutional instruments were, in time, replaced by the Constitution of 1956 which in turn was substituted by the Constitution of 1962. It is still in force either by its own vitality or under the Provisional Constitution Order, 1969. The written Constitution of a State is, according to Kelsen, its basic norm. It regulates all other legal' norms. Pakistan has unfortunately suffered long spells of Martial Law, but its basic structure was democratic from its inception. There was distribution of powers between the executive, legislature and judiciary. During Martial Law the legislative powers of the State were usurped by the Executive and attempt made to deny to Courts the exercise of judicial functions. The usurpation of legislative powers of the stage by the Chief Martial Law Administrator was therefore against the basic norm. The new Legal Order consisting of Martial Law Orders, Martial Law Regulations, Presidential Orders and Presidential Ordinances was, therefore, unconstitutional and void ab initio. This Order would have become legal only if the Government of Yahya Khan was recognized by Courts as de jure and the Order he gave to the country was held valid. This question has already been answered in the negative. In this connection, we may examine also the nature of Martial Law imposed by Yahya Khan on the 26th March 1969, for lest it is said that the Martial Law Regulations, and Martial Law Orders were not laws in juristic sense, but they derived their validity from the Proclamation of the 26th March 1962' Martial Law is of three types : (i) the law regulating discipline and other matters determining the rule of conduct applicable to the Armed forces. We are not concerned with it ; (ii) law which is imposed on an alien territory under occupation by an armed force. The classic function of this type of Martial Law was given by the Duke of Willington when he stated in the House of Lords that ' "Martial Law is neither more nor less than the will of the General who commands the Army. In fact Martial Law means no law at all." We are also not concerned with this type of Martial Law ; and (iii) law which relates to and arises out of a situation in which the Civil power is unable to maintain law and order and the Military power is used to meet force and recreate conditions of peace and tranquillity in which the Civil power can re-assert its authority. The Martial Law Regulations and Martial Law Orders passed under this type of Martial Law must be germane only to the restoration of peace and tranquillity and induced during the period of unrest. In practice, the Martial Law imposed by Yahya Khan belonged to the second category. A large number of Martial Law Regulations and Martial Law Orders passed by him between 25th March 1969, and 20th March 1971, had no nexus with civil disturbances. In

fact, peace and tranquillity was restored in the country within a few days of his stepping in. Martial Law should, therefore, have come to an end but the entire structure of institutions of Pakistan including superior Courts were made to appear by Yahya Khan as merely the expression of his will which a victorious military commander imposes on an alien territory to regulate the conduct and behaviour of its subjugated populace. Neither Pakistan was a conquered territory, nor the Pakistan Army commanded by Yahya Khan was an alien force to justify the imposition of this type of Martial Law. The Martial Law imposed by Yahya Khan was, therefore, in Itself illegal and all Martial Law Regulations and Martial Law Orders issued by him were on this simple ground void ab initio and of no legal effect. Let us next examine the validity of the Presidential Orders and Ordinances issued by Yahya Khan between 26th March 1969, and 20th December 1971. He assumed the office of President on 31-3-1969 with effect from the 25th March 1969. Under Article 16 of the 1962-Constitution if at any time the President was unable to perform the functions of his office, the Speaker of the National Assembly was to act as President. Muhammad Ayub Khan could not, therefore, transfer the office of the President to Yahya Khan. Indeed, he did not even purport to do so. He simply asked him to perform his constitutional and legal responsibilities. Yahya Khan, therefore, assumed the office in violation of Article 16 of the Constitution to which he had taken oath of allegiance as Commander-in-Chief. It could not, therefore, be postulated that Yahya Khan had become the lawful President of Pakistan and was competent to promulgate Orders and Ordinances in exercise of the legislative functions conferred by the Constitution on the President. All Presidential Orders and Ordinances which were issued by him were, therefore, equally void and of no legal effect. The next question which arises for determination is whether these illegal legislative acts are protected by the doctrine of State necessity. The Laws saved by this rule do not achieve validity. They remain illegal, but acts done and proceedings undertaken under invalid laws may be condoned on the conditions t that the recognition given by the Court is proportionate to the evil to be averted, it is transitory and temporary in character does not imply abdication of judicial review. In the Southern Rhodesian case Madzimbamuto v. Lardner Burke only those legislative acts of the de facto Government of Smith were recognised which were necessary for the ordinary, orderly running of the Courts and which did not defeat their rights of the citizens and in its operation did not directly or indirectly entrench the usurpation (Field send, A. J. A.) Acts which are beneficial to the Society and provide their welfare, such as, appointment of Judges and other public functionaries by Yahya Khan will also be covered by the doctrine. It has been noticed that both President's Order 3 of 1969 and Martial Law Regulation 78 of 1971 were intended only to deny to the Courts the performance of their judicial functions. No chaos or anarchy would have taken place in the Society if these 'laws' were not promulgated. Both Jurisdiction of Courts (Removal of Doubts) Order 3 of 1969 and Martial Law Regulation 78 are, therefore, not protected by the doctrine of State necessity. We will now examine the case State v. Dosso on which the Attorney-General mainly relied in his submissions. As mentioned earlier the decision in this case is based on the Kelsenian theory of the change of basic norms as a result of victorious revolution and successful coup d'etat as law-creating facts according to International Law. It was contended by the counsel for the appellants and the amicus curiae that (i) Kelsen's theory was not a rule of law which would have primacy or the legal norms of the State; (ii) that as a theory it was criticised by some eminent jurists; and (iii) in any case It was not correctly applied In the case of State v. Dosso. To appreciate the contentions we must first understand Kelsen's theory of "Pure Law" He differs with the theory of Imperative Law t Will of a Sovereign ; and Theory of Natural Law; Dictates of Reason; as well as with the Theory of Realism; Practice of the Courts. Kelsen does not regard the law conceived as the sum total of legal rules or as a will. Neither does he regard it as a command or psychological process or even a social reality. In his view law is the product of a mental operation.

It is a phenomenon in the category of essence (das Sollen) as distinguished from the category of existence (das Sein); which is an abstract way of saying that the science of law is a branch of normative sciences as distinguished from natural sciences 1 which is still another abstract way of saying that the legal rule is concerned with what the positive law says shall be, and not with the question why positive law is obeyed or what the positive law ought to be." (Modern Theory of Law, pp. 107-108). According to Kelsen law consists of norms which are free from elements of ethics, morals, psychology, history, sociology, etc. They are divided into basic norms and general norms. The document which embodies the first constitution is a real constitution, a binding norm, only on the condition that the basic norm is presupposed to be valid. Only upon this presupposition are the declarations of those to whom the constitution confers law-creating power binding norms. A norm the validity of which cannot be derived from its superior norm is called a "basic" norm. All norms whose validity may be traced back to one of the same basic norm, form a system of norms, or an order. This basic norm constitutes, as a common source, the bond between all the different norms of which an order consists. The ultimate hypothesis of positivism is the norm authorising the historically first legislator. The whole function of this basic norm is to confer law-creating power on the act of the first legislator and on all the other acts based on the first act. The basic norm is not created in a legal procedure by a law-creating organ. It is not as a positive legal norm is valid. Under the heading the "Principles of Legitimacy" Kelsen points out that legal norms may be limited in time. The end as well as the beginning of this validity is determined only by the order to which they belong. They remain valid as long as they have not been invalidated in the way which the legal order itself determines. This is the principle of legitimacy. He then describes an illegitimate way of change of legal norms. "It fails to hold in the case of a revolution, this word understood in the most general sense, so that it also covers the so-called coup d'etat. A revolution, in this wide sense, occurs whenever the legal order of a community is nullified and replaced by a new order in an illegitimate way, i.e., in a way not prescribed by the first order itself. It is in this context irrelevant whether or not this replacement is effected through a violent uprising against those individuals, who so far have been legitimate organs competent to create and amend the legal order. It is equally irrelevant whether the replacement is effected through a movement emanating from the mass of the people or through actions. From a juristic point of view, the decisive criterion of a revolution is that the order in force is overthrown and replaced by a new order in a way which former had not itself anticipated. Kelsen then refers to the change of the basic norm by revolution. If the old order ceases, and the new order begins to be efficacious, because the individuals whose behaviour the new order regulates actually behave, by and large, in conformity with the new order, then this order is considered as a valid order. If the order remains inefficacious, then their undertaking is interpreted as illegal act, as the crime of treason. The change of basic norm thus depends on the principle of effectiveness which is based on the presupposition, but the norms of the old order are regarded as devoid of validity, because the old constitution and legal norms based on this constitution, the old legal order as a whole, has lost its efficacy; because the actual behaviour of men does so longer conform to this old legal order. Every single nrom loses its validity when the total legal order to which it belongs loses its efficacy as a whole. The efficacy of the entire legal order is a necessary condition for the validity of every single nrom of the order. A conditio sine qua non, but not a conditio per quam. The efficacy of the total legal order is a condition, but not the reason for the validity of its constituent norm. These norms are valid not because the total order is efficacious, bat because they are created in a constitutional way. The legality of the revolutionary Government is thus based upon a presupposed basic norm which is mentioned by Kelsen in the Chapter "The Unity of National and International Law" under the heading "Revolution and Coup d'etat and Law, Creating Facts. According to International Law" Kelsen says : that victorious revolution and successful coup d'etat are law. creating facts. To assume that the continuity of national law, nor what amounts to the same the identity of the state, is not affected by revolution or coup d'etat, as long as the territory and the population remain by and large the same, is possible only if a norm of international law is presupposed recognising victorious revolution and successful coup d'etat as legal methods of changing the constitution". Kelsen is a great exponent of International Law while many jurists think that there is no

such thing as International Law and that its principles are applicable only to the extent that the national legal order of a State adopts them. Kelsen postulates that the basic norms of all the States are in themselves norms of the International law. He says, "only because modern jurists-consciously or unconsciously-presupposed International law as a legal order determining the existence of the State in every respect, according to the principle of effectiveness, do they believe in the continuity of national law and the legal identity of the State in spite of a violent change of the constitution. In regulating, by its principle of effectiveness, the creation of the constitution of the State, International law also determines the reason of the validity of all national legal orders." So it becomes clear that Kelsen invests revolutionary Government wit legal authority on the basis of a presupposed norm that the victorious revolution and successful coup d'etate are law-creating v facts. This is in the realm of a theory and not a part of the national legal order of any State. No municipal Court will, therefore, rely on it as a rule. It is a statement of law by Mr. Kelsen to which a large number of jurists have taken exception. What Kelsen has said about the legitimacy of norm and legal authority of a revolutionary Government must be read separately and not mixed up. While revolution may destroy the existing national legal odor base after the change the reality of the State has disappeared from behind that order, It does not follow that the legal order, which replaces it, is the expression of the superior will of one or more revolutionaries who staged victorious revolution or successful coup d'etat. This is explained by Kelsen himself in the remark, quoted above, that "the efficacy of the entire legal order is a necessary condition for the validity of every single norm of the order. A conditio sine qua non but not a conditio per quam. The efficacy of the total legal order is a condition, but not the reason for the validity of its constituent norm. These norms are valid not because the total order is efficacious, but because they are created in a constitutional way." So, after a change is brought by a revolution or coup d'etat, the State must have constitution and subject itself to that order. Every single norm of the new legal order will be valid not because the order is efficacious, but because it is made in the manner provided by the constitution of the State. Kelsen, therefore, does not contemplate an all omnipotent President and Chief Martial Law Administrator sitting high above the society and handing its behests downwards. No single man can give a constitution to the society which, in one sense, is an agreement between the people to live together under an Order which will fulfil their expectations, reflect their aspirations and hold promise for the realisation of their selves. It must, therefore, embody the will of the people which is usually expressed. through the medium of chosen representatives. It must be this type of constitution from which the norms of the new legal order will derive their validity. If my appraisal of Kelsen is correct, then the decision in the case State v. Dosso upholding the validity of the Laws (Continuance in Force) Order must be held to be erroneous. The Court ought to have acted in the same manner as it partially did In the Governor-General's Reference No. 1 of 1955 and directed the President to call the National Parliament and adopt a new Constitution. Unless this direction was complied with, no new legal order would have come into being for neither Iskander Mirza nor Muhammad Ayub Khan could become a valid source of law-making. How could the Court accept one or the other as a law-making fact. No valid law can come into being from the foul breath or smeared pen of a person guilty of treason against the national order. This reasoning applies with greater force to the abrogation of the Constitution of 1962 by Yahya Khan on the 26th March 1969. The legal order imposed by him in the form of Martial Law Regulations and Orders and President's Orders and Ordinances were, therefore, tainted with illegality and would not be recognized by Courts. Dias criticises the theory of Kelsen on which the decision in State v. Dossois based. Kelsen as a legal philosopher excluded from his theory of Pure Law of psychological, historical, sociological and ethical considerations. He Is not mindful as to how many revolutions take place in a country or into how many bits it falls apart as a result of his theory of victorious revolution and successful coup d'etar as law-making facts. Society, however, will not countenance such a phenomenon with equanimity. My own view is that person who destroys the national legal order in an illegitimate manner cannot be regarded as a valid source of law-making May be, that on account of his holding the coercive apparatus of the State, the people and the Courts are silenced temporarily, but let it be laid down firmly that the order which the usurper imposes will remain illegal and Courts

will not recognize its rule and act upon them as de jure. As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper, he should be tried for high treason and suitably punished. This alone will serve as a deterrent to would be adventurers. Before concluding the examination of Kelsen's theory of effectiveness, it may be mentioned that basides State v. Dosso, it was applied in three other cases. The first case is from South Rhodesia Madzimbamuto v. Lardner-Burke. In 1965, Smith Government overthrew the 1961-Constitution given to South Rhodesia, by the British Government and attempted to enforce its own laws. On several occasions Courts of law in South Rhodesia declined to recognize the "new laws". One of them being the detention law under which Lardner-Burke was detained. Dealing with its validity Beadle, C. J., the Chief Justice of the High Court held that "the status of the present Government today is that of a fully de facto Government in the sense that it is in fact in effective control of the territory and this control seems likely to continue", and, that "the present Government, having effectively usurped the Governmental powers granted Rhodesia under the 1901-Constitution, can now lawfully do anything which its predecessors could lawfully have done, but until its new constitution is firmly established and thus becomes the de jure constitution of the territary, its administrative and legislative acts must conform to the 1961-Constitution. Qunet, J.P. Macdonald, J. A., and Jarvis, A. J., generally agreed in the opinion given by Beadle, C. J. Fieldsond, A. J. A., expressed the view that "a Court created in terms of a written constitution has no jurisdiction to recognise, either as a de jure or de facto Government and Government other than that constitutionally appointed under that constitution". He went on to consider the doctrine of necessity and concluded: "Necessity, however, provides a basis for the acceptance as valid by this Court of certain acts of the present authorities, provided that the Court is satisfied that-(a) any administrative or legislative act is directed to and reasonably required for the ordinary orderly running of the country ; (b) the just rights of citizens under the 1961-Constitution are not defeated; and (c) there is no consideration of public policy which precludes the Court from upholding the act, for instance if it were intended to or did in fact in its operation directly further or entrench the usurpation. . ." The decision was set aside by the Privy Council. Lord Reid delivering the majority judgment rejected the Kelsen's theory of effectiveness and held;--"With regard to the question whether the usurping Government cap now be regarded as a lawful Government much was said about de facto and de jure Governments Those are conceptions of international law and in their Lordships' view they are quite inappropriate in dealing with the legal position of usurper within the territory of which he has acquired control. As was explained in Carl-Zeiss-Stiftung v. Raynor & Keelor Ltd. (No. 2) (1966) 2 All E R 536 ; (1967) 1 A C 853 when a question arises as to the status of a now regime in a foreign country the Court must ascertain the view of Her Majesty's Government and act on It as correct. In practice the Government have regard to certain rules, but those are not rules of law. And it happens not infrequently that the government recognise a usurper as the de facto Government of a territory while continuing to recognise the ousted Sovereign as the de jure Government. But the position is quite different where a Court sitting in a particular territory has to determine the status of a new regime which has usurped power and acquired control of that territory." It was mentioned by Mr. Brohi that the view expressed by the Judges of the High Court of Rhodasia was the maximum success for the theory of effectiveness which Kelsen could have conceivably envisaged. There are three other cases: one from Uganda; the other from Nigeria; and the third from Cyprus, on the same subject, but it is unnecessary to recount their facts. In Uganda v. Commissioner of Prisons (1966 B A I R 514), Sir Udo Udoma, C. J., following the State v. Dosso relied on the Kelsen's principles in arriving at the conclusion that the 1966-Constitution is a legally valid Constitution and the supreme law of Uganda and that the 1962-Constitution having been abolished by a victorious revolution, fn law, does no longer exist, nor does it now form part of the laws of Uganda, it having been deprived of its de facto and de jure validity.

We have not seen the case from Nigeria & Cyprus, but were informed that the line of reasoning runs through them. All these decisions are open to the common objections, firstly that Kelsen's theory of Pure Law was not a norm of the national order and a Court of justice could not have relied on it in preference to the municipal laws. This is brought out by Kelsen himself in "What is Justice", page 286, wherein he says : "It is of the greatest importance to distinguish clearly between legal norms which comprise the object of jurisprudence and the statements to jurisprudence describing that object These statements may be called "rules of law" in contradistinction to the "legal norms" issued by the legal authority." Secondly, Kelsen's theory of Pure Law stands in opposition to other theories of law, such as, Natural Law which is based on Reason and Realism which is based upon the practice of Courts. What is said by Kelsen is, not the last word He has his critics. With respect to the great Jurist, I question his statement that "It is equally irrelevant whether the replacement is effected through a movement emanating from the mass of people or through actions from those in governing positions. From a juristic point of view, the decisive criterion of a revolution is that the order in force is overthrown and replaced by a new order". In one case the body politic has risen against an unrepresentative Government which has imposed a tyrinical Order on the people. They overthrew that Order and gave themselves a Constitution which will fulfil their aspirations holds promise of happiness and self-realization, and induces-allegiance. In the other case one or more persons "stage a victorious revolution" or "a successful coup d'etate", stifle the aspirations of the people, deprive them of their basic rights and cajole them into obedience. Kelsen as a legal philosopher should have preferred the former as legal rather than recognize the rule of might as de jure. I differ, therefore, with the theory of Kelsen on which the decision in the State v. Dosso is based. As regards the application of the Kelsenian theory as mentioned already Mr. Iskander Mirza, and Mr. Ayub Khan had joined hands on the night between 7th and 8th October 1958, to overthrow the national legal order unmindful of the fact that by abrogating the 1956-Constitution they were not only committing acts of treason, but were also destroying for ever the agreement reached after laborious efforts between the citizens of East Pakistan and citizens of West Pakistan to live together as one Nation. The cessation of East Pakistan thirteen years later is, in my view, directly attributable to this tragic incident. On the 10th October 1958, Mr. Iskander Mirza promulgated the Laws (Continuance in Force) Order 1 of 1958. Mr. Yahya Bakhtiar the present Attorney-General who was counsel for Toti one of the respondents in the appeals disposed of alongwith the case of Dosso stated from the bar that on his way to Lahore for appearing before the Supreme Court, he read the text of the order in a daily newspaper. He found Mr. Fayyaz Ali, the then Attorney-General, present in Court to move a Reference by the President in the advisory jurisdiction of the Court presumably relating to the validity of the Laws (Continuance in Force) Order. After a hurried consultation in the Chamber of the Chief Justice Mr. Fayyaz Ali did not move the Reference and the Court raised this issue without giving him an opportunity to argue against it. Judgment in the case was announced on 27th October 1958. The State appeals were allowed on the finding that by virtue of the provisions of Article 7 of the Laws (Continuance in Force) Order the writs issued by the High Court setting aside the conviction of Dosso and others had abated. On the following day Mr. Iskander Mirza was deposed and Muhammad Ayub Khan assumed to him the office of President. In was questioned how did the Court come to hold on the 13th October 1958, that the new Government was able to maintain its Constitution in an efficacious manner and that the old order as a whole had lost its efficacy "because the actual behaviour of men does no longer conform to this old legal order." Indeed, it was the recognition by the Court which made the now Government de jure and its Constitution efficacious. Mr. Sharifuddin Pirzada drew our attention in this connection to the following extract from the Book "Friends Not Masters" by Muhammad Ayub Khan :"Meanwhile, the army's legal experts came up with the opinion that since the Constitution had been abrogated and Martial Law declared, and a Chief Martial Law Administrator appointed, the office of President was redundant. That according to their light, was the

legal position. I said 'Now, don't you chaps start creating more problems for me. Why do you bother me? It will serve no useful purpose." "Chief Justice Munir was there, I think, when this point came up for discussion. He had been advising Iskander Mirza about certain matters before the revolution. I called him and thought that I would see Iskander Mirza too. I asked Colonel Qazi to state his point of view. His position was that the President, no longer had any place in the new arrangement, Munir disagreed. I told Qazi, 'I agree with Munir. This is final. Accept this as a decision: I then asked him to leave." In a rejoinder published in the Pakistan Times, dated 11th November 1968, under the title "The Days I Remember" by Muhammad Munir, C. J. (Retired) after recounting his past association with Iskander Mirza proceeded to state:"Some months before the 1956-Constitution was to come into force he (Iskander Mirza) casually mentioned to me that things were going bad to worse and that he intended to assume supreme power by dismissing the Ministers and dissolving the Assembly. He did not tell me that he intended to introduce Martial Law though he often used to say that the politicians were not to forget the army. He had not invited my opinion on the subject, but I pointed out to him that at that time he had little ground for taking the steps he was contemplating and that he should have the elections held under the new Constitution. MARTIAL LAW This happened perhaps in April and except at a lunch at Nathiagali I had no occasion to meet him until the Constitution having been abrogated and Martial Law declared in October 1958, I was summoned to Karachi. The President's proclamation abrogating the Constitution and introducing Martial Law was announced on the night of 7th October 1958. We in Lahore heard of it on the morning of 8th October add I of once realised the legal implications of what had happened if its legality was not questioned and professional politicians acquiesced in it. Though all laws, Courts and other civil authorities had lost their previous jurisdiction I did not stop the Supreme Court from functioning because I felt that the Supreme Court on being properly moved still had the right to say whether what had happened was legal or illegal. On the morning of 9th October, General Mohammad Azam Khan, who was the Zonal Martial Law Administrator of Lahore, came to me and asked me whether I was aware of the legal implications of what had happened. He told me that Courts, including the Supreme Court had lost their jurisdiction and could function only to the extent the President or Chief Martial Law Administrator determined. He expressed his willingness to get for me such powers as I needed to run the judiciary. I told him that I had not made up my mind to stay or to go and that I wanted time to think over the matter. A few hours later I received through the army a message from the President calling me to Karachi. Accordingly I took the first available plane and flew to Karachi. General Burki who had a subtle smile on his face also travelled by the same plane. At Karachi I was told that subject to any order by the President or Regulation by the Chief Martial Law Administrator it was intended to keep the existing laws and the jurisdiction of the civil authorities alive, and that I was to scrutinise the draft instrument which the Law Secretary had been required to prepare with that object. I was happy that some sort of civil Government and part of the Constitution were being restored. Therefore I saw the draft prepared by Sir Edward Snelson, and In a meeting which was attended by the President and Chief Martial Law Administrator who was accompanied by a young army officer, the Law Secretary and myself, I suggested certain modifications, particularly with reference to the superior Courts powers to issue writs and validation of judgments which had been delivered after the proclamation. The instrument was entitled the Laws Continuance in Force Order and purported to be promulgated in the name of the President." It was urged by Mr. Sharifuddin Pirzada that the Chief Justice having associated himself with the drafting of The Laws (Continuance in Force) Order on the 9th October 1958, was in principle precluded from sitting in judgment on its validity. I can only venture to

observe that no one was more deeply initiated in judicial propriety than the learned Chief Justice. However, there is another aspect. Article 163 of the 1956 Constitution provided that the law declared by the Supreme Court shall be binding on all Courts in Pakistan and that all executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court. By laying down the law that victorious revolution and successful coup d'etat are internationally recognised legal methods of changing a constitution and that the revolution itself become" a law-creation fact, and that Court can function only to the extent and in the manner declared by the new constitution, this Court closed the minds of all the Courts subordinate to it and bound down the hands of all executive authorities to accept the new Government as de jure. The Attorney. General did not hesitate in acknowledging that the decision in this case encourages revolutions and that it held out promise to future adventurers that if their acts of treason are crowned with success, Courts will act as their hirelings. No Judge who is true to the oath of his office can countenance such a course of action. Thus, with greatest respect to the learned Judges who are parties to the decision in the State v. Dosso we feel constrained to overrule it and hold that the statement of law contained in it is not correct. It now remains to deal with the doctrine of stare decisis on which the Attorney-General relied for recognition of the Martial Law Regulations, Martial Law Orders, and Presidential Orders and Ordinance issued by Yahya Khan between the 25th March 1969 and the 20th December 1971. Besides State v. Dosso he relied on The Province of East Pakistan v. Mehdi Ali Khan and others (P L D 1959 S C (Pak.) 387 ), Tanvir Ahmad Siddiqi v. Province of West Pakistan (P L D 1968 S C 185) and Fazal Ahmad v. The State (1970 S C M R 650). The learned Judges in The Province of East Pakistan v. Mehdi Ali Khan were parties to the case State v. Dosso. In Tanvir Ahmad Siddiqi v. The Province of East Pakistan the validity of the Laws (Continuance in Force) Order, 1958, was not challenged. In Fazal Ahmad v. The State by a short order leave to appeal was refused by a Bench of this Court with the remarks: "when the Military Court took cognizance of the offence and imposed penalty upon the petitioner, the learned Judge of the High Court was right in dismissing the petitioner's application under section 561-A of the Code of. Criminal Procedure" A case under section 167 of the Sea Customs Act was registered against Fazal Ahmad by the Deputy Superintendent of Police, Lahore Cantt ; he thereupon moved the High Court for quashing the proceedings whereupon a learned Judge gave an interim direction to the Deputy Superintendent of Police to appear before him and produce file of the case and not to put up a challan against the petitioner in any Court. The Deputy Superintendent of Police, however, put up the challan before a Military Court whereupon Fazal Ahmad moved the High Court for initiating contempt proceedings against the Deputy Superintendent of Police. In the meantime, the Military Court convicted the petitioner and the High Court took no further action in the case on these facts leave to appeal was refused by a bench of this Court. The question whether the Jurisdiction of Courts (Removal of Doubts) Order 3 of 1969 was ultra vires of the Provisional Constitutional Order was not even raised in the petition for leave to appeal. There is no mention in it of any provision of that order which purported to exclude jurisdiction of the Courts to call in question the orders passed by the Martial Law authorities. Stare desists is the rule of expediency and public policy and is not inflexible and will not be applied where injustice is done or injury caused. This rule will also not apply if the language is not ambiguous. It will apply where two interpretations are open and Court having adopted one interpretation it may not depart from it, if it upsets contracts, titles and marriages, etc we were referred to the case of Governors of the Campbell College Belfast v. Commissioner of Valuation for Northern Ireland ((1964) 2 All E R 705). it was held in this case that notwithstanding the long-standing practice of confining exemption for educational charities to those of an eleemosynary nature the Court was not required to refrain from giving effect to the true construction of section 2 of the Act of 1854-either by the doctrine of contemporanea expositio or by the doctrine of stare decisis for considering the practical defect, the importance of correcting the law with regard to rating outweighed in the present case any embarrassment that might be caused by allowing in the appeal.

Reference was also made to a decision from a foreign jurisdiction that so far as constitutional interpretation is concerned there is very little scope of the application of stare decisis. In the case Federation of Pakistan v. Maul vi Tamizuddin Khan it was contended on behalf of the respondent that because for several years no assent to an Act of the Constituent Assembly, while sitting as a constitution-making body under subsection (1) of section 8 of the Indian Independence Act was ever obtained and that some important Acts passed by the Assembly were treated as law by everyone concerned, though they had not received the assent of the Governor-General under subsection (3) of section 6 must be so interpreted as not to be applicable to the legislations passed by the Constituent Assembly under subsection (1) of section 8. In refuting the submission Munir, C. J. referred to cases cited in Crawford's "Statutory Construction" and Coolay's "Constitutional Limitation" and observed ; "In all the cases where observations of this kind have been made, the true intention of the particular provisions in the constitution was ambiguous or doubtful, and I know of no instance where the words of the constitution being clear and consistent with a reasonable interpretation, any Court ever went to the extent of. misconstruing its true purpose merely because somebody else had taken a mistaken view of it. There is no question of estoppel in such cases, the correct description of the reasoning employed being argument ab inconvenienti. This mode of construction of written constitutions is, therefore, subject to an overriding consideration which has thus been stated by Coollay himself at pages 149-150." This view is supported by Mr. Brohi, in his Book, "Fundamental Law of Pakistan", page 598 : It is said: "In the matter of constitutional adjudications the rule of stare decisis has, if at all, limited application". Whatever be the scope of stare decisis and its limited application to the interpretation of constitutional instruments, Kelsen's theory on which Munir, C. J., relied was neither a norm of the National Legal Order, nor a statutory provision. Its application in upholding the "victorious revolution" by Iskander Mirza did not, therefore, attract the doctrine of stare dectsis. Moreover, it cannot be said that a right was created in Yahya Khan to rebel against the National Legal Order on the basis of the decision in the State v. Dosso. The Attorney-General next contended that if all the laws given by Yahya Khan were declared to be invalid, the same would apply to the Legal Framework Order under which the elections to the National Assembly and Provincial Assemblies were held in December 1970. This contention was effectively answered by Mr. Manzur Qadir who stated that the concept of validity is derived from the will of body-politic. If the body politic gives an express answer that answer is valid and It does not matter who puts the question. He also pointed out a distinction between the status of a person who acquires power and the limits in which he exercises his power. The legality of the elections to the National and the Provincial Assemblies under the Legal Framework Order cannot, therefore, be doubted on the ground that Yahya Khan had no legal authority to promulgate this Order. The Attorney-General lastly urged that by challenging the validity of Martial Law imposed by Yahya Khan who was no longer in power the intention, in fact, was to dispute the legality of the present Government. In reply, Mr. Manzur Qadir acknowledged the legitimacy of the Government headed by Mr. Zufiqar Ali Bhutto as Chairman of the majority party in the National Assembly and said It was based on the will of the chosen representatives of the people. This was the reason behind the plea raised by him that the invalidity in the Legal Framework Order did not affect the legality of the Elections held under it to the National Assembly and Provincial Assemblies. This coincided with the position taken up by the Attorney. General that Mr. Zulfiqar Ali Bhutto was not the recipient of power from Yahya Khan and that he held the office of the President as Leader of the majority party In the National Assembly. We also take judicial notice of the fact that after arguments were concluded in these appeals, the National Assembly met and unanimously expressed confidence in the Government of Mr. Zulfiqar Ali Bhutto. An Interim Constitution has also been passed and Mr. Zulfiqar Ali Bhutto is to be inaugurated as President under this Constitution on the 21st April 1972. The legitimacy of the present Government is thus beyond the shadow of doubt.

The text of the Interim Constitution adopted by the National Assembly on the 17th April 1972, has been published in the newspapers. Article 280 provides;"280.-(1) Except as provided by this Article, all existing laws shall, subject to this Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature. (2) The Proclamation made on the twenty-fifth day of March 1969, is revoked with effect as from the commencing day, and the Orders specified in the Sixth Schedule and any Orders amending those Orders are repealed with effect as from that day, but this clause shall not affect any existing laws made under those Orders. (3) All Martial Law Regulations and Martial Law Orders, except the Martial Law Regulations and the Martial Law Orders specified in the Seventh Schedule, are repealed with effect as from the commencing day, and on that day each Martial Law Regulation and the Martial Law Orders so specified shall be deemed to have become an Act of the appropriate Legislature and shall, with the necessary adaptations, have effect as such. Article 281 further provides "281.-(1) All Proclamations, President's Orders, Martial Law Regulation, Martial Law Orders, and all other laws made as from the twenty-fifth day of March 1969, are hereby declared, notwithstanding any judgment of any Court to have been validly made by competent authority, and shall not be called in question in any Court. (2) All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, on or after the twenty-fifth day of March 1969, in exercise of the powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall be deemed to be and always to have been validly made, taken or done. (3) No suit or other legal proceedings shall lie in any Court against any authority or any person for or on account of or in respect of any order made, proceedings taken or act done, whether in the exercise or purported exercise of powers referred to in clause (2), or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers. The intended effect of these constitutional provisions is that among other Martial Law Regulations and Orders, Martial Law Regulation 78 and Jurisdiction of Courts (Removal of Doubts) Order 3 of 1969 will be deemed to have been validly made, but this is so not because Yahya Khan was competent in law to promulgate theca laws. They are valid, because the new Constitution of the State adopts them as constituents of the National Legal Order as from the commencing day, i.e. 21st April 1972, with retrospective effect from the 25th March 1969. In the words of Kelsen: If laws which were introduced under the old Constitution continue to be valid under the new Constitution this is possible only because validity has expressly or tacitly been vested in them by the new Constitution. The phenomenon is a case of reception. The laws which, in the ordinary inaccurate parlance, continue to be valid are, from a Juristic viewpoint, new laws whose import coincides with that of the old laws. They are not identical with the old laws, because the reason for their validity is different. Article 9 of the Interim Constitution secures Fundamental Rights including the right that no law providing for preventive detention shall authorise the detention of a person for a period exceeding three months unless the appropriate Advisory Board has reviewed his case and reports before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: "Provided that such law shall also provide that the case of the person detained shall be brought before the appropriate Advisory Board for the first review within one month of the order of detention". Advisory Board means a Judge of the Supreme Court and Senior Officer in the service of Pakistan in relation to a person detained under a Federal law and a Judge of the High Court and a

Senior Officer of the service of Pakistan in the case of a person detained under a Provincial Law. Martial Law Regulation 78 contains no such safeguards. Article 7(1)(2) declares: "7.- (1) Any law, or any custom or usage having the force of law, in so far as it is a inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void. (2) The State shall not make any Law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void." The First Schedule to the Constitution specifies Presidential Orders, Martial Law Regulations, and Acts passed by the National and Provincial Assemblies which are exempted from the operation of Article 7(1) and (2). Martial Law Regulation 78 and President's `Order 3 of 1969 are not included in the Schedule. As seen Article 280 itself provides: all existing laws shall subject to this Constitution continue in force. Martial Law Regulation 78 has been repealed, but if it was continued being repugnant to Fundamental Rights contained in Article 9 it would have been void under Article 7(1). It follows that if the orders of detention passed under Martial Law Regulation 78 are by virtue of Articles 280 and 281 deemed to have been validly made, they would become unlawful from the commencing day, i.e. 21st April 1972. This result would have been avoided only if Martial Law Regulation 78 was continued as an Act of the appropriate Legislature and included in the 1st Schedule to the Constitution. The orders under which Malik Ghulam Jilani and Mr. Altaf Gauhar are being detained will, therefore, be liable to be set aside on the ground that continuation of their detention is in violation of Fundamental Rights. On the findings recorded above, I will allow both the appeals and direct that the detenus be released forthwith unless required to be detained under any other lawful order.

SAJJAD AHMAD, J.-These two detention cases of Malik Ghulam Jilani and Mr. Altaf Gauhar, under Martial Law Regulation No. 78 promulgated by General Agha Muhammad Yahya Khan in the purported exercise of his powers as the Chief Martial Law Administrator, have spurted delicate constitutional and legal questions seemingly tied up with political concomitants. However, in the resolution of causes coming for determination before a Judge, his mind is sealed off against any extraneous influence. True to his sacred oath, he has to decide them to the best of his ability in accordance with law, doing justice to all manner of people, without fear or favour, malice or ill-will. The importance of the issues involved, which have engrossed my mind ever since the commencement of these proceedings in this Court, under the constant stress of my judicial oath, have impelled me to add my voice by this separate note to the weighty pronouncements made in the very elaborate and erudite judgments of my Lord, the Chief Justice and my brother M. Yaqub Ali, J. with whose conclusions I respectfully agree. In fact, these judgments of my Lords and I say so unfeignedly, in their exhaustive discussion of all the salient points arising in these cases, leaves little or nothing to be added. It must also be gratefully acknowledged that all the related questions were argued before us in very great depth, with diligent research and marked ability by the learned counsel for the appellants, the learned Attorney-General, and Mr. Brohi and Mr. Sharifuddin Pirzada, who had appeared as amicii curiae at our request. In historical retrospect, they have called to mind the anguished memory of the constitutional tragedies that have afflicted this Muslim homeland of our dreams, playing havoc with the body politic. Twice the Constitution was abrogated, the abrogation being preceded and followed by reckless material greed, scramble for power and free run for political ambition and adventurism. On each occasion, the abrogation of the Constitution, first in 1958 and again in 1969, was accompanied by the simultaneous clamping of Martial Law on the entire country, associated with its accursed terror and its potential mischief of coercive action in the destruction of democratic values and civilised pattern of life in the country. Contrary to its conventional and limited purpose in the domestic sphere to

suppress turmoil and civil strife by the Civil Administration with the aid of the army, the Martial Law in Pakistan has come to mean the complete subjugation of all jurisdictions to the arbitrary will of one individual, who, by his fortuitous position as the head of the army for the time being becomes the self-appointed repository of all the State powers as the Chief Martial Law Administrator, wielding unbridled authority in the land. In this sense, Martial Law operates as if it were a part of jus belli imposed by the invading army on a foreign land brought into subjugation by conquest. Such a Martial Law, as once described by Lord Wellingdon in the House of Commons, is "nothing more nor less than the will of the general commanding the army. It is in fact no law at all." It cannot be gainsaid that after the bitter and ugly experiences of the two Martial Laws suffered by the nation within the span of the last 14 years, the very name of Martial Law has become an anathema and it is intolerably repugnant to the common people regardless of its necessity or potentiality for doing any public good, which cannot otherwise be done. The story is long and painful, but for purposes of these appeals, it is not necessary to go beyond 25-3-69, when with the exit of F.M. Muhammad Ayub Khan, the then President of Pakistan, General Agha Muhammad Yahya Khan, the then Commander-in-Chief of the Pakistan Army, was ushered on the political scene. In his letter of March 24, 1969, the Field-Marshal, depicting the political and economic chaos that had overtaken the country, invited him to discharge his legal and constitutional responsibilities to defend the country not only against external aggression but also to save it from internal disorder and chaos. Simultaneously, General Yahya Khan issued a Martial Law Proclamation on March 25, 1969, assuming to himself the powers of the Chief Martial Law Administrator and the Commander of the Armed Forces. On 31st March 1969, he also appointed himself as the President and assumed that office with effect from the 25th of March 1969. This was followed by the promulgation of the Provisional Constitution Order on the 4th of April 1969, by which it was ordained that notwithstanding the abrogation of the Constitution of 1962, the State of Pakistan shall be governed as nearly as may be, in accordance with the said Constitution, subject to any regulations or orders made from time to time by the Chief Martial Law Administrator. It hardly needs any argument to show that General Yahya Khan at the receiving end overstepped the mandate of the Field Marshal, as contained in the letter mentioned above, even if it were assumed to have any legal validity. But this mandate was wholly misconceived. Under Article 12 of the Constitution, which was then in force, if F. M. Muhammad Ayub Khan found himself unable to cope with the crisis created in the country, he should have resigned his office under Article 12 of the Constitution then in force, and the Speaker of the Legislative Assembly could then have stepped in his place under Article 16 thereof till the election of the new incumbent for that office within 90 days of that event. Alternatively, a state of emergency could have been declared under Article 30 of the Constitution and the military could have been summoned in aid of the Civil administration to quell the disturbances and to restore law and order. However, General Yahya Khan, instead of doing his constitutional duty, did not lose a minute to jettison the Constitution to the winds, which he had undertaken by his oath as an army officer to defend and protect. Further he arrogated to himself the supreme powers of the Chief Martial Law Administrator. This assumption of power by General Yahya Khan was utterly an illegitimate and unconstitutional act of usurpation, which can, on no legal or valid basis, be accorded a de jure status by the Law Courts. This position was not seriously contested by the learned Attorney-General, who has, however, argued that the very fact that General Yahya Khan took reins of power by overthrowing the old order in a manner not contemplated by the existing Constitution, amounted to a coup d'etat or a revolution on his part, which is an internationally recognised mode of changing the Constitution, thereby setting up a new law creating organ. He argued that the new order thus created by a successful revolution, which held effective away for 2 years commanding submission and obedience from all quarters, including the judiciary, gave birth to a new law creating authority de facto as well as de jure, and that all legislative and administrative measures which flowed from this authority, were valid and immune from any challenge in the Courts, where such a challenge is forbidden by the supra-constitutional powers of the new authority. In support of his argument, the learned Attorney-General heavily relied on a decision of this Court

in the famous case of State v. Dosso, wherein, Chief Justice Muhammad Munir, as he then was, by invoking Kelsen's theory of legal positivism, held that "where the Constitution and national legal order under it is disrupted by an abrupt political change not within the contemplation of the Constitution, then such a change is called a revolution and its legal effect is not only the destruction of the existing constitution but also the validity of the national legal order. Therefore, any change, no matter how or by whom brought about, whether by violence or non-violence or by persons held in a public position, is in law a revolution, if it annuls the constitution and the annulment is effective. The legality of a successful revolution is judged not by reference to the annulled constitution but by reference to its own success and the validity of the laws thereafter has to be examined by reference to the new legal order and not the annulled constitution". The learned Attorney-General, who, ironically, was a counsel against the State In Dosso's case, admitted, with refreshing frankness, that that case was decided without affording him a chance to contend against the conclusions of the Court reached therein. He submitted that he wished that all the criticism now hurled on the decision in Dosso's case had been made at that time or on some other occasion soon thereafter to defeat it and that It was not challenged even in the causes that did arise in the superior Courts thereafter, with the result that it is now woven into the fabric of our laws and that it is too late in the day now after it has been allowed to hold the field for 13 years in public and political life, to reverse it, this would only result in judicial chaos. He argued very forcefully that this Court has undoubtedly got the powers to review that judgment, but that it should not review it, particularly at this stage when the usurper has been supplanted and a duly elected and an accredited democratic leader is in charge of the affairs of the country as the President and the Chief Martial Law Administrator. To this last argument, the short argument given by the learned counsel of the appellants was that the legality and legitimacy of the present regime is not in issue in these proceedings, although they stated that it was a painful anomaly that the present head of the State, who undoubtedly represents the body politic in his own right as the chosen leader of the largest political party in this wing of the country, should have, under the stress of circumstances, derived his authority not from the body politic, which he represents, but from the erstwhile Chief Martial Lam Administrator, who has stated an exit. It is indeed most gratifying that this anomaly alluded to by the learned counsel has now come to an end. The pivotal question that arises for determination in these appeals is whether Martial Law Regulation No. 78 under which the two detenus have been held, is valid law, and whether, as held by the learned Single Judge of the Lahore High Court, in dismissing the writ petition on behalf of the detenu Malik Ghulam Jilani, the Jurisdiction of Courts (Removal of Doubts) Order of 1969 (President's Order No. 3 of 1969) bars the jurisdiction of the Courts, including the Supreme Court and the High Courts, as it purports to do by its section 3, to examine the legality of the detenus detention under Martial Law Regulation No. 78 mentioned above. Section 3 aforesaid is couched in sweeping terms of complete ouster of jurisdiction, by stating that "No Court, Tribunal or other authority, including the Supreme Court and a High Court, shall--(a) receive or entertain any complaint, or other representation whatsoever against in relation to the exercise of any power of jurisdiction by any Special Military Court or Summary Military Court or any Martial Law Authority or any person exercising powers or jurisdiction derived from Martial Law authority ; (b) call or permit to be called in question in any manner whatsoever any finding, sentence, order, proceedings or other action of or before a Special Military Court or any Martial Law authority or any person exercising power or jurisdiction derived from a Martial Law authority; (c) issue or make any writ, order, notice or other process whatsoever to or against or in relation to the exercise of any power or jurisdiction by a special Military Court or a Summary Military Court of any Martial Law authority or any person exercising powers. or jurisdiction derived from a Martial Law authority. (2) Any decision given by his writ, order, notice or process issued or made or thing done in contravention of clause (1), shall be of no effect.

(3) If any question arises as to the correctness, legality or propriety of the exercise of any powers or jurisdiction by a special Military Court or a Summary Military Court or a Martial Law authority or any other person deriving power from a Martial Law authority, it shall be referred to the Chief Martial Law Administrator, whose decision thereon shall be final. Explanation.-Martial Law authority means the Chief Martial Law Administrator and includes a Deputy Chief Martial Law Administrator, a Zonal Martial Law Administrator, a Sub. Administrator of Martial Law, or any person designated as such by any one of them. (4) If any question arises as to the Interpretation of any Martial Law Regulation or a Martial Law Order, it shall be referred to the Martial Law authority issuing the same for decision, and the decision of such Martial Law authority shall be final and shall not be questioned is any Court, Tribunal or other authority, including the Supreme Court, and a High Court. This order is issued by General Agha Muhammad Yahya Khan, both as President and Chief Martial Law Administrator." It was contended by the learned counsel for the appellants that this is a sub-constitutional legislation, being in the nature of a President's order and not one, which was Issued by the Chief Martial Law Administrator in his supra constitutional powers. From its tenor and the context in which it was issued, I am inclined to think that this order was promulgated by the Chief Martial Law Administrator in his dual capacity as the President and .the Chief Martial Law Administrator, and that it was essentially and primarily a Martial Law order made by the Chief Martial Law Administrator, to undo the judgment of the Lahore High Court rendered in the case of Mir Hassan and others v. The State (P L D 1969 Lah. 786), the same day or a day earlier, wherein Martial Law Regulation No. 42 promulgated during the pendency of the case before the High Court, was scrutinised, and it was held that it did not affect the powers of the High Court under section 561-A, Cr. P. C., which was (invoked to quash the proceedings in that case. This judgment further sought to confine the Martial Law to certain limitations in relation to the power of the High Court to dispense justice. Obviously, Order No. 3 was brought in to set this judgment at naught and to place it beyond the reach of the civil Courts. Nonetheless I am absolutely clear in my mind that Order No. 3 of 1969, is wholly indefensible both on account of the illegitimacy of its sources as well as the utter futility of its objective to defeat the judicial power legally and constitutionally vested in the judicature of the country. In my humble view, and I say so with all respect, the decision in Dosso's case relied on by the learned Attorney-General which was based primarily on the Kelsonian theory mentioned above, did not lay down the correct law, and cannot, therefore, prop up the illegal usurpation of power by General Yahya Khan and his legislative or administrative actions. The theory propounded by Kelsen in its abstract form is at best a theory which, instead of receiving a ready acceptance by the jurists, has met with a large measure of opposition and rejection. The strongest objection, which is urged against it is that the basic norm of effectiveness and success of the new order brought in by a revolution or a coup d'etat can have no relevance in the sphere of domestic jurisdiction of the Municipal Courts of law, although it is so recognised to the international law. Theories of law cannot take the place of law and are not immutable. They cannot be made generally applicable to all societies at all times. In Pakistan, in particular, we do not have to depend on Kelsen or other jurists or legal philosophers for constitutional inspiration. Our grund-norms are derived from our Islamic faith, which is not merely a religion but is a way of life. These grund-norms are unchangeable and are inseparable from our polity. These are epitomised in the Objectives Resolution passed by Constituent Assembly of Pakistan on 7-3-1949, and were incorporated in the first Constitution of the Islamic Republic of Pakistan of 1956 and repeated again in the Constitution of 1962. Its basic postulates are that sovereignty belongs to Allah Almighty, which is delegated to the people of Pakistan who have to exercise the stare powers and authority through their chosen representative on the principle of democracy, freedom, quality, tolerance, and social justice as enunciated by Islam, wherein the fundamental human rights are to be respected and the independence of the judiciary is to be fully secured. Can it be argue that any adventurer, who ray usurp control of the State power in Pakistan, can violate all these

norms and create a new norm of his own in derogation of the same? The State of Pakistan was created in perpetuity based on Islamic ideology and has to be run and governed on all the basic norms of that ideology, unless the body politic of Pakistan as a whole, God forbid, is re-constituted on an un-Islamic pattern, which will, of course, mean total destruction of its original concept. The Objectives Resolution is not just a conventional preface. It embodies the spirit and the fundamental norms of the constitutional concept of Pakistan. It was forcefully argued by Mr. Brohi that in deciding Dosso's case, their Lordships of the Supreme Court had assumed that the powers of the Court flowed from the Laws (Continuance in Force) Order, ignoring that the independent judicature in Pakistan, with the Supreme Court at its apex, is an indispensable link in the structure of Pakistan as a political entity. Here the Courts do not drive their powers from any individual, who may happen to have the control of the executive power for the time being. This judicial power as a trust from the Almighty Allah, is lodged in the society as a whole, which, in turn, is irrevocably committed to the Courts as trustees of the society. The decision in Dosso's case appears to be controlled by the Laws (Continuance in Force) Order of 1958, which the Court was itself called upon to legitimize as a new law-creating organ. The Court did not go into the question of the constitutional validity of that Order in all its details. It was also argued by the learned counsel for the appellants that whether a revolution or a coup d'etat has been successfully achieved or not, is a justiciable issue, which is for the Courts to decide on evidence and relevant material, but the learned Judges, in deciding Dosso's case, proceeded to accept the mere proclamation by the usurper as proof of the accomplishment and success of the revolution. It was further submitted that Kelsen's theory that a successful revolution furnishings its own gaund-norm, is devoid of all ethical and moral fibre. Fieldson, A. J. A., in this judgment in the famous constitutional case of Rhodesia entitled Madzimbamuto v. Lardner Burke (1968 All E R 561), observed as follows:"Nothing can encourage instability more, than for any Saila revolutionary movement to know that if it succeeds in snatching power, it will be entitled to complete support of the pre-existing judiciary in the judicial capacity. The weighty arguments against the correctness of the decision in Dosso's case have not been adequately countered by the learned Attorney-General. The mainstay of that decision, as already stated above, is the doubtful Kelsonian theory of legal positivism, which receives an indifferent support from some passages cited by the learned Attorney-General from Herald, J. Laski's book on "State, in Theory and Practice', from Garner's "Treatise on Political Science and Government", and G. C. Field's "Lectures on Political Theory". In fact, reading them in their true context, the' passages cited by the learned Attorney-General from the books mentioned above, do not support the theory in the terms as advanced by him. In this view of the matter, I feel constrained to state, with all, respect, that Dosso's case does not lay down the correct law. The contention of the learned Attorney-General that the decision in Dosso's case having held the field for a number of years, must not now be reversed on the principle of stare decisis, as it would lead to chaos, does not rest on a sound footing. This rule of stare decisis is one of expediency and can have no claim to inflexibility or compulsive obedience. In case of constitutional decisions, this doctrine is to be strictly considered, so that the organic law of the land is not allowed to run in muddy channels. The error in a constitutional decision, which is manifestly apparent and which causes injury to the body politic, must unhesitatingly be set right. On the point of acquiescence and obedience of all concerned to the acts of usurpation by General Yahya Khan and the submissive acceptance of the acts of his regime as constituting an estoppel, it would be useful to refer to Coolay's observation in his book entitled "Constitutional Limitation" at page 104:"Acquiescence for no length of time can legalise a clear usurpation of power where the people have plainly expressed their will in the constitution and upon the judicial tribunals to enforce it. A power is frequently yielded to, merely because it is claimed and it may be

exercised for a long period in violation of the constitutional prohibition without the mischief which the constitution was designed to guard against appearing or without any one being sufficiently interested in the subject to raise the question, but these circumstances cannot be altered to sanction the infraction of the constitution." The learned Attorney-General very forcefully argued that the reversal of Dossos decision at this stage, which may lead to the striking down of the laws and acts of the Yahya regime on the principle of legitimacy, will create a legal chaos. The Courts will not certainly be a party to creating a chaos in the body politic, and equally well they abhor any vacuum in the law. It is precisely to save this situation that the Courts are inclined to accord validation within recognised limits on the principle of efficacy, to the acts of a de facto usurper of power by invoking the doctrine of necessity or implied mandate from the lawful authority. Mr. Manzur Qadir very correctly pointed out that the doctrine of necessity has now come to be recognised as a law of Pakistan. The Federal Court of Pakistan in Governor-General's Reference No. 1 of 1955, invoked this doctrine by resort to the famous maxim of salus populi est suprema lex. This doctrine was succinetly explained by Fieldson, A. J. A. in the Rhodesian case, referred to above, in the following words, which may be usefully quoted;-"The necessity relied on in the present case is the need to avoid the vacuum, which would result from a refusal to give validity to the acts and legislation of the present authorities in continuing to provide for the every-day requirements of the inhabitants of Rhodesia over a period of 2 years. If such acts were to be without validity, there will be no effective means of providing money for the hospitals, the police or the Courts, of making essential by-laws for new townships or of safeguarding the country and its people In any emergency, which might occur, and numerous matters which require attention in the complex and modern State. Without constant attention to such matters, the whole machinery of the administration would break down to be replaced by chaos, and the welfare of the inhabitants of all races would be grievously affected." Lord Pearson, in his dissenting judgment fn the same case in the Privy Council, agreed with the views of Fieldson, A. J. A., and held that "on the doctrine of necessity, acts done by usurpers in effective control of authority may be recognised as valid and may be acted upon in the Courts but within set limitations". These limits were stated by him to be:(1) That the acts be directed and reasonably required for the orderly running of the State. (2) That they do not impair the rights of the citizens under the lawful constitution. (3) That they do not entrench the usurper in his power. I feel persuaded to agree with these limitations as laid down by Lord Pearson. By and large, they provide a correct guideline for the Courts to examine the validity of the legislative or administrative acts of the usurper when they are brought in for their scrutiny. I would, however, like to add that the authentic verdict of the body politic cannot be turned down even if it happens to have been obtained by an unauthorised person. It remains to consider whether the two impugned measures its these appeals, namely, President's Order No. 3 of 1969, and Martial Law Regulation No. 78 of 1971, which have proceeded from an illegitimate source, can be upheld on the doctrine of necessity or implied mandate. My answer definitely is No. It is the exclusive privilege of the Courts to identify laws from what are not laws or bad laws. A law is not law merely because it bears that label. It becomes law only if it satisfies the basic norms of the legal system of the country and receives the stamp of validity from the Law Courts. On this test alone, Order No. 3 of 1969 must be struck down, as it seeks to destroy the judicial power which vests inherently and constitutionally in the judicature of the country, which with the executive and the Legislature, form the three important limbs of the State. The totality of judicial powers resides in the judicature of Pakistan, whose powers for dispensation of justice as the trustee of the society, are indestructible, and cannot be taken away by the arbitrary will of an individual. To the judiciary is committed the duty of being the watch-dog of the actions and virtues of the other co-ordinate limbs of the State. This

Court has plenary judicial power, and the contents of that power cannot be shared with any other 'limb of the Government, executive or Legislature. While the jurisdiction of superior Courts may be regulated by the Constitution, any effort to destroy the judicial power is a senseless exercise. It was once very, appropriately remarked by Justice Hughee that "there is no doubt that the Judges are under the constitution but the constitution is what the Judges say it is". The absurdity of Order No. 3 of 1969 is heightened by its presumptuous effort to lay down that no Court, including the Supreme Court and the High Court, shall even receive or entertain any complaint, petition or application or other representation whatsoever against or in relation to the exercise of any power or jurisdiction by any special Military Court or Summary Military Court or any Martial Law authority or any person exercising the authority or jurisdiction from Martial Law authority. It can never be disputed that the Courts alone have the power to determine all questions of their own jurisdiction, including the negative that they do not have the jurisdiction. In view of what has been said above, I would unhesitatingly strike down Order No. 3 of 1969 as a bad and untenable measure. In regard to Martial Law Regulation No. 78 of 1971, I have simply to point out that it can have no validity in the eyes of law, firstly, because its authorship is unconstitutional being of a person who was a usurper and who had illegally arrogated to himself the powers of the Chief Martial Law Administrator to issue this regulation. It can also not be upheld on the doctrine of necessity or implied mandate, as there was, in fact, no need for it whatsoever, and it was enacted to give a free band to the usurper to gag any one who raised a voice against him, and to annihilate any opposition or supposed opposition to the firm entrenchment of his authority as a usurper, The object of preventive detention, for which this regulation was made, is already available in the existing law, namely, "The security of Pakistan Act, 1952 " and "The Defence of Pakistan Rules, 1965". It is obvious that this Regulation was enacted merely to make arbitrary power more arbitrary. I think I must now summarise my conclusion in these appeals as follows;-(1) The decision of this Court in Dosso's case does not lay down good law, and must be overruled. (2) The Martial Law as proclaimed by General Agha Mohammad Yahya Khan was illegal. The assumption of power by General Agha Mohammad Yahya Khan as the President and the Chief Martial Law Administrator was wholly unconstitutional, and cannot be recognised as valid. (3) General Agha Mohammad Yahya Khan was no doubt in effective control of governmental power for the period that he remained in the saddle, and only those of his legislative and administrative acts can be recognised by the Courts, which may be found to be absolutely necessary on the doctrine of necessity within the limitations of that doctrine to be adjudged by the Courts. (4) President's Order No. 3 of 1969 and Martial Law Regulation No. 78 of 1971, not being valid laws, cannot be recognised as such by the Court, and have to be struck down. In the result, I would accept these two appeals, and direct that the detenus be set at liberty forthwith, unless they arc detained under any other valid law of the land.

WAHEEDUDDIN AHMAD, J.-I have had the advantage of reading the judgment of my Lord the Chief Justice. I fully agree with its reasoning and conclusions and have nothing to add.

SALAHUDDIN AHMED, J.-I have had the benefit of perusing 'the erudite judgment of my Lord the Chief Justice, and I fully agree with him. I should however, like to add a few observations of my own. Both the detention orders have been passed under Martial Law Regulation No. 78, promulgated on 17-4-1971, by General Agha Muhammad Yahya Khan, and the main question for consideration before this Court is whether the detention of the two detenus under Martial Law Regulation No. 78 is legal. All other questions revolve round this. Before, however, the Court can determine this question, it is confronted with the preliminary question, as to whether the Court can receive or entertain any complaint, petition, application, etc., against or relating to an order passed by a Martial Law Authority call or permit to be called in question etc., any order of such authority in view of the bar placed on the Courts under section 3 of the President's Order No. 3 of 1969. Two sub-questions flow from this preliminary question, and they are; (i) Is President's Order No. 3 of 1969 binding in law ? (ii) If so, does it still permit the Court to enquire into the validity of Martial Law Regulation No. 78 ? It has been the Constitutional practice in the Indo-Pakistan sub-continent that whenever an existing Order ceased to be operative, either legally or illegally, the existing laws have been continued to remain valid by the new dispensation. Beginning from the Government of India Act (Consolidated in 1924) down to the Laws (Continuance in Force) Order, 1958, and the Proclamation of Martial Law by General Agha Muhammad Yahya Khan, the validity of existing laws were continued by this process. The details are as follows:--Section 30 of the Government of India Act, 1919 (Consolidated in 1924); section 292 of the Government of India Act, 1935; section 18 of the Indian Independence Act, 1947; Articles 221 and 224 of the Constitution of Islamic Republic of Pakistan, 1956; Paragraph 4 of the Laws (Continuance in Force) Order, 1958; Article 225 of the Constitution of Pakistan, 1962; and paragraph 5 of the Proclamation of Martial Law dated the 25th March 1969. Similar is the provision in Article 372 of the Indian Constitution. On the 20th of December 1971, Chief Martial Law Administrator and ex-President of Pakistan General Agha Muhammad Yahya Khan stepped down from his offices, and consequently all the existing laws lapsed, and unless they were saved by a competent authority under the subsequent dispensation, they ceased to have any sanction behind them. The 1962-Constitution having already been abrogated by him, the only sanction behind the various `Laws' that he purported to make was his individual 'will' and with his disappearance from the scene. all the existing `Laws' including President's Order No. 3 of 1969 and Martial Law Regulation No. 78 lapsed. There is nothing to show, and the learned Attorney-General has been unable to place before us anything from the now dispensation to show, that the existing laws were saved. He has, however, relied upon the proclamation of General Agha Muhammad Yahya Khan dated the 20th December 1971, whereby he transferred power to President Zulfikar Ali Bhutto for the purpose of showing that the existing laws were continued in force. In this Proclamation it has been stated that the Proclamation of the 25th March 1969 shall have effect subject to the Proclamation of the 20th December 1971, and inasmuch as the Proclamation of the 25th March 1969 had saved the existing laws, the Proclamation of the 20th December 1971, it has been contended, also operated to save the existing laws. It is to be noticed that the Proclamation of the 20th December 1971, itself was by General Agha Muhammad Yahya Khan and it derived its force and validity from his individual 'will'. As soon as, however, this 'will' ceased to exist on account of his exit, the very life line of the Proclamation of 20th December 1971, was cut off, I have, therefore, no hesitation in saying that neither President's Order No. 3 of 1969 nor Martial Law Regulation No. 78 is a valid existing law. The next question is : whether President's Order No. 3 and Martial Law Regulation No. 78 can be saved on the doctrine of necessity. The doctrine of necessity is concomitant of

the doctrine of legitimacy, and might have relevance in the regime of General Agha Muhammad Yahya Khan. As the legality of the present regime is not directly in issue before this Court, it is not called upon to consider it. The learned Attorney-General has submitted that the recipient of power in the present regime has legitimate credentials from the body politic itself and therefore, no limits can be placed on its power. As for the former, it is not before us as a specific issue; as for the latter it is not true. The corner stone of the State of Pakistan is that the sovereignty rests with Allah and Pakistan is his delegatee in the matter of the Governance of the State. It is natural, therefore, that the delegatee or for the matter of that any ruler, single or collective, in Pakistan can never have unlimited power. If the present regime has legitimate credentials, as claimed by the learned Attorney-General the application of the doctrine of necessity does not arise. It must rely on its own source of law. If it has not the validity of President's Order No. 3 and Martial Law Regulation No. 78 shall have to be tested in the light of the following tests which Fieldsand, J. laid down in the Rhodesian case and which were approved in the Privy Council by Lord Pearce (1968) 3 A E R 561. If the taking over by the usurper is complete and effective and this 9s to be determined on evidence by the Court, the Court may as a matter of necessity treat a 'Law' as valid but only such parts as: (a) are directed to and reasonably required for orderly running of the State; (b) Such as do not impair the rights of the citizens under the previous lawful Constitution; (c) Such as do not run counter to the previous lawful Constitution, and are not intended to strengthen the usurper. President's Order No. 3 is bad for another reason; It is Inconsistent with the Rule of Law which is the basis of every civilised society. The order is inconsistent with the Rule of Law because it reflected the individual dominant `will' of one person, namely, General Agha Muhammad Yahya Khan and was based on no rule of conduct and also because it sought to make an Act or Order of any Martial Law Authority immune from attack in any Court of law. Martial Law Regulation No. 78 is also repugnant to Islamic Law. The latter recognises detention as justified in two circumstances only, (i) by sentence of Court; and (ii) for the purpose of investigation. Vide p. 35 of Miras-e-Quaid-e-Azam by Dr. Javaid Iqbal. President's Order No. 3 of 1969 has also been assailed on another ground. It has been contended that President's Order No. 3 contains supra-Constitutional Provisions namely, those barring the jurisdiction of the Court In regard to Act or Order of a Martial Law Authority and that any dispute in regard to the interpretation or application of a Martial Law Authority can only be referred to the Chief Martial Law Administrator for final interpretation. These supra-Constitutional provisions under the Provisional Constitution Order, 1969 could only be made by the Chief Martial Law Administrator and not the President who made President's Order No. 3. Tao two offices are separate and the former is superior to the latter as the office of the President was created by the Chief Martial Law Administrator under section 3(2) of the Provisional Constitution Order. This again is a question which the Court has to determine for it is the only limb of the State that can determine it. The learned Attorney-General has unsuccessfully tried to repel this and argued that the aforesaid two provisions are Constitutional matters and these could under section 8 of the Provisional Constitution Order be made by the President. Inter alia, section 2 of the Order which says that "this Order shall have effect notwithstanding anything contained in the Provisional Constitution Order . . . . .", and sections 3(3) and 4 of the Order that give Martial Law Authority the sole jurisdiction to determine the correctness, legality or propriety of the exercise of any powers or jurisdiction by among others, a Martial Law Authority or to interpret any Martial Law Regulation or Martial Law Order, clearly show that President's Order No. 3, do contain supra-Constitutional provisions. Alternatively the learned Attorney-General has contended, that President's Order No. 3 of 1969 has been promulgated by the Chief Martial Law Authority and not by the President. It has been submitted that the criteria for determining this question are three-fold. Firstly, the title or name of the Order ; secondly, description of the order and its authorship as

given in the official Gazette, and thirdly, in the recital of the power in the Order. In regard to the first test, prima facie, it is a President's Order being President's Order No. 3 of 1969. The second test also shows that the order has been described as President's Order in the Gazette of Pakistan, Extraordinary, dated June 30, 1969. The Notification published in the Gazette contains the following;---"The following Order made by the President is hereby published for general information:-" As regards the third test, it has been stated in the preamble of the President's Order No. 3, that the Order is being made "by the President and Chief Martial Law Administrator." The learned Attorney-General has contended that the were addition of the description "Chief Martial Law Administrator" does not make it the Order of the Chief Martial Law Administrator. I think the said Notification clinches the issue for it leaves no room for doubt about the authorship of the Order. I, therefore, hold that President's Order No. 3 of 1969 is ultra vires on this ground. In this context it has been brought to the notice of the Court that by the insertion of the condition "for the administration of the affairs of the State" in section 8 of the Provisional Constitution Order of 1969 President's Order No. 3, has been made justiciable and the Court accordingly can determine whether the provision contained in the President's Older No. 3, has in fact been made for the administration of the affairs of the State. I agree with this contention. The position as it obtains vis-a-vis the President's Order No. 3, and Martial Law Regulation No. 78 is that there is a regime whose legality or legitimacy has not yet been questioned in any Court of law. This regime has chosen to act under a law that has ceased to exist with the disappearance of the maker of the law. What then is the consequence of such Act? In my opinion if the particular law has not been adopted or continued in a competent manner by the new dispensation, the Act is a nullity. I see no force In the contention advanced by the learned Attorney-General that President's Order No. 3, has been recognised as good law in Fazal Ahmed v. The Sate (P L D 1970 Lah. 741) and in Fazal Ahmed v. The State (1970 S C M R 650). In the first place both these cases were decided at a time when the old order was in existence. In the second place in none of these cases any specific issue was raised in regard to the validity of President's Order No. 3. Assuming, however, the President's Order No. 3, and Martial Law Regulation No. 78 are still good laws, the question is whether this Court has the power to determine the legality of the detention of the petitioner's husband in view of the bar contained In President's Order No. 3 of 1969. In my opinion this Court has the power to decide the issue as It is the sole Judge of its own jurisdiction including the negative, to hold that it has no jurisdiction. This proposition arises from the fact that being the highest Court of the land, the law declared by it is binding on all Courts and all Executive and Judicial Authorities throughout Pakistan, shall act in aid of the Supreme Court (viz. Article 64 of the 1962-Constitution). No doubt the 1962-Constitution contains certain provisions ousting the jurisdiction of the Supreme Court, the ouster, however, does not take away the jurisdiction of the Court in regard to this particular point in issue. Reference has been made to the 1962 Constitution, because that is the only legal instrument under which the institution of the Supreme Court was established. A pertinent question, however, arises as to whether after the abrogation of the 1962-Constitution by General Agha Muhammad Yahya Khan by his proclamation of the 25th March. 1969, this Court can still derive inspiration and authority from the said y Constitution. The one short answer to this is that as soon as `' General Agha Muhammad Yahya Khan made his exit from the scene, the Constitution, which had been dormant in the meantime, revived. As regards the Judicial power of this Court it may be stated that the 1962-Constitution was based on a Presidential structure and it was accordingly erected on the theory of the separation of powers between the three limbs of the Government, namely, the

Legislature, the Executive and the Judiciary The entire judicial power, including the concept of jurisdiction, was lodged with the judiciary. The Supreme Court is the creation of 1962-Constitution and its existence was continued under paragraph 5 of the Proclamation of Martial Law dated the 25th March 1969. As the proclamation of the 25th March 1969 and the Provisional Constitution Order, 1969, have ceased to exist due to the disappearance of General Agha Muhammad Yahya Khan from the scene, the 1962-Constitution has come back with full force and is operative until it is validly replaced by the elected representative of the people. In Pakistan the legal sovereignty rests with Allah. Therefore, the judicial power has been conferred on the judiciary as agent of the Sovereign Authority, namely, Allah. In my opinion, therefore, this Court has the requisite power and jurisdiction to determine the questions that have been raised before it. The existence of the jurisdiction of this Court receives further support from the fact that the respondents have appeared before this Court and have submitted to the jurisdiction of this Court. After all, in a civilised society who else can determine a dispute between the State or its ruler and its citizens. According to the common factor in the oaths of the Judges we have undertaken to discharge our duties and perform our functions in accordance with the laws of Pakistan which we have sworn to preserve, protect and defend. The oaths also have bound us to do justice according to law. This takes us to the question as to what is law'. 'Law' has not been defined in the 1962.-Constitution or in the Provisional Constitution Order of 1969. It is, therefore, the function of this Court to define 'law'. It has been rightly emphasized by Mr. Manzur Qadir that law its basic to orderly society and Courts are basic to law. It can hardly be disputed that apart from the law as we find in the Constitution and the various Statutes, there are a number of laws and legal principles which have been evolved by Courts in course of their decisions. For example in Pakistan the rule of audi alteram partem is a part of the law of Pakistan and it has to be read in a Statute which does not expressly oust the application of the principle of natural justice. Besides, in any case where vires or validity of a law is in question, it is the Court that has a final say in the matter. It has been truly said that 'law' is that which the Court recognises as such. It has, therefore, been rightly contended that now that the validity of President's Order No. 3 or Martial Law Regulation No. 78 has been raised as a direct issue before this Court, it is the Court's decision that will finally put a seal on its validity or otherwise. The learned Attorney-General has very frankly conceded that it is this Court that can put the final seal on the validity or otherwise of a law. He has also frankly conceded that it is difficult for him to support the provision of section 3(1)(a) of the President's Order No. 3 of 1969 which prohibits the Court from receiving or entertaining any complaint etc. The Court's power to discover law applicable to a situation has been accepted in the Governor-General's Reference No. 1 of 1955 (P L D 1955 F C 435). In the case under report the Governor-General having found himself in a difficult situation and having been unable to find any legal basis to meet the situation had to approach the then Federal Court for a solution of the problem and the Court answered the reference and indicated the manner in which the problem could be legally solved. From the foregoing it is evident that, in the first place, President's Order No. 3 of 1969 and Martial Law Regulation No. Its do not exist so far as this Court is concerned, and therefore, they are not valid laws. In the second place even if it be assumed that they do exist, they can not deprive the Court of its inherent jurisdiction to consider the validity or otherwise of those laws or any action taken thereunder. The following illustration will highlight this position. Supposing by an order passed under Martial Law Regulation No. 78, 'X' has been ordered to be detained. While executing this order, however, instead of 'X', 'Y' is arrested and detained. It is absurd to say that the Court is deprived of its jurisdiction to consider the validity of the order vis-a-vis the person detained merely because the order is by a Martial Law Authority. In the case of detenu Mr. Altaf Gauhar there is a similar question involved, for, while the Martial Law Administrator Zone 'D' passed the order directing that the detenu be kept confined by the Superintendent, Central Prison, Karachi, and granted Class 'B' during detention, the detenu admittedly was not committed to the requisite custody. Can it be said with any amount of reasonableness that the Court has no power even to see whether the action taken is in accordance with the order passed by the Martial Law Administrator? It is now an admitted fact that the detenu

Altaf Gauhar was actually detained in places different from the one mentioned in the impugned order of detention, without any order by the Martial Law Administrator concerned. Even on this very limited ground I feel no hesitation in saying that this Court has the jurisdiction to pronounce the detention of Mr. Altaf Gauhar as illegal. It has been contended by the learned Attorney-General that President's Order No. 3 has provided for a remedy in a matter like this. I am unable to agree with him. Having regard to the provisions made in section 3 of the President's Order No. 3 of 1969, any question regarding the correctness, legality or propriety of exercise of any powers or jurisdiction of a Martial Law Authority could only be referred to the Chief Martial Law Administrator for decision by a Martial Law Authority itself, for the Court's jurisdiction even to receive or entertain any complaint in that respect has been sought to be ousted. The position, therefore, is that any order passed by a Martial Law Authority, if it is labelled as such, it must be accepted as a good order whether it is in fact male or could be made under any Martial Law Order or Regulation, or not. Such an unlimited and undefined power, which is at the same time arbitrary and not governed by any rule of law, can never be accepted as good by any Court of law. Such an unlimited power is not only foreign to Islamic Law but is also not recognised in any modern society. Dosso's case-P L D 1968 S C 533 There have been murmurs both inside and outside Pakistan as to the correctness of the decision in Dosso's case. It has now been mooted before this Court and the Court has been asked to review its own decision. There is no doubt about the competence of this Court to review its own decision. Article 62 of the 1962. Constitution, which established the Supreme Court, has provided as follows: "The Supreme Court shall have power, subject to the provisions of any Act of the Central Legislature and of any Rules made by the Supreme Court, to review any judgment pronounced or any order made by it." This case gives me the impression that law has been sacrificed on the alter of expediency. The entire legal system of Pakistan has been derailed as a result of this decision, and the system requires to be put back on the rail, if Pakistan Is to pursue its chartered course as laid down In the Objective Resolution passed by the People of Pakistan. Stare decfsis should have no application to Dosso's case. Schwartz in his book 'The Supreme Court' has observed as follows on stare decisis; " . . In a judicial tribunal, stare decisis is not so much a virtue as a necessity . . . . . adherence to precedent is basis as a abstract desideratum of the law. But it must not take precedence over the need for the law to be right, particularly on Constitutional issues. Inherent in every system of law is the antinomy between certainty and change." (pp. 345-346). I, therefore, fully agree that Dasso's case must be reviewed on the grounds mentioned by my Lord the Chief Justice. Dosso's case came up for decision during the regime of General Muhammad Ayub Khan and it was decided therein that a successful revolution was entitled to the allegiance of the Courts of law. The decision is based on what the learned Judges thought was Kelsen's Theory of Jurisprudence. This theory was interpreted to provide the legal justification for the acceptance by the domestic Court of the success of an internal revolution within the State. It was not borne in mind, as it should have been, that Kelsen's was a 'pure theory of law' as distinguished from the 'law' itself. It is the overlooking of this obvious position that has caused the basic fallacies in the judgment. Kelsen himself was aware of the fact that this theory did not form part of any legal system. Furthermore the Court had assumed that there was a revolution and the revolution had succeeded. Both these questions were questions of fact and required to be decided upon evidence, and upon issues raised before the Court. There is nothing to show, that there was any rebellion or insurrection. The Proclamation of the 7th October 1958, by President Iskandar Mirza made no mention of any rebellion or insurrection.

It is thus evident that the very foundations upon which the decision rested did not exist. I, therefore, think that this Court should make it clear that the validity or otherwise of an existing order can only be determined with reference to the laws of Pakistan and not to any theory of international jurisprudence. It is also necessary to state firmly that the question of existence of a revolution or its success are questions of fact which can only be decided upon evidence, and not assumed. This will remove once for all the temptations that have been placed in the way of an adventurer seizing power illegally and destroying an existing legal order.

P L D 1977 S C 657 Present: Anwaral Haq, C. J., Waheeduddin Ahmad, Muhammad Afzal Cheema, Muhammad Akram. Dorab Patel, Qaisar Khan, Muhammad Haleem, G. Safdar Shah and' Nasim Hasan Shah, JJ . BEGUM NUSRAT BHUTTO-petitioner versus CHIEF OF ARMY STAFF AND FEDERATION OF PAKISTAN-Respondents . Constitutional Petition No. 1 of 1977, decided on 10th November 1977. Per S. Anwaral Haq, C. J. [Waheeduddin Ahmed, Muhammad Afzal Cheema. Muhammad Akram, Dorab Patel, Muhammad Haleem, G. Safdar Shah and Nasim Hasan Shah, JJ. agreeing]: (a) Constitution of Pakistan (1973)Art. 184 (3)-Maintainability of petition-Petition directed against Chief of Army Staff whereas impugned orders of detention passed by Chief Martial Law Administrator-Chief of .Army Staff also being Chief Martial Law Administrator, objection regarding nonmaintainability of petition. on ground of not having been directed against Chief Martial Law Administrator, held, only technical since it could be easily rectified by adding words "Chief Martial Law Administrator" to description of respondent.- [Writ]. (b) Constitution of Pakistan (1973).-- Art. 184(3) read with Art. 199-Aggrieved person-Petitioner moving petition in her capacity of wife of one of detenus and as Acting Chairman of Party to which all detenus belonged-Petitioner though not alleging any contravention of her own Fundamental Rights yet in circumstances, held, an aggrieved person within meaning of Art. 199. [Aggrieved person]. Manzoor Elahi v. State P L D 1975 S C 66 ref. (c) Precedents- Interpretation of-Apprehension that decision of Supreme Court in Asma Jillani's-case (P L D 1972 S C 139) in effect rendered illegal all successive Governments of Pakistan and Constitutions framed during relevant period, held, not well-founded.-[Interpretation of precedents]. State v. Dosso P L D 1958 S C (Pak.) 533 ; Quin v. Leathem 1901 A C 495; Prager v. Blatsplel, Stamp do Heaeock Ltd. (,1924) 1 K B 566; Read v. J. Lyons & Co. Ltd. 1947 A C .156; Candler v. Crane Christmass & Co. (1951) 1 All E R 426; State v. Zia-urRehman P L D 1973 S C 49 and Miss Asma Jillani v. The Government of The Punjab and another P L D 1972 S C 139 ref. (d) Precedents--Interpretation of-Judgments delivered in-Southern Rhodesian case of Madzimbamuto [(1968) 3 All E R 561]-Held, cannot be regarded as judicial authority for proposition that effectualness of new regime provides its own legality-Doctrine subjected to weighty criticism on ground of seeking to exclude all considerations of morality and justice from concept of law and legality.-[Interpretation of precedents Doctrine of necessity). Madzimbamuto v. Lardner-Burke and another (1968) 3 All E R 561, Splitting the Grundnorm 1967 Modern Law Review, Vol. 30; The Judicial Process : UDI and the Southern Rhodesian Judiciary by Claire Pally; Legal Politics: Norms Behind the Grundnorm by R. W. M. Dias 1968 Cambridge Law Journal, Vol. 26 ref.

(e) JurisprudenceKelsen's pure Theory of Law-Not universally accepted-Nor indeed a ,theory having become basic doctrine of science of modern jurisprudence-Theory not found consistent for full application in all revolutionary situations coming before Courts for adjudication as to validity of new Legal Orders resulting from such revolutions.-[Theory of law]. Principles of Revolutionary Legality-Oxford Essays on ,Jurisprudence, 2nd Series,, 1973 ; The Problem of Power in Legal Politics : Norm Behind the Grundnorm by R. W. M. Dias, Ch. 1V; Adams v. Adams (1970) 3 All E R 572; The Pure Theory in Legal Politics : Norms Behind the Grundmom by R. W. M. Dias, Ch. XVI and The 1965 Standford Law Review, Vol. 17 by Professor Julius Stone ref. (f) Jurisprudence-- Kelsen's Theory-Open to serious criticism on ground of excluding from consideration sociological factors of morality and justice-Legal consequences of an abrupt political change by imposition of martial law-To be judged not by application of an abstract theory of law in vacuum but by consideration of total milieu preceding change, i.e., objective political situation prevailing at time, its historical imperatives and compulsions, motivations of persons bringing in change and extent of preservation or suppression of old Legal Order.-[Theory of law]. Kelsen's theory is open to serious criticism on the ground that by making effectiveness of the political change as the sole condition or criterion of its legality, it excludes from consideration sociological factors of morality and justice which contribute to the acceptance or effectiveness of the new Legal Order. It must not be forgotten that the continued validity of the grundnorm has an ethical background, in so far as an element of morality is built in it as part of the criterion of its validity. These considerations assume special importance in an ideological State like Pakistan, which was brought into being as a result of the demand of the Muslims of the IndoPakistan sub-continent for the establishment of a homeland in which they could order their lives in accordance with the teachings of the Holy Qur'an and Sunnah. When the demand was accepted, it was given effect to by means of a Constitution passed by the British Parliament, which held sovereignty over India in 1947. In other words, the birth of Pakistan is grounded both in ideology and legality. Accordingly, a theory about Law which seeks to exclude these considerations, cannot be made the binding rule of decision in the Courts of this country. It follows, therefore, that the legal consequences of an abrupt political change, of the kind with which the Court is dealing in this case, must be judged not by the application of an abstract theory of law in vacuum, but by a consideration of the total milieu in which the change is brought about, namely, the objective political situation prevailing at the time, its historical imperatives and compulsions; the motivation of those responsible for the change, and the extent to which the old Legal Order is sought to be preserved or suppressed. Only on a comprehensive view of all these factors can proper conclusions be reached as to the true character of the new Legal Order. (g) JurisprudenceKelsen's Theory-Theory of revolutionary legality-Can have no application or relevance where breach of legal continuity admitted or declared to be of a purely temporary nature and for a limited specified purpose-Such phenomenon-One of constitutional deviation rather than of revolution-Application of Kelsen's theory to such transient and limited change in legal or constitutional continuity of a country, held, inappropriate.-[Theory of law]. Per Waheeduddin Ahmad, J. (agreeing).

The principles laid down in Asma Jillani's case are not applicable to the facts of the present case. In the circumstances 'of the present case the principles enunciated in the Reference by His Excellency The Governor-General P L. D 1955 F C 435 will have to be invoked for solving the present constitutional deadlock. Per Dorab Patel, J. (agreeing). The principles laid down by the Federal Court in the Reference by His Excellency The Governor-General P L D 1955 F C 435 will have to be followed in resolving the impasse created by the, constitutional break-down. Per Muhammad Akram, J. (agreeing). Legality--Legality depends on the jurisdiction in which the matter is considered, quite apart from effectiveness. The effectiveness of the legislative authority is not a condition of the validity either of "laws" or even of itself. It is a factor which in time induces the Courts to accept such authority. Ours is an ideological State of the Islamic Republic of Pakistan. Its ideology is firmly rooted in the Objectives Resolution with emphasis on Islamic Laws and concept of morality. In our way of life we do not and cannot divorce morality from law. Therefore the Pure Theory of law is not suited to the genesis of this State. It his no place in our body politics and is unacceptable to the judges charged with the administration of justice in this country: Kelsen's General Theory of Law and State, pp. 118-119 ; State v. Dosso P L D 1958 S C (Pak.) 533; Miss Asma Jillani v. Government of the Punjab and another P L D 1972 S C 139; Adams v. Adams (1970) 3 All E R 572 and Lloyd's Introduction to Jurisprudence, Third Edn., p. 269 ref. Per Nasim Hasan Shah, J. (agreeing). In the facts and circumstances of our situation the doctrines propounded by Kelsen do not appear to be strictly applicable as the change-over which occurred on the 5th July 1977 cannot qualify as a "revolution" in Kelsenian terms. Although the Armed Forces are undoubtedly in effective control of the administration, it is neither their intention nor indeed have they established a new Legal Order in supersession of the existing Legal Order. The Constitution of 1973 remains the Supreme law of the land, subject to the condition that certain parts thereof have been held in abeyance. The President of Pakistan and the superior judiciary continue to function under the Constitution, subject to any limitations placed on their jurisdiction. The change is only in the nature of a constitutional deviation rather than the destruction of one Legal Order and its replacement by another. Even otherwise, the doctrines of Kelsen cannot be accepted in their entirety by Courts of law. Whereas for Kelsen the efficacy of a revolution creates a new reality of which the pure science of law must take account, for the Courts involved in practical decisions the efficacy of a revolution creates a new legal situation which they must take note of and proceed to decide the matter as raised before them by the contesting parties. In doing so they will have to take into account not only the efficacy of the change, but other values, such as the desirability of maintenance of peace, order, justice or good government, to fill the vacuum in law and to avoid chaos, presumption in favour of the old regime because of its original legal status or against it because of its record of unconstitutional actions and conduct. In short, the responsibility of the judge is not to the "objective reality" that exists for the academic observer but to the peace, order, justice, morality and good government. In fact, for judges involved in practical decisions acceptance of the changed Legal Order is not so much on account of its efficacy as such; but rather on necessity in the sense of "ID QUOD ALIAS NON EST LICITUM, NECESSITAS LICITUM FACIT" (that which otherwise is not lawful necessity makes lawful). (h) Proclamation of Martial Law [dated 5-7-1977]-Qaiser Khan 7. (agreeing)

-- Justification of-State necessity and welfare of people-Widespread allegations of massive interference with sanctity of ballot by Government officials in favour of candidates of ruling party; national wave of resentment giving birth to country-wide protest agitation; disturbances getting out of control of civil Armed Forces and resulting in heavy loss of life and property; calling out of troops by Federal Government, consequent imposition of Local Martial Law in several important cities; requisitioning of military assistance by local authorities in smaller towns and cities not having desired result; rigging and official interference with elections in favour of ruling party candidates established by judicial decisions in some cases displaying general pattern of official interference; public statements of Election Commissioner concerned ratifying widespread allegations of Opposition regarding official interference with elections and endorsing demand for fresh elections; Prime Minister in circumstances offering himself to Referendum but such offer not having any impact at all and demand for his resignation and for fresh elections continuing unabated plan resultantly dropped; despite Prime Minister's dialogue with Opposition leaders and temporary suspension of movement officials charged with maintenance of law and order continuing to be apprehensive of terrible explosion beyond control of civilian authorities in event of failure of talks; talks between Prime Minister and Opposition leaders on basis of his offer for holding fresh elections dragging on for various reasons and ultimately Opposition party insisting on nine or ten points having yet to be resolved and Prime Minister also saying that his side would similarly forward another ten points if Opposition failed to ratify accord allegedly reached earlier; Punjab Government, during crucial days of deadlock, sanctioning distribution of fire-arms licences on a vast scale to its party members and provocative statements deliberately made by Prima Minister's Special Assistant; normal economic, social and educational activities seriously disrupted as a result of agitation and incalculable damage caused to nation and country-Prime Minister's constitutional and moral authority to rule country standing seriously eroded in consequence and his Government finding it difficult to maintain law and order, to run orderly ordinary administration, to keep open educational institutions, and to ensure normal economic activity-Situation deteriorating to such extent that either Prime Minister or Service Chiefs themselves felling necessity of a declaration of loyalty to Government so as to boost up Prime Minister's authority to help restore law and order and a return to normal conditions but even such declaration not having any visible impact on momentum of agitation Constitutional authority of Prime Minister and other Federal Ministers as also of Provincial Governments repudiated on a large scale throughout country-Representative' character of National and Provincial Assemblies not accepted by people at large-Serious political crisis in country leading to break down of constitutional machinery concerning executive.. and legislative organs of State-Situation arising such for which no, solution provided for in Constitution-Armed Forces of country in such eventuality . intervening to save country from further chaos and bloodshed, to safeguard integrity and sovereignty of country and to separate warring factions-Step though extra-Constitutional yet obviously dictated by highest considerations of State necessity and welfare of people and for this reason spontaneously welcomed by almost all sections of population--Explanation given by Chief Martial Law Administrator for Army's intervention-A true reflection of situation-Sincere and unambiguous declaration of Chief Martial Law Administrator, to wit, he took over administration only for a short time to arrange for fresh elections fairly at shortest possible time and intended to hand over government to chosen representatives of people persuading people and Judges of Superior Courts to willingly accept such interim arrangements-New arrangement, dictated by considerations of State necessity and welfare of people, held, acquired its effectiveness owing to its moral content and promise of restoration of democratic institutions and justified in circumstances.-[Doctrine of necessity]. P L D 1977 Jour. 164; P L D 1977 Jour. 1; P L D 1977 Jour. 190; P L D 1977 Jour. 198; Statements made by the Chief Election Commissioner on the 17th of March 1977, 23rd of May 1977, and the 5th of June 1977; Minutes of certain Meetings of the Law and Order Committee, headed by Mr. Yahya Bakhtiar ; Speech made by General Muhammad Ziaul Haq on 5th of July 1977 ref. Miss Asma Jillani v. Government of The Punjab and another P L D 1972 S C 139 and Stare v. Dosso P L D 1958 S C (Pak.) 533 distinguished.

Per Nasim Hasan Shah, J. (agreeing).The question whether the conditions obtaining in Pakistan necessitated the imposition of Martial Law has to he answered by reference to the happenings from 7th March, 1977 up to 5th July 1977, which reveal that the constitutional and moral authority of the National Assembly which had come into being as a result of the elections held on 7th March 1977, as well as the Federal and Provincial Governments formed thereafter had been continuously and forcefully repudiated throughout the country over a prolonged period of nearly four months with the result that the national-life stood disrupted. A situation had arisen for which the Constitution provided no solution. The atmosphere was surcharged with the possibility of further violence, confusion and chaos. As the Constitution itself could not measure up to the situation, the doctrine of State Necessity became applicable., for where the safety of the State and the welfare of the people are in imminent danger, necessity justifies a departure from the ordinary principles of law. In these circumstances the step taken by the Armed Forces of imposing Martial Law stands validated, on the principle of State Necessity. Per Qaiser Khan, J ---A Constitution or the basic norm could be annulled, abrogated, destroyed or suspended in two ways, one by a Constitutional act, that is to say, by the method provided for in the Constitution for changing or replacing it and the other by an un-Constitutional act, say revolution or coup de'etat, which is known as extra-Constitutional act. In the instant case the Constitution of 1973 was put in abeyance, that is to say, suppressed for the time being by the Chief of the Army Staff by an extra-Constitutional act of issuing a Proclamation declaring himself as the Chief Martial Law Administrator. For the running of the Country the Chief Martial Law Administrator who had assumed all powers under the Proclamation issued the Laws (Continuance in Force) Order the same day. Now the validity or invalidity of this action could not be tested on the basis of the Constitution of 1973 as it was no longer there having been suppressed and there was no other superior norm on the basis of which it could be tested. Such an action, according to some jurists, is called metalegal. For judging such a situation there are two authorities of the Supreme Court; in the field, that of Dosso P L D 1958 S C (Pak.) 180 and Asma Jillani, P L D 1972 S C 139. Dosso's case by which the new order could he legitimised cannot be applied as it has been overruled by the Asma Jillani's case. Asma Jillani's case does not apply in the present case as the facts and circumstances of this take-over are quite different from the facts and circumstances of the then take-over. In the present case under the circumstances prevailing in the Country of which the Court can take judicial notice the present takeover was quite justified for saving the State from total destruction and the Chief of the Army Staff under the circumstances could not be dubbed as a usurper. (i) Laws (Continuance in Force) Order, 1977 [C. M. L. A's Order 1 of 1977]---- Doctrine of necessity-Contention that question of application of doctrine of necessity does not arise in present case since with suppression or destruction of old Order even such doctrine or concept disappeared and could no longer be regarded as part of judicial system obtaining in Pakistan--Held: Question of considering application of doctrine of necessity did arise in case in hand since Court not persuaded of military intervention providing its own legality simply for reason of its being accepted by people and becoming effective in such sense-Old Constitution even if assumed to be completely destroyed or suppressed judicial concepts and notions of morality and justice, nevertheless not destroyed simply for reason of new Legal Order not mentioning anything about them--Laws (Continuance in Force) Order, 1977 on other hand clearly mentions governance of country, as nearly as may be, in . accordance with Constitution (19731 and to continue all laws for time being in force, indicating thereby an intention not to destroy legal continuity of country as distinguished strictly from constitutional continuity.-[Doctrine of necessity]. (j) Jurisprudence-

-- Usurpation of power---Power assumed in extra-Constitutional manner . by authority not mentioned in Constitution---Does not always amount to usurpation of power--Question to be determined in light of circumstances of particular case before Court. -[Usurpation of power]. (k) Jurisprudence----- Assumption of power once held valid, legality of actions taken by such authority to be judged in light of .principles pertaining to law of necessity-Concept of condonation as expostulated to Asma Jillani's case P L D 1972 S C 139.- [Doctrine of necessity]. The concept of condonation, as expostulated in Asma Jillani's case, has relevance not only to the acts of a usurper, but also to a situation which arises when power has fallen from the hands of the usurper, and the Court is confronted with protecting the rights and obligations which may have accrued under the acts of the usurper, during the time he was- in power. However, in the case of an authority, whose extra-Constitutional assumption of power is held valid by the Court on the doctrine of necessity, particularly when the authority concerned is still wielding State power, the concept of condonation will only have a negative effect and would not offer any solution for the continued administration of the country in accordance with tire requirements of State necessity and welfare of the people. It follows, therefore, that once the assumption of power is held to be valid, then the legality of the actions taken by such an authority would have to be judged in the light of the principles pertaining to the law of necessity. (l) Islamic Jurisprudence-Doctrine of necessity-Maxim : Salis populi suprema lex (Necessity makes prohibited things permissible)- Doctrine accepted not only in Islamic Jurisprudence but in other systems as well.- [Doctrine of necessity-Maxim]. Sura Al-Baqar and Sum Al-Nahal; Islamic Jurisprudence and Rule of Necessity and Need by Dr. Muslehuddin, 1975 Edition, pp. 60-63 ; Islamic Surveys by Coulson, p. 144; Muslim Conduct of State by Hamidullah, p. 33: Majolle, Arts. 17, 21, 22, 26; Rex v. Strettor (1779) Vol. 21; Howell's State Trials: Attorney. General of Duchy of Lancaster v. Duke of Devenshire (1884) 14 Q B D 273; The Attorney-General of Republic v. Mustafa Ibrahim 1964 C L R 195 ; E. O. Lakanml and another v. Attorney-General, West Nigerio P L D 1955 F C 435; Usif Patel v. Crown P L D 1955 F C 387 and The Search for a Grundnorm in Nigeria---The Lacknmi's ease by Abiola Oji ref. . Per Muhammad Afzal Cheema, J. (agreeing)Islam being the ideological foundation of the State of Pakistan any man-made legal theory divorced from morality and coming into conflict with the Divine Law of Islam would be wholly irrelevant for our purposes. to the extent of its repugnancy to the latter. Unlike a pure theory of law, Islamic principles are subjectively centred round morality and are aimed at the establishment of an orderly and peaceful moral society by taking an equally pragmatic view in the matter of their application and placing the security, safety and welfare of the people above everything else. The doctrine of necessity is an inevitable outcome of this realistic approach and has been recognized by Islam both in the individual as. well as the collective field. The raison d'etre of the doctrine -of individual necessity applies with full force to the doctrine of State necessity which is nearly an extension of the former and is invoked in graver situations of National importance and comprehension. It is thus abundantly clear that submission to the authority of the ruler and obedience to his commands does not extend to illegal and un-Islamic directives or orders. The Court could not fail to take judicial notice of the crisis which developed by way of protest against the alleged rigging of the General Elections when the entire nation rose against the previous Government. There was complete break-down of law and order, several precious lives were lost and the administration of the major cities had to be

handed over by him to the Armed Forces which too were unable to cope with the situation and restore normalcy. The allegations of huge purchases of arms and their large scale distribution amongst the members of the then ruling Party in the country with a view to prepare them for civil war do not appear to have been specifically denied in the rejoinders filed by the petitioner or by the then Prime Minister himself. It would not, therefore, be too much to hold that the country was on the verge of a conflagration. The Constitution did not contemplate such situation nor did it offer a solution of the crisis. It was in this background that the Chief of the Army Staff moved in for a temporary period and with the limited object of restoring normalcy and holding free and fair elections as repeatedly declared by him. The doctrine of necessity is. therefore, attracted with full force in these circumstances. AL-BAQRA =II=173 ; AL-MAIDA=V=4 ; AL-INAM=VI=ll9, AL-NAHAL=XVI=115 ; Verse No. 106 of Sum XVI ; Traditions of the Holy Prophet (peace be upon him) ; General Theory of Law and State by Hans Kelsen, pp. 118-119 ref. Per Muhammad Akram, J. (agreeing).The principle of necessity, rendering lawful what would otherwise be unlawful, is not unknown to English Law there is a defence of necessity (albeit of uncertain scope) in criminal law, and in constitutional lam, the application of martial law is but an extended application of this concept. S. A. De Smith on Constitutional ands Administrative Law, Chap. XXII D. F. Marais v. The General Officer Commanding the Lines of Communication and the Attorney-General of the Colony 1902 A C 109; Frederick Pollock's Article in Law Quarterly Review, pp. 152-158 ; The National Security, Interest and Civil Liberties, (1971-72 Edn.) 85 Har. Law Review 1133/1326 Ex parte Milligan (1866) 71 U S 2 ; Moyer v. Peabody (1909) 212 U S 78 , Sterling v. Constantin (1932) 287 U S 378 ; Korematsu v. United States (1944) 323 U S 214 (22324) and Hirabayashi v. United States (1943) 320 U S 81(95) ref. Per Nasim Hasan Shah, J. (agreeing). The doctrine of "necessity'", namely rendering lawful that which otherwise is unlawful, is well-established in jurisprudence ID QUOD ALIAS NON EST LICITUM, NECESSITAS LICITUM FACIT",-(that which otherwise is not lawful necessity makes lawful). In constitutional law the application of Martial Law is but an extended application of this concept of State necessity. The doctrine of necessity was applied by the Federal Court of Pakistan only recently as a legal justification for ostensibly unconstitutional actions to fill a vacuum arising out of a' Court order. Situations are conceivable where the normal law of the land tray have to give way before necessity, particularly in a situation where the welfare of the State and its subjects are at stake, and improper case it would be the Court's duty to recognize such a situation and to act upon the principle ".salus populi suprema les" despite the express provisions of the Constitution. The doctrine of necessity is also recognized in Islamic Law. Even in the Holy Qur'an the application of-this doctrine is made permissible. However, before this doctrine can be invoked the following conditions must pre-exist : (a) that which is forbidden by Allah can be taken only where one is driven to it by necessity ; (b) that there is neither craving nor the intention to transgress the limits set by Him ; and (c) that only that bare minimum is taken as is necessary to save life. Thus the principle of necessity as also the conditions in which it can be resorted to are clearly set forth in Islam.

Necessity can be accepted as a justification for an extra-legal act, in certain conditions. This position is also recognised in Islam. In the precedent , it has also been observed that "Martial Law is nothing more nor less than the law of self-defence or the law of necessity and that in constitutional law' the application of Martial Law is but an extended application of the concept of State necessity." Thus, in certain exceptional circumstances it is possible, as a measure of State necessity, to impose even martial law. Reference by H. E. The Governor-General to the Federal Court P L D 1955 F C 435 ; The Attorney-General of the Republic v. Mustafa Ibrahim and others (1964) 3 Cyprus L R 195 ; Madzimhamuto v. Lardner-Burke (1968) 3 All E R 561 ; R. v. Bakker & Naude (1900) 17 S E: 340 ; White & Tucker v. Rudolph 1879 Kotze 115; Lakanmi & Oala v. Attorney-General (West), Nigeria and Uganda v. Commissioner of Prisons (1966) E A L R 514 ref. (m) Proclamation of Martial Law [dated 5-7-1977]Doctrine of necessity-Act otherwise illegal becomes legal if done bona fide under stress of necessity referable to intention to preserve Constitution, State, or Society, and to prevent it from dissolution Extra-Constitutional step taken by Chief Martial Law Administrator to overthrow Federal and Provincial Governments and to dissolve Legislatures, held, stands validated in accordance with doctrine of necessity, action having been taken on high considerations of State necessity and welfare of people.[Doctrine of necessity]. Reference by H. E. Governor-General to the Federal Court P L D 1955 F C 435 and Miss Asma Jillani v. The Government of the Punjab P L D 1972 S C 139 ref. (n) Proclamation of Martial Law [dated 5-7-1977]-- Read with Laws (Continuance in Force) Order, 1977 [C. M. L. A.'s 1 of 1977]True legal position emerging out of law and facts of case, explained. Held : (i) That the 1973 Constitution still remains the supreme law of the land. subject to the condition that certain parts thereof have been held in abeyance on account of State necessity ; (ii) That the President of Pakistan and the Superior Courts continue to function under the Constitution. The mere fact that the Judges of the superior Courts have taken a new oath after the proclamation of Martial Law, does not in any manner derogate from the position, as the Courts had been originally established under the 1973 Constitution, and have continued in their functions in spite of the Proclamation of Martial Law ; (iii) That the Chief Martial Law Administrator, having validly assumed power by means of an extra-Constitutional step, in the interest of the State necessity and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognised by judicial authorities as falling within the scope of the law of necessity, namely :-(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it ; (b) All acts which tend to advance or promote the good of the people ; (c) All acts required to be done for ordinary orderly running of the State ; and (d) Ail such measures as would establish or lead to the establishment of the declared objectives of the Proclamation of Martial Law, namely, restoration of law and order, and normalcy in the country, and the earliest possible holding of free and fair elections for the purpose of restoration of democratic institutions under the 1973 Constitution ; (iv) That these acts, or any of them, may be performed or carried out by means of Presidential Orders, Ordinances, Martial Law Regulations, or Orders, as the occasion may require ; and (v) That the superior Courts continue to have the power of judicial review to judge the validity of an act or action of the Martial Law Authorities, if challenged, in the light of the principles underlying the law of necessity as stated above. Their powers under Article 199 ref the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance. (o) Proclamation of Martial Law [dated 5-7-1977]-.

Read with Laws (Continuance in Force) Order, 1977 [C.M.L.A.'s 1 of 1977] and Constitution of Pakistan (1973), Arts. 199 & 184(3)-Power of judicial review of superior Courts-Held, not taken away by Proclamation of Martial Law (dated 5-7-1977).-[Judicial review]. Certain writers and contemporary jurists support the proposition that the Courts established under the pre-existing Legal Order continue to have the power and jurisdiction to adjudicate upon the validity and effectiveness of the new Legal Order. As the new Legal Order is only for a temporary period, and for a specified and ;united purpose, and does not seek to destroy the old Legal Order but merely to hold certain parts thereof in abeyance or to subject it to certain limitations on the ground of State necessity or on the principle of salus populi supremo lex, the superior Courts continue to remain the judges of the validity of the actions of the new regime in the light of the doctrine of necessity, for the new regime then represents not a new Legal Order, but only a phase of constitutional deviation dictated by necessity. There is yet another, and a stronger reason for holding that the power of judicial review continues. The 1973 Constitution provides for a clear trichotomy of powers between the executive, legislative and judicial organs of the State. However, owing to reasons of necessity, the executive and the legislative power now stands combined in one authority, for the reason that these two organs of the State had lost their constitutional and moral authority in the circumstances arising since the 7th of March 1977, but no such considerations arose in regard to the judicial organ of the State. Accordingly, on no principle of necessity could powers of judicial review vested in the superior Courts under the 1973 Constitution, he taken away. Next, even a for any reason the principle or power. of judicial review embodied in the relevant provisions of the 1973 Constitution be held not to be available under the new dispensation, the fact remains that the ideology of Pakistan embodying the doctrine that sovereignty belongs to Allah and is to be exercised on His behalf as a sacred trust by the chosen representatives of the people, strongly militates"` against placing the ruler for the time being above the law, and not accountable to any one in the realm. Muslim rulers have always regarded themselves as being accountable to the Courts of the land for all their actions and have never claimed exemption even from personal appearance in the Courts. The Courts of justice are an embodiment and a symbol of the conscience of the Millat (Muslim community), and provide an effective safeguard for the rights of the subjects. On this principle as well, the power of judicial review for judging the validity of the actions of the Martial Law Authorities must continue to remain in the superior Courts. A perusal of the provisions of the Laws (Continuance in Force) Order also shows that they are primarily designed to give effect to the purposes of the proclamation. As however this Order is an offspring of necessity, the superior Courts continue to have the power of judicial review, notwithstanding anything to the contrary contained in this Order, to test the validity of its provisions and any action taken there under, :u the light of the principles regulating the application of the law and doctrine of necessity. (p) Laws (Continuance in Force) Order, 1977 [C. M. L. A.'s 1 of 1977 ]Read with Constitution of Pakistan (1973), Arts. 184(3) & 199-Judicial review, power ofLaws of laud-Kept alive under C. M. L. A.'s Order 1 of 1977-Full provision made for their adjudication by ordinary Courts-Matters falling within authority of civil Court to decide--Held, must continue to fall outside purview of Martial Law Authorities-Remedy to citizens against any such encroachement--Can be had by way of judicial review in superior Courts.-.[Judicial review] (q) Proclamation of Martial Law [dated 5-7-19771And Laws (Continuance in Force) Order, 1977--Not supra--Constitutional instruments but of extra-Constitutional nature so as to conform to description of action by virtue of which Chief Martial Law Administrator assumed administration of country.

(r) Laws (Continuance in Force) Order, 1977 (C. M. L. A.'s 1 of 1977)Art. 2(3) read with Constitution of Pakistan (1973), Art. 232 (I), Fundamental Rights, suspension of-Chief Martial Law Administrator, held, justified in suspending right to enforce Fundamental Rights and Art. 2 (3) of C. M. L. A.'s Order 1 of 1977 not open to challenge. [Fundamental rights]. The conditions culminating in the Proclamation of Martial Law were' so grave that the very existence of the country was threatened, that chaos and bloodshed was apprehended and there was complete erosion of the constitutional authority of the Federal Government, leave alone that of the various Provincial Governments. The situation had indeed deteriorated to such an extent that it justified an extra-Constitutional step, resulting in the suspension of certain parts of the Constitution itself by the Armed Forces. Such being the case, the situation was obviously at least of the kind contemplated by clause (1) of Article 232 of the Constitution. In the circumstances, the Chief Martial Law Administrator was justified in providing in clause (3) of Article 2. of the Laws (Continuance in Force) Order that the right to enforce Fundamental Rights shall be suspended. It was clearly an Order which could have been made under the 1973 Constitution. No exception can, therefore, be taken to the validity of this provision. In view of the suspension of Fundamental Rights by subsection (3) of auction 2 of the Laws (Continuance in Force) Order, 1977, the Supreme Court has. no jurisdiction to grant to petitioners any relief. (s) Proclamation of Martial hays [dated 5-7-1977]---- Implementation of solemn pledge given by Chief Martial Law Administrator to hold free and fair elections and restore democratic rule-Court observations. While the Court does not consider it appropriate to issue any directions as to a definite time-table for the holding of elections, the Court would like to state in clear terms that it has found it possible to validate the extra-Constitutional action of the Chief Martial Law Administrator not only for the reason that he stepped in to save the country at a time of grave national crisis and constitutional break-down, but also because of the solemn pledge given by him that the period of constitutional deviation shall be of as short a duration as possible, and that during this period all his energies shall be directed towards creating conditions conducive to the holding of free and fair elections, leading to the restoration of democratic rule in accordance with the 'dictates of the Constitution. The Court, therefore, expects the Chief Martial Law Administrator to redeem this pledge, which must be construed in the nature of a mandate from the people of Pakistan, who have, by and large, willingly accepted his administration as the interim Government of Pakistan. Per Qaiser Khan, J.(t) Proclamation of Martial Law [dated 5-7-1977]Read with Laws (Continuance in Force) Order, 1977 (C. M. L. A. 's 1 of 1977), Arts. 2, Proviso & 4 and Constitution of Pakistan (1973), Art. 184(3)-Jurisdiction-Maintainability of petition under Art. 184(3), Constitution of Pakistan (1973)-C. M. L. A.'s Order 1 of 1977-New Legal Order for time being--Supreme Court deriving its jurisdiction from new Legal Order, orders of detention, held, cannot be challenged and petition liable to dismissal.-[Jurisdiction]. Since the Courts including the Supreme Court were revived by the Laws (Continuance.. in Force) Order and continued to work under its authority, they therefore derived their jurisdiction also from the said Order. For example, if after the issuance of the Proclamation the Chief Martial Law Administrator had not issued the Laws (Continuance in Force) Order and had started ruling by decrees through his officers then ,where would have been this Court and whet jurisdiction it would have had.

Otherwise too allegiance is always due to the de facto Government for it is this Government which can provide protection to the citizens and allegiance to the State imposes as one of its most important duty obedience to the laws of the sovereign power for the time being within the State. The municipal Courts have always to enforce the laws of the de facto Government and it is such a Government which can enact law, can appoint Judges and can enforce the execution of law. So long as there was a provision in the new Legal Order for dealing with a case or situation the doctrine of necessity could not be resorted to. Any action of the Martial Law authorities which is taken in consequence of any Martial Law Regulation or Martial Law Order could not, therefore, be challenged or questioned on the doctrine-of necessity. All the actions of the de facto Government can be tested only when the said Government comes to an end and the old Legal Order is revived. In that case the action of the Martial Law authorities would be tested on the basis of the old Legal Order. The Courts cannot give any direction 'that the Chief Martial Law Administrator is to do such and such thing or not to do such and such thing and within such and such time simply because he had made certain statements and promises. This is outside the scope of the jurisdiction of the Court. The upshot of the above discussion is :-(I) That the Laws (Continuance in Force) Order which is effectual for the time being is the new Legal Order for the time being. (2) That the new Legal Order has suppressed the old Legal Order (Constitution) for the time being. (3) That the Supreme Court derives its jurisdiction from the new Legal Order and that the orders of detentions in question cannot be challenged in the Supreme Court in view of the proviso to Article 2 and Article 4 of the Order. State v. Zia-ur-Rehman P L D 1973 S C 49; Stanford Law Review, Vol. 17-Professor Stone and the Pure Theory of Law, p. 1139; Madzimbamuto v. Lardner-Burke (1968) 3 All E R 561; Salmond on Jurisprudence, 11th Edn., p. 25 and Muhammad Umar Khan v. Crown P L D 1953 Lah. 528 ref. Mir Hassan v. State P L D 1969 Lah. 786 and Dosso v. State P L D 1958 S C (Pak.) 533 distinguished. Yahya Bakhtlar, Senior Advocate and Ghularn Ali Memon, Advocate-on-Record for Petitioner.. Nemo for Respondent No. 1. . A. K. Brohi, Senior Advocate, Riaz Ahmad, Assistant Advocate-General Punjab and Fazal-i-Hussain, Advocate-on-Record for Respondent No. 2. Sharifuddin Pirzada, Attorney-General for Pakistan, Dilawar Mahmood, Deputy Attorney-General and M. Afzal Lone, Advocate as Law Officers of the Court. Dates of hearing : 20th, 25th, 26th September; 1st, 10th to 12th, 18th to 20th, 22nd to 26th, 29th to 31st October and 1st November 1977. JUDGMENT S. ANWARUL HAQ C J.--'This petition by Begum Nusrat Bhutto, under Article 184 (3) of the 1973 Constitution of the Islamic Republic of Pakistan, seeks to challenge the detention of Mr. Zulfikar Ali Bhutto, former Prime Minister of Pakistan, and ten other leaders of the Pakistan People's Party under Martial Law Order No. 12 of 1977. It raises several difficult questions of far-reaching constitutional importance. Besides addressing elaborate arguments as to the validity and legal effect of the imposition of Martial Law by the Chief of the Army Staff. the parties as well as two of the detenus, namely, Mr. Zulfikar Ali Bhutto and Mr. Abdul Hafeez Pirzada, have filed lengthy written statements on the factual aspects of the case, setting out their respective versions of the events culminating in the Proclamation of Martial Law on the 54th of July, 1977. These two detenus have also personally appeared before the Court and made detailed oral submissions in support of their positron. A third detenu, viz. Mr. Mumtaz Ali Bhutto, has

also filed a written statement. The other eight detenus have neither filed written statements nor asked to be heard personally. The petition states that Mr. Zulfikar Ali Bhutto and the ten other leaders of the Pakistan people's Party were arrested in the early hours of the 17th of September, 1977, and detained in various prisons in the four Provinces of Pakistan. It is stated that on the evening of the 17th of September, 1977, the Chief of the Army Staff made a public statement, in which he levelled highly unfair and incorrect allegations against the Pakistan People's Party Government and the detenus by way of explaining away their arrest and detention. He also indicated his intention of placing the detenus before military Courts or tribunals for trial so as to enforce the principle of public accountability. The petition avers that this action has been taken against the detenus in a mala fide manner, with the ulterior purpose of preventing the Pakistan People's Party from effectively participating in the forthcoming elections which were scheduled to be held during the month of October, 1977. Relying mainly on the judgment of this Court in Miss Asma Jillani v. The Government of the Punjab and another PLD1972SC139, Mr. Yahya Bakhtiar, learned counsel for the petitioner, contends that the Chief of Staff of the Pakistan Army had no authority under the 1973 Constitution to impose Martial Lave on the country; that this intervention by the respondent amounts to an act of treason in terms of Article 6 of the Constitution; that as a consequence the Proclamation of Martial Law dated the 5th of July 1977, the Laws (Continuance in Force) Order, 1977, as well as Martial Law Order No. 12, under which the detenus have been arrested and detained, are all without lawful authority; that even if all or any of these acts or actions may be justified on the doctrine of necessity, yet arrest and detention of the top leadership of the Pakistan People's Party is highly discriminatory and mala fide, intended solely for the purpose of keeping the Pakistan People's Party out of the forthcoming elections; and that the respondent cannot place himself beyond the reach of the Courts by relying on an order promulgated by himself, as the 1973 Constitution continues to be the supreme legal instrument of the country, especially as the respondent himself has declared that this Constitution was not being abrogated but only certain parts thereof were being held in abeyance for the time being so as to create a peaceful atmosphere for the holding of elections and restoration of democratic institutions. Mr. Yahya Bakhtiar submits that, in the circumstances, the orders of detention have resulted in a flagrant violation of the detenus Fundamental Rights, as contained in Chapter I, Part II of the Constitution, particularly Articles 9, 10, 17 and 25 thereof, which relate to the security of person, safeguards as to arrest and detention, freedom of association and equality of all citizen before law. He further submits that as the detenus are being held in various prisons all over Pakistan, therefore, it is not possible for them to move the various provincial High Courts for relief. He contends that this is eminently a case requiring redress by the Supreme Court under clause of Article 184 of the Constitution, which specifically empowers this Court to make an order for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II, if the Court considers that a question of public importance with reference thereto is involved. Mr. A. K. Borhi, learned counsel appearing for the Federation of Pakistan, which was also made a patty at his request, has taken two preliminary objections as to the maintainability of this petition (a) That it is directed against the Chief of the Army Staff, whereas the orders of detention had been passed by the Chief Martial Law Administrator; and (b) That the petitioner is not an aggrieved person in terms of Article 184 (3) of the Constitution read with Article 199 thereof, as she does not allege any violation of her own Fundamental Rights, but only those of the detenus. He also maintains that this Court has no jurisdiction to grant any relief 3n this matter owing to the prohibition contained in Articles 4 and 5 of the Laws (Continuance in Force; Order, 1977, which clearly contemplate that no Court, including the High Court and the Supreme Court, can question the validity of any Martial Law Order or Regulation, or any

order made there under by a Martial Law Authority. He submits that under clause (3) of Article 2 of the aforesaid Laws (Continuance in Force) Order the right to enforce Fundamental Rights stands suspended, and for this reason as well the petition is not maintainable. As to the legal character of the new regime, and the validity of the Laws (Continuance in Force) Order, 1977, and the various Martial Law Regulations and Orders issued by the Chief Martial Law Administrator and the President under its authority, Mr. Brohi submits that up to the 5th of July 1977, Pakistan was being governed under the 1973 Constitution, but on that day a new Legal Order came into force by virtue of the Proclamation issued by the Chief Martial Law Administrator, and this Legal Order has displaced-albeit temporarily-the old Legal Order. The validity or legality of any action which takes place after the 5th of July 1977 can only be tested against the guidelines provided by the new Legal Order. According to him, the grundnorm of the old Legal Order, us provided by the 1973 Constitution, has given way to a new, grundnorm provided by the Proclamation and the Laws (Continuance in Force) Order, and to that extent the jurisdiction of the superior Courts has been altered. He submits that as the transition from the old Legal Order to the new Legal Order has not been brought about by any means recognised or contemplated by the 1973 Constitution, therefore, it constitutes a meta-legal or extra-Constitutional fact, attracting the doctrine of "revolutionary legality". In this context, according to Mr. Brohi, whenever a Constitution and the national Legal Order under it are disrupted by at, abrupt political change not within the contemplation of the Constitution, such a change is called a revolution, which tear, also includes coupe d'etate. In such a situation the Court has to determine certain facts which may be termed "constitutional facts", which relate to the. existence of the Legal Order within tine framework of ,which the Court itself .-exists and function. If it finds that all the institutions of State power have, as a matter of fact, accepted the existence of the new Legal Order, which has thus become effective, then all questions cal' legality or illegality are to be determined within the framework of the pew Legal Order. Mr. Brohi submits that, on this view of the matter, a viable alternative can be found between the two extreme positions adopted by this Court in Dosso's case P L D 1958 S C (Pak) 533, and Asma Jillani's case-one holding that every revolution, once successful is legal, and the other holding that a revolution as such is illegal. According to him, the Supreme Court in Dosso's case could have decided the controversy by simply holding that, as a matter of constitutional fact, a new Legal Order had come into being in the country, and the question in issue in that case could only be decided by reference to this new Legal Order which had attained effectualness. He contends that the view taken by the Supreme Court in Asma Jillani's case leaves several questions unanswered, by rejecting Kelsen's pure theory of law, because it does not provide any guidelines as to what law the Courts ought to apply in case a revolution has become effective by suppressing or destroying the old Legal Order. As a result. Mr. Brohi submits that this Court should, therefore, lean in favour of holding that a new Legal Order has effectively emerged in Pakistan by means of a meta-legal or extra-Constitutional range, and for the time being this is the legal framework according to which all questions coming before the Court must be decided. In his view it is not necessary for the Court, nor is it a concomitant of judicial power to either side with the revolution or to act as a counter revolutionary, by giving its seal of approval to a military intervention or to condemn it by describing it as illegal. Judicial restraint requires that the Court should only take judicial notice of events which have transpired in the country, and decide as a constitutional fact, whether the new Legal Order has become effective or not. As to the necessity for the imposition of Martial Law on the 5th of July 1977, Mr. Brohi has stated that the events leading thereto fall into two phases. (i) Tile first phase relates to the unconstitutional and illegal governance of this country by the detenus and their associates and terminates on the eve of the imposition of Martial Law; and (ii) The second phase relates to the preparations which were being made by detenus and their associates for the fomenting of civil war within the country and their intention to frustrate and prevent the holding of free and fair elections and thereby consolidate their illegal tenure of office.

He submits that the Court may take judicial notice of the picture emerging from the mosaic of these events, which are cited merely to illustrate the overall pattern of events, and not to embark upon a detailed factual inquiry which would be outside the scope of these proceedings. According to the learned counsel, the specific illegalities committed by or at the instance of the former Government will form the subject-matter of independent legal proceedings in which the persons concerned will be afforded a reasonable opportunity for their defence in accordance with law. Mr. Brohi goes on to state that massive rigging took place during the elections held on the 7th of March 1977 in accordance with the directions issued at the highest Government level, and that the then Chief Election Commissioner. in an interview given to the daily Millat, Karachi, pointedly commented on the widespread irregularities committed in relation to these elections, and recorded his opinion that results in more than 50% of the seats were affected thereby. He bad further expressed the view that the appropriate course would be to hold fresh elections Mr. Brohi contends that the evidence now available leads to the inescapable conclusion that there was a master-plan for the rigging of the elections which had been conceived, directed and implemented by the then Prime Minister, Mr. Z. A. Bhutto. The learned counsel submits that as a result ~ of this massive rigging of the elections in violation of the mandate of the Constitution for holding free and fair elections, Mr: Bhutto's Government lost whatever constitutional validity it had earlier possessed, and there were widespread disturbances throughout the country, amounting to a repudiation of Mr. Bhutto's authority to rule the country. Mr. Bhutto prolonged the dialogue between himself and. the leaders of the Pakistan National Alliance in a mala fide manner, that the nation reached a critical juncture and the spectre of civil war loomed ahead. It became clear beyond doubt that no possibility of a free and fair election being held existed as long as the levers of power remained in Mr. Bhutto's hands. He asserts that there was a general recognition of this fact which also led to widespread public demands that the Army should accept responsibility for the holding of elections. According to the learned counsel, in the circumstances, it became imperative for the Army to act, and the imposition of Martial Law on the 5tb of July 1977 was greeted with a sigh of relief throughout the country. He states that in the three months since the imposition of Martial Law peace and quiet has been restored; the national economy which had reached the stage of collapse is slowly being brought back to normalcy; Government institutions which were on the verge of disintegration are being restored to health; and the country's foreign policy is being conducted in the national interest and not for the aggrandizement of Mr. Bhutto or the projection of his personal image. Mr. Brohi adds that the Chief Martial Law Administrator has already declared his intention to hold elections as soon as possible, and the postponement of the October elections has been ordered in response to the public demand for enforcing accountability in relation to the top leadership of the Pakistan People's Party. In this view of the learned counsel, it can thus be seen that Martial Law was imposed not in order to displace a constitutional authority, but in order to provide a bridge to enable the country to return to the path of constitutional rule. Mr. Sharifuddin Pirzada, the learned .Attorney-General, appearing as the Law Officer of the Court. has supported Mr. Brohi's submission that the change which took place in Pakistan on the 5th of July 1977 did not amount to usurpation of State power by the Chief of the Army Staff, but was in fact intended to oust the usurper who had illegally assumed power as a result of massive rigging of the elections of the 7th of March 1977. It was also' intended to displace the illegally constituted legislative assemblies both at the Centre and in the Provinces, as majority of the members had succeeded in the elections by corrupt and criminal practices. Mr. Pirzada accordingly contends that the present situation is not governed by the dicta of this Court in the two well-known cases of Dosso and Asma Jillani for the reason that the circumstances here are radically different, in that in those cases the change brought about by the military intervention was of a permanent nature, whereas the avowed purpose of the present Chief Martial Law Administrator is to remain in power only for a limited and temporary period so as to hold free and fair elections for the restoration of democratic institutions. Mr. Sharifuddin Pirzada next submits that although he would generally support Mr. Brohi's submissions as to the legal character of an effective revolution, yet he does not wish to adopt a position contrary to the one he took up while appearing as amicus curtae

in Asma Jillani's case, regarding the validity and applicability of Kelsen's pure theory of law relating to the metalegal character of the change and the birth of a new gruridnorm. He submits that there are several renowned jurists who do not fully subscribe to Kelsen's views and consider that effectualness alone, to the exclusion of all considerations of morality and justice, cannot be made a condition of the validity of the new Legal Order. The learned counsel, however, submits that the circumstances culminating in the imposition of Martial Law on the 5th of July 1977 fully attract the doctrine of State necessity and of salus populi est suprema lex, with the result that the action taken by the Chief Martial Law Administrator must be regarded as valid, and the Laws (Continuance in Force) Order, 1977, must be treated as being a supra-Constitutional instrument, now regulating the governance of the country. The learned Attorney-General contends that the doctrine of necessity is not only a part of the legal systems of several European countries, including Britain, but is also recognised by the Holy Qur'an. He contends that consequently all actions taken by the Chief Martial Law Administrator to meet the exigencies of the situation and to prepare the country for future elections with a view to the restoration of democratic institutions must be accepted by the Courts as valid, and there can be no question of condonation, which concept can apply only in the case of the acts of a usurper. On this view of the matter, Mr. Sharifuddin Pirzada submits that the Court cannot grant any relief to the detenus, under Article 184 (3) of the Constitution, as the Fundamental Rights stand suspended by virtue of clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1971. Mr. Brohi as well as Mr. Sharifuddin Pirzada were also asked to address the Court on the possible effect and implications of the new oath of office administered to the Judges of the Supreme Court and the High Courts after the imposition of Martial Law. They both stated that, in their view, the new oath has not in any manner restricted the independence of the superior judiciary, nor affected their obligation to perform their judicial functions according to law; it only indicates that the superior judiciary, like the rest of the country, has accepted the fact, which is even otherwise also evident, that on the 5th of July 1977, a radical transformation took place in the pre-existing Legal Order. Both the learned counsel are agreed, and Mr. Yahya Bakhtiar, learned counsel for the petitioner, joins them, that the taking of the fresh oath by the Judges of this Court does not in any way preclude them from examining the question of the validity of the new Legal Order and decide the same in accordance with their conscience and the law. I shall first take up the preliminary objections raised by Mr. A. K. Brohi, and supported by Mr. Sharifuddin Pirzada, regarding the maintainability of the present petition. The first objection is that the petition is directed against the Chief of V Army Staff whereas the orders of detention had been passed by the Chief Martial Law Administrator. It is clear that the objection is only in the nature of a technicality, as the Chief of the Army Staff is also the Chief Martial Law Administrator, and the objection could, therefore, be easily rectified by adding the words Chief Martial Law Administrator to the description of the respondent as stated in the petition. The second objection is that the Petitioner, namely petition Nusrat Bhutto is not an aggrieved person in terms of Article 194 (3) of that Constitution read with Article 199 thereof, as she does not allege any violation of her own Fundamental Rights; but only those of the detenus. Clause (3) of Article 184 of the Constitution gives a concurrent power to the Supreme Court to make an order for the enforcement of Fundamental Rights in the same terms as could be made by a High Court under the provisions of Article 199. Clause (l) (c) of Article 199 does indeed contemplate that an application for the enforcement of Fundamental Rights has to be made by an aggrieved person. Now, it is true that in the case before us the petitioner is not alleging an contravention of her own Fundamental Rights, but she has moved the present petition in two capacities, namely, as wife of one of the detenu and as Acting Chairman of the Pakistan People's Party, to which all the detenus belong. In the circumstances, it is difficult to agree with Mr. Brohi that Begum Nusrat Bhutto is not an aggrieved person within the meaning of Article 199. In more or less similar circumstances in Manzoor Elahi v. State P L D 1975 S C 66 this Court entertained a petition under Article 184 (3) of the Constitution although it was not moved by the detenu himself but by his brother. I consider, therefore, that both the preliminary objections raised as to the maintainability of the petition have no merit.

The main question which arises for determination in this case is regarding the legal character of the new regime which has come into existence in Pakistan as a result of the Proclamation of Martial Law on the 5th of July 1977. In the comparatively short period of thirty years since attaining Independence Pakistan has passed through six periods of Martial Law: (i) Martial Law imposed under the orders of the Federal Government in 1953 in Lahore in order to suppress anti-Ahmedia agitation and the disturbances arising there from; (ii) The 1958 Martial Law imposed by President Iskander Mirza and Field Marshal Muhammad Ayub Khan; (iii) The 1969 Martial Law imposed by General Agha Muhammad Yahya Khan to depose Field Marshal Muhammad Ayub Khan; (iv) Continuation of the 1969 Martial Law by Mr. Z. A. Bhutto on assuming power on the 20th of December 1971 and becoming the first civilian Chief Martial Law Administrator in our history; (v) Local Martial Law imposed in April 1977 in several cities of Pakistan by Mr. Bhutto's Federal Government under Article ?45 of the 1973 Constitution; and (vi) Martial Law imposed on the 5th of July 1977 by the Chief of the Army Staff, General Muhammad Ziaul Haq. As many of the, actions taken by the Martial Law Authorities during the first five periods were challenged before the Courts, the question of the legality and the extent of the powers enjoyed by these Authorities has been repeatedly examined by the Courts in this country. One may in this behalf refer to Muhammad Umar Khan v. Crown P L D 1953 Lah.528, Dosso v. State P L D 1958 S C (Pak.) 533, Muhammad Ayub. Khoro v. Pakistan P L D 1960 S -C 237, Guloh Din v. Major A. T. Shaukat P L D 1961. Lah. 952, M fir Hassan v. State P L D 1969 Lab. 786 and Asma Jillani's case already referred to. It does not, however, appear to me to be necessary to examine this particular aspect at this stage for the reason that on Mr. Brohi's argument the legality of the actions taken by the new regime is not dependent on any power derived from Martial Law as such, but rests on considerations arising out of the alleged break-down of the pre-existing Legal Order. According to him, it is immaterial whether the new regime is called a Martial Law regime, or by any other name. However, it will be necessary to advert to this question when considering the learned Attorney-General's contentions. As already stated, Mr. Brohi has placed reliance on the concept of revolutionary legality, as expounded by Professor Hans Kelsen. This concept was adopted by this Court in Dosso's case, already referred to, but rejected as in the case of Asn:a Allanl. It, therefore, becomes necessary to examine these two cases in the light of the submissions now made by Mr. Brohi in this behalf. The facts in Dosso's case were that by a Proclamation made on the 7th of F; October 1958, the President dismissed the Central Cabinet and the Provincial Cabinets and dissolved the National Assembly and both the Provincial Assemblies of East Pakistan and West Pakistan: Simultaneously, Martial Law was declared throughout the country and General Muhammad Ayub Khan, Commander-in-Chief of the Pakistan Army was appointed as the Chief Martial Law Administrator. Three days later, the President promulgated the Laws (Continuance in Force) Order; -1958, the general effect of which was the validation of laws, other than the late Constitution, that were in force before the proclamation, and restoration of the jurisdiction of all Courts including the Supreme Court and the High Courts. The order contained the further direction that the Government of the country, thereafter to be known as Pakistan and not the Islamic Republic of Pakistan, shall be governed as nearly as may be in accordance with the late Constitution. The question raised before the Court was whether certain prerogative writs issued by the

High Courts had abated by reason of the provisions of clause (7) of Article 2 of the aforesaid Order. Delivering the judgment of the Court, Muhammad Munir, C. J. observed that "as we will have to interpret some of the provisions of this Order, it is necessary to appraise the existing constitutional position in the light of the juristic principles which determine the validity or otherwise of law-creating organs in modern States, which being members of the comity of nations are governed by International Law. In judging the validity of laws at a given time one of the basic doctrines of positivism on which the whole science of modern jurisprudence rests, requires a jurist to presuppose the validity of historically the first Constitution whether it was given by an internal usurper, an external invader or a national hero or by a popular or other assembly of persons. Subsequent alterations in the Constitution and the validity of all laws made there under is determined by the first Constitution. Where a Constitution presents such continuity. a law once made continues in force until it is repealed, altered or amended in accordance with the Constitution. It sometimes happens, however, that a Constitution and the national Legal Order under it is disrupted by an abrupt political change not within the contemplation of the Constitution. Any such change is called a revolution, and its legal effect is not only the destruction of the existing Constitution but also the validity of the national Legal Order. A revolution is generally associated with public tumult, mutiny, violence and bloodshed but from a juristic point of view the method by which and the persons by whom a revolution is brought about is wholly immaterial. The change may be attended by violence or it may be perfectly peaceful. It may take the form of a coup d'etat by a political adventurer or it may be effected by persons already in- public positions. Equally irrelevant in law is the motive for a revolution, inasmuch as a destruction of the constitutional structure may be prompted by a highly patriotic impulse or by the most sordid of ends. For the purposes of the doctrine here explained a change is, in law, a revolution if it annuls the Constitution and the annulment is effective. If the attempt to break the Constitution fails those who sponsor or organise it are judged by the existing Constitution as guilty of the crime of treason. But if the revolution is victorious in the sense that the persons assuming power under the change can successfully require the inhabitants of the country to conform to the new regime, then the revolution itself becomes a law-creating fact because thereafter its own legality is judgment by reference to the annulled Constitution but by reference to its own success . On the same principle the validity of the laws to be made thereafter is judged by reference to the new and not the annulled Constitution. Thus the essential condition to determine whether a Constitution has been annulled is the efficacy of the change . In the circumstances supposed no new State is brought in to existence though Aristotle thought otherwise. If the territory and the' people remain substantially the same, there is, under the modern juristic doctrine, no change in the corpus or inter- national entity of the State and the revolutionary Government and the new constitution are, according to International Law, the legitimate Government and the valid Constitution of the State. Thus a victorious revolution or a successful coup d'etat is n international recognised legal method of changing a Constitution". "After a change of the character I have mentioned has taken place, the national Legal Order must for its validity depend upon the new law-creating organ. Even Courts lose their existing jurisdiction, and can function only to the extent and in the manner determined by the new constitution." In support of these conclusions, the learned Chief Justice cited a passage from Hans Kelsen's "General Theory of Law and State", inter alia, to the effect that: "This shows that all norms of the old Order have been deprived of their validity by revolution and not according to the principle of legitimacy. And they have been so deprived .dot only de facto but also de jure. No jurist would maintain that 'I even after a successful revolution the old Constitution and the laws based thereupon remain in force, on the ground that they have not been annulled in a manner anticipated by the old Order itself." Mr. Brohi, as already stated, has precisely taken this stand before us, except that instead of describing the revolution as successful he would use the word effectual or effective, and would not also go to the extent of conferring permanent legitimacy on the new Legal

Order, leaving this question to be determined by the future course of events including an Act of indemnity, if any, by a future Parliament. The view taken by the Supreme Court in Dosso's case continued to hold the field for almost fourteen years until it was brought under challenge in Asma Jillani's case in connection with an order of detention made under a Martial Law Order issued by General Agha Muhammad Yahya Khan and inherited by Mr. Z. A. Bhutto on his assumption of power as Chief Martial law Administrator on the 20th of December 1971. It is interesting to observe that in Asma Jillani's case Mr. Yahya Bakhtiar, the learned counsel appearing for Begum Nusrat Bhutto, defended the decision in Dosso's case on various grounds including that of stare decision whereas the present Attorney General, Mr. Sharifuddin Pirzada and Mr. A. K. Brohi, learned counsel for the respondent, criticised this decision while appearing as amicii curiae. Although a counsel is not bound by the position he may have taken on a previous occasion, it would be instructive to note the point of view then advocated by Mr. Brohi as regards the correctness of the decision in Dosso's case. On page 171 of the Report, Hamoodur Rahman, C. J. has observed: "Mr. Brohi is of the view that the fallacy underlying the decision in Dosso's case lies in they fact that it has accepted a purely legal theory of law as a question of law itself. although it was nothing more than "a question about law" and no legal judgment could possibly be based on such a purely hypothetical proposition. He is further of the view that the Court in making the impugned observations proceeded clearly upon the assumption that (a) the revolution, if any, had succeeded and (b) that its own authority was derived from the Laws (Continuance in Force) Order. Both these assumptions were wrong. The question as to whether the revolution, if any, had in fact succeeded in creating an effective legal order was a question of fact and had to be decided as such objectively. It was not even gone into. The decision was, therefore, purely an ad hoc decision, which cannot be treated as binding." Muhammad Yaqub Ali, J. summed up Mr. Brohi's position (on pp. 224-225 the Report), in the following words: "Mr. A. K. Brohi (amicus curiae) first argued the question that Courts of Law are, as a matter of legal obligation, bound by the dictates of the 1962 Constitution and have not been absolved of that legal obligation by taking cognizance of the new authority destructive of the established legal order. He also questioned the nature of the new Legal Order based on the system officially described as Martial Law. In his opinion this system was not regulated by any set of legal principles known to jurisprudence and was merely contingent on the will and whim of one man . . . . . . He also attacked the decision in Dosso's case and analysed Kelsen's theory on which that decision is based. It was argued that Kelsen's theory that a victorious revolution and successful coup d'eter are lawcreating facts is a mere theory of law as distinguished from law itself. The function of a theory of law is to explain or to describe the nature of law or the nature of s legal system. It is, however, itself not a part of legal system or the law which it seeks to describe. This according to Mr. Brohi was the central fallacy in the judgment given by Muhammad Munir, C. J." "Mr. Brohi next referred to the decision in the case of Madzirnbamuto v. Lardner-Burke [(1968) 3 All E R 561] in which Kelsen's theory of effectiveness was applied. This case is mentioned by some authors as the grundnorm case. He pointed out that the decision in this case was the maximum success which Kelsen could have conceivably envisaged " "Continuing, Mr. Brohi pointed out that the characteristic o! forms of civilised Government is that the structural distribution of power is regulated in a manner that every, functionary no matter so highly placed is the servant of the law should a system of Government exist in which power is regulated and derived not from law, but from force such a system cannot claim to be a legal system of Government whatever else it may be ..' "Lastly, Mr. Brohi argued that in Pakistan the real sovereign is God Almighty and the State of Pakistan has a limited power of which it is a recipient as a trustee or a delegatee. On this hyp9thesis he argued that the will of one man was repugnant to the grundnorm of

Pakistan, viz. the Objectives Resolution and in Pakistan no single man could be the sole repository of State power. He referred to a passage from his book: "The Fundamental Laws of Pakistan" that according to the Western Jurisprudence legal sovereign are the people who give the first Constitution; that in Pakistan the first sovereign is God Almighty and the power received from Him as a delegatee or a trustee is to be exercised by chosen representatives of the people and not by the will of one man." The stand taken by Mr. Sharifuddin Pirzada while appearing as amicus curiae in Asma Jillani's case may also be briefly mentioned. Besides contending that toe decision in Dosso's case was given in haste and against the principles of natural justice, because no opportunity at all was given to learned counsel appearing for the respondents to argue the contrary, he submitted that being a Municipal Court, the Supreme Court should not have made a rule of International Law regarding recognition of States the basis of its decision; that the Court's interpretation of Kelsen's doctrine was incorrect; that in any event the theory of Kelsen is not a universally accepted theory and should not have been applied to the circumstances then prevailing in Pakistan; and that the doctrine of necessity as a validating factor was not even noticed. According to Muhammad Yaqub Ali, J., Mr. Sharifuddin Pirzada added that the decision in Dosso's case purported to legalise the socalled revolution without any conditions which authorised absolutism and sanctioned that might is right; and that effectiveness was not the only criterion of legitimacy. It appears that the learned Judges hearing Asma Jillani's case were greatly impressed by the submissions made by Messrs A. K. Brohi and Shariluddin Pirzada, with the result that they unanimously came to the conclusion that Dosso's case had not been correctly decided. They accordingly proceeded to overrule the same. In doing so, Hamoodur Rehman, C. J. observed that "in laying down a novel juristic principle of such farreaching importance the Chief Justice in the case of State v. Dosso proceeded on the basis of certain assumptions, namely, (i) that the basic doctrines of legal positivism which he was accepting were such firmly and universally accepted doctrines that the whole science of modern jurisprudence rested , upon,. them; (ii) that any abrupt political change not within the contemplation of the Constitution constitutes a revolution, no matter how temporary or transitory the change if, no one has taken any step to oppose it; and (iii) that the rule of International Law with regard to the recognition of States can determine the validity also of the States' internal sovereignty . . . . . . . . . . . ." These assumptions were not justified. Kelsen's theory was, by no means, g universally accepted theory nor was it a theory which could claim to have become a basic doctrine of the science of modern jurisprudence nor did Kelsen ever admit to formulate any theory which favours totaliterianism . . . . Kelsen was only trying to lay down a pure theory of law as a rule of normative science consisting of an aggregate or system of norms. He was propounding a theory of law as a mere jurist's proposition about law. He was not attempting to lay down any legal norm or norms which are the daily concerns of Judges, legal practitioners or administrators. . . . . . . . . . . . . . . "Kelsen in his attempt to evolve a pure science of law as distinguished from a natural science attached the greatest importance to keeping law and might apart. Fee did not lay down the proposition that the command of e person in' authorities a source-of law . . . . Kelsen's attempt to justify the principle of effectiveness from the stand-point of International Law cannot also be justified, for it assumes the primacy of International Law over national law. In doing so he has overlooked that for the purpose of international Law the legal person is the State and not the community and that in International Law there is no 'Legal Order as such. The recognition of a State under International Law has nothing to do with the internal sovereignty of the State, and this kind of recogrition of a State must not be confused with the recognition of the head of a State or Government of a State. An individual does not become the head of a State through the recognition of other States but through the municipal law of his own State. The question of recognition of a Government from the point of view of International Law becomes important only when a change in the form of Government also involves a break in the legal continuity of the State or where the question arises as to whether the new Government has a reasonable expectancy of permanence so as to be able to claim to represent the State ....

"The criticism, therefore, is true that the Chief Justice of the Supreme Court not only misapplied the doctrine of Hans Kelsen but also fell into error in thinking that it was a generally accepted doctrine of modern jurisprudence. Even the disciples of Kelsen have hesitated to go as far as Kelsen had gone . . . . . ." "In any event, if a grundnorm is necessary, Pakistan need not have to look to the Western legal theorists to discover it. Pakistan's own grundnorm is enshrined in its own doctrine that the legal sovereignty over the entire Universe belongs to Almighty Allah alone and the authority exerciseable by the people within the limits prescribed by Him i9 a sacred trust. This is an immutable and unalterable form which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March 1949. This has not been abrogated by any one so far, nor has this been departed or deviated from by any regime, military or civil. Indeed it cannot be, for it is one of the Fundamental Principles enshrined in the Holy Qur'an . . . . It is under this system that the Government becomes a Government of laws and not of men, for no one is above the law . . . . ." "The principle enunciated in Dosso's case, therefore, is wholly unsustainable and it cannot be treated as good law either on the principle of stare decisis or even otherwise." In view of the position taken up by Mr. Brohi in Asma Jillani's case, and the success he had in persuading the Court to agree with him, Mr. Brohi has indeed faced an uphill task before us to question the correctness of this judgment, in so far as it rejects the application of Kelsen's pure theory of law as providing validity to the new Legal Order emerging as a result of a coup d'etat. He submits that the learned Judges were in error in analysing the decision in Dossr's cc- as if they were sitting in appeal; that they also erred in going behind the facts proved or assumed to have been proved in that case, namely, that the revolution had become successful; and that in any case they were not clear in their mind as to whether Muhammad Munir, C. J. had misunderstood Kelsen"s theory or misapplied it when deciding Dosso's case. He has referred us to Quin v. Learhem 1901 A C 495 , Prager v. Blatspiel, Stamp & Heacock Ltd. 1947 A C 156 , Read v. J. Lyons & Co. Ltd. (1924) 1 K B 566 and Candler v. Crane Christmass & Co. (1951) 1 All E R 426, in support of the proposition that a judicial precedent is not . to be criticised or taken to pieces in the manner in which Dosso's case was treated by this Court. In the first-mentioned case, it was observed by Lord Halsbury that "while considering a precedent, we must look at the. hypothesis of fact upon which the case was decided by the majority of those .who took part in the decision." In the second case, it was observed that "the object of the common law is to solve difficulties and adjust relations in social and commercial life. It must meet,. so far as it can, sets of fact abnormal as well as usual. It must grow with, the development of the nation. It must face and deal with changing normal circumstances. Unless it can do that, it fails in its function and declines in its dignity and value. An expanding society demands an expanding common law." In the next case, the observation relied upon by Mr. Brohi is to the effect that "your Lordships' task in this House is to decide particular cases between litigants and your Lordships are not called upon to rationalise the law of England. That attractive if perilous field may also be left to other hands to cultivate." In the last case referred to by Mr. Brohi, it was said by Lord Denning L. J. that "this argument about the novelty of the action does not appeal to me. It has been put forward in all the great cases which have been mile-stone of progress in law and it has nearly always been rejected ... It was fortunate for. the common law that the progressive view prevailed." I have no cavil with the propositions and observations referred to by Mr. Brohi, but I do not see how they affect the correctness of the view taken in Asma Jillani's case. Even if the Court erred in observing that the assumption regarding the success of the revolution was not justified for the reason that a few days after the pronouncement of the Court President Iskander Mirza was himself deposed by Field Marshal Muhammad Ayub Khan, and the Court should have assumed the facts as stated by Muhammad Munir, C. J., the view taken by the Court as to the applicability of Kelsen's theory is not affected by this error. The Court has given sound reasons for rejecting it, particularly the fact that it was at best a theory about law, which had not been universally accepted by other renowned jurists. Unless, therefore, compelling reasons are shown for departing from the view

taken by this Court in Asma Jillani's case, I would like to adhere to the same for the reasons so ably stated in the judgments of Hamoodur Rehman, C. J. and Muhammad Yaqub Ali, J. (as he then was). Mr. Brohi submits that the logical consequence of this Court's decision in Asma Jillani's case would be to render illegal, with retroactive effect, all actions taken during the time of Field Marshal Mohammad Ayub Khan, including the Constitution of 1962 which he gave to the nation as the will of one man ; that the regime of his successor, General Agha Mohammad Yahya Khan having been specifically declared to be illegal by the Supreme Court, the usurper could not legitimately hand over power to Mr. Z. A. Bhutto on the 20th of December 1971, nor could the latter derive validity for his Government by getting the Interim Constitution of 1972, and the permanent Constitution of 1973 passed by a truncated National Assembly, which was not attended by nearly 160 members belonging to Fan: Pakistan which had by that time seceded from Pakistan under the name of Bangla Desh. It appears to Mr. Brohi that these consequence, were overlooked boy the learned Judges who decided Asma Jillani's case and rejected Kelsen's theory regarding the legality of a successful revolution. Mr. Brohi next submits that in any case, in the subsequent case of State v. Zia-ur-Rehman P L D 1973 S C 49, the Supreme Court itself backed away from the grundnorm provided by the Objectives Resolution, on which it had tried to base itself in Asma Jillani's case in the absence of any other concept of legitimacy. The answer to some of these criticisms is to be found in the several judgments delivered in Asma Jillani's case. On p. 161 of the Report, it is observed by Hamoodur Rehman, C. J. that "the country by and large accepted the 1962 Constitution and even the Judges took oath under the fresh Constitution. Two President:--elections were held under this Constitution, the erstwhile Commander-in-Chief was elected on both occasions. National arid Provincial Assemblies were set up and the country continued to be governed era accordance with its term-- till the 25th of March 1969 . . . . ." "The Courts is the country also gave full effect to this Constitution and adjudicated upon the rights and duties of citizens in accordance with the terms thereof by recognising this law constitutive medium as a competent authority to exercise that function and also enforce the laws created by that medium in a number of cases . . . . . ." "Thus even -according to the arguments advanced by the learned counsel appearing for the appellant: all the laws made and acts done by the various Governments, civil and military, became lawful and valid by reason of the recognition given to them by the new Constitution and the Courts. They had riot only de facto validity but also acquired de jure validity by reason of the unquestioned recognition extended to them by the Courts of highest jurisdiction in the country. The validity of the acts done there under is no longer, therefore, open to challenge, even under the concept of law propounded by the realist school of jurists and adopted by the learned counsel for the appellants." On the same subject. Mohammad Yaqub Ali, J. went a step further and remarked as under;--' "The Attorney-General lastly urged that by challenging the validity of Martial Law imposed by Yahya Khan who was no longer in power the intention in fact was to dispute the legality of the present Government. In reply, Mr. Manzoor Qadir acknowledged the legitimacy of the Government headed by Mr. Z. A. Bhutto as Chairman of the majority party in the National Assembly, and said it was based on the will of the chosen representatives of the people. This was the reason behind the plea raised by him that the invalidity in the Legal Framework Order (issued by General Yahya Khan;) did not affect the legality of the Elections held under it to the National Assembly and the Provincial Assemblies. This coincided with the position taken up by the Attorney- General that Mr. Z. A. Bhutto was not the recipient of power from Yahya Khan and that he held the office of President as leader of the majority party in the National Assembly. We also take judicial notice of the fact that after arguments were concluded in these appeals, tile National Assembly met and unanimously expressed confidence in the Government of Mr. Z. A. Bhutto. An Interim Constitution has also been passed and Mr. Z. A. Bhutto is to be

inaugurated as President under this Constitution on the 21st of April 1972. The legitimacy of tier, present Government is thus beyond the shadow of doubt." . In the judgment of Salahuddin Ahmed, J. it was observed that the Supreme Court had derived its power from the 1962` Constitution, because that was the only legal instrument under which the instrument of Supreme Court was established. The learned Judge wells can to state that as soon as General Agha Mohammad Yahya Khan made his exit from the scene the 1962 Constitution which had been dormant in the meantime revived. It will thus appear that all the members of the Court which decided Asma Jillani's case, were ,agreed that even though the 1962 Constitution was given by one man, namely, Field Marshal Mohammad Ayub Khan, it . had acquired validity by its general acceptance by the people of Pakistan and recognition by the superior Courts, and. it was on the basis of this assumption that they declared General Agha Mohammad Yahya Khan to be a usurper, inasmuch as he had abrogated, without lawful authority, the pre-existing 1962 Constitution of the Islamic Republic of Pakistan. The observations made by Mohammad Yaqub Ali, J. regarding the legitimacy of the successor Government of Mr. Z. A. Bhutto were not endorsed by ~ the other Judges of the Court but this question was directly answered in the affirmative in the subsequent case of Zia-ur-Rehman, when it was observed that ;--"After the abrogation of the Constitution of 1962 and the establishment of military rule, the Legal Framework Order was clearly an endeavour to restore the principles of democracy wherein the State was to exercise its powers through the chosen representatives of the people and frame a Constitution for the State of Pakistan, wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah as envisaged by the Objectives Resolution itself. This was clearly, therefore, a step towards achieving the goals set out in the Objectives Resolution and for making provisions for the orderly and ordinary running of the Government of the country through the chosen representatives of the people. If there was any act of the usurper which could be condoned on the basis of the doctrine of necessity, then this was pre-eminently such an act. This was the first time that the representatives of the people had been chosen in the country by fret: and fair elections on the basis of adult franchise. The credentials of the people so elected were not, therefore, open to challenge on any principle of democracy, and since they had been elected under the Legal Framework Order, they had also been given a mandate by the people to make provision for the Constitution of Pakistan. The question then arises as to whether the fact that 160 male and seven female members (from East Pakistan) could not or did not participate in the proceedings of the National Assembly would make a difference either to the effective working of the Assembly or to the validity of the Constitution unanimously adopted by it. If the majority of the members had been forcibly prevented or otherwise wrongfully excluded from participating in its proceedings, there may have been some scope for contending that the Constitution produced was not a valid document. In the absence, however of any evidence to show that any one was so prevented, excluded or prohibited from attending the meeting of the National Assembly convened for the purpose of framing the Constitution, it cannot be said that the meeting of the National Assembly, which mustered the necessary quorum required by Article 17 of the Legal Framework Order and adopted a Constitution, was lacking in competence or was not a legally constituted body or that its acts were open to challenge on the ground that the majority of the members of the House were not present . . . . It cannot be invalidated 'merely on the ground that a large number of members were not present or did not participate." Nothing was said at the Bar by Mr. Brohi to persuade the Court to take a view different from the one reproduced above in regard to the validity of the Constitutions of 1962, 1972 and of 1973. Accordingly, it seems to me that the apprehension expressed by the learned counsel that the decision of this Court in Asma Jillani's case had the effect of rendering illegal all the successive governments of Pakistan, and the Constitutions framed during their times is not well-founded, and in any case stands effectively repelled by the decisions just mentioned. As a result, it follows that the controversy in the present case must proceed on the assumption that - the 1973 Constitution had been validly framed and

was in force when the Chief of the Army Staff proclaimed Martial Law on the 5th of July 1977. Similarly, Mr. Brohi's criticism that, in Ziaur Rehman's case, the Supreme Court has itself backed away from the grundnorm provided by the Objectives Resolution on which it had tried to base itself in Asma Jillani's case, is not justified. While explaining his observations on this subject in Asma Jillani's case, Hamoodur Rehman, C. J. stated that it was not correct to say that in that case the Court had declared that the Objectives Resolution adopted by the first Constituent . Assembly of Pakistan on the 7th of March 1949 was the grundnorm for Pakistan, and therefore, impliedly held that it stood above even the Interim 'Constitution or any Constitution that might be framed in the future. After citing the relevant passages from the various judgments delivered in Asma Allani's case, his Lordship concluded that "it will be observed that this does not say that the Objectives Resolution is the grundnorm but that the r norm is the thereof legal sovereignty accepted the people of Pakistan an to consequences that the flow from it I did not described the objectives Resolutions as a corner-stone of Pakistans legal edifice, but merely pointed out that one of the learned counsel appearing in the case had described it as such . . . . ." His Lordship then proceeded to clarify that "The Supreme Court has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution." I think these observations by Hamoodur Rehman, C. J. effectively answer the point sought to be made by Mr. Brohi. The question, however, is whether these opinions about the status of the Objectives Resolution or the legal doctrine of sovereignty obtaining in Islam, serving as grundnorm for Pakistan, even if somewhat contradictory in character as considered by Mr. Brohi, affect the correctness of the view taken by the Court in Asma Jillani's case regarding the concept of revolutionary legality. It appears to me that while a mention of the concept of grundnorm become: unavoidable when discussing Hans Kelsen's pure theory of law, yet the opinion of the Court as to its soundness and application to the circumstances presented by the seizure of power by General Agha Mohammad Yahya Khan in March 1969 is not based on these considerations ; rather it proceeds on a detailed consideration of the opinions of Western jurists regarding the concept of law, which reject the idea of effectiveness or effectualness as being the only criterion for its validity. Such being the case, no modification of the view taken in Asma Jillani's case is called for simply on the ground that in Zia-ur-Rehman's case. the Objectives Resolution of 1949 was not treated as the grundnorm for Pakistan, although it appeared to have been so treated in Asma Jillani's case. Mr. Brohi submits that the position taken up by him regarding the legality of an effectual new regime established as a result of suppression or destruction of the old Legal Order finds full support from the several judgments delivered by the High Court in the famous case from Southern Rhodesia, the Privy Council judgment in which is reported as Madaimbamuto v. LardnerBurke and another (1968) 3 All E R 561. Learned counsel wishes to adopt the reasoning of Macdonald, J. of the Appellate Division of the High Court of Rhodesia as embodying his submissions in this behalf. I find that this case was fully noticed in the judgment of Muhammad Yaqub Ali, J. in the case of Asma Allani, and the learned Judge expressed his agreement with the submission made by Mr. Brohi on that occasion that "the view expressed by the Judges of the High Court of Rhodesia was the maximum success for the theory of effectiveness which Kelsen could have conceivably envisaged." This remark appears to imply that the judgment did not really go far enough to support Kelsen's theory in its entirety. In the circumstances, it would not have been necessary to go over the same ground again, except for the fact that Mr. Brohi relies very heavily on the propositions stated by Macdonald, J. The facts of that case need not be stated at any length except to say that in 1965 the Government of Ian Smith overthrew the 1961 Constitution given to Southern Rhodesia by the British Parliament, and made a Unilateral Declaration of Independence to the effect that Southern Rhodesia was no longer a Crown colony but an independent sovereign State. The Parliament of the United Kingdom did not recognise this Unilateral Declaration of Independence, but continued to assert that it had responsibility and

jurisdiction for the colony. The Governor, appointed by Her Majesty the Queen, dismissed Mr. Smith and other Government Ministers and called on all citizens to refrain from acts which would further the objectives of the illegal authorities, but added that it was a duty of all citizens to maintain law and order and to carry out their normal tasks. . This applied equally to the Judiciary, the Armed Forces, the Police and the public service. The dismissal of the Prime Minister and other ministers was ignored and a new Constitution was adopted, and thereafter the usurping Government proceeded on the basis that the 1965 Constitution had superseded the 1961 Constitution. Madzimbamuto, the appellant before the Privy Council, questioned the legality of her husband's detention under an Emergency Regulation continued in force by the Rhodesian authorities after the Unilateral Declaration of Independence. The case first came up before a Division Bench comprising Lewis, J. and Goldin, J., who held that the 1965 Constitution was not the lawful Constitution and that Mr. Smith's Government was not a lawful Government but they held that necessity required that effect should be given to the emergency power Regulations and, therefore, the detention of the appellant's husband was lawful. The five Judges of the Appellate Division delivered separate judgments. Beadle, C. J. took the view that "The status of the present Government today is that of a fully de facto Government in the sense that it is in fact in effective control of the territory and this control seems likely to continue. At this stage, however, it cannot be said that it is yet so firmly established as to justify a finding that its status is that of a de jure Government." He further held that "the present Government, having effectively usurped the Governmental powers granted to Rhodesia under the 1961 Constitution, can now lawfully do anything, which its predecessors could lawfully have done, but until its new Constitution is firmly established and thus becomes the de lure Constitution of the country, its administrative and legislative acts must conform to the 1961 Constitution. Jarvis, A. J. A. was in general agreement with Beadle, C. J., whereas Field send, A. J. A. expressed his conviction that a Court created in terms of a written Constitution bad no jurisdiction to recognise either as a de jure or de facto Government, any Government other than that constitutionally appointed under that Constitution. However, he went on to consider the doctrine of necessity for validating certain acts of the present authorities. Macdonald, A. J. A. and Quenet, J. took the view that "allegiance to the State imposes as one of its most important duties obedience to the laws of the sovereign power for the time being within the State", and "so far as a municipal Court is concerned a de facto Government is a de jure Government in the sense that it is the only law-making and law -enforcing Government functioning for the time being within the State." Mr. Brohi submits that in coming to this conclusion this learned Judge was influenced, among others, by the opinion expressed by Sir Ivor Jennings in his book "The Law and the Constitution" to the effect that "All revolutions are legal when they have succeeded and it is the success denoted by acquiescence which makes their Constitutions law." Mr. Brohi also draws our attention to the fact that Macdonald, A. J. A., has, in the body of his judgment, exhaustively traced the history of constitutional development in England for coming to the conclusion that under the English law duty of allegiance lies to a de facto sovereign. The learned counsel particularly wishes to rely on the conclusions reached by this learned Judge to the effect that "the lesson to be gleaned from the history of the English law is that Judges should not allow themselves to be embroiled in political controversy and in particular should not take part in revolutionary or counter revolutionary activity .The more unsettled the time an the greater the tendency towards the disintegration of established institutions, the more important it is that the Court should proceed with the vital, albeit, unspectacular task of maintaining law and order and by so doing act as a stabilising force within the community. This objective can only be achieved if the acts of a Government for the time being within the State are given the force of law". On appeal to the Privy Council, Lord Reid, delivering the majority judgment, rejected Kelsen's theory of effectiveness and held "with regard to the question whether the usurping Government can now be regarded as a lawful Government, much was said about de facto and de lure Government. Those are concepts of International Law and, in their Lordships' view, .they are quite inappropriate in dealing with the legal position of a usurper within the territory of which he has acquired control . . . . . It happens not infre-

quently that the Government recognises a usurper as the de facto Government of a territory while continuing to recognise the ousted sovereign as the de lure Government. But the position is quite different where a Court sitting to a particular territory has to determine the status of a new regime which has usurped power and acquired control of that territory." Lord Pearce, in a dissenting judgment, observed that "the de facto status of sovereignty could not be conceded to a rebel Government as against the true sovereign in the latter's own Courts, but the principle of implied mandate (i.e. that acts done by those actually in control without lawful validity) might be recognised as valid or acted on provided that they were directed to and reasonably required for ordinary, orderly running of the State. that they did not impair the rights of the citizens under the lawful Constitution, and that they were not intended to (and did not in fact) directly help the usurpation and did not run contrary to the policy of the lawful sovereign." Considering the divergence of opinion expressed by the learned Judges who have dealt with this case at various stages, it cannot be said that it provides any effective judicial precedent, capable of application in subsequent cases. The decision in this case has, however, been commented upon by several learned authors, and it may be useful td briefly refer to them at this stage. In an Article entitled "Splitting the Grundnorm", printed in 1967 Modern Law Review, Vol. 30, J. M. Eekelaar has analysed the various judgments at some length, and reached the conclusion that they have the effect of splitting the grundnorm between the de lure Constitution of 1961 and the de facto authority of Ian Smith who gave the 1965 Constitution. He observes that the Smith regime would find little comfort in the judgment as it does not recognise its legality but merely treats it as a de facto authority in Southern Rhodesia. In another Article appearing in the same volume of Modern Law Review under the heading "The Judicial Process: UDI and the Southern Rhodesian Judiciary", by Claire Palley, the social backgrounds of the Judges concerned have been mentioned as influencing the view they took in this case, and it is stated that the Judges were reluctant to pronounce on the validity of Smith regime, although they were willing to validate actions of the regime on the doctrine of necessity." As a result, "although they virtually rejected the Kelsen's doctrine and the 1965 Constitution, and distinguished between de lure authority and legality which they would not enforce. and effective authority and law and order which they would enforce, it is clear that in Rhodesia the regimes edicts are laws enforced in the Austinian sense by the Courts". Commenting on this case under the heading "Legal Politics: Norms Behind the Grundnorm" in 1968 Cambridge Law Journal (Vol. 26), R. W. M. Dias observes that "the above review of the case shows that as to the lawfulness of the Smith regime, the weight of judicial opinion was overwhelmingly against it, notwithstanding its effectiveness." He is also critical of the judgment delivered by Macdonald, J. observing that: "In the first place, he begs the essential question which is not whether there is a duty to obey the laws of the Government for the time being but whether its decrees are laws. Secondly, to make effectiveness the only criterion of its legality is to abandon judicial independence . . . . . Fourthly, what an incentive to rebellion the judgment provides." The learned author goes on to state "What then are the implications of the grundnorm case. The most obvious one is that it has revealed shortcomings in what Kelsen has taught. He said in one place that the grundnorm imparts legality as long as the total Legal Order is effective. The grundnorm case shows that although the Smith regime was totally effective, it was not lawful. But at the same time that only some of its decrees were to be treated as laws: On the other hand, the old order was totally ineffective, yet it possessed an important controlling influence." He remarks further "when there is as yet no accepted grundnorm, as in the midst of a revolution, the Courts may nonetheless accept as laws propositions identified with reference to whatever criterion they choose; which is precisely what happened in the grundnorm case. This, as pointed out earlier, is how laws and lawfulness of their origin come to be distinguishable".

This Article contains very useful observations as to the content of law, which have direct relevance for us in the present context. Dias observes that "Rules and legal phenomenon do not exist only for the instant; they endure, be it for short or indefinite periods. The concept of enduring laws is more in accord with experience than that of instantaneous laws just as enduring human beings are more real than instantaneous ones. The concept of any phenomenon as a continuing thing must necessarily include the factors essential to continuing as an integral part of it . These would includes the factors but for which it would not have come into being and continued to be, as well as those involved in its function and functioning . . . . . . The grundnorm is an enduring phenomenon, and , it is insufficiently appreciated that not only effectiveness but also conformity to morality and justice is among the very springs of its, being and on continued life". The above reviews of the judgments delivered in the Southern Rhodesian case are, I think, sufficient to show that this case cannot be regarded as a judicial authority for the proposition canvassed by Mr. Brohi, namely, that effectualness of the new regime provides its own legality. On the contrary, of weighty criticism has been levelled against the doctrine on the ground that it seeks to exclude all considerations of morality and justice from the concept of law and legality. In the two leading judgments delivered in Asma Jillani's case by Hamoodur Rehman, C. J. and Muhammad Yaqub Ali, J. (as he then was) copious references have been made to the opinions of renowned writers who do not endorse Kelsen's view regarding revolutionary legality. It was pointed out that writers like Garner, G. C. Field, Professor Harold Laski and Dean Roscoe Pound had not supported the proposition that a de facto sovereign could become de jure by exacting obedience by force or coercion; on the other hand, they had expounded the doctrine that de facto sovereignty becomes de jure by consent and the development of the habit of obedience, and that a de facto sovereign gets his position confirmed by an election or ratification by the people by habitual obedience over a sufficiently long period of time, and then alone he can claim to have acquired de lure sovereignty as well. A brief reference has already been made to the views of more modern writers like Eekelaar and Dias. A few further references will not be out of place. In an Article entitled "Principles. of Revolutionary Legality" included in the Oxford Essays on Jurisprudence, 2nd Series, 1973, the first-mentioned author has attempted to enumerate the principles that may be relevant to a division whether revolutionary activity should be given legal justification, so as to salvage this area of investigation from total extinction by the operation of positivist dogmatism. In his view the principles pertaining to revolutionary situations are:(i) The principle of effectiveness; (ii) The , principle of legitimate disobedience to authority exercised for improper purpose; (iii) The principle of necessity; (iv) The principles that violation of a right demands a remedy and that no one should profit from his own wrongful act. As a revolution will invariably have involved the violation of some of the rights protected by the previous Constitution, a combination of these principles suggests that, even if the new order is considered legitimate, some recompense should be offered to those whose rights were infringed; (v) The principle that a Court will not permit itself to be used as an instrument of injustice; (vi) The principle that it is in the public interest that those in de facto impregnable control should be accorded legal recognition. It gives effect to the acceptable policy value that it is in the interest of the community that order be preserved. But one might be reluctant to hold that it is the only relevant principle and that there cannot be others which would

militate against automatically accepting revolutionaries as legitimate regardless of any other circumstance; (vii) The principle that Government should be by the consent of the governed, whether voters or not. There is nothing new in this principle. Authority can be found in political writings at least from the middle ages to the present day. It appears to the learned author that "the most important advantage to be gained by the recognition of principles of this kind is that revolutionary situations would no longer be seen in absolute terms : that either the usurpers must always and inevitably remain illegitimate, or that they must always and inevitably be held legitimate once they have succeeded, irrespective of the reasons why they took power, how they have behaved while in power and how long they have held power. The answer to the problem of legitimacy may be a qualified one, involving the judicious balancing of a wide variety of factors". The views of Dias on the Rhodesian case, and incidentally on Kelsen's theory, as appearing in an Article written by him, have already been mentioned. Reference may also be made to some observations appearing in his book on Jurisprudence. In Chapter IV under the heading "The Problem of Power'.", Dias writes that "the effectiveness of a legislative medium, it should be emphasized, is not a condition of its own law quality or of its enactments, but only a factor which influences Courts to accept and continue accepting- it. A situation may be supposed in the midst of a revolution where the old order has gone and no new order has effectively replaced it. In such a lacuna the Courts can continue to apply as laws the enactments of the old order even though it is no longer effective . . . ." "Not only is the legality of a revolutionary regime independent of effectiveness, but it also has jurisdictional and temporal dimensions. Thus. although the Rhodesian regime was eventually accepted as legal by the Rhodesian Courts, (A. 0- intervening) [(1970) 3 All E R 572), a British Court refused to recognise a divorce decree pronounced by a Rhodesian Judge who had not taken the oath under the 1961 Constitution. This shows that legality depends on the jurisdiction in which the matter is considered, quite apart' from effectiveness. The temporal dimension is brought out by a decision of the Pakistan Supreme Court, Jillani v, Government of Punjab, which rejected effectiveness altogether as the criterion of legality. In an earlier case The State v. Dosso, the Supreme Court bad held that a revolutionary regime, which was effectively in power was legal and had thereby destroyed the previous Constitution no matter how or by whom that change had been brought out. In Jillani's case, the Supreme Court rejected this as a wholly unsustainable proposition and overruled Dosso. The point, however, is that this decision was given after that revolutionary regime had been itself overthrown so that the declaration that it was illegal ab initio was retrospective." He goes on to state that "In the result it would seem that the effectiveness of the legislative authority is not a condition of the validity either of laws or even of itself. It is a factor which in time induces the Court to accept such authority . . . That consonance with morality and the social political background also play a part in bringing about the acceptance of a law constitutive medium . . . . There L thus an arguable case for saying that Courts should .take account of the morality for which a law constitutive medium stands in deciding Miether to accept it or not . . . . . 'In Chapter XVI of the same book under the heading "The Pure Theory", Dias examines Kelsen's theory at some length, and, after discussing the concept of the grundnorm, he observes that; some writers have pointed out, with a hint , f criticism; that in whatever way effectiveness of grundnorm is measured. Kelsen's theory has ceased to be pure on this point. for b effectiveness would seem to depend on, those very sociological factors which he so vehemently excluded from his theory of law . .-. . . , The force of this point may a seen when one asks why a particular grundnorm was accepted, especially if it followed on a revolution, might it not be that the new criterion of validity was able to command a minimum of effectiveness because it was thought to guarantee that measure of justice and morality which the, previous criterion did not . On this line . of argument the grundnorm is effective, and continues to be effective, in so far as an element of

morality is built in as part of the criterion of validity. If so, the continued validity of every proposition of law derived from the validating source has an ethical background and the separation of law from morality would cease to exist . . . . . . All this amounts to a formidable argument levelled not merely at Kelsen, but at positivism in genera, It is sufficient here to observe that, if sound, it would strike at the foundation of his separation of is and ought." A brief reference may also be made to the views expressed by De Smith in his book "Constitutional and Administrative Law". In Chapter III, under the heading "Ultimate Authority in Constitutional Law", he discusses the problems posed by situations involving a breach of legal continuity, be it peaceful or accompanied by coercion and violence. Such a situation may have to be treated as superseding the Constitutional and Legal Order and replacing it by a new one. He states that "Legal theorists have no option but to accommodate their concepts to the facts of political life. Successful revolution sooner or later begets its own legality. If, as Bans Keen arms postulated , the basic norm or ultimate principle underlying a constitutional order is that the Constitution ought to be obeyed then the disappearance of that order followed by acquiescence on the part of officials, Judges and the general public in laws, rules and orders issued by the now holders of power, will displace the old basic norm or ultimate principle and give rise to a new one. Thus might becomes right in the eye of the law." "This is a persuasive rationalisation of the legal consequence of a successful revolution like the rebellion of the American Colonists or the English revolution of 1688. It does not, however, answer all questions. It ode description not a prescription It does not dictate what attitude Judges and official ought to adopt when the purported breach of legal continuity takes place . . . . .' "Sooner or later a breach of legal continuity will be treated as laying down legitimate foundations for a new constitutional order, provided that the revolution is successful, there is, however, no neat rule of thumb available to Judges during or immediately after the revolution for the purpose of determining whether the old order survives wholly, in part or not at all." "One other comment must be made. In some situations where unconstitutional action has been taken by persona wielding effective political power, it is open to a Judge to steer a middle course. He may find it possible to hold that that framework of the pre-existing order still survives, but that deviations from its norms can be justified on grounds of necessity. The principle of necessity rendering lawful what would otherwise be unlawful, is not unknown to English Law; there is a defence of necessity, (albeit of uncertain scope) in criminal law- and- in -constitutional law the application f Martial Law is but an extended application of this concept But the necessity must be proportionate to the evil to be averted and acceptance of the principle does not normally imply total abdication from judicial review, or acquiescence in suppression of the Legal Order; it is essentially a transient violation. State necessity has been judicially accepted in recent years as a legal justification for ostensibly unconstitutional action to fill a vacuum arising within the constitutional order in Pakistan, Cyprus, Rhodesia and Nigeria. To this extent it has been recognised as an implied exception to the letter of the Constitution. And perhaps it can be stretched far enough to bridge the gap between the old Legal Order and its successor." Lastly, it would be instructive to refer to certain statements made by Professor Kelsen himself while replying to certain criticisms made against his pure theory of law by Professor Julius Stone of the University of Sydney, Australia. Writing in the 1965 Stanford Law Review (Vol. 17), Kelsen first quotes a passage from Professor Stone to the effect that "The fact . . . . . that Kelsen's theory at its formulative stage did not clearly distinguish the legal norms from the propositions at sheds revealing light on one of the most dogmatic of Kelsen's early positions. This is that a Judge (and indeed any lawyer) must, in order properly to perform his function, operate in accordance with the pure theory of law . . . . . As soon, however, as they (the proposition about law) are distinguished, as Kelsen now admits they must be, then it is clear that the propositions of the pure theory of law are mere juristists' propositions about law, and they do not bind the Judge, in the way in which legal norms bind him." He then proceeds to reply to this

criticism by saying that "Never, not even in the earliest formulation of the pure theory of law did I express the foolish opinion that the propositions of pure theory of law bind the Judge in the way in which legal norms bind him. In so far as the Judge in performing his function of applying and creating law adopts a theory of law his position is the same as that of any other lawyer. And as far as the lawyers are concerned, I tried, of course, to convince them that my theory is correct, as every body who presents a theory tries to convince others of its correctness. But this does not mean that I considered the propositions of the pure theory of law as legally binding . . . . ." From what has been said in the preceding paragraphs, it become abundantly clear that Kelsen's pure theory of law has not been universally accepted; nor is it indeed a theory which could claim to have become basic doctrine of the science of modern jurisprudence. It has also no found consistent or full application in all revolutionary situations which have come before the Courts for adjudication as to the validity of the new Legal Orders resulting from such revolutions. Indeed, Professor Kelsen has himself stated that never did he express the foolish opinion that the propositions of his pure theory of law bind the Judge in the way in which legal norms bind him. Hamoodur Rehman, C. J. has rightly observed in Asma Jillani's case that Kelsen was propounding a theory of law as a mere jurists' proposition about law but was not attempting to lay down any legal norm or norms which are the daily concern of Judges, legal practitioners or administrators: and that Kelsen did not attempt to formulate a theory which favoured totalitarianism as he attached the greatest importance to keeping law and might apart. Kelsen's theory is also open to serious criticism on the ground that by making effectiveness of the political change as the sole condition o criterion of its legality, it excludes from consideration sociological facto of morality and ,justice which contribute to the acceptance or effectiveness of the new Legal Order. It must not be forgotten that the continued validity of the grundnorm has an ethical background, in so far as an element of morality is built in it as part of the criterion of its validity. These considerations assume special importance in an ideological State like Pakistan. which was brought into being as a result of the demand of the Muslims of the Indo-Pakistan sub-continent for the establishment of a homeland in which they could order their lives in accordance with the teachings of the Holy Qur'an and Sunnah. When the demand was accepted, it was given effect to by means of a Constitution passed by the British Parliament, which held sovereignty over India in 1947. In other words, the birth of Pakistan is grounded both in ideology and legality. Accordingly, a theory about law which seeks to exclude these considerations, cannot be made the binding rule of decision in the Courts of this country. It follows, therefore, that the legal consequences of an abrupt political change, of the kind with which we are dealing in this case, must be judge not by the application of an abstract theory of law in vacuum, but by consideration of the total milieu in which the change is brought about, namely, the objective political situation prevailing at the time, its historical imperatives and compulsions; the motivation of those responsible for the change, and the extent to which the old Legal Order is sought to be preserved or suppressed. Only on a comprehensive view of all these factors can proper conclusions be reached as to the true character of the new Legal Order. One last comment may also be offered in this behalf, namely, that the theory of revolutionary legality, as propounded by Mr. A. K. Brohi can have no, application or relevance to a situation where the breach of legal continuity is admitted, or declared, to be of a purely temporary nature and for a specified limited purpose. Such a phenomenon can more appropriately be described as one of constitutional deviation rather than o revolution. It will indeed be highly inappropriate to seek to apply Kelsen's theory to such a transient and limited change in the legal o constitutional continuity of a country, thus giving rise to unwarranted consequences of a far-reaching character not intended by those responsible for the temporary change. On this view of the matter, I consider that no justification has been made out for resurrecting Dosso's case in supersession of the view adopted by this Court in Asma Jillani's case regarding the application of Kelsen's theory of revolutionary legality in the

circumstances obtaining in Pakistan In other words, I would still prefer the view advocated by Mr. Brohi in that case to the stand taken by him before us, which seeks to rob the present political change of all its moral content, and also leaves its legal character uncertain and undecided. The stage has now been reached for a somewhat detailed examination of the circumstances culminating in the imposition of Martial Law on the 5th of July 1977. A brief mention thereof has already been made in the earlier part of this judgment while summarising the contentions raised by Messrs A. K. Brohi and Sharifuddin Pirzada. It may be stated that many of the averments made in this behalf in the written statement filed by Mr. A. K Brohi have teen strenuously controverted by the detenus who have filed written rejoinders and also appeared in person before the Court. Mr. A. K. Brohi has filed a rejoinder in reply to these statements of the detenus, and Mr. Zulfikar Ali Bhutto has filed a further written statement in response thereto. An affidavit of General (Rtd.) Tikka Khan, a former Chief of Stall' of the Pakistan Army and Minister of State in Mr. Bhutto's Government has also been placed on the record in refutation of certain actions attributed to him in the respondent's written statement. While taking note of all these statements and counter statements, I think that in the present proceedings the Court is not called upon to record a judicial finding as to the factual correctness or otherwise of the several allegations and counter allegations made by the parties against each other. The Court is primarily concerned with ascertaining the broad trends and circumstances which culminated in the overthrow of the Government of Mr. Z. A. Bhutto. For this purpose, we must take judicial notice of various events which happened in the country during the period commencing from the 7th of March 1977 on which date the general Elections to the National Assembly of Pakistan were held, resulting in an overwhelming majority for the Pakistan People's Party led by Mr. Z. A. Bhutto. Ample material appears to be available on the record of this Court to enable us to arrive at the necessary conclusions. The National Assembly of Pakistan, consisting of members elected from the four Provinces of West Pakistan in 1971, was dissolved in January this year by the President of Pakistan acting on the advice of the then Prim Minister Mr. Z. A. Bhutto; similar action was taken by the Governors of the four Provinces in respect of the Provincial Assemblies in the Punjab, Sind, N.-W. F. P. and Baluchistan. Fresh elections were ordered to be held to all these legislative bodies within 90 days of the date of dissolution as required by clause (2) of Article 224 of the 1973 Constitution. An intensive politics campaign was launched by the Pakistan People's Party, and the Pakistan National Alliance, a combination of Nine Opposition parties, headed by Maulana Mufti Mahmood. Most political observers, including the to leadership of the Pakistan People's Party, expressed the view that the election were going to be hotly contested between the two major parties, although Mr. Z. A. Bhutto and other leaders of his party expressed the confidence that they would get comfortable majority at the Centre and in all the four Provinces so as to be able to form the Federal and the Provincial Governments. However, when the results of the polling to the National Assembly seats were announced by the evening of the 7th of March 1977, the People's Party was found to have obtained U5 seats out of the total of 200 seats of the National Assembly, including a large number of those seats, particularly in the Punjab, where its success was, to say the least. very doubtful. The Pakistan National Alliance refused to accept the results. and alleged massive rigging of the elections by Government officials under the direction of Mr: Z. A. Bhutto. They also decided to boycott the polling to the Provincial Assemblies which was to be held three days later. The Pakistan .National Alliance called for a country-wide protest movement against the rigging of elections in contravention of the constitutional mandate. The agitation gained rapid momentum and spread to all parts of the country. The main demands of the Opposition were resignation of the Prime Minister, resignation of the then Chief Election Commissioner, and fresh elections to the National and Provincial Assemblies. As the demands were not conceded, the agitation continued and soon assumed a violent form resulting in widespread disturbances, which continued to grow in magnitude. It soon became apparent that they were beyond the control of the civil armed forces, with the result that the Army had to be called out in many places. On the 21st of April 1977, the Federal Government of Mr. Z. A. Bhutto issued a direction under Article 245 of the Constitution calling upon the Armed Forces to act in aid of civil power in Karachi, Lahore and Hyderabad towns. Troops were also called out in aid of civil power

by the local executive authorities in many other towns under .the provisions of the Code of Criminal Procedure. The agitation, however, continued unabated, resulting in extensive damage to public and private property and heavy loss of life, details of which will be given presently. Protest marches continued in defiance of the orders made by the local Martial Law Administrators, and many instances of ridiculing army personnel were reported from various towns. The top leadership of the Pakistan National Alliance, and a large number of their followers were arrested throughout the country, and their trial by military Courts was also authorised. As these repressive measures did not appear to produce the desired results, Mr. Z. A. Bhutto announced in May 1977 that as he could not sacrifice the National Assembly on the demand of the Opposition, he would offer himself for a Referendum as to whether he should continue as the Prime Minister of the country or not, and for this purpose Seventh Amendment to the Constitution was passed by the National Assembly on the 12th of May 1977. However, the Opposition rejected this device and the agitation continued. In these circumstances Mr. Bhutto agreed in principle" to hold fresh elections to the National Assembly, and offered to enter into a dialogue with the leaders of the Pakistan National Alliance. The talks commenced on the 3rd of June 1977 on which date a joint appeal was made by Mr. Z. A. Bhutto and the leaders of the Opposition for calling off the strike during the continuance of the talks. As a result of this joint appeal, the protest movement was temporarily called off. The direction issued by the Federal Government under Article 245 of the Constitution was also withdrawn, and the troops were gradually pulled out from the riot torn areas. The talks continued until about the 15th or 16th of June 1977, when it was announced that an accord had been reached between the parties, and that the same would now be reduced into writing. The Prime Minister then left for a short tour of some friendly countries, but during his absence the task of drafting the accord could not make much progress. Fresh efforts were made to break the dead-lock, and a night long session between the two negotiating teams was held on the grid of July 1977, resulting in an announcement on the morning of the 3rd of July 1977 that full accord had been reached and the formal agreement would soon be signed by both the parties after it had been formally ratified by the General Council of the Pakistan National Alliance. Unfortunately, differences again arose, and at a press conference convened by the Prime Minister late on the 4th of July 1977 it was announced that fresh talks will be held between Mr. Abdul Hafeez Pirzada of the Pakistan People's Party and Professor Ghafoor Ahmed of the Pakistan National Alliance to iron out these differences. The Prime Minister, however, announced that his party would also raise ten or twelve other issues as was being done by the Pakistan National Alliance. It appears that the take-over by the military authorities was carried out in the early hours of the 5th of July 1977 sooty after this announcement by the Prime Minister. The allegation that there was massive rigging of the elections under the directions of Mr. Z. A. Bhutto has been strenuously denied by Mr. Z. A. Bhutto himself and by Mr. Yahya Bakhtiar on behalf of the Pakistan People's Party. However, the important point for our present purpose is not whether in fact there was massive rigging of the elections or not, but that the people all over Pakistan protested that there had been massive rigging by the Government functionaries. In addition, we have before us material in the form of certain actions taken in this behalf by the Government and the Chief Election Commissioner. In the first place, there is the fact that the results of the elections were not announced by the Chief Election Commissioner until the 21st of March 1977, which was the last date-permitted for this purpose by clause (2) of Article 224 of the Constitution and he did so only when he had been given summary powers by the Federal Government, by means of Amending Ordinance XV of 1977, to examine the validity of individual elections and to set them aside by reason of any illegality or corrupt practice which may have vitiated the result. He took up twenty-six cases for investigation under these summary powers and set aside the results of six constituencies, unseating important members belonging to the Pakistan People's Party. Show-cause notices had been issued by the Chief Election Commissioner to at least two other important members of the party, namely, the former Attorney-General, Mr. Yahya Bakhtiar, and the Federal Law Minister, Malik Mohammad

Akhtar, when the summary powers previously conferred on the Chief Election Commissioner were suddenly withdrawn by the President on the 12th of May 1977 under clause (2)(6) of Article 89 of the Constitution, Chief Election Commissioner, and that the withdrawal of the summary powers had nothing to do with the pendency of his case. That may or may not be so, as the relevant fact for our present purpose is that the powers in question were suddenly withdrawn, thus giving the impression that the withdrawal was intended to protect certain important members of the Pakistan People's Party from being unseated. In the present proceedings we have merely taken judicial notice the events which generated discontent against Mr. Z. A. Bhutto's Government, and are not called upon to record a judicial finding as to whether the dissatisfaction was in fact justified or not. A further fact to be noticed in this behalf is that the Chief Election Commissioner had called for the files of eighty-five other constituencies when these powers were withdrawn. Four orders passed by the Election Commission in the exercise of the summary powers mentioned above have been placed on the record. They make very instructive reading. It may be stated that at the relevant time the Election Commission was headed by a retiree: Judge of the Supreme Court of Pakistan, Mr. Justice Sajjad Ahmed Jan as the Chief Election Commissioner, and had two members drawn from the serving Judges of the High Courts, namely, Mr. Justice Sa'ad Saood Jan of the Lahore High Court and Mr. Justice Abdul Hafeez Memon from the Sind High Court. The first case deals with the election of a former Federal Minister, Mr. Hafeezullah Cheema, to the National Assembly from Constituency No. NA-57, Sargodha-5. On page 176 of the reported judgment (P L D 1977 Jour. 164) the Election Commission has recorded the following conclusions: "We do not think it necessary to make any comments on the patent facts disclosed from our scrutiny of the record and the evidence mentioned above, as they speak for themselves. The only possible conclusion which can be drawn from them is that the polls were rigged in the polling stations mentioned above and the election was thus reduced to a farce. The several telegraphic complaints sent by Mr. Zafarullah Khan on the day of the poll have been proved to be substantially correct. The events clearly reveal a pre-planned design to subvert the electoral process and to secure a victory for Mr. Hafeezullah Cheema at all costs by resort to the foulest possible means. As stated above, no polling took place at some of the polling stations and yet the results were manipulated for these polling stations giving to Mr. Cheema a land-slide victory. 1t is painful to observe that Mr. Cheema in his position as the Federal Minister of the Central Government should have resorted to such foul methods, throwing to the winds all norms of decency and democratic behaviour in his blind desire to win the seat for himself anyhow, totally unmindful of the consequences. 'He and his henchmen indulged in violence and intimidation with reckless bravado to achieve their nefarious designs." In the second case, reported as P L D 1977 Jour. 183 relating to the election of Mr. Amir Abdullah Khan, a nominee of the Pakistan People's Party from National Assembly Constituency No. NA-61, Mianwali-II, the Election Commission has observed, on page 187 of the Report, that :"The events as disclosed by the evidence mentioned above, speak for themselves. The election in this constituency was a mockery and a sham. The sanctity of the ballot paper was destroyed by the foulest methods, regardless of consequences. In the circumstances, we have no hesitation in declaring, as already stated in our short order dated the 20th of April, 1977, that the polls in this constituency are vitiated by grave illegalities and are, therefore, null and void and that fresh election will be held in this constituency as required by section 108 of the Representation of the People Act, 1976." In the third case, reported as P L D 1977 Jour. 190 relating to the election of Mr. Ghulam Nabi Chaudhry, a nominee of the Pakistan People's Party from Constituency No. NA-76, Lyallpur-IX, the Election Commission observed on p. 197 of the Report:"The resume of the evidence led in the case and the description of some of the incidents that took place during the polls in this Constituency leave no room for doubt that the polls

are tainted by grave illegalities and violations of law. The respondent resorted to violence and even abducted a Presiding Officer and subverted the electoral processes to make sure about his victory at all costs." In the last case brought to our notice, reported as P L D 1977 Jour. 198, relating to the election of Sardar Ahmed Ali, a nominee of the People's party, from National Assembly Constituency No. NA-89, Kasur-I, the Election Commission came to the conclusion on p. 202 of the Report that:"The whole evidence as discussed above leaves no room fur doubt that a fraud has been played on the electorate by resort to despicable acts like stealing the ballot boxes and the ballot papers, shoving in bogus votes in the ballot boxes and later bringing them into the polling stations for being included in the count. The only result that follows is that this poll which was farcical, has to be declared as null and void." It is true that the specific judgments referred to by the learned Attorney-General relate only to four cases, but the conclusions recorded by the Election Commission in each of them 'are significant, as revealing a certain pattern of interference by the Government functionaries with the sanctity of the ballot.. Enormity of this interference appears to be further highlighted by at least three public statements made by the Chief Election Commissioner on the 17th of March 1977, 23rd of May 1977, and the 5th of June 1977 respectively. The firs statement appeared in the daily newspaper 'Nawa-i-Waqt' (Annexure F. 12 on p. 150 of the respondent's rejoinder filed on 26-10-77) reporting the proceedings of a Press Conference held by the Chief Election Commissioner in his office, in which, after reciting the various irregularities noticed by him, he expressed the view that there were allegations of rigging against almost all the ministers of the Government, and that, if possible, fresh elections should be held to all the 200 seats of the National Assembly, and even the elections to the Provincial Assemblies should be reviewed, so as to inspire confidence in the purity of the electoral process. The second statement referred to by Mr. Sharifuddin Pirzada was reported in a weekly Urdu magazine 'Chatan', published in Lahore (Annexure F. 13 on p. 152 of the aforesaid rejoinder), bearing the date-line 23rd of May 1977. It refers to an interview given by the Chief Election Commissioner to the Voice of America reiterating his view that there had been massive rigging in the elections to the National Assembly held on the 7th of March 1977, and that he had advised Prime Minister Bhutto to held fresh elections, According to the correspondent of the Voice of America stationed in Islamabad, the Chief Election Commissioner had re-affirmed his earlier statement that the results of at least 100 constituencies of the National Assembly were not above suspicion. . The third statement dated the 5th of June 1977 appeared in a newspaper called the daily `Millat' published in Karachi, in the Gujerati language. An English translation of this news item is to be found in Annexure R/ I to the first written statement filed in this Court by Mr. A. K. Brohi on behalf of the Federation of Pakistan. It bears the caption "Savad shocked by election rigging. Suggests new election instead of inquiry." The body of the news item states that:--"In view of the grave irregularities that have come. to the knowledge of the Election Commission during the inquiry held into election to 24 seats, the Commission has decided to hold inquiry into another 80 seats. Records of the elections of these 80 seats have been sealed under the orders of the Commission. The Chief Election Commissioner, Mr. Justice Sajjad Ahmed Jan is shocked to learn of the grave irregularities committed in regard to more than 50 % of the seats during elections. In view of these irregularities on such a large scale Mr. Justice Sajjad Ahmed Jan feels that it will be better to hold elections afresh." Mr. Brohi has also drawn our attention to para. 48 of his written statement to the effect that the then Punjab Government had sanctioned, on 15-5-77. the distribution of fire-arms

licences on a vast scale to its party members. This allegation has not been denied by Mr. Bhutto and Mr. Abdul Hafeez Piriada, either orally or in their rejoinder statements. Mr. A. K. Brohi has also brought on the record certain other material suggestive of the fact that such large scale rigging had 'in fact been planned and directed at the highest level, namely, that of the Prime Minister himself, but I consider that it is not necessary to go into those details, the relevant fact in the present proceedings being that there were widespread allegations of massive rigging in the elections in favour of candidates of the Pakistan People's Party, and that these allegations find prima facie support from the orders and statements made by the then Chief Election Commissioner and the members of the Election Commission as mentioned above. These circumstances explain the genesis of the protest movement launched by the Opposition against Mr. Z. A. Bhutto and his Government. As to the magnitude of the movement, certain salient facts have already been stated, namely, that Mr. Bhutto was obliged to call in the Armed Forces in aid of the civil power in a large number of cities and towns of Pakistan owing to the fact that the civil authorities were unable to cope with the disturbances. As regards the casualties suffered and the damage caused to public and private property, Mr. Sharifuddin Pirzada, the learned Attorney-General, has invited us to take judicial notice of the submissions made before the Supreme Court by the former Attorney-General, Mr. Yahya Bakhtiar. who now appears for the petitioner Begum Nusrat Bhutto, on the 6th of June 1977. While arguing an appeal on behalf of the Federal Government against the decision of the Lahore High Court declaring as unlawful the imposition of local Martial Law by the Armed Forces of Pakistan in pursuance of a direction issued by the Federal Government under Article 245 of the Constitution, Mr. Yahya Bakhtiar gave certain facts and figures in justification of the action taken by the Federal Government. He stated that during the 2) months of agitation 4653 processions were taken out by the public, including 248 processions by women, 92 by the members of the legal profession. 18 by Ulema or religious scholars, 248 by students and 57 by boys and children. According to Mr. Yahya Bakhtiar, these figures related to the period from March 14 to May 17, 1977. Mr. Yahya Bakbtiar further informed the Court on that occasion that 241 civilians, belonging to both the political parties, were killed, and 1195 were injured, whereas nine members of the security forces were killed and 531 of them were injured. There were 162 acts of sabotage and arson, besides large scale destruction of property as follows:Installations Shops Banks Vehicles on the road the Republic Hotels Cinemas Offices (public & private) Railways, whether bogies were burnt or otherwise damaged 18 74 58 1622 (They did not include the vehicles burnt in Karachi) 7 11 56 27

These losses and casualties, which according to Mr. Yahya dakhtiar were unprecedented, appear to me to lend full support to the submission made by Mr. Sharifuddin Pirzada that the protest movement launched by the Opposition against the alleged massive rigging of the elections organised by Mr. Z. A. Bhutto's Government had assumed very serious proportions indeed, comparable almost to the well-known agitation movements launched in the undivided India, like the Khilafat Movement, the Quit India Movement of 1942, etc. Certain other aspects of the prevailing political and law and order situation may also be noticed. It has already bee" stated that as a result of the joint appeal made by the Prime Minister, Mr. Z. A. Bhutto and the top leadership of the Pakistan National Alliance on the

3rd of June 1977, the agitation was called off for the time being and the troops were withdrawn from their duties in aid of civil power. Mr. Yahya Bakhtiar submits that, in these circumstances, it would be wrong to say that the law and order situation in the country continued to be serious, or that there was any real danger of widespread disturbances or civil war as alleged by the respondent. In controverting these submissions, Mr. Sharifuddin Pirzada has drawn our attention to the minutes of certain meetings of the Law and Order Committee, headed by Mr. Yahya Bakhtiar himself, in his capacity as the then Attorney-General The membership of this Committee included several Secretaries to the Federal Government, Heads of Civil Armed Forces, Heads of Intelligence Services, Chief of General Staff of the Pakistan Army, Chief Secretaries of all the four Provincial Governments and their Inspectors-General of Police. It was thus a very high-powered Committee. Mr. Sharifuddin Pirzada first refers to the minutes of the meeting of this Committee held on the 11 the of June 1977 (Annexure F. 33 of respondent's rejoinder), under the chairmanship of Mr. Yahya Bakhtiar. As the: agitation had been temporarily called off on the 3rd of June 197,7 on the commencement of the dialogue between the Government and the Pakistan National Alliance, the Committee noted that the general law and order situation in the country was reported to be satisfactory, but there was information that certain sections were intending to continue demonstrations of "belicosity" through processions in Lahore, Karachi and Hyderabad in case the talks fail. Paragraph 4 of the minutes of this meeting states that "in reviewing the situation in the respective Provinces, Chief Secretaries and Inspectors-General of Police stated that, although law and order situation was near normal everywhere, ail provinces were tense and could break out into serious trouble, worse in intensity than hithertofore, should the Government . . . . P. N. A. talks fail. The agitation this time may take the form of sabotage, arson and assasinations in addition to large scale demonstrations in the streets." "It was generally agreed that the prospects of maintaining law and order in the eventuality of a break-down of talks were bleak." In the minutes of the meeting of the Committee held on the 27th of June 1977 (Annexure F. 54 on p. 244), it is stated that:"The political situation in the country was discussed in totality. Main features of the discussions are briefly stated as under:(ii) Exposition of political situation in the country by various officers attending the meeting revealed that the P. N. A. was gradually building up a tempo of agitation in anticipation of a break-down of talks. (iii) Although different leaders of P. N. A. blew hot and cold, there remained cohesion and unity in their ranks, which quality was lacking in the P. P. F. (iv) In Punjab the various forces of law and order including the Police might, at best, be able to buy time for the Government for a month or so but they would not be able to beat back a full-blooded agitation by P. N. A. (v) The P. N. A. agitation would, this time, also take the form of sabotage and attempts on the lives of certain political leaders and Government officials. (ix) In Sind the P. P. P. was in disarray. Clashes in Karachi and Hyderabad were inevitable whether there is a Government-P. N. A. accord or not." Again the minutes of the meeting of the committee held on the 2nd of July 1977 (Annexure F. 55 on p. 248) recite that:"In giving a run-down of the law and order situation in the country, the D. I. B. expressed apprehension of large scale clashes between supporters of P. P. P. and P. N. A. during the forthcoming electioneering campaign. Mr. G. M. Khar's return to the P. P. P. fold and his open challenge to the P. N. A. is a grave provocation to the blooded veterans of the recent

country-wide agitation. The path of clashes is, therefore, fraught with dangers, the least of these being demoralisation of rank and file of the P. P. P. should there be a single reverse on the street. In fact the latest trends of P. N. A. workers show that the desparate ones among them may no longer be amenable to party discipline. Rumours are being spread that Mr. Khar went to Peshawar to acquire arms in large quantity for P. P. P. workers." It needs to be mentioned that Mr. G. M. Khar, referred to in the minutes, noticed in the preceding paragraph, was at one time a very prominent member of the Pakistan People's Party, and mentioned as a possible successor by Mr. Z. A. Bhutto. He was appointed Governor of the Punjab and later Chief Minister of the Punjab, before falling out with Mr. Bhutto. After various vicissitudes in his fortune, he returned to the fold of the Pakistan People's Party, and was appointed by Mr. Bhutto as a Special Assistant to the Prime Minister as late as the 16th of June 1977. Immediately on appointment in this capacity, he started making belligerent speeches against the Opposition, which were given great prominence by Radio, Television and the official press. The reference in the minutes of the meeting of the Law and Order Committee is to these speeches made by Mr. G. M. Khar from the safety of the Prime Minister's Secretariat. On the basis of the material thus brought to the notice of the Court by Messrs A. K. Brohi and Sharifuddin Pirzada, consisting mostly of official reports and decisions as well as contemporary reports in the official newspapers, I think the Court is entitled to take judicial notice of the following facts :(1) That from the evening of the 7th of March 1977 there were widespread allegations of massive official interference with the sanctity of the ballot in favour of candidates of the Pakistan People's Party ; (2) That these allegations, amounting almost to widespread belief among the people, generated a national wave of resentment and gave birth to a protest agitation which soon spread from Karachi to Khyber and assumed very serious proportions ; (3) That the disturbances resulting from this movement became beyond the control of the civil armed forces ; (4) That the disturbances resulted in heavy loss of life and property throughout the country ; , (5) That even the calling out of the troops under Article 245 of the Constitution by the Federal Government and the consequent imposition of local Martial Law in several important cities of Pakistan, and the calling out of troops by the local authorities under the provisions of the Code of Criminal Procedure in smaller cities and towns did not have the desired effect, and the agitation continued unabated ; (6) That the allegations of rigging and official interference with elections in favour of candidates of the ruling party were found to be established by judicial decisions in at least four cases, which displayed a general. pattern of official interference ; (7) That public statements made by the then Chief Election Commissioner confirmed the widespread allegations made by the Opposition regarding official interference with the elections, and endorsed the demand for fresh elections ; (8) That in the circumstances, Mr. Z. A. Bhutto felt compelled to offer himself to a referendum under the Seventh Amendment to the Constitution, but the offer did not have any impact at all on the course of the agitation, and the demand for his resignation and for fresh elections continued unabated with .the result that the Referendum Plan, had to be dropped ; (9) That in spite of Mr. Bhutto's dialogue with the leaders of the Pakistan National Alliance and the temporary suspension of the Movement against the Government, officials charged with maintaining law and order continued to be apprehensive that in the

event of the failure of the talks there would be a terrible explosion beyond the control of the civilian authorities ; (10) That although the talks between Mr. Bhutto and the Pakistan National Alliance leadership had commenced on the 3rd of June 1977, on the basis of his offer for holding fresh elections to the National and Provincial Assemblies, yet they had dragged on for various reasons, and as late as the 4th of July 1977, the Pakistan National Alliance leadership was insisting that nine or ten points remained to be resolved and Mr. Bhutto ,vas also saying that his side would similarly put forward another ten points if the General Council o P. N. A. would not ratify the accord as already reached on the morning of the 3rd of July 1977. (11) That during the crucial days of the dead-lock between Mr. Z. A. Bhutto and the Pakistan National Alliance leadership the Punjab Government sanctioned the distribution of fire-arms licences on a vast scale, to its party members, and provocative statements were deliberately made by the Prime Minister's Special Assistant, Mr. G. M. Khar, who had patched up his differences with the Prime Minister and secured this appointment as late as the 16th of June, 1977 ; and (12) That as a result of the agitation all normal economic, social an educational activities in the country stood seriously disrupted, wit incalculable damage to the nation and the country. In the light of these facts, it becomes clear, therefore, that from the 7th of March 1977 onward, Mr. Z. A. Bhutto's constitutional and moral authority to rule the country as Prime Minister stood seriously eroded. His Government was finding it more and more difficult to maintain law and order to run the orderly ordinary administration of the country, to keep open educational institutions and to ensure normal economic activity. These conclusions find support from the declaration of loyalty to Mr. Z. A. Bhutto' Government made by the Chairman of the Joint Chiefs of Staff and the Chiefs of Staff of the Pakistan Army, Pakistan Navy and Pakistan Air Force on the 28th of April 1977. There has been some controversy between the parties as to' whether Mr. Bhutto had requested the Service Chiefs for such a declaration, or it was voluntarily made by them on their own initiative, but the fact remains that the situation had deteriorated to such an extent that either Mr. Bhutto or the Service Chiefs themselves felt that a declaration of loyalty to Mr. Bhutto's Government was needed at that critical juncture so as to boost up his authority and to help in the restoration of law and order and a return to normal conditions. 1t is again a fact that even this declaration did no have any visible impact on the momentum of the agitation launched by the Opposition which continued unabated. The Constitutional authority of not only the Prime Minister but also of the other Federal Ministers, as well as of the Provincial Governments was being repudiated on a large scale throughout the country. The representative character of the National and the Provincial Assemblies was also not being accepted by the people at large. There was thus a serious political crisis in the country leading to a break-down of the constitutional machinery in so far as the executive and the legislative organs of the State were concerned. A situation had, therefore, arisen for which the Constitution provided no solution. It was in these circumstances that the Armed Forces of Pakistan, headed by the Chief of Staff of the Pakistan Army, General Mohammad Ziaul Haq intervened to save the country from further chaos and bloodshed, to safeguard its integrity and .sovereignty, and to separate the warring factions which had brought the country to the brink of disaster. It was undoubtedly an extra-constitutional step, but obviously dictated by the highest considerations of State necessity and welfare of the people. It was precisely for this reason that the declaration of Martial Law on the morning of the 5th of July 1977 was spontaneously welcomed by almost all sections of the population which heaved a sigh of relief after having suffered extreme hardships during the unprecedented disturbances spread over a period of nearly four months. This seems to me to be the proper place for mentioning some of the salient points of the speech made by General Mohammad Ziaul Haq on the evening of the 5th of July 1977 to explain the reasons for the action he had taken to overthrow the Government of Mr. Z. A.

Bhutto and to dissolve the Federal and Provincial Legislatures. Addressing his countrymen, the General said :"The Army take-over is never a pleasant act because the Armed Forces of Pakistan genuinely want that the administration of the country should remain in the hands of the representatives of the people who are its real masters. The people exercise this right through their elected representatives who are chosen in every democratic country through periodic elections. The elections were held in our beloved homeland on March 7 last. The election results, however, were rejected by one of the contending parties, namely, the Pakistan National Alliance. They alleged that the elections had been rigged on a large scale and demanded fresh elections. To press their demand for re-elections, they launched a movement which assumed such dimensions that people even started saying that democracy was not workable in Pakistan. But, I genuinely feel that the survival of this country lies in democracy and democracy alone. It is mainly due to this belief that the Armed Forces resisted the temptation to take over during the recent provocative circumstances in spite of diverse massive political pressures. The Armed Forces have always desired and tried for the political solution to political problems. That is why the Armed Forces stressed on the then Government that they should reach a compromise with their political rivals without any loss of time. The Government needed time to hold these talks. The Armed Forces bought them this valuable period of time by maintaining law and order in the country. The Armed Forces were subjected to criticism from certain quarters for their role in aid of the civil administration, but we tolerated this criticism acid ridicules in the hope that it was a passing phase. We hoped that when this climate of agitational frenzy comes to an end, the nation would be able to appreciate the correct and constitutional role of the Armed Forces and all fears would be allayed. I have just given you a very broad-outline picture of the situation obtaining in the country. It must be quite clear to you now that when the political leaders failed to steer the country out of a crisis, it is an inexcusable sin for the Armed Forces to sit as silent spectators. It is primarily, for this reason, that the Army, perforce had to intervene to save the country. I would like to point out here that I saw no prospects of a compromise between the People's Party and the P. N. A. because of their mutual distrust and lack of faith. It was feared that the failure of the P. N. A. and P. P. P. to reach a compromise would throw the country into chaos and the country would thus be plunged into a more serious crisis. This risk could not be taken in view of the larger interests of the country. The Army had, therefore, to act as a result of which the Government of Mr. Bhutto hoc ceased to exist ; martial law has been imposed throughout the country ; the National and Provincial Assemblies have been dissolved and the Provincial Governors and Ministers have been removed." It will be 'seen that the explanation given by General Mohammad Ziaul Haq for the Army's intervention is a true reflection of the situation which had been developing over the past four months as a result of the Pakistan National Alliance agitation and repudiation of Mr. Bhutto's constitutional and moral authority as Prime Minister of Pakistan. The statement correct brings out the necessity for the imposition of Martial Law. It is also clear that this sincere and unambiguous declaration of his objectives by the Chief Martial Law Administrator was a major factor in persuading the people of Pakistan to .willingly accept the new dispensation as an interim arrangement to bridge the gap between .the break-down of .the previous administration and the induction of the new elected Government under the terms of the 1973 Constitution. The new arrangement, therefore, acquired its effectiveness owing to its moral content and promise of restoration of democratic institutions. I may add here that the willingness of the Judges of the superior Courts to take the new oath after the proclamation of Martial Law was also founded upon the same considerations. It is strenuously contended by Mr. Yahya Bakhtiar that the accord between the Government and the Pakistan National Alliance was delayed by certain actions and attitudes of the Chief of the Army Staff' as he insisted that the demands of the Pakistan

National Alliance regarding the release of the accused persons facing trial before the Hyderabad Special Court (namely, Messrs Wali Khan and others) and regarding the withdrawal of the Army from Baluchistan should not be accepted by the Government at any cost. In support of this submission he refers us to certain averments made by Mr. Z. A. Bhutto in his written statement and rejoinder. Mr. Yahya Bakhtiar also submits that in spite of these hurdles created .by the respondent, accord had in fact been reached on the morning of the 3rd of July 1977, and a formal accord would have been signed if the Army had not intervened on the night between the 4th and the 5th of July 1977. I have already stated that in the present proceedings it is not our function to examine individual incidents or allegations, and for this very reason I have not taken into account the large number of allegations appearing in the written statement filed by Mr. A. K. Brohi regarding the abuse of power by Mr. Z. A. Bhutto or misuse of official authority and funds, as they are not directly germane to the circumstances culminating in the imposition of Martial Law. From the objective narration of events as they were happening from the 7th of March 1977 onwards, one is left in no doubt that the constitutional and moral authority of the National Assembly which had come into being as a result of the elections held on the 7th of March 1977, as well as of the Federal and Provincial Governments formed thereafter as a result of mandates given to them by the National and the Provincial Assemblies had been continuously and forcefully repudiated throughout the country over a prolonged period of nearly four months, thus resulting in 1. serious disruption in all spheres of national life. It can only be a matter of conjecture at this stage, whether an accord between the Government and the Pakistan National Alliance would have finally emerged if the Army had not intervened. From the material placed on the record, in the shape of deliberations of official committees, it has become abundantly clear that the situation was surcharged with possibilities of further violence, confusion and chaos. Having found that the extra-Constitutional step taken by the Armed Forces of Pakistan was justified by requirements of State necessity and welfare of the people it is now necessary to examine its legal consequences. The learned Attorney-General contends that the doctrine of necessity is fully applicable to the facts obtaining in the present case, and would validate that which was not sanctioned by the Constitution, as the country and the people could not be sacrificed at the alter of the letter of the Constitution, when its spirit had already been killed owing to the massive rigging of the elections indulged in by Mr. Z. A. Bhutto and the Government functionaries acting under his order ; that the doctrine of necessity is fully recognised by the Holy Qu'ran as well as by the juridical systems of Western countries; that it has also been accepted in several precedent cases by the Supreme Court of Pakistan; and that the authorities inducted into power on account of State necessity and the principle of salus populi suprema lex are fully entitled to administer the country and exercise supra-Constitutional powers for this purpose. Mr. A. K. Brohi, appearing for the Federation of Pakistan has, however, adopted a somewhat different .position, by contending that the question of the application of the doctrine of necessity does not at all arise to this case, as with the suppression or destruction of the old- Legal Order, even this doctrine or concept has disappeared, and can no longer be regarded as part of the juridical system now obtaining in Pakistan. He submits that the doctrine of necessity can apply only if breaches take place within a given legal system like a man who has suffered a fracture is put in plaster or is given other clinical treatment to repair the damage, but no such repair is possible if he has already met his death. According to him all the cases cited at the Bar in support of the application of this doctrine presented a situation in which the Legal Order was intact but had suffered partial damage, a situation which was distinguishable from the present case where whole of the country was placed under Martial Law and the Constitution had been suspended with a view to restoring it to life after the holding of elections. Finally, Mr. Brohi contends that even if the doctrine were to apply, only the initial act of taking-over by. the Army could be tested, but all subsequent actions could not be judged in the light of this doctrine, as the Judges would have no objective tests to apply, and that in any case the Courts were now governed by the limitations placed upon them by the Laws (Continuance in Force) Order, 1977.

Mr. Yahya Bakhtiar, learned counsel appearing for the petitioner, submits that even if the Court were to come to the conclusion that the intervention by the Armed Forces had become necessary in the situation then prevailing the action would still remain in the nature of usurpation of power as held by the Supreme Court in Asma Jillani's case; and in such a situation only certain acts of the usurper could be condoned which fell directly within the ambit of the 1973 Constitution. He further submits that the Chief Martial Law Administrator being a usurper must be directed by the Court to hold elections as early as possible according to his original intention, and should not be permitted to prolong his rule indefinitely on the ground that he wants to enforce the principle of accountability against political leaders. Mr. Yahya Bakhtiar submits that even now it should be possible for the respondent to hold general elections before the end of the current year. It seems to me that the view expressed by Mr. A. K. Brohi is not at all tenable. The question of considering the application of the doctrine o necessity has obviously arisen in this case as the Court, is not persuaded that the military intervention provides its own legality simply for the reason that it has been accepted by the people of Pakistan, and has become effective in that sense. Even otherwise, if it is assumed that the old Constitution has been completely suppressed or destroyed, it does not follow that all the juridical concepts and notions of morality arid justice have also been destroyed, simply for the reason that the new Legal Order does not mention anything about them: On the contrary, I find that the Laws (Continuance in Force) Order makes it clear that, subject to certain limitations, Pakistan is to be governed as nearly as may be in accordance with the 1973 Constitution, and all laws for the time being in force shall continue. These provisions clearly indicate that there is no intention to destroy iii e legal continuity of the country, as distinguished strictly from the Constitutional continuity. At this stage, it will be convenient to examine Mr. Yahya Bakhtiar's contention that the dictum in Asma Jillaiii's case as to usurpation of power fully applies even if the imposition of Martial Law is assumed to be justified by State necessity, and therefore, the utmost that the Court can do is to condone certain actions of the Martial Law Authorities, and no question of validation arises. Having dealt with the untenability of Kelsen's theory and the decision of the Supreme Court in Dosso's case, Hamoodur Rahman, C. J. has observed on page 183 of the Report, that "unfettered by this decision I propose now to judge the validity of the events that took place on and from the 24th of March 1969", on which date Field Marshal Muhammad Ayub Khan, the then President of Pakistan, wrote, a letter to the Commander-in-Chief of Pakistan Army expressing his profound regret for coming to the conclusion that "All civil administration and constitutional authority in the country has become ineffective," and that "it is beyond the capacity of the Civil Government to deal with the present political situation, and the defence forces must step in". In these circumstances, he thought that there was no option left for him but "To step aside and leave it to the defence forces of Pakistan, which today present the only effective and legal instrument to take over full control of the affairs of the country." He accordingly called upon the Commander-in-Chief to perform his legal and constitutional responsibility to defend the country not only against external aggression but also to save it from internal disorder and chaos. The learned Chief Justice has commented on this letter in the following words:"There was nothing either in this letter or in his broadcast (by Field Marshal Muhammad Ayub Khan to show that he was appointing General Agha Muhammad Yahya Khan) as his successor in office or was giving him any authority to abrogate the Constitution which he had himself given to the country in 1962." His Lordship has further remarked that "it is clear that under the Constitution of 1962, Field Marshal Muhammad Ayub Khan had no power to hand over power to any body. Under Article 12 of that Constitution he could resign his office by writing under his hand addressed to the Speaker of the National Assembly and then under Article 16 as soon as the office of President fell vacant the Speaker of the National Assembly had to take over as the Acting President of the country and an election had to be held within a period of 90

days to fill the vacancy." After examining the nature of Martial Law, the learned Chief Justice further observed that-"'From this examination of the authorities I am driven to the conclusion that the proclamation of Martial Law does not by itself involve the abrogation of the civil law and the functioning of the civil authorities and certainly does not vest the Commander of the Armed Forces with the power of abrogating the fundamental law of the country . . . . , It was not even a revolution, or a military coup d'elat in any sense .of those terms . . . . . . Therefore, there can be no question that the military rule sought to be imposed upon the country by General Agha Muhammad Yahya Khan was entirely illegal." Having thus held that the seizure of power by General Agha Muhammad Yahya Khan was illegal and amounted to an act of usurpation, the learned Chief Justice observed that:"Recourse has to be taken to the doctrine of necessity where the ignoring of it would result in disasterous consequences to the body politic and upset the social order itself, but I respectfully beg to disagree with the view that this is a doctrine for Validating illegal acts of the usurper. In my humble opinion, this doctrine could be invoked in aid only if the Curt bas come to the conclusion that the acts of the usurper were illegal and illegitimate. It is only then that the question arises as to how many of his acts, legislative or otherwise, should be condoned or maintained, notwithstanding their illegality in the wider public interest. I would call this a principle of condonation and not legitimization " The other learned Judges agreed with this line of reasoning, and have apparently endorsed the tour principles enunciated by the learned Chief Justice on page 207 of the Report for condoning certain categories of acts of the usurper. Now, it will be seen that in Asma Jilani's case the Court has taken the view that the abrogation of .the Constitution and assumption of all governmental power by the Army . Commander-in-Chief was illegal because it was not justified by the circumstances in which he was called upon by the then President, Field Marshal Muhammad Ayub Khan to perform his legal and constitutional duty of restoring law and order. The Court took note of the fact that the Constitution itself contained a provision for the Speaker of the National Assembly to assume the office of Acting President, in case the sitting President wanted to resign or step aside, but this constitutional provision was frustrated by General Yahya Khan when he proclaimed himself to be the President of the country as well as the Chief Martial Law Administrator. and abrogated the 1962 Constitution without there being any justification for the same. It is clear, therefore, that the conclusion that the acts of General Muhammad Yahya Khan amounted to a usurpation of powers flows directly from the circumstances obtaining in that case, and is not t be regarded as a general proposition of law to the effect that whenever power is assumed in an extra-Constitutional manner by an authority not mentioned in the Constitution, then it must amount to usurpation in all events. It would obviously be a question for determination in the circumstances of the particular case before the Court as to whether the assumption of power amounts to usurpation or not. It is also clear. from the various judgments delivered in Asma Jillani's case that the question of condonation arose only on the view that the Army Commander-in- Chief was a usurper. The learned Attorney General is, therefore, right in saying that in a case where extra-constitutional intervention is justified by necessity, then different considerations arise from those which would be relevant for judging the acts of a usurper. 'It has also to be noticed that the concept of condonation, as expostulated in Asma Jillani's case, has relevance not only to the acts of a usurper, but also to a situation which arises when power has fallen from the hands of the usurper, and the Court is confronted with protecting the rights and obligations which may have accrued under the acts of the usurper, during the time he was in power. However, in the case of an authority, whose extra-Constitutional assumption of power is held valid by the Court on the doctrine of o necessity, particularly when the authority concerned is still welding State power, the concept of condonation will only have a negative effect and would not offer any solution for the continued administration of the country in accordance with the requirements of

State necessity and welfare of the people. It follows, therefore, that once the assumption of power is. held to be valid, then the legality of the actions taken by such an authority would have to be judged in the light of the principles pertaining to the law of necessity. As already stated. the learned Attorney General submits that the doctrine of necessity is recognised by Islam. He has in this connection, in the first place, drawn our attention to the injunctions contained in Sura Al-Baqar and Sura Al-Nahal, which are in almost identical terms and permit, if one is .forced by necessity, without wilful disobedience, nor transgressing due limits, that which is forbidden, namely- dead meat and blood and the flesh of swine -and any food over which the name of other than Allah has been invoked. He also refers to certain observations appearing in Islamic Jurisprudence and Rule of Necessity and need by Dr. Muslehuddin, 1975 Edition, (pp. 60-63), Islamic Surveys by Coulson (p. 144), and the Muslim Conduct of State by Hamidullah (p. 331. These writings lend support to the maxim that "Necessity makes prohibited things permissible." Mr. Sharifudin Pirzada has next drawn our attention to certain Articles in the Majelle in support of his proposition. Article 17 enjoins that "Hardship causes the giving of facility that is to say, difficulty becomes a cause of facility, and in times of embarrassment it becomes necessary that latitude should be shown." Article 21 says that "Necessities make forbidden things canonically harmless". Article 22 lays down that necessities are estimated according to their quantity, and Article 26 embodies the maxim salus populi suprema let by saying that "To repel a public damage a private damage is preferred " He submits that although these maxims are directly relevant to cases of private necessity but the principle can certainly be extended to State necessity. In support of his. contention that the doctrine or law of necessity is recognised in most Western systems of Jurisprudence, and has also been followed in Pakistan, the learned Attorney-General has referred us to Rex v. Stretton (1779) reported in Vol. 21, Howell's State Trials; Attorney General of Duchy of Lancaster v. Duke of Devenshire ((1884) 14 Q B D 273); the well-known case from Cyprus, The Attorney-General of Republic v. Mustafa Ibrahim (1964 C L R 195); the well-known case from Nigeria reported as E. U. Lakanmi and another v. Attorney-General, West Nigeria, Reference by H. E. The Governor-General P L D 1955 F C 435 and of course observations appearing in the case of Asma Jillani. He also relies upon the dissenting judgment delivered by Lord Pearce in the Rhodesian case, already referred to earlier in another context, namely, ' Madirnbamuta v. Lardner-Burke (1968) 3 All E R 561. I find that in the Federal Court case, relied upon by the learned Attorney-General, namely, Reference by H. E. Governor-General; the implications of the law of necessity were discussed at some length by Muhammad Munir, C. J., and accordingly it will be useful to refer to it in the first instance. After referring to several authorities. including some of those now mentioned by Mr. Sharifuddin Pirzada, his Lordship stated, particularly relying on the address of Lord Mansfield in the proceedings against George Stretton and others that "the principle clearly emerging from this address of Lord Mansfield is that subject to the condition of absoluteness, extremeness and imminence, an act which would otherwise be illegal becomes legal if it is done bona fide under the stress of necessity, the necessity being referable to an intention to preserve the Constitution, the State or the society and to prevent it from dissolution, and affirms Chitty's statement that necessity knows no law, and the maxim cited by Bracton that necessity makes lawful which otherwise is not lawful." Having stated this principle, the learned Chief Justice, with whom the majority of the Judges agreed, proceeded to answer the questions referred to the Court by the Governor-General, and suggested certain arrangements for the setting up of a Constituent Convention, which he preferred to call Constituent Assembly, and for which there was otherwise no provision in the Government of India Act, which then served as the Constitution for Pakistan. The opinion recorded by the Federal Court in this case provides a striking example of the invocation of the law of necessity to validate certain extra-Constitutional measures dictated by the considerations of the welfare of the people and the avoidance of a legal vacuum owing to an earlier judgment of the Federal Court in

Usif Patel v. Crown PLD 1955 F C 387. The measures in question were validated and not sought to be condoned. In the case from the Cyprus jurisdiction a more or less similar situation bad arisen owing to the difficulty of the Turkish members of the Cyprus Parliament participating for the passing of a law regarding the functioning of the Supreme Court itself. In a very elaborate judgment, after surveying the concept of the doctrine or law of necessity as obtaining in, different countries the Court came to the conclusion that the Cyprus Constitution should be deemed to include the doctrine of necessity in exceptional circumstances which is an implied exception to particular provisions of the Constitution, and this in order to ensure the very existence of the State. It was further stated that the following pre-requisites must be satisfied before this doctrine can become applicable :(a) An imperative and. inevitable necessity or exceptional circumstances; (b) No other remedy to apply; (c) The measure taken must be proportionate to the necessity; and (d) It must be of a temporary character limited to the duration of the exceptional circumstances. It was added that "A law thus enacted is subject to the control of this Court to decide whether the aforesaid pre-requisites are satisfied, that is, whether there exists such a necessity and whether the measures taken were necessary to meet it". It seems to me that this summing up of the law of necessity by one of the learned Judges of the Cyprus Supreme Court embodies the true essence of the doctrine, and provides useful practical guidelines for its application. Reference may now be made to the case of F.. O. Lakanmi in which the question of the validity of a Decree issued by the Federal Military Government of Nigeria came up for examination. Nigeria was being governed by -the Republican Constitution of 1963, when a section of the Army rebelled in different parts of the country on the 15th of January, 1966. Two regional premiers were put to death and the Prime Minister of the Federation and one of his Ministers were captured and taken to an unknown destination; also some senior members of the Army were killed. The Council of Ministers met without the Prime Minister and decided to hand over the administration of the country to the Armed Forces before the situation got worsened. The Acting President of Nigeria himself announced the handing over of the administration of the country to the Armed Forces. This announcement was followed by a speech by the General Officer Commanding the Nigerian Army in which he declared that he had accepted the invitation of the Acting President to form the interim military Government, and had suspended certain parts of the Constitution relating to the office of President, the establishment of Parliament and of the office of the Prime Minister, and certain offices relating to the Regions. The Supreme Court of Nigeria took the view that these events did not amount to a revolution, and that the situation was distinguishable from that obtaining in Dosso's ease in Pakistan, where the President bad issued a proclamation anulling the existing Constitution. It stated that the Federal Military Government of Nigeria was not a revolutionary Government, as it had made it clear before assuming power that the Constitution of the country will remain in force excepting certain sections which were being suspended. They went on to say that "We have tried to ensure that the country is governed by the Constitution and Decrees which, from time to time, are enacted when the necessity arises and are then supreme when they are in conflict with the Constitution. It is clear that the Federal Military Government decided to govern the country by means of a Constitution and Decrees. The necessity must arise before a Decree is passed ousting any portion of the Constitution. In effect, the Constitution still remains the law of the country and all laws are subject to the Constitution excepting so far as by necessity the Constitution is amended by a Decree. This does riot mean that the Constitution the country ceases to have effect as a superior norm. From the facts of the taking-over, as we have pointed out that the Federal Military Government is an interim Government of

necessity concerned in the political cauldron of its inception as a means of dealing with the situation which has arisen and its main object is to protect lives and property and to maintain law and order." The learned Judges of the Supreme Court went on to observe that "by recognising the fact that there is a doctrine of necessity, we do not alter the law but apply it to facts as they do exist." They then proceeded to examine the 'validity of the impugned Decree by posing the question whether it went beyond the requirements or demands of the necessity of the case. They came to the conclusion that the Decree in question was nothing short of a legislative judgment, an exercise of judicial power and, therefore, ultra vires and invalid under the Constitution which envisaged a clear separation of judicial and legislative functions of the State. This judgment supports the learned Attorney-General on the point that necessity validates actions which would .otherwise not be lawful but it also spells out the principle that all actions taken in pursuance of necessity could be tested on that ground by way of judicial review. The, learned Attorney-General submits that the second part of the judgment was not accepted by the Federal Military Government of Nigeria, which proceeded to pass certain other Decrees to nullify the effect of the verdict of the Supreme Court. In support of this submission, he drew our attention to an article entitled "The Search for a Grundnorm in Nigeria---The Lakanmi's case", written by a Nigerian Jurist, named Abiola Oji. The author of the Article is critical of the judgment of the Supreme Court as he would have preferred the Court to apply Kelsen's theory regarding the legality of a successful revolution. On the question of judicial review a very pertinent observation appearing in this Article is that the Supreme Court had placed itself in the wrong by striking down a Decree which was intended to forfeit stolen public money. That may have been the reason for the reaction of the Military Government to the decision of the Court, but this reaction does not necessarily mean that the Court was in error on the plane of legal and judicial principles. I would also like to observe that, as I am not fully conversant with the political situation and the legal traditions of Nigeria, it is not possible for me nor is it desirable to offer any comments on the propriety of the action takers by the Federal Military Government of Nigeria in the wake of the judgment of the Supreme Court in the case we are discussing. I can, however, say about our own situation, namely, that the Supreme Court of Pakistan, as at present constituted, does not feel itself under an inhibition or restraint in taking a view in this case which appears to be dictated by the highest considerations' of law, justice, equity and good, conscience, and I also see no reason why the Martial Law Administration should not accept the decision of this Court in the same spirit. I, therefore, venture to say that reference to the aftermath of the judgment of the Nigerian Supreme Court is completely misconceived and irrelevant to the legal questions we are considering here. Reverting now to the observations made by the Court in Asma Jillani's case on the doctrine of necessity, I find that Hamoodur Rahman, C. J. has referred with approval to the decision in the Cyprus case as well as to the formulation of the doctrine by Lord Pearce, who delivered the dissenting judgment in the Privy Council in the Rhodesian case, already referred to. In that judgment, Lord Pearce had indicated three limitations for the validation of acts of the Smith Government, namely, (i) So far as they are directed to and reasonably required for ordinary .orderly running of the State; (ii) So far as they do not impair the rights of citizens under the lawful Constitution; and (iii) So far as they are not intended to and do not in fact directly help the usurpation and do not run contrary to the policy of the lawful sovereign. The learned Chief Justice adopted these principles but preferred to treat them as basis of condonation and not legitimization, as he was dealing, ex post facto with the acts of the usurper. A review of the concept of the law of necessity, as recognized in various jurisdictions, clearly confirms the statement made in this behalf b Muhammad Munir, C. J. in Reference by H. E. Governor-General P L D 1955 F C 435, to the effect that an act which would otherwise be illegal becomes legal if it is done bona fide under the stress of necessity, the necessity being referable to an intention to preserve the Constitution, the State or the society and to prevent it from dissolution. The principle has been reiterated

by the Supreme Court m Asma Jillani's case with the difference that where the Court is dealing with the acts of a usurper, such acts may be condoned and T not validated by the application of the taw of necessity. It seems tome ,l therefore, that on facts, of which we have taken judicial notice, namely, that the imposition of Martial Law was impelled by .high consideration of State necessity and welfare of the people, the extra-constitutional step taken by the Chief of the Army Staff to overthrow the Government of Mr. Z. A. Bhutto as well as the Provincial Governments and to dissolve the Federal and the Provincial Legislatures stands validated in accordance with the doctrine of necessity. The question now arises as to what is the extent and scope of the powers which the Chief Martial Law Administrator may exercise during the temporary period for which he has taken control of the administration in Pakistan. It is contended by the learned Attorney-General that once the take-over is validated on the-principle of necessity, then the Chief Martial Law Administrator would have the right to govern the country in any manner he thinks best, and the Courts in Pakistan will be bound by the provisions of the Laws (Continuance in Force) Order, 1977, which must henceforth be treated as a supra-Constitutional instrument, binding all authorities in Pakistan. He seeks to re-inforce this submission by referring to the implications of Martial Law as described in Corpus Juris Secundum Vol. 93, and "Salmond on Jurisprudence", p. 190, 11th Edition. According to the definition given on p. 115 of the Corpus Juris Secundum, Martial Law, or more appropriately martial rule, is the temporary government by military force and authority of territory in which, by reason of the existence of war or public commotion, the civil government is inadequate to the preservation of order and the enforcement of law. The definition continues to add that "In strictness it is not law at all, but rather a cessation of all municipal law as an incident of jus belli and because of paramount necessity, it depends, for its existence, operation and extent, on the imminence of public peril and the obligation to provide for the general safety. It is essentially a law or rule of force, a purely military measure, and in final analysis is only the will of the Officer Commanding the Military Force. As the offspring of necessity, it transcends and displaces the ordinary laws of the land, and it applies alike to military and non-military persons and is exercisable alike over friends and enemies, citizens and aliens." The authors also state that "The validity of Martial Law is always a judicial question", and the establishment of Martial Law does not itself oust or suspend civil authority or jurisdiction, but is rather a recognition that the civil authority had been suspended or has broken down as a result of the conditions inducing the proclamation of martial rule. According to Salmond, there are three kinds of martial law, namely, (i) the law for the discipline and the government of the Army itself; or (ii) the law by which the Army in time of war governs foreign territory in its military occupation outside the realm; or (iii) the law by which in time of war the Army governs the realm, which is in derogation e" civil law, so far as required by military necessity and the public safety. In the present context, we are concerned with the third and last kind of Martial Law. After discussing various legal opinions as to the legality of such a Martial Law, the author says that "It is sufficient to say that the better opinion would seem to be that even within the realm itself the existence of the state of war and of national danger justifies. in law the temporary establishment of a system of military government and military justice in derogation of the ordinary law of the land, in so far as this is reasonably deemed necessary for the public safety .... with the acts of military authorities done in pursuance of such a system the civil Courts of law will not concern themselves in time of war. In short, the legal basis of Martial Law in this third sense is simply the common law doctrine of necessity." In an earlier part of this judgment, I have stated that it was not necessary to discuss at any length the various kinds of Martial Law, for the reason that the legal character of the change which has taken place in Pakistan was not dependent upon the name given to the new regime, as the authorities overthrowing Mr. Z. A. Bhutto could have governed by decree or by Martial Law Regulations etc. once they had seized power by an extra-Constitutional step. In spite of the reference made by the learned Attorney-General to the textbooks mentioned above, I am of the view that the definitions given here are irrelevant. We are not dealing with a situation contemplated in the statements relied upon by the learned Attorney-General; rather with a situation of a more fundamental character, where the constitutional machinery has broken down or its authority has been eroded by

factors of a political nature. The disturbances which. ensued as a consequence were not the direct cause, they were only the result of a fundamental malady which was of a constitutional nature. 1t is also to be noticed that the Proclamation of Martial Law and the speech made by the Chief Martial Law Administrator on the evening of the 5th of July 1977 clearly speak of the civilian President continuing in office under the Constitution, and they also contemplate that the civil Courts including the High Courts and the Supreme Court shall continue to function as before, subject to certain limitations spelt out in the Laws (Continuance in Force) Order, to which I shall advert later. I mention these facts to show that it would be inappropriate to judge the present situation by reference to classical statements as to the state of war contemplated by textbook writers in relation to martial law. In order to determine the true nature of the change, we must examine, as already stated, all the surrounding circumstances including the motivation of those who have brought about the change and the objectives declared by them as justifying the change. I would like to clarify here that the use of what may be described as "the declaration of intent" is not to be construed in the limited sense in which the preamble to a statute or even the Constitution may be looked at for ascertaining its true meaning. We are still in the realm of ascertaining the true legal character of the abrupt political change which has been brought about by means of an extra-Constitutional measure, and for this reason the declaration of intent is relevant for this higher purpose, and is not to be confused with the limited use which may be made of a preamble to a formal statute. I have already referred in another context, to the speech made by the Chief Martial Law Administrator on the evening of the 5th of July 1977 to explain the reasons for his take-over of the administration. He stated inter alia that:"But the Constitution has not been abrogated. Only the operation of certain parts of the Constitution has been held in abeyance. Mr. Fazal Elahi Chaudhry has very kindly consented to continue to discharge his duties as President of Pakistan as heretofore under the same Constitution. I am grateful to him for this. To assist him in the discharge of his national duties, a four-member Military Council has been formed. The Council consists of the Chairman, Joint Chiefs of Stag', and Chiefs of Staff of the Army, Navy and the Air Force. I will discharge the duties of the Chief of Army Staff and Chief Martial Law Administrator. Martial Law Orders and instructions as and when required will be issued under my orders." He further stated on this occasion that: "I want to make it absolutely clear that neither I have any political ambitions nor does the Army want to be detracted from its profession of soldiering. I was obliged to step in to fill in the vacuum created by the political leaders. I have accepted this challenge as a true soldier of Islam. My sole aim is to organise free and fair elections which would be held in October this year. Soon after the polls power will be transferred to the elected representatives of the people. I give a solemn assurance that I will not deviate from this schedule. During the next three months my total attention will be concentrated on the holding of elections and I would not like to .dissipate my powers and energies as Chief Martial Law Administrator on anything else." As to the place of Judiciary, he stated that:"It will not be out of place to mention here that I hold the Judiciary of the country in high esteem. I will do my best to refrain from doing anything which is likely to restrict the power of the Judiciary. However, under unavoidable circumstances, if and when Martial Law Orders and Martial Law Regulations are issued, they would not be challenged in any Court of law." It will be seen that the declared objectives of the imposition of Martial Law are to create conditions suitable for the holding of free and fair elections in terms of the 1973 Constitution, which was not being abrogated, and only certain parts of which were being

held in abeyance, namely, the parts dealing with the Federal and the Provincial executives and Legislatures. The President of Pakistan was to continue to discharge his duties as heretofore under the same Constitution. Soon after the polls the power is to be transferred to the elected representatives of the people. It is true that owing to the necessity of completing the process of accountability of holders of public offices, the holding of elections had to be postponed for the time being but the declared) intention of the Chief Martial Law Administrator still remains the same, namely, that he has stepped in for a temporary period and for the limited purpose of arranging free and fair elections so as to enable the country to return to a democratic way of life. In the presence of these unambiguous declarations, it would be high unfair and uncharitable to attribute any other intention to the Chief Martian Law Administrator, and to insinuate that he has not assumed power for the purposes stated by him, or that he does not intend to restore democratic institutions in terms of the 1973 Constitution. Such being the case, in m opinion. the remarks made by De Smith in his book "Constitutional an Administrative Law, to which reference has already been made earlier, appeal with full force to the situation prevailing at present in Pakistan, namely:"In some situations where unconstitutional action has been taken by person wielding effective political power, it is open to a Judge to steer middle course. He may find it possible to ask that the frame world of the pre-existing order survives but the deviation from these norm can be justified on the grounds of necessity. The principle of necessity, rendering lawful what would otherwise be unlawful is not unknown to English law; there is a defence of necessity, albeit of uncertain scope, in criminal law and in constitutional law, the application o martial law is but an extended application of this concept. But the necessity must be proportionate to the evil to be averted, and acceptance of the principle does not normally imply total abdication from judicial review or acquiescence in the supersession of the Legal Order; it t essentially a transient phenomenon." As a result, the true legal position which, therefore, emerges is:(i) That the 1973 Constitution still remains the supreme law of the land subject to the condition that certain parts thereof have been held in abeyance on account of State necessity; (ii) That the President of Pakistan and the superior Courts continue to function under the Constitution. The mere fact that the Judges of the superior Courts have taken a new oath after the Proclamation of Martial Law, does not in any manner derogate from this position, as the Courts had been originally established under the 1973 Constitution, and have continued in their functions in spite of the proclamation of Martial Law; (iii) That the Chief Martial Law Administrator, having validly assumed power by means of an extra-Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognised by judicial authorities as falling within the scope of the law of necessity, namely:(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power toll amend it; (b) All acts which tend to advance or promote the good of the people; (c) All acts required to be done for the ordinary orderly running of the State; and (d) All such measures as would establish or lead to the establishment of the declared objectives of the proclamation of Martial Law, namely, restoration of law and order, and normalcy in the country, and the earliest possible holding of free and fair elections for the purpose of. restoration of democratic institutions under the 1973 Constitution; (iv) That these acts, or any of them, may be performed or carried out by means of Presidential Orders, Ordinances, Martial Law Regulations, or. Orders, as the occasion may require; and

(v) That the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Martial Law' Authorities, if challenged, in the light of the principles underlying the, law of necessity as stated above. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance. This last point needs a little explanation. In the body of this judgment opinions of certain textbook writers and contemporary jurists have been quoted in support of the proposition that the Courts established under the pre-existing Legal Order continue to have the power and jurisdiction t adjudicate upon the validity and effectiveness of the new Legal Order. As I have held that the new Legal Order is only for a temporary period, and for specified and limited purpose, and does not seek to destroy the old Legal Order but merely to hold certain parts thereof in abeyance or to subject it to certain limitations on the ground of State necessity or on the principle d salus populi suprema lex, the superior Courts continue to remain the Judges of the validity of the actions of the new regime in the light of the doctrine y of necessity, for the new regime then represents not a new Legal Order, but only a phase of constitutional deviation dictated by necessity. There is yet another, and a stronger reason for holding that the power of judicial review continues. The 1973 Constitution provides for a clear trichotomy of powers between the executive, legislative and judicial organs of the State. However, owing to reasons of necessity, the executive and the legislative power now stands combined in one authority, for the reason that these two organs of the State had lost their constitutional and moral authority in the circumstances arising since the 7th of March 1977, but no such considerations arose in regard to the judicial organ of the State. Accordingly, on no principle of necessity could powers of judicial review vested in the superior Courts under the 1973 Constitution, be taken away. Next, even if for any reason the principle or power of judicial review embodied in the relevant provisions of the 1973 Constitution be held not to. be available under the new dispensation, the fact remains that the ideology, of Pakistan embodying the doctrine that sovereignty belongs to Allah and is to be exercised on his behalf as a sacred trust by the chosen representatives of the people, strongly militates against placing the ruler for the time being above the law, and not accountable to any one in the realm. Muslim rulers have always regarded themselves as being accountable to the Courts of the land for all their actions and have never claimed exemption even from personal appearance in the Courts. The Courts of Justice are an embodiment and a symbol of the conscience of the Millat (Muslim community), and provide an effective safeguard for the rights of the subjects. On this principle a well, the power of judicial review for judging the validity of the actions of the Martial Law Authorities must continue to remain in the superior Courts. Lastly, the Court is bound to take note of the fact that already several instances have been brought to its notice where the ordinary civil rights of the people are being interfered with by the subordinate Martial La Authorities even though the laws of the land, which have been kept alive under the Laws (Continuance in Force) Order, 1977, make full provision for their adjudication. In some cases, interference has occurred even when the w contending parties had already been litigating in the civil Courts regarding the same disputes. The necessity which justified the Proclamation of Martial Law, did not arise owing to the failure of the Courts to adjudicate on these matters Such matters must, therefore, continue to fall outside the purview of the Martial Law Authorities, and the only remedy to the citizens against any such encroachment can be by way of judicial review in the superior Courts. I now proceed to examine the provisions of the Proclamation as well as of the Laws (Continuance in Force) Order,. 1977, in the light of the principles just stated. There has been considerable argument at the Bar as to the correct description of these legal instruments. Mr. Sharifuddin Pirzada would like to describe them as supra-Constitutional instruments, for, in his opinion, they override the 1973 Constitution and are binding on every one by virtue of their oven force. As I am not persuaded to accept this last contention for the reason already stated, namely, that the power of the Court to test the

validity of all actions of the Chief Martial Law Administrator on the touchstone of necessity remains, I would accordingly describe these instruments as being of an extra-Constitutional nature so as to conform to the description of the action by virtue of which the Chief Martial Law Administrator has assumed the administration of Pakistan. For facility of reference, the Proclamation and the Laws (Continuance in Force) Order, 1977, as originally promulgated may be reproduced here:"PROCLAMATION Whereas, I, General Mohammad Zia-ul-Haq, Chief of the Army Staff, have proclaimed Martial Law throughout Pakistan and assumed the office of the Chief Martial Law Administrator, hereby order and proclaim as follows:(A) The Constitution of the Islamic Republic of Pakistan shall remain in abeyance; (B) The National Assembly. the Senate and the Provincial Assemblies ' shall stand dissolved; (C) The Prune Minister, the Federal Ministers, Ministers of State, Advisers to the Prime Minister, the Speaker and Deputy Speaker of the National Assembly and the Provincial .Assemblies, the Chairman and Deputy Chairman of the Senate, the Provincial Governors, the Provincial Chief Ministers and the Provincial Ministers shall cease to hold office; (D) The President of Pakistan shall continue in Office ; and (E) The whole of Pakistan will come under Martial Law. THE LAWS (CONTINUANCE IN FORCE) ORDER, 1977 C. M. L. A. ORDER NO. 1 OF 1977 In pursuance of the Proclamation of the fifth day of July 1977 and in exercise of all powers enabling him in that behalf, the Chief Martial Law Administrator is pleased to make and promulgate the following Order: 1----(1) This Order may be called the Laws (Continuance in Force) Order, 1977. (2) It extends to the whole of Pakistan. (3) It shall come into force at once. 2.--(1) Notwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan hereinafter referred to as the Constitution, Pakistan. shall, subject to this Order and any order made by the President and any regulation made by the Chief Martial Law Administrator, be governed as nearly as may be in accordance with the Constitution. (2) Subject as aforesaid, all Courts in existence immediately before the commencement of this Order shall continue to function and to exercise their respective powers and jurisdictions: Provided that the Supreme Court or a High Court shall not have the power to make any order of the nature mentioned in Article 199 of the ., Constitution against the Chief Martial Law Administrator or a Martial s Law Administrator or an. person exercising powers or jurisdiction under the authority of either. (3) The Fundamental Rights conferred by Chapter I of Part II of the Constitution, and all proceedings pending in any Court, in so far as they are for the enforcement of any of those rights shall stand suspended.

3.- (1) The President shall act on and in accordance with the advice of the Chief Martial Law Administrator. (2) The Governor of a Province shall act on, and in accordance with, the advice of the Martial Law Administrator appointed by the Chief Martial Law Administrator for the Province. 4.-(1) No Court, tribunal or other authority shall call or permit to be called in question the proclamation of the fifth day of July, 1977, or any Order or Ordinance made in pursuance thereof or any Martial Law Regulation or Martial Law Order. (2) No judgment, decree, writ, order or process whatsoever shall be made or issued by a Court or tribunal against the Chief Martial Law Administrator or any Martial Law Authority exercising powers or jurisdiction under the authority of the Chief Martial Law Administrator. 5.-(1) Notwithstanding the abeyance of the provisions of the Constitution, but subject to any order of the President or regulation made by the Chief Martial Law Administrator, all laws, other than the Constitution, and all Ordinances, Orders-in-Council, Orders made by the President, Rules, by-laws, regulations, notifications and other legal instruments in Pakistan or any part thereof, or having extra-territorial validity shall, so far as may be and with such adaptation as the President may see fit to make, continue in force until altered, amended or repealed by competent authority. (2) In clause (1) "in force", in relation to any law, means having effect as law whether or not the law has been brought into operation. 6. Subject to clause (2) of Article 3, the powers of a Governor . shall be those which he would have had the Federal Government directed him to assume on its behalf all the functions of the Government of the province under the provisions of Article 232 of the Constitution. 7.-(1) An Ordinance promulgated by the President or by the Governor of a province shall not be subject to the limitation as to its duration prescribed in the Constitution. (2) The provisions of clause (1) shall also apply to an Ordinance ?Which was in force immediately before the commencement of this Order. 8. All persons who, immediately before the commencement of this Order, were in the service of Pakistan as defined in Article 260 of the Constitution and those persons who immediately before such commencement were in office as Judge of the Supreme Court or a High Court or Auditor-General, shall continue in the said service on the same terms and conditions and shall enjoy the same privileges, if any. 9. Any provision in any law, providing for the reference of a detention order to a Review Board shall be of no effect. 10. The Proclamation of Emergency referred to in Article 280 of the Constitution, as in force immediately before the commencement of this Order, shall continue in force." It will be seen that the Proclamation embodies and describes in legal form, the extra-constitutional action which the Chief of the Army Staff has taken on the ground of necessity. The proclamation must, therefore, be held valid for the same reason; in fact, the entire controversy dealt with in the preceding pages has concerned this Proclamation and nothing else. A perusal of the provisions of the Laws (Continuance in Force) Orderly also shows that they are primarily designed to give effect to the purposes of the Proclamation. As however this Order is an offspring of necessity, the superior Courts continue to have the power of judicial review, notwithstanding anything to the contrary contained in this Order, to test the validity of its provisions and any action taken there under, in the light of

the principles regulating the application of the law and doctrine of necessity, as already set put earlier. I now turn to the examination of the last question arising in this case, namely, whether the Fundamental Rights can still be enforced in spite of the prohibition contained in clause (3) of Article 2 of the Laws (Continuance in Force) Order, vi:., that "The Fundamental Rights conferred by Chapter I of Part II of the Constitution, and all proceedings pending in any Court, in so far as they are for the enforcement of any of those rights shall stand suspended." '1 he contention of Mr. Yahya Bakhtiar is that the right to enforce the Fundamental Rights could be suspended only during the continuance of an Emergency under Article 232 of the Constitution, and that too in terms of an Order made by the President under clause (2) of Article 233 thereof, but the Emergency already proclaimed in Pakistan has since been revoked by the respondent with effect from the 15th of September 1977, with the result that the Fundamental Rights stand revived. Messrs A. K. Brohi and Sharifuddin Pirzada, however, contend that in spite of the revocation of Emergency, the Fundamental Rights remain suspended under Article 2(3) of the Laws (Continuance in Force) Order, 1977, which is independent of the Emergency contemplated in Article 232 of the Constitution. It may be stated that the Emergency proclaimed by General Agha Mohammad Yahya Khan, as President of Pakistan, on the 23rd of November 1971, was continued in force under Article 260 of the 1973 Constitution. It was varied by a Proclamation on the 21st of April 1977 so as to include internal Emergency under Article 236 of the Constitution, and it was revoked altogether on the 15th of September 1977. An order was made on the 15th of August 1973 by the President under Article 233(2) of the Constitution suspending the right to enforce certain specified Fundamental Rights, but this Order was rescinded on the 14th of August 1974. The right to enforce Fundamental Rights was again suspended under Article 245 of the Constitution with effect from the 21st of April 1977, in respect of areas where the Armed Forces had been called out in aid of civil power under the directions of the Federal Government. The present position, however, is that the Emergency having been revoked altogether with effect from the 15th of September 1977, there is no operative order in the field in terms of the Constitution, suspending the right to enforce Fundamental Rights. The question, therefore, is whether the provision embodied in this behalf in clause (3) of Article 2 of the Laws (Continuance in Force) Order is valid in the light of the principles governing the application of the law of necessity. One of the conditions stated in this behalf is that the Chief Martial Law Administrator is entitled to perform all acts and take such legislative measures which are in accordance with, or could have been made under the 1973 Constitution. Now, the Constitution does permit the suspension of the right to enforce Fundamental Rights in case of an Emergency of the nature contemplated in Article 232 thereof. Clause (1) of this Article says that "If the President is satisfied that a grave Emergency exists in which the security of Pakistan or any part thereof is threatened by war or external aggression or by internal disturbances beyond the power of a Provincial Government to control, he may issue a Proclamation of Emergency." If, therefore, it is found that the situation of the kind contemplated by this provision of the Constitution exists in Pakistan, then the Chief Martial Law Administrator would be entitled to make an order of the kind which could be made under clause (2) of Article 233 of the Constitution suspending the right to enforce. Fundamental Rights. It has already been seen that the conditions culminating in the Proclamation of Martial Law on the 5th of July 1977, were so grave that the very existence of the country was threatened, that chaos and bloodshed, was apprehended and there was complete erosion of the constitutional authority of the Federal Government, leave alone that of the various Provincial Governments. The situation had indeed deteriorated to such an extent that it justified an extra-Constitutional step, resulting in the suspension of certain parts of the Constitution itself by the Armed Forces. Such being the case, the situation was obviously at least of the kind contemplated by clause (1) of Article 232 of the Constitution. In the circumstances, the Chief Martial Law Administrator was justified in providing in clause (3) of Article 2 of the Laws (Continuance in Force) Order that the right to enforce Fundamental Rights shall be suspend-: ed. It was clearly an order which could have been

made under the 1973 Constitution. No exception can, therefore, be taken to the validity of this provision. As the present petition under clause (3) of Article 184 of the Constitution is intended for the enforcement of certain Fundamental Rights of the detenus, it is not maintainable for the reason that the Fundamental Rights stand validly suspended since the 5th of July 1977, under clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977. On this view of the matter, it is not necessary for this Court to examine the contention that the Martial Law Order No. 12 under which detentions have been ordered is not valid, or that the detentions are mala fide. The final position as emerging from this somewhat lengthy discussion of the various questions arising in this case may briefly be summed up as follows :(i) That the legal character and validity of any abrupt political change, brought about in a manner not contemplated by the .pre-existing Constitution or Legal Order, cannot be judged by the sole criterion of its success or effectiveness, as contemplated by Kelsen's pure theory of law. Not only has this theory not been universally accepted, or applied, it is also open to serious criticism on the ground that, by making effectiveness of the political change as the sole condition or criterion of its legality, it excludes from consideration sociological factors or morality and justice which contribute to the acceptance or effectiveness of the new Legal Order. The legal consequences of such a change must, therefore, be determined by a consideration of the total milieu in which the change is brought about, including the motivation of those responsible for the change, and the extent to which the old Legal Order is sought to be preserved or suppressed ; (ii) That in any case the theory of revoluntionary legality can have no application or relevance to a situation where the breach of legal continuity -is of a purely temporary nature and for a specified limited purpose Such a phenomenon can more appropriately be described as one of constitutional deviation rather than of revolution ; (iii) That examined in this light, the Proclamation of Martial Law on the 5th of July 1977, appears to be an extra-Constitutional step necessitated by the complete break-down and erosion of the constitutional and moral authority of the Government of Mr. Z. A. Bhutto, as a result of the unprecedented protest movement launched by the Pakistan National Alliance against the alleged massive rigging of elections to the National Assembly, held on the 7th of March 1977. It was a situation for which the Constitution provided no solution, and the Armed Forces had, therefore, to intervene to save the country from further chaos and bloodshed, to safeguard its integrity and sovereignty, and to separate the warring factions which had brought the country to the brink of disaster ; (iv) That the imposition of Martial Law, therefore, stands validated on the doctrine of necessity, and the Chief Martial Law Administrator is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognised by judicial authorities as falling within the scope of the law of necessity ; (v) That it has also become clear from a review of the events resulting in the culmination of Martial Law, and the declaration of intent made by the Chief Martial Law Administrator, that the 1973 Constitution still remains the supreme law, subject to the condition that certain parts thereof have been held in abeyance on account of State necessity; and the President of Pakistan. as well as the superior Courts continue to function under this Constitution. In other words, this is not a case where the old Legal Order has been completely suppressed or destroyed, but merely a case of constitutional deviation for a temporary period and for a specified and limited objective, namely, the restoration of law and order and normalcy in the country, and the earliest possible holding of free and fair elections for the purpose of the restoration of democratic institutions under the 1973 Constitution ; (vi) That, accordingly, the superior Courts continue to have the power of judicial review to judge the validity of any act or action. of the Martial Law Authorities if challenged in the light of the principles underlying the law of necessity as set out in this judgment. Their powers under Article 199 of the Constitution thus remain available to their full

extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance ; and (vii) That the provisions contained in clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977, suspending the right to enforce Fundamental Rights are valid for the reason that the situation prevailing in the country was obviously of such a nature as to amount to an Emergency contemplated by clause (1) of Article 232 of the Constitution, and the right to enforce Fundamental Rights could, therefore, be legitimately suspended by an order of the kind which could have been made under clause (2) of Article 233 of the Constitution. As a result, the present petition fails and is hereby dismissed. However, it will be for the detenus, if so advised, to move the High Courts concerned under Article 199 of the Constitution. Before parting with this judgment, it is necessary to refer to certain misgivings and apprehensions expressed by Mr. Yahya Bakhtiar, learned counsel for the petitioner, to the effect that the postponement of the elections scheduled to be held on the 18th of October 1977, has cast a shadow on the declared objectives of the Chief Martial Law Administrator. After seeking instructions from his client, Mr. A. K. Brohi has informed the Court that the Chief Martial Law Administrator intends to hold elections as soon as the process of the accountability of the holders of public offices is completed, and the time factor depends upon the speed with which these cases are disposed of by the civil Courts concerned. The learned Attorney-General has stated at the Bar that, in his opinion, a period of about six months is needed for this purpose, and thereafter it will be possible to hold the elections within two months. While the Court does not consider it appropriate to issue any directions, as suggested by Mr. Yahya Bakhtiar, as to a definite time-table for the holding of elections, the Court would like to state in clear terms that it has found it possible to validate the extra-Constitutional action of the Chief Martial Law Administrator not only for the reason that he stepped in to save the country at a time of grave national crisis and constitutional break-down, but also because of the solemn pledge given by him that the period of constitutional deviation shall be of as short a duration as possible, and that during this period all his energies shall be directed towards creating conditions conducive to the holding of free and fair elections, leading to the restoration of democratic rule in accordance with the dictates of the Constitution. The Court, therefore, expects the Chief Martial Law Administrator to redeem this pledge, which must be construed in the nature of a mandate from the people of Pakistan, who have, by and large, willingly accepted his administration as the interim Government of Pakistan. In the end, we would like to express our deep appreciation for the valuable assistance rendered by the learned Attorney-General for Pakistan, Mr. Sharifuddin Pirzada, and the learned counsel for the parties, namely, Mr. Yahya Bakhtiar for the petitioner and Mr. A. K. Brohi for the respondent, in the decision of this case, which has raised difficult and complicated questions of constitutional law. WAHEEDUDDIN AHMAD,J.-I have had the advantage of reading the judgment of my Lord the Chief Justice. I am in respectful agreement with the reasoning and conclusions reached by him. I cannot add anything further usefully to the contribution already made by him. I was a party to the judgment of this Court in Asma Jillani's case an I am of the considered view that the principles laid down in the above ca are not applicable to the facts of the present case. In the circumstances of the present case the principles enunciated in the Reference by His Excellence The Governor-General (P L D 1955 F C 435) will have to be invoked for solving the present constitutional dead-lock. MUHAMMAD AFZAL CHEEMA, J.-I have had the privilege of going through the elaborate judgment proposed to be delivered by my Lord the Chief Justice and am in respectful agreement with the views expressed and the conclusions reached therein.

However, I feel tempted to make a few observations in order to highlight one or two aspects of my Lord's judgment. 1t needs hardly to be mentioned that this case besides involving determination of extremely complicated constitutional issues having far-reaching implications and a direct and immediate impact on the entire nation which is anxiously awaiting its decision, also calls for the resolution of the conflict of views expressed by this Court in Dosso's case (P L D 1958 S C (Pak.) 533) and Asma Jillani's case (P L D 1972 S C 139) or reaffirmation of one of them. Both the judgments having been widely published and internationally commented upon. Mr. Brohi's arguments. were mainly directed towards the defence of the Kelsonian theory and if accepted would have in substance led to the restoration of this Court's dictum in Dosso's case. It may be observed with respect that Islam being the ideological foundation of the State of Pakistan any man-made legal theory divorced from morality and coming into conflict with the Divine Law of Islam would be wholly irrelevant for our purposes to the extent of its repugnancy to the latter. Unlike a pure theory of law, Islamic principles are subjectively centred round morality and are aimed at the establishment of an C orderly and peaceful moral society by taking an equally, pragmatic view in the matter of their application and placing the security safety and welfare of the people about everything else. The doctrine of necessity is an inevitable outcome of this realistic approach and has been recognized by Islam both in the individual as well as the collective field. The object of legal principles is to ensure proper regulation of human conduct and behaviour to the benefit of the individual and the society. Islam has permitted and condoned a departure from their strict observance and application in cases of extreme necessity and compulsion. The principle of public welfare (Salus populi est supremo lex) follows as a necessary corollary from this. There are several instances when in a peculiar situation strict compliance with the Qur'anic injunction was found to result in greater hardship and mischief and likely to create more complications the remedy proving worse than the disease, the Holy Prophet or the Caliphs did not insist on its enforcement and temporarily suspended it on ground of expediency. The doctrine of necessity is not, therefore, a juristic concept of the West but is of Islamic origin having been based on and deduced from the following Verses of the Holy Qur'an :(1) Al- Baqara II-173; He hath only forbidden you dead meat, and blood, and the flesh of swine, and that on which any other name hath been invoked besides that of God. But if one is forced by necessity, without lawful disobedience, nor transgressing due limits, then he is guiltless, for God is oft-forgiving Most Merciful. (2) Al-Maeda V=4; Forbidden to you (for food) are dead meat, blood, the flesh of swine, and that on which hath been invoked the name of other than God . . . . but .if any one is forced by hunger, with no inclination to transgression, God is indeed of forgiving, Most Merciful. (3) Al-Inaam VI=119: He has explained to you in detail what is forbidden to you except under compulsion of necessity. (4) Al-Nahal XVI=115: He has only forbidden you dead meat and blood and the flesh of swine.but if one is forced by necessity nor transgressing due limits, then God is oft-giving, Most Merciful.

The Muslim exegesists and jurists have also deduced the above principle from Verse No. 106 of Sura XVI: "Any one who after accepting faith in God utters unbelief except under compulsion remaining firm in faith . . . . . . ." It would be abundantly clear from this that in order to save his skin, a Muslim has been permitted even to go to the extent of a verbal denial of his belief and making a sacrilegious utterance. These Verses found further support from the following traditions of the Holy Prophet (peace be upon him) .This in substance means that the principal objective of avoiding harm or damage should always be kept in view and never lost sight of. In these two traditions of which one is reported from ( Umme-Kalsoom) and the other from (Asma Binte Yazid), the Holy Prophet condoned misstatements of fact made bona fide .during (i) war, (ii) for effecting compromise amongst the people in general, and (iii) for bringing about reconciliation between husband and wife in particular. It would not be out of place to refer in context to two important historical incidents. One is that the Holy Prophet prohibited the cutting of hands for an established theft during battle and the other is that of suspension of the imposition of this Hadd by Caliph Omar during the year of famine. From the above verses, traditions and incidents the Muslim exegesiss and doctors formulated the following juristic principles :(1) Necessities make permissible acts otherwise, prohibited. (2) Harm or damage has to be done away with. (3) Specific harm or damage can be tolerated in order to obviate general harm or damage. (4) While confronted with two evils one should choose the lesser evil. (5) The obviation of a greater harm may be sought through a lesser harm. (6) Removal of evils is more important than achievement of good and shall take precedence over it as the Sharia pays more heed to the observance of prohibitions than compliance with affirmative commandments. According to Imam Al-Ghazali the doctrine of necessity could be legitimately invoked for the preservation of (i) religion (ii) life (iii) reason (iv) progeny and (v) property . The raison d'etre of the doctrine of individual necessity applies with full force to the doctrine of State necessity which is nearly an extension of the v former -and is invoked in graver situations of National importance and comprehension. In Verse 59 of Sura AL-Nissa the Muslims have been enjoined to submit to Allah, His messenger and those in authority from amongst them. The obedience of the latter is not, however, absolute and unqualified but is subject to the condition that the commands of the ruler should be in conformity with and not in violation of the Islamic injunctions so much so that even the allegiance to the Holy Prophet has been made contingent on this very condition as would be clear from Verse 12l of Sura Al-Mumtahnah :-. They shall not disobey thee in any just matter. This is further clear from the following two traditions of the Holy Prophet (peace be upon him);--

(1) Whoever disobeys Allah shall not be obeyed. (2) There is no obedience of the creature in disobedience of the Creator. On assumption of the Office of Amir-ul-Momineen, Abu Bakar, the First Caliph addressed the audience in the following words :Obey me so long as I obey God and His messenger and if I disobey them don't obey me. It is thus abundantly clear that submission to the authority of the ruler and obedience to his commands does not extend to illegal and un-Islamic directives or orders. During the Umayyad and the Abbasid Caliphates when the Muslims had to deal with unjust and tyrannical rulers, the Muslim doctors were often confronted with the problem as to whether the community should unquestionably submit to the authority of these rulers, or whether in view of the above injunctions and traditions the people were under an obligation to rise and revolt against them. It would not be out of place to refer in this context to two technical expressions used by the Muslim jurists. One is Umam Matghalib a ruler who captures political power and takes effective control of the administration of the country. In fact Redulmuhtar refers to three modes of appointment of the Imam : (i) By the allegiance of the leading personalities ; (ii) By nomination of the predecessor ; and (iii) By capturing political power by force i.e Umam Matghalib. According to the Hanfis such a ruler could be accepted on the. doctrine of necessity. The other expression is Kharooj i. e. to rise in revolt against the ruler of the time who is unjust, tyrannical and habitually disobeys the Islamic injunctions. It would be interesting to note that Imam Abu Hanifa had used the technical expressions of Imam Bil-Haq and Imam Bil-Fehl which are respectively synonymous -with de jute and de facto, the two oft-repeated terms with which we are so familiar. In fact one is deeply impressed by the most reasonable and realistic attitude of the Muslim jurists in regard to this very sensitive and complicated issue. While on the one hand great emphasis is laid on the maximum tolerance of an unjust ruler in the wider interests of public order, prevention of chaos, and bloodshed, such considerations become irrelevant when he openly transgresses the limits of Allah, and is unjust and tyrannical. Taking a balanced view Imam Abu Hanifa adopted a middle of the road course and did not subscribe to the extremist stand taken by the Moatazzilites and the Khawarij. on one hand and the reactionary Murhiba on the other. He held that Kharooj against an unjust ruler was not lawful so long as there was no interference with the orderly running of the Government, people were free to offer prayers. perform pilgrimage and the Courts of law continued to function properly. His own conduct in supporting the Kharooj of Zain Bin Ali grandson of Imam Hussain and brother of Imam Baqar in the first instance and subsequently of Muhammad Bin Abdullah in 145 Hijra against the Abbasid Caliph Al-Mansoor is also very significant. This balanced attitude of Imam Abu Hanifa was based on a rational interpretation of the two apparently divergent traditions of the Holy Prophet. In one of these emphasis was laid on the imperativeness of the obedience of Umam Matghalib a de facto ruler and it was observed that people were under an obligation to obey him even if he were an ugly abyssinian with chopped off nose provided he captured power with a bona fide intention of delivering the Nation from the clutches of an unjust tyrant and himself observed the limitats of Allah. In the other the Muslims have been enjoined to rise in revolt against an unjust ruler and if killed in action have been described as martyrs. Coming now to the circumstances of the instant case, my Lord the Chief Justice has fully explained the factual position as it obtained before the Arm took over on 5-7-1977. The Court could not fail to take judicial notice o F the crisis which developed by way of protest against the alleged rigging of the General Elections when the entire nation rose against the Government of Mr. Bhutto. There was complete break-down of law and order, several precious lives were lost and the administration of the major cities had to be handed over by him to the Armed Forces which too were unable to cope with the situation and restore normalcy. The allegations of huge purchases of arms and their large-scale distribution amongst the members of the PPP in the country with a view to prepare them for civil war do not appear to have been specifically denied in the rejoinders filed by the petitioner or by Mr. Bhutto himself. It would not therefore, be too much to hold that the country was on the verge of a conflagration. The Constitution did not contemplate such a

situation nor did it offer a resolution of the crisis. It was in this background that respondent No. 1 moved in, for a temporary period and with the limited object of restoring normalcy and holding free and fair Elections as repeatedly declared by him. The doctrine of necessity is, therefore, attracted with full force in these circumstances as explained by my Lord the Chief Justice. I fully endorse his Lordship's exposition of the constitutional position in regard to the scope of the validity of the actions of the new Regime and the conditions and limitations attached thereto. MUHAMMAD AKRAM, J.-I have the advantage of having gone through the leading judgment proposed by my Lord, the Chief Justice for announcement. I have no hesitation in fully agreeing with his masterly. analysis of the facts, exposition of the legal tangles and conclusions so lucidly recorded by him in this case involving very difficult and complicated questions of great constitutional importance. I would, however, respectfully like to dilate upon some of the legal aspects of Hans Kelsen's Pure Theory of Law (positivism), the implications of the Martial Law currently in-force in the country and the doctrine of necessity, invoked before us, merely to supplement what has already fallen from his pen. Hans Kelsen's Pure. Theory of Law. Mr. A. K. Brohi, appearing for the Federation of Pakistan, with his great erudition and philosophy that he brought. to bear into this case, has done his best to analyses and explain this theory and its implications at length before us. Therefore, in fairness to him it is necessary in the first instance to enter upon a detailed analysis of this theory as advocated before us. The positivist movement started with the beginning of the nineteenth century. It represented a reaction against the a priori method of thinking that characterised the preceding age. Prevailing theories of Natural Law shared the common feature of turning away from the realities of actual law in order to discover in nature or reason principles of universal validity. Actual laws were then explained or condemned according to these canons. But the positivists believed that law as it is actually laid down (positivism) has to be kept separate from the law that ought to be. They made the distinction between "what the law is" from "what the law ought to be". Bentham (1748 1832) and . Austin (1790-1859) were the protagonists of the British theory of positivism with their firm belief in the separation of law and morals. Thus according to them laws even if morally outrageous, were still laws. After them Professor H. L. A. Hart is regarded as the leading contemporary representative of British positivism. He defends the Positivist School of Jurisprudence from many of the criticisms which have been levied against its insistence on distinguishing the law that "is" from the law that "ought" to be. But the pure theory of law propounded by Professor Hans Kelsen (1881-1973) marks the refined development to date of analytical positivism. He argued that a theory of Law must deal with law as actually laid down, not as it' ought to and it must be shorn of and free from all variable factors such as ethics, politics, sociology, history etc. It must, in other words, be "pure" (rein). Knowledge of law, according to Kelsen, meant a knowledge of "norms". ; and a norm is a proposition in hypothetical form. Jurisprudence consists of the examination of the nature and organisation of normative propositions. It includes all norms created in the process of applying some general norm to a. specific action. According to Kelsen, a dynamic system is one .in which fresh norms are constantly being created on the authority of an original, or basic norm, a "Grundnorm". Around these points, Kelsen unfolded his picture of law. It appears to him as a hierarchy of norms with the "Grundnorm" forming the apex of the pyramid. If a new fact or event is observed which fails to conform to a scientific "law", then that "law" has to be modified to include it. It is a cardinal feature of Kelsen's theory that laws consist of "ought" propositions. The prescription of sanction imparts law-quality to a norm, or putting it in another way, "Law is the primary norm, which stipulates the sanction." According to Kelsen, in every legal order, no matter with what proposition of law one begins, a hierarchy of "oughts" is traceable back to some initial, fundamental "ought" on

which the validity of all the others ultimately rests. This is the Grundnorm, the basic or fundamental or apex norm. The Grundnorm need not be the same in every legal order, but a Grundnorm of some kind there will always be, whether, e.g. a written Constitution or will of a dictator. The Grundnorm is not the Constitution, it is simply the presupposition, demanded by theory, that this Constitution ought to be obeyed. Therefore, the Grundnorm is always adapted to the prevailing state of affairs. The Grundnorm only imparts validity to the Constitution and all other norms derived from it. In Great Britain, for instance, the entire legal order is traceable to the propositions that the enactments of the Crown in Parliament and judicial precedents ought to be treated as "law". According to Kelsen every rule of law derives its validity from some other rule standing behind it. But the Grundnorm has no rule behind it. Its validity has therefore to be assumed for the purpose of theory. A rule is valid, not because it is, or is likely to be, obeyed by those to whom it is addressed, but by virtue of another rule imparting validity to it. The validity of each. individual rule does depend on the effectiveness of the legal order as a whole, or in case it is "by and large" effective. It is of the utmost importance that the Grundnorm should secure for itself a minimum of effectiveness, i. e., a certain number of persons who are willing to abide by it and it should command a minimum of effectiveness. If a Grundnorm ceases to drive a minimum of support, it ceases to be the basis of the legal order, and any other proposition which does obtain support will replace it. Such a change in the state of affairs is said to amount to a "revolution" in law. From the above premises, Hans Kelsen in his General Theory of Law ,and State (pages 118-119), proceeds on to the discussion of the subject of "Change of the Basic Norm" or the Grundnorm. In this connection he observed;---"It is just the phenomenon of revolution which clearly shows the significance of the basic norm. Suppose, that a group of individuals attempt to seize power by force, in order to remove the legitimate government in a hitherto monarchic State, and to introduce a republican form of government. If they succeed, if the old order ceases, and the new ' order begins to be efficacious, because the individuals whose behaviour the new order regulates actually behave, by and large, in conformity with the new order, then this order is considered as a valid order. It is now according to this new order that the actual behaviour of individuals is interpreted as legal or illegal. But this means that a new basic norm is presupposed. It is no longer the norm according to which the old monarchical constitution is valid, but a norm according to which the new republican constitution is valid, a norms endowing the revolutionary government with legal authority. If the revolutionaries fail, if the order they have tried to establish remains inefficacious, then, on the other hand, their undertaking is interpreted, not as a legal, a law-creating act, as the establishment of -a constitution, but as an illegal act, as the crime of treason, and this according to the old monarchic constitution and its specific basic norm." It is this passage in Kelsen which forms the basis of the decision by the Supreme Court of Pakistan in the State v. Dosso P L D 1958 S C (Pak.) 533, and which is the corner stone of. the entire argument elaborately advanced before us by Mr. A. K. Brohi for the respondent in support of the Proclamation of Martial Law and the regime with its new Legal Order that has allegedly become effective and has supplanted the old Legal Order. Dias in his Jurisprudence (Fourth Edition), has adversely criticised Kelsen s theory. He observed that the Grundnorm is a key concept in his theory but that it raises many difficulties. Some writers have pointed out, with a hint of criticism, that in whatever way effectiveness of the Grundnorm is measured Kelsen's theory has ceased to be "pure" at this point. For effectiveness would seem to depend on those very sociological 'factors which he so vehemently excluded from his theory of law. If, ' then, the Grundnorm upon which the validity of all other norms depends is tainted with impurity, it is arguable that the others are similarly tainted. Another line of attack on the claim to purity is that Kelsen's whole scheme is an a priori one dependent on empirical observations for confirmation. He offered it. as a "theory of interpretation'', which implies that it is not a description but a model and thus evaluative in function. This criticism touches, riot the theory, but his claim to its purity. According to him the effectiveness of the legal order as a whole is prerequisite to the validity of each single rule- in it. If as seems clear, some

inquiry into political and sociological factors has to precede, or at least is implicit in, the adaptation of a particular Grundnorm as the criterion of validity and if the validity of every part of the system is dependent upon the continued effectiveness of the whole, then on his own showing the study of jurisprudence should include the study of the social environment. Dias has further pointed out that Kelsen's picture is that of a legal order viewed only in the present time-frame, which explains his exclusion of moral, sociological and other considerations from the question of the validity of any rule. Dias has emphasised that the effectiveness of a legislative .medium is not a condition of its own "law quality" but only a factor which influences Courts to accept and continue accepting it. He further observed that a situation may be supposed in the midst of a' revolution when the old order has gone and no new order has effectively replaced it. In such a lacuna the Court can continue to apply as "laws" the enactments of the old order even though it is no longer effective. The label "laws" attaches to whatever the Courts are prepared to accept as such. Even if the old order is ineffective and there is a new, effective order, the Courts may still treat the old order as "legal" and the new as "illegal" or simply "de factor". Not only is the legality of a revolutionary regime independent of effectiveness, but it also has jurisdictional (spatial) and temporal dimensions. Thus, although the Rhodesian regime was eventually accepted as legal by the Rhodesian Courts, British Courts have still not done so. In Adams v. Adams (A. G. intervening) ((1970) 3 All E R 572) a British Court refused to recognise a divorce decree pronounced by a Rhodesian Judge who had not taken the oath under the 1961 Constitution. This shows that legality depends .on the jurisdiction in which the matter is considered, quite apart from effectiveness. The temporal dimension is brought out by a decision of the Pakistan Supreme Court in Jillani v. Government of Punjab (P L D 1972 S C 139) which rejected. effectiveness altogether as the criterion of legality. In conclusion, according to Dias the effectiveness of the legislative authority is not a condition of the validity either of "laws" or even of itself. It is a factor which in time induces the Courts to accept such authority. Nor is it the only such factor. Others are farce propaganda and packing the Bench with Judges who will comply, all of which only reinforce the contention that the legality of the law-constitutive medium only comes about when the Courts accept, or are made to accept it. These are some of the formidable arguments levelled by Dias, not merely at Kelsen, but at positivism in general. Kelsen gave no criterion by which the minimum of effectiveness is to be measured. All he maintained was that the Grundnorm imparts validity as long as the "total legal order" remains effective, or, as he later put it, "by and large" effective. As to this it may be asked, in the first place, for how long must effectiveness be maintained for the requirement to be satisfied. Kelsen drew no distinction; between effectiveness, which makes people obliged to obey, and effectiveness which makes them feel under an obligation to do so: Dias maintains that Grundnorm is a very weak point in Kelsen's theory. It does not apply in revolutionary situations, in which case it ceases to be a "general theory" or, if general it ceases to be true. In settled conditions it teaches nothing new in revolutionary conditions, where guidance is needed, it is useless, for the choice of a Grundnorm is not dictated inflexibly by effectiveness but is a political decision, as Kelsen himself admitted. Lord Lloyd in his Introduction to Jurisprudence (Third Edition), on page 269, in all fairness, while criticising Hans Kelsen's theory, has at the same time paid compliments to him and said that there is perhaps, no single writer in this century who has made a more illuminating analysis of the legal process than him, by his lucid exposition. But according to Lord Lloyd the Basic norm is a very troublesome feature of Kelsen's system. We are not clear what sort of norm this really is, nor what it does, nor indeed, where and how to find it. In his latest formulation he tells us that it is not "positive", but is presupposed in juristic thinking and is "meta-legal" only. Professor Goodhart was doubtful of the value of an analysis which did not explain the existence of the basic norm on which the whole system was founded. According to Lord Lloyd it may be argued that Kelsen's theory, being description of legal science, can only indicate the role of the jurist and can in no way assist the Judge. This would suggest that those Judges who relied upon Kelseri's theory to solve past-revolution legal problems were labouring under the self-deception

that he would assist them. The analysis of Kelsen's theory has raised some of the difficulties inherent in' his basic norm. His theory is only useful to the legal. scientist and not the Judge and only in a residual case, and, further, that the kingpin of the whole structure rests upon the shaky foundation of a loose concept of "effectiveness'' Gustov Radbrach was a German thinker who had lived through .the Nazi regime and reflected upon its evil manifestations in the legal system. He was a protagonist of the positivist doctrine until the Nazi tyranny, but he was converted by his experience of the environments round him. In 1944 a woman, wishing to be rid of her husband, denounced him to the authorities for insulting remarks he had made about Hitler while home on leave from the German army. The wife was under no legal duty to report his acts, though what he had said was apparently in violation of statutes making it illegal to make statements detrimental to the Government of the Third Reich or to impair by any means the military defence of the German people. The husband was arrested and sentenced to death, apparently pursuant to these statutes, though he was not executed but was sent to the front. In 1949 the wife was prosecuted in a West German Court for an offence described as illegally depriving a person of his freedom (rechtswidrige Freiheitsbe-raubung). This was punishable as a crime under the German Criminal Code of 1871 which had remained in force continuously since its enactment. The wife pleaded that her husband's imprisonment was pursuant to the Nazi statutes and hence that she had committed no crime. The Court of appeal to which the. case ultimately came held that the wife was guilty of procuring the deprivation of her husband's liberty by denouncing him to the German Courts, even though he had been sentenced by a Court for having. violated a statute, since, to quote the words of the Court, the statute "was contrary to the sound conscience and sense of justice of all human beings." This reasoning was followed in many cases which have been hailed as a triumph of the doctrines of natural law and as signalling the overthrow of positivism. The bitter experiences in these cases have thus made a great dent into -the Pure Theory of Law (See 71 Harward Law Review 591 at pages 618-619). Similarly a number of authors in their articles in some of the leading law journals (1970) 28 Cambridge Law Journal 75 by Dias ; (1968) 26 Cambridge Law Journal 223 by Dias; 1971 Cambridge Law Journal 103 by Harris; 1963 Modern Law Review 34 by Julius Stone; and .1967 Modern Law Review 1.57 by Erie have exposed the weaknesses in this theory. In addition to these in Miss Asma Jillani v. The Government of the Punjab this Court has held that Kelsen's theory was, by no means, a universally accepted theory nor was it a theory which could claim to have become a basic doctrine of the science of modern jurisprudence. . He was propounding a theory of law as a "niece jurists' proposition about law". He did not lay down any legal norm or legal norms which are "the daily concerns of Judges, legal practitioners or administrators" Moreover, as observed by my Lord, the Chief Justice, ours is an ideological State of the Islamic Republic of Pakistan. Its ideology is firmly rooted in the Objectives Resolution with emphasis on Islamic laws and concept of I morality. In our way of life we do not and cannot divorce morality from f law. Therefore the Pure Theory of Law is not suited to the genesis of this State. It has no place in our body politics and is unacceptable to the Judges charged with the administration of justice in this country. In the light of the above discussion, before us Mr. A. K. Brohi, learned counsel for the respondent, undertook in vain to salvage Dosso's case after it had been effectively overruled in Miss Asma Jillani's case by rejecting Kelsen's Pure Theory of Law. MARTIAL LAW AND NECESSITY S. A. De Smith in his invaluable treatise on the "Constitutional and Administrative Law" (Chapter 22) has observed that when an unlawful assembly is proceeding to the execution of its purpose, it constitutes a riot. If it goes on to execute that purpose in a violent manner which alarms a person of reasonable courage in the neighbourhood, it constitutes a riot. Akin to riot is the common-law offence of causing an affray by fighting or threats of force giving rise to alarm in the neighbourhood. Troops may be called in to disperse

rioters in the last resort they should normally act only under the direction of the competent civil authorities, and the degree of force they use must be proportionate to the evil to be averted. In dealing with the problems of "National Emergencies" (Chapter 23) the learned author further observed that the military officer on the spot may have to make a snap decision whether -to use force, and if so, how much, to quell a not Judges and writers have insisted many times over that soldiers are entitled, indeed obliged at common law, to use all necessary force, including deadly violence in the last resort, to disperse rioters who are doing serious and extensive damages to property. But when riot passes into rebellion or guerilla warfare, emphases shift and other principles intrude. The civil power primarily responsible for containing and suppressing an uprising must be the Government in office: The military authorities will be obliged to act in its support. If the situation moves a stage farther and the civil authorities become incapable of governing' because of large-scale insurrection, powers to do whatever may be needed to restore peace, may be handed over to (or assumed by) the military authorities. This is a new situation, different both in degree and kind. A state of Martial Law will then exist and the powers of-the General' Officer Commanding the Forces will, so it is usually thought, become non-justiciable, and for the time being, absolute, subject only to consultation with the civil power. According to the learned author martial law has been aptly described as "a peculiar system of legal relations" which arise in time of civil war or insurrection, or, it may be added, invasion. It is a state of affairs, not a settled body of rules, though rules and orders will be promulgated and enforced by the military authorities as they see fit. Again Martial Law can be used to describe an entirely different kind of situation-one where military officers overthrow the legitimate Government, establish a new regime and proclaim a state of Martial Law. The phenomenon is all too familiar in many countries. It has not arisen in Britain in modern times and the constitutional law books of that country are therefore, silent on its legal consequences. Briefly, one can say that the Judges and officials are not obliged to recognize the validity of such a proclamation, any more than they are obliged accept any other revolutionary coup d'etat, but that if they defy the mailed fist, they cannot expect to retain office for long. If they do recognize the suppression of the old order as valid, successful revolution has begotten its own legality. In this connection the learned author has further observed that a state of Martial Law may be introduced by or without a proclamation. A proclamation purporting to introduce a state of Martial Law is of no legal effect in itself ; Martial Law is justified only by paramount necessity. If the ordinary Courts are still sitting, it seems that they have jurisdiction to determine whether "a state of war" (not necessarily war in the international sense, but a state of affairs requiring military pacification by the imposition of Martial Law) exists in an area where they normally have jurisdiction. In determining this question they will give heavy weight to the opinion of the local military commander, but his opinion is not binding on them. If they decide that a `state of war' does exist, then (according to the present weight of legal opinion) they should decline to review the legality of anything done by the military authorities in the purported discharge of military responsibilities till, in their independent judgment, the `state of war' has terminated. In the case of D. F. Marais v. The General Officer Commanding the Lines of Communication and the Attorney-General of the Colony 1902 A C 109, in South Africa an application was made on behalf of Marais, a civilian subject of the Crown, for his immediate release from military custody, on the ground that his arrest and imprisonment were in violation of the fundamental liberties to which subjects of His Majesty were entitled. But his application was dismissed by the Supreme Court of the Cape of Good Hope, inter alia, relying on an affidavit of the gaoler concerned to the effect that be was detained by. an order of the military authorities for contravening certain Martial Law Regulation though owing to military exigencies he was not prepared at the time to disclose the charges against him. The Privy Council refused the petition for special leave to appeal from the order of the Supreme Court with the observations that :- .

"The truth is that no doubt has ever existed that where war actually prevails the ordinary Courts have no jurisdiction over the action of the military authorities. Doubtless cases of difficulty arise when the fact of a state of rebellion or insurrection is not clearly established. It may often be a question whether a mere riot, or disturbance neither so serious nor so extensive as really to amount to a war at all has not been treated with an excessive severity, and whether the intervention of the military force was necessary but once let the fact of actual war be established, and there is an universal consensus of opinion that the civil Courts have no jurisdiction to call in question the propriety of the action of military authorities." Coke, Rolle and Hale were of the opinion that time of peace is when the civil Courts are open, and that when they are closed it is time of war. The decision in Marais's case, however, shows that this test is not conclusive and that existence of a state of war in a given district is compatible with the continued functioning for some purposes of the civil Courts within the district. This decision gave rise to four articles on martial law in (1902). 18 Law Quarterly Review 117; 113, 143 & 152. H. Erie Richards in his article on pages 133/142 has mentioned that this decision has met with some criticism even from those whose legal vision is not coloured by their political sympathies. In the context of the above findings the learned author remarked that "it must be left to Courts to determine whether any particular act be or be not in excess of necessity of the occasion in question in each case." He further observed that in times of emergency, falling short of war, the Court may decide "whether there was sufficient necessity to justify any suppression of the ordinary law and indeed there would be no security for the subject at any time if it was left to the uncontrolled discretion of the military to take such action at their pleasure. But when once war is declared and is raging in the country, that question is no longer open to doubts that it is then necessary to interfere with the ordinary law to some extent, . . . . ." The learned author, in offering his further comments on the judgment in Marais's case observed that it has been contended that the existence of war in the view of the law does not depend on the actual fact of whether war is raging in the country or not, but is to be determined by the fact of whether the Courts continue to sit ; an artificial rule which does not commend itself, apart from authority, to reason. The necessity for taking action which infringes on rights of property or liberty cannot depend on the fact that the Courts continue or do not continue to sit it depends on the necessity created by the presence of an enemy in the country. The military indeed can at their will prevent or allow the continuance of the sittings of the Courts. The real test is the necessity of the occasion in each case. In summing up the learned author remarked that "War is self-evident, and the fact that the Courts may continue to sit cannot prevent the existence of war." According to another article on "the case of Marais" contributed by Cyril Dodd (pages 143-151) martial law arises from the State necessity, and is justified at the, common law by necessity, and by necessity alone-a necessity which the Courts may at- any time inquire into, so far at any rate as they reasonably can without injury to the State arising from the disclosure of matters contrary to the public interest and endangering the public safety. The learned author observed that in Marais's case when the petition came before the Privy Council the chief argument, indeed the only argument really relied on, was that there was a fixed principle that, if the ordinary Courts were open, civilians must be dealt with by them if charged with offences, and not by military persons or tribunals ; that a place where the Courts open crust be regarded at a place in which there is peace, and that when the Court are open it is `time of peace' for all legal purposes and in all Courts of law, This contention. in his opinion was undoubtedly supported by a considerable show of authority, and would appear in more ancient times to have been generally held as a true statement of the law. But this supposition was based on fiction rather than on reality. 1n the opinion of the learned author it was not to be expected that a Committee of the Privy Council should feel bound by any such general rule to the extent of being compelled to hold, contrary- to actual fact, that war did not exist, simply because where the war in fact existed the Courts were sitting. It distinctly puts an end to the ancient rule, that because for some purposes the Courts are open at a place, that place must .be held to

be one where peace exists, no matter what the actual fact may be. According to the learned author in the case of Marais even the limited proposition that the authorities are not responsible to the Courts sitting during the war. would appear too wide. It would seem to depend upon the question of whether the Courts are able to sit for all purposes, and are allowed by the military power to do, so, and upon whether the matter is one they can, without danger to public safety and the proper prosecution of the war, investigate and deal with. Likewise Frederick Pollock in his article (pages 152-158) of the Law Quarterly . Review has commented on the Privy Council judgment in Marais's case and in his opinion the only point decided then was that the absence of visible disorders and the continued sitting of Courts are not conclusive evidence of state of peace. In the fourth article (pages 117-7 32) W. S. Holdsworth, on the authority of Cockburn, C: J. observed that martial law of the kind, as a distinct code of rules, does not exist. It is merely the application of the common law principle "that life may be protected and crime prevented by the immediate application of any amount of force which, under the circumstances may be necessary." It allows an amount of force exactly proportionate to the necessities of the case. This is the view most strongly supported, especially by the more recent authorities. The American views on the subject are contained in a copy of a letter of Pennsylvania Assembly to Governor Robert Marris, November 11, 1755 under the heading "The National Security Interest and Civil Liberties" published in (1971-72) 85 Harward Law Review, 1133/1326. In this a separate section is devoted to the subject . of "The Exercise of Emergency Powers" to cope with disorders of sufficient magnitude and intensity assuming national importance and threatening the functioning of the Government. In such cases safeguards of judicial review are necessary as a check against any abuse of power. But in this connection the standard laid down by the Supreme Court of America for reviewing the use of emergency measures has varied widely. In Ex Parte Milligan ((1866) 71 U S 2) which involved emergency measures taken by President Lincoln during the Civil War, the Court verged on taking the extreme view that' Government action in emergencies is subject to the same constitutional limitations as are actions taken in normal times. But in contrast to this, the Supreme Court appears to have gone to the other extreme in Moyer v. Peabody ((1909) 212 U S 78), a 1909 case reviewing actions taken by a State Governor pursuant to a proclamation of martial law during a violent labour dispute. The Court seemed to view the choice of what particular measures to take during an emergency as an exercise of political power with which the Courts should not interfere as long, at least, as the choice was made in good faith. Moreover, the Court held "that the Governor's declaration that a state of insurrection existed is conclusive of the fact." Thus, Moyer came to stand for the proposition that the executive has nearly complete discretion in its exercise of emergency powers, both with respect to. declaring the emergency and to choosing the means of meeting it. This stance, however, granted an excessive degree of latitude to the executive and was ultimately replaced in the case of Sterling v. Constantin (1932) 287 U S 378, by a standard of review that scrutinized the Government response to find a "direct relation" between the "measure taken and the goal of restoring order." In Sterling the Governor of Texas bad declared martial law in order to have the militia impose a production limit which a Federal Court bad enjoined the State's regulatory commission from imposing. The emergency claim was based upon an alleged but unsubstantiated fear that the local populace would rise up in order to stop the plunder of the vicinity's oil resources. In the face of this claim the Court refused to follow Moyer, first distinguishing between the conclusiveness of the executive's declaration of emergency and its choice of measures, and then subjecting the latter to a "direct relation test." Similarly, in Korematsu v. United States ((1944) 323 U S 214 (223-224)) and Hirabayashi v. United States ((1943) 320 U S 81 (95)) the most recent cases in which the Supreme Court decided the constitutionality of emergency measures taken by the Federal Government during wartime, the Court undertook an independent, albeit restrained, inquiry as to whether there was a reasonable basis in fact for the conclusion that the measures were "necessary" to meet the particular dangers posed by the emergency situation. However, on facts in these two cases the Court concluded that the Government's fear of espionage and sabotage by persons of Japanese ancestry was reasonable and therefore, upheld the curfew directed against them and an executive order passed against them excluding them from the West Coast.

In the above-mentioned letter it is observed that to prevent the abuse of emergency powers, Courts must review both whether an emergency existed, and, more important whether the measures taken were necessary to restore order. "The best standard to adopt would be a strict standard of necessity, which would require that there not be available to the Government alternative means of coping with the emergency that were as effective as the measures employed but less restrictive of individual liberties". The less-restrictive alternative analysis is in a sense inherent in any judicial review of Government actions on the basis of their reasonableness, since the reasonableness of a measure necessarily depends on the alternatives available. However, the proposed application of less-restrictive-alternative analysis is broader, for it implies that whenever a less restrictive alternative of equal effectiveness can be shown, the measure taken will be invalidated. (See pages 1294-1297 of the Report). In this connection (on pages 1321-22) it is observed that emergency situations, whether characterized primarily by mass public disturbances or by guerilla-like violence, can differ greatly as to their magnitude. At the most severe extreme, the Government might be faced with a rebellion so widespread and intense that it was unable to carry out its normal functions through civilian institutions. It might then be necessary to govern by martial law. Although there has been much confusion as to the meaning of this term, it is clear that martial law is not "law" at all in the sense of a body of rules, but rather refers to the way in - which governmental power may be exercised. Commentators generally define martial law as the use of military forces to carry on the functions of civil Government, carefully distinguishing it from. the mere use of the military as an aid to the civilian Government. Although Courts still occasionally use language suggesting that a declaration of martial law results in the complete abandonment of constitutional safeguards against actions taken by the military, the "direction relation" test of Sterling v. Constantin was formulated with reference to and applied to overturn emergency measures taken by the military pursuant to an executive declaration of martial law. There is. no reason to believe, therefore, that judicial review of Government actions in an emergency should depend in any way on whether there had been a declaration of martial law or on whether the emergency measures were carried out by military or civilian authorities. In either case the standard should be the necessity of the measure to restore order. The learned author of "the Constitutional and Administrative laws" has also discussed the subject of the "Ultimate Authority in Constitutional law" (Chapter 3) in its historical background. This presents a very useful, absorbing and greatly informative study of the problems engaging our attention. I cannot resist in quoting here from him in extenso. He observes that a written constitution is regarded as the primary source of legal authority within a State. But then what is it that confers this legitimating quality on the constitution ?, he asks and in his opinion this question produces some convoluted answers. In the large majority of independent States,-in Australia there has been, at one time or another, a breach of legal continuity, and a constitution has been adopted or changed in a manner unauthorized by the pre-existing legal order. This is already true of a high proportion of the African States which have become independent during the last decade or so. Since independence they have had revolutions and coups d'etate ; often the constitutional instrument has itself been abrogated and replaced, or suspended and modified, in a manner precluded by the independence constitution. And a few countries have deliberately chosen to adopt a new constitution peacefully but in a manner unauthorised by the pre-existing constitution. This is an assertion of legal nationalism, of what is called `constitutional autochthony, designed to demonstrate that the authority of the constitution is rooted in native soil, not derived from an imperial predecessor. Such a course has been followed in Eire (the Republic of Ireland), India and Sri Lanka (Ceylon). A constitution is adopted by a Constituent Assembly in the name of people, or presented to the people for their approval it will not receive the royal assent like normal constitutional amendments. Take again the constitution of the United States of America. Since its adoption in 1787 it has remained intact, apart from amendments duly made in terms of the Constitution. But was the Constitution valid in the first place, and if so, why ? In 1776 the Thirteen Colonies had unlawfully 'declared their independence of Britain, and had repudiated the sovereignty of the United Kingdom Parliament. `We, the People of the United States', proceed to `ordain and establish a constitution'. In fact it was formulated at a convention

consisting of delegates from the several- States and then ratified by the Congress. The name of the `sovereign' People was invoked to confer upon the constitution moral authority and binding force. The learned author says that the vague concept that ultimate `sovereignty' resides in the `people' is widely acceptable because of its political overtones. Even where a constitution has been overturned from above or below by manifestly illegitimate means, it is commonplace for the de facto holders of power to assert that they derive their mandate from the people, because it is awkward to be stigmatized as an undemocratic usurper. And by producing a constitution approved. by or on behalf of the people, the accolade of legitimacy is achieved. It is one thing to say that Government should rest on the consent of the governed ; it is another thing to proclaim that a Constitution has acquired the force of supreme law merely because it has obtained the approval of an irregularly convened Constituent Assembly or of a majority of the electorate or both. Yet to assert that all constitutions (or constitutional amendments) procured in a manner inconsistent with the pre-existing legal order are legally invalid will land one in a morass of absurd and insoluble difficulties. If the Constitution of the United States is a nullity, then presumably only the United Kingdom can validate (with retroactive effect) the millions of governmental measures and judicial decisions taken in that country since Independence. This is plainly ridiculous, for nobody doubts that the United States became an independent State in international law before the end of the eighteenth century. In any case, whence did the United Kingdom Parliament derive its omni-competence ? In July 1688 James II dissolved his Parliament. In December he fled the country, having dropped the Great Seal of the Realm in the Thames a few days earlier. William of Orange, having reached London, met groups of peers, former members of Parliament and other notables ; they advised him that elections should be held in the boroughs and counties. The Convention of Lords and Commons met in January 1689, and next month offered the Crown to William and Mary jointly, subject to conditions set out in a Declaration of Rights. The offer having been accepted, the Convention passed an Act asserting that it was Parliament, acid then enacted the Bill of Rights, incorporating the Declaration of Rights. Clearly the Convention `Parliament' has been irregularly summoned ; its affirmation of its own legal authority carried the matter no farther ; there had been no King from December 1688 (assuming that James It was deemed to have abdicated or to have forfeited the Crown) till February 1689 ; William III had no hereditary legal title to the throne and therefore had no authority to assent to bills. Has every purported Act of Parliament since 1688 been a nullity ? Is a Stuart still the rightful King ? Once questions such as these are asked, one must acknowledge that in. certain circumstances a breach of legal continuity, be it peaceful or accompanied by coercion and violence, may have to be treated as superseding the constitutional and legal order and replacing it by a new one. Legal theorists have no option but to accommodate their concepts to the facts of political life. These are some of the perplexing questions that have buffled the legal theorists. One of them Hans Kelsen advanced his Pure Theory of- Law which has already been rejected by us as unacceptable to the norms of our own country. But I find that the principles of State necessity and the maxim "Salus populi suprema lex" is fully attracted to the peculiar facts and circumstances of this case as a validating factor. According to S. A. de Smith the principle of necessity, rendering lawful what would otherwise be unlawful, is not unknown to English law ; there is defence of necessity (albeit of uncertain scope) in criminal law, and in constitutional law the application of martial law is but an extended application of this concept. But the necessity must be proportionate to the evil to be) averted, and acceptance of the principle does not normally imply total abdication from judicial review or acquiescence in the supersession of the legal order ; it is essentially a transient phenomenon. State necessity has been judicially accepted in recent years as a legal justification for ostensibly unconstitutional action to fill a vacuum arising within the constitutional order in Pakistan, Cyprus, Rhodesia and Nigeria. To this extent it has been recognised as an implied exception to the letter of the

constitution. And perhaps it can be stretched far enough to bridge the gap between the old legal order and its successor." In these circumstances and for these additional and supplementary reasons I have agreed with my Lord, the Chief Justice on the facts and law, as well as the conclusions formulated by him. DORAB PATEL, J.--I have had the advantage of reading the judgment proposed to be delivered by my Lord the Chief Justice. I respectfully agree with it and would further observe that in my humble opinion the principle laid down by the Federal Court in the Reference by His Excellency The Governor-General PLD1955FC435, will have to be followed in resolving the impasse created by the constitutional break-down. QAISAR KHAN, J.--After going through the very elaborate, illuminating and scholarly judgment of my Lord the Chief Justice proposed to be delivered in this case, it is with the greatest respect that I have to state that though 1 agree with my Lord the Chief Justice that (he petition be dismissed but I have arrived at the conclusion on quite different grounds and I shall, therefore, record my own judgment. The facts and circumstances leading to the filing of this petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1971 need not be reiterated as these have already been given in great detail in the proposed judgment of my Lord the Chief Justice. In my opinion the main point for determination in this case is as to whether this Court has the jurisdiction to entertain and adjudicate upon the petition in view of the Proclamation of the 5th of July 1977 and the Laws (Continuance in Force) Order, 1977 of the same date. After hearing very learned and lengthy arguments of the learned counsel for the parties and the learned Attorney-General I have come to the conclusion that this Court has no jurisdiction in the matter. My reasons for coming to this conclusion are few and simple. The Constitution of the Islamic Republic of Pakistan was the basic norm of the Country which is also described as the grundnorm, the apex norm or the total Legal Order. This Court was the creation of the said Constitution and jurisdiction had also been conferred on it by the said Constitution. The validity or invalidity of any and every action was tested by the Courts with reference to the Constitution. It may, however, be mentioned here that the provisions of the said Constitution themselves could not be questioned by the Courts. The Courts could not say that such and such a provision of the Constitution was good and such and such bad or that such and such a provision should have been there and such and such should not have been there. At some stage in the arguments it was suggested that the Resolution of March 1949 was the grundnorm in Pakistan and action should be tested keeping that as a touchstone. There is, however, no force in this contention as no body in Islam is above law but under our Constitution of 1973 the President and the Governors had been placed above law and they were not answerable to any Court of law nor could they be tried in any Court. The offence of murder is compoundable according to the Holy Qur'an but we in Courts could not accept compromise in murder cases. The resolution was the wish and ultimate aim for the realisation of the Islamic order but it was not the grundnorm in Pakistan. It was also held so by this Court in the case of Zla-ur-Rahman PLD1973SC49. It is common knowledge and does not require any jurist to be quoted in its support that a Constitution -or the basic norm could be annulled, abrogated, destroyed or suspended in two way, one by a Constitutional act, that is to say, by the method provided for in the Constitution for changing or replacing it and the other by an un-Constitutional act, say revolution or; coup d'etat, which is known as extra-Constitutional act. In the instant case the Constitution of 1973 was put in abeyance, that is to say, suppressed for) the time being by the Chief of the Army Staff by an extra-Constitutional act) of issuing a Proclamation on the 5th of July 1977 declaring himself as the Chief Martial Law Administrator. For the running of the Country the Chief Martial Law Administrator who had assumed all powers under the Proclamation issued the Laws (Continuance in Force) Order the same day i.e., 5th of July 1977.

Now the validity or invalidity of this action could not be tested on the basis of the Constitution of 1973 as it was no longer there having been suppressed and there was no other superior norm on the basis of which it could be tested. such an action, according to some jurists as Mr. Brohi puts it, is called meta-legal. For judging such a situation we have two authorities of this Court in the field, that of Dosso P L D 1958 S C (Pak.) 531, and Asma Jillani P L D 1972 S C 139. Dosso's case by which the new order could be legitimised cannot be applied as it has been overruled by the Asma's case. Asma Jillani's case does not apply in the present case a the facts and circumstances of this take-over are quite different from the facts and circumstances of the then take-over. In the present case under the circumstances prevailing in the country of which we can take judicial not the present take-over was quite justified for saving the State from total destruction and the Chief of the Army Staff under the circumstances could not be dubbed as a usurper. Now what is to be done .in such a case. Here I agree with Mr. Brohi that in such a situation the Court has to determine certain facts which are even more basic than jurisdictional facts. These are facts which may be termed as Constitutional facts. These facts relate to the existence of the Legal Order within the framework by which the Court itself exists and functions. Jurisdictional facts only relate to the jurisdiction of the Court but Constitutional facts relate to the legal structure within which that jurisdiction is located. The inquiry as to Constitutional facts is factual and not a legal inquiry. The Court has to find as a matter of fact as to what Legal Order is in operation in the country. There are several indicia which furnish clues to the existence of any particular Legal Order. The most. important of these relate to the aegises under which the three principal organs of the State function. These organs are the Legislature, the executive and the judiciary. Let us examine the position of each in relation to the present situation. The National Assembly constituted under the 1973 Constitution is evidently no longer in existence. It does not even purport to exist. There is no legislative body in existence in Pakistan today which can claim that it is a Legislature within the meaning of that term used in the 1973 Constitution. The executive i.e., the Government servants have accepted the new Legal Order and are working under it. Similarly the People's Party's Government has ceased to exist as a matter of fact. The members who constituted that Government did not even profess to be exercising power and authority in Pakistan today. On the other hand almost all of them including the former Prime Minister have taken an oath in connection with election under the new Legal Order thereby admitting its factual existence. The same is the position of the judiciary. Judges had taken oath under the Constitution of 1973 and there was no provision in the said Constitution for a second oath to be taken by Judges. However, under the President's Post Proclamation Order 9 of 1977 we were directed to take a new oath or to quit. As a result of the said directive we took the new oath in which there was no mention of the Constitution of 1973. This oath was prescribed by a Presidential Order not in the exercise of powers under the. Constitution of 1973 but in exercise of powers under the Proclamation and the Laws (Continuance in Force) Order of the 5th of July 1977. Incidentally it may be mentioned here that according to Article 2, sub-Article (3) of this Order the President acts only on the advice of the Chief Martial Law Administrator. Now by taking this oath we have conceded the de facto existence of the new Legal Order. Furthermore, amendment was also brought about in the suppressed Constitution which we accepted as valid. The existence of the new Legal Order as a fact has therefore been accepted by all and since it is admittedly effectual beyond doubt for the time being it is therefore to be accepted as the de facto new Legal Order for the time being. So far as I have been able to understand effectualness is the only touch stone on the basis of which recognition to a de facto Government could be accorded by municipal Courts and support for this can be had from STANFORD LAW REVIEW, VOL. 17 PROFESSOR STONE AND THE PURE THEORY OF LAW (Page 1139). Since the Order is of a supra-Constitutional nature all questions are now to be answered with reference to it. The assertion that the Courts were functioning under the old Constitution which has been revived by the Laws (Continuance in Force) Order is fallacious. When by the Proclamation the Constitution was put in abeyance the Courts automatically ceased to

exist. They started functioning again only by the force of the Laws (Continuance in Force) Order and not by virtue of the old Constitution. The Laws (Continuance in Force) Order nowhere lays down that the Constitution has been revived. As a matter of fact section 5 of it which is reproduced below clearly lays down that it is still in abeyance: "Notwithstanding the abeyance of the provisions of the Constitution subject to any order of the President or Regulation made by the Chief Martial Law Administrator all laws other than the Constitution and all Ordinances, Orders-in-Council, Orders made by the President, Rules, Bye-Laws, Regulations, Notifications and other legal instruments inforce in Pakistan or any part thereof or having extra-territorial validity shall so far as may be and with such adaptation as the President may see fit may continue in force until altered, amended or repealed by competent authority." The reference in the Order to the provision of the Constitution of 1973 was only an easy and expeditious way of devising a new Legal Order. Since the Courts including this Court were revived by the Laws (Continuance in Force) Order and continued to work under its authority, they therefore derived their jurisdiction also from the said Order. For example, if after the issuance of the Proclamation the Chief Martial Law Administrator bad not issued the Laws (Continuance in Force) Order and had started ruling by decrees through his officers then where would have been this Court and what jurisdiction it would have had. Otherwise too allegiance is always due to the de facto Government for it is this Government which can provide protection to the citizens and allegiance to the State imposes as one of its most important duty obedience to the laws of the sovereign power for the time being within the State. The municipal Courts have always to enforce the laws of the de facto Government as it is such a Government which can enact law, can appoint Judges and can enforce the execution of law. In this connection the following passages from the Rhodesian case which was quoted at the Bar and which are based on the views of the various authorities are worth perusal :"A municipal Court recognizes the legality of the only law-making and law-enforcing Government functioning "for the time being" within the State. It cannot do more and, in particular, it is not possible for a municipal Court to ascribe to Governments under which it functions. different degrees of legality. From the point of view of a municipal Court a Government either is or is not lawful. 1 am satisfied that the present Government is the only existing law-making and law-enforcing Government within the State of Rhodesia and if I am to carry on my functions as a Judge I must enforce laws passed in accordance with the 1965 Constitution. To do so is in accordance with, and not in breach of, my allegiance to the State of Rhodesia. It is important, in this .connection, to remember that in law it is the State and not a Government within a State which has the quality of "perpetual continuance". Allegiance is owed to the State as a legal entity with perpetual existence. Obedience to the laws of the Government "for the time being," and service under the Government "for the time being," are requirements of the allegiance owed to the State and it is only in a loose and inexact sense that it is possible to speak of allegiance being owed to a particular Government." (Page 160). "Judicial power presupposes an established Government capable of enacting laws and enforcing their execution, and of appointing Judges to expound and administer them. The acceptance of the judicial office is a recognition of the authority of the Government from which .it is derived. And if the authority of that Government is annulled and overthrown; the power of its Courts and other officers is annulled with it. And if a State Court should enter upon the inquiry proposed in this case, and should come to the conclusion that the Government under which it acted had been put aside and displaced by an opposing Government it would cease to be a Court, and be incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a Court, it necessarily affirms the existence and authority of the Government under which it is exercising judicial power." (Page 156).

"The English law on this aspect is summed up pithily by Hobbes in his statement (adopted by. Austin and cited above) that, "the legislator is he not by whose authority the law was first made but by whose authority it continues to be law". And this is the effect of the definition of "sovereign" in the Interpretation Act, 1889. There is no difference in law between a written constitution and an unwritten constitution and under English constitutional law respect is paid not to a constitution as such but to the Government which by its authority gives the constitution the force of law." (Page 155). "The lesson to be gleaned from the history of English law is that the Judges should. not allow themselves to become embroiled in political controversy and, in particular, should not take part in revolutionary or counter, revolutionary activity. If a Judge believes that a situation has arisen which in all conscience compels him to exercise the "sacred right" of revolution or counter-revolution he should leave the Bench and not seek to use his position on it to further his revolutionary or counter-revolutionary designs. The more unsettled the times and the greater the tendency towards the disintegration of established institutions, the more important it is that the Court should proceed with the vital, albeit unspectacular, task of maintaining law and order and by so doing act as a stabilizing force within the community. This objective can only be achieved if the acts of a Government "for the time being" within the State are given the force of law. Under English law Judges, in common with all other citizens, owe allegiance to the State and this allegiance involves obedience to and service under the Government `for the time being" within the State." (Page 154). "The early history of England and the English law relating to the allegiance due to a de facto sovereign explain in large measure the view strongly adhered to by all English Judges that the judiciary should not meddle in politics." (Page 151). "This allegiance to Rhodesia imposes a duty of obedience to the laws which continue in force under the authority of the de facto Government, as well as in laws passed by it; provided, of course, these are passed in accordance with the de facto constitution." (Page 149). "It is not essential, however, to resolve the dispute between Hale and Black-stone on the one hand, and Hawkins and Foster on the other for the purpose of deciding the fundamental constitutional issue in this case which is whether the laws of a Government `for the time being", that is, of a de facto Government, must be obeyed. On this aspect there is no disagreement at all between English jurists." (Page 144). "A sharp distinction is drawn in law between persons who set up a de facto Government by revolution and persons who, taking no part in the revolution, obey the laws of the de facto Government in pursuance of the duty of allegiance owed to the State. If obedience to the laws of a de facto Government were not enjoined by the law, anarchy would be likely to ensue. In a choice between anarchy and order the law wisely makes a realistic and sensible choice of order." (Page 129). . "There are a number of reasons for the unanimous acceptance by English jurists of a duty to obey the laws of a sovereign power established within the State by revolution: (i) First and foremost among these is the fundamental concept that allegiance is due in return for actual . protection. The corollary of this is that allegiance is not due to a sovereign power which, while claiming the theoretical right to protect, fails to afford protection. (ii) Secondly, and most importantly, there is the need in the interests of the State and its people to ensure the continuity of the law and avoid the anarchy which would result from a legal vacuum. (iii) A third reason, refreshingly free from cant and hypocrisy, is the appreciation by jurists that because Governments without exception have an extra-legal origin, Courts exercising jurisdiction within a State must, if they are to function at all, obey the laws of the Government `for the time being". If a Court of law anywhere in the world were to insist that only the laws of a Government with a legal origin may be obeyed and

enforced, it would not be able to function because there is no such Government. The feature which distinguishes one Government from another is not that some have an extra-legal and others a legal origin but simply the variation in the length of time separating all existing Governments from their extra-legal origin. Although Government "for the time being" within a State shares with all other Governments the taint of extra-legal origin it has the obvious merit of being the only effective law-making and law-enforcing body within the State. To refuse to obey the laws of such a Government is to take not a legal but a revolutionary or a counter-revolutionary stand." (Page 121). "A municipal Court is concerned not with the question of whether the State has been or should be accepted into the international community, but simply with the existence or non-existence of a law-making and law-enforcing Government within the territory in which it exercises jurisdiction.". (Page 110). "My approach to the position of the Judges and of the High Court and, indeed, to these cases as a whole, is a "positivist" approach; because I think that in the situation which exists in Rhodesia today what "is" or what "is not" the law can only be decided on the basis of accepting things as they actually "are" and not simply as they "ought to be". (Page 47). "It seems to me that at any one time in any one place there can only be one correct law. That law cannot vary with the political views of the individual Judge who "declares" it. This, of course, is, by no means the same thing as saying that the Judge, having declared the law as he finds it to be, or even before so declaring, must necessarily remain in office and apply that law. Here his personal views may play a part; because in certain circumstances the Judge may decide that rather than continue as a Judge and apply such law he will go. So long, however, as he continues to sit as a Judge he must declare the law as it "is", and not as it "was", or as what he thinks it "ought" to be." (Page 48). "If the entire Constitution under which a Court is created disappears or is completely suspended, the Court created under it must also disappear or be suspended alongwith the Constitution. A revolutionary Government cannot. be held to be a de facto Government (in the sense in which I have used the words) unless the old Constitution is at least entirely suspended. This I consider to be the case in Rhodesia today, because as a matter of political reality no writ of any Government purporting to govern under the 1.961 Constitution runs in Rhodesia. What, then, is the position of this Court at the present time? Strange as the conception might be, it cannot be said that the Court owes its present existence to or derives its present authority from the old 1961 Constitution. It owes its existence to and derives its authority today from the fact that the present de facto Government which is to full control of the Government of the country, knowing that the Court as such has not "joined the revolution", has nonetheless permitted it to continue and exercise its functions as a Court, and has authorized its public officials to enforce the Court's judgments and orders. The orders of the High Court today are not enforced by any remnant of a Government governing under the 1961 Constitution. They are enforced by the officials of the present de facto Government." (Page 52). "In these circumstances it seems to me that the Court can only be regarded as deriving its authority from the fact that the present de facto Government allows it to function and allows its officials to enforce its orders." (Page 55). From the above with which I fully agree it is abundantly clear that this Court derives its jurisdiction from the Laws (Continuance in Force) Order and that it has to accept and enforce law of the de facto Government for the time being, Courts have always to see that conflict between the Court and the State is avoided even if the Government be a de facto one. If we hold that on the basis of legality the new legal order then this Court would be signing down death warrant for then there would be no Government at all. For argument sake if the Judges do not rely on the new norms then what norms are available for them to proceed with. In a revolutionary situation like the present one they have either to quit or to accept the new norms. The mere fact that according to the new Legal Order the jurisdiction of this Court has been curtailed somewhat is no ground for questioning the validity of the order. Even

under the Constitution of 1973 the jurisdiction of the superior Courts could be curtailed and had in fact been curtailed a number of times by a number of amendments in the Constitution. Could not an amendment be validly made in the Constitution of 1973 for deleting clause (3) of Article 184 altogether. Could then it be asserted that our judicial power which could not be taken away had been taken away. Judicial power is quite different from jurisdiction. The judicial power always rests in Courts and that has not been taken away by the new Legal Order. It has however now to be exercised within the framework of the new Legal Order. So far as the doctrine of necessity is concerned it is not an independent legal system. It is always an integral part of the framework of a total Legal Order. When there is no provision in the total Legal Order for dealing with a particular situations then the doctrine of necessity is resorted to. The situation in Pakistan on the; 4th of July 1977, was such that there was total breakdown of law and order and a situation had arisen for which the Constitution. of 197 3 had no provision to deal with. The Chief of the Army Staff, therefore, resorted to the doctrine of necessity and issued the Proclamation of the 5th of July suspending the Constitution and proclaiming himself as Chief Martial Law Administrator. Now when by the Proclamation the Constitution was suspended the doctrine of necessity automatically got suspended with it and was not thereafter available for controlling the Martial Law or the actions to be taken under it. On the issuance of the Laws (Continuance in Force) Order a new Legal Order came into being and the doctrine of necessity again automatically reappeared with it, but within the framework of the new Legal Order. In future if no provision can be found for dealing with z situation that might arise under the new Legal Order then the doctrine of necessity can again be resorted to. But so long as there was a provision in the new. Legal Order for dealing with a case or situation the doctrine of necessity could) not be resorted to. Any action of the .Martial Law authorities which is taken) in consequence of any Martial Law Regulation or Martial Law Order could not, therefore, be challenged or questioned on the doctrine of necessity. All the actions of the de facto Government can be tested only when the said Government comes to' an end and the old Legal Order is revived. In` that case the action of the Martial law authorities would be tested on the) basis of the old Legal Order. In this connection reference can be made to, Salmond on Jurisprudence, 11th Edition, page 25, relevant para. from which is reproduced below :"The formal establishment of such, a system of military Government and justice in time of internal war or rebellion is commonly known as the proclamation of martial law. With the acts of the military authorities done in pursuance of such a system the civil Courts of law will not concern themselves in time of war." Reference may also be made to the authority reported in P L D 1953 Lah. 528. The following passage from this authority is worth perusal;-"But so long as Martial Law lasts such orders cannot form justiciable issues before the civil Courts, not because the civil Courts have no jurisdiction but because their jurisdiction can at any time be ended by show or use of force by the military. Once, however, Martial Law is lifted, the threat to the existence of the Civil Courts disappears and they can then not only function in a normal way but also call in question the acts of the military whose only defence an either be the right of private defence or the right disperse unlawful assembly or some indemnity legislation." This observation was made despite the fact that in the case in question no new Legal Order had at all been established. The above would therefore show that during the continuance of Martial Law the action of the Martial Law authorities could not be questioned in civil Courts. The argument that a decision holding the action of the Martial Law authority immune from judicial scrutiny by Courts would encourage revolutions and coups detat has no substance in it as revolutions and coups d'etat cannot be prevented by judgments. Despite the judgment of this Court in Asma Jillani's case .a coup d'etat did take place, for whatever reason, it is immaterial. We daily see the revolutions and coups d'etat do take place despite provisions regarding treason in Constitutions of the countries. The persons

who, want to stage a revolution or coups d'etat do not have any regard for the judgments or the Constitutional provisions. They go forward despite these and rule if they succeed or are executed if they fail. Only recently we have noticed such instances in our neighbouring countries. The assertion that the Chief Martial Law Administrator had given statements and made pledges that he would do this and in such and such time does not detract from the existence of the Martial Law or the powers which are exercised under it. The Courts have nothing to do with these statements as such like statements and pledges are not enforceable under any law in any Court. Even in legal Governments the Prime Ministers who are 'generally the Chief Executives make wild promises either at the time of elections or even thereafter but no Court can come forward and direct them to fulfil their promise. This is a matter between them and the people. If they fulfil their promises people will be pleased with them but if they do not then it is for the people to resort to any action they might like to, but the Courts have nothing to do with that. The Courts cannot give any direction that the Chief Martial Law Administrator is to do such and such thing or not to do such and such thing and within such and such time simply because he had wade certain statements and promises. This is outside the scope of the jurisdiction of the Court. The upshot of the above discussion is :(1) That the Laws (Continuance in Force) Order which is effectual for the time being is the new Legal Order for the time being. (2) That the new Legal Order has suppressed the old Legal Order (Constitution) for the time being. (3) That this Court derives its jurisdiction from the new Legal Order and that the orders of detentions in question cannot be challenged in this Court in view of the proviso to Article 2 and Article 4 of the Order. The petition is therefore dismissed. MUHAMMAD HALEEM, J. -I have had the advantage of reading -the judgment proposed to be delivered by my Lord the Chief Justice and concur with it in full and have nothing further to add. G. SAFDAR SHAH, J.-During the course of rather extended, albeit, able arguments addressed to us by Mr. Sharifuddin Pirzada, learned Attorney-General for Pakistan, Mr. A. K. Brohi, learned counsel for the Federation of Pakistan and Mr. Yahya Bakhtiar, learned counsel for the petitioners, I was tempted to write a separate judgment But after going through the judgment of my Lord the Chief Justice 1 abandoned the idea as I thought it would simply duplicate the process. The lucid and able exposition by my Lord the Chief Justice of the various complicated and difficult Constitutional issues in this case is indeed worthy of admiration, particularly when his Lordship was able to finalise his judgment within a very short time. Respectfully, therefore, concurring in the judgment of my Lord the Chief Justice, and being of the same opinion that in view of the suspension off Fundamental Rights by subsection (3) of section 2 of the Laws (Continuance' in Force) Order, 1977, this Court has no jurisdiction to grant to petitioners' any relief. This petition is therefore dismissed. DR. NASIM HASAN SHAH, J.-I have had the advantage of perusing the judgment proposed to be delivered by my Lord the Chief Justice and am in respectful agreement with it. As I consider that some aspects of the questions which fall for decision may usefully be highlighted further, I venture to add a few words of my own. 2. The facts which form the background have been lucidly set out in the judgment of my Lord the Chief Justice and need not be repeated. As I appreciate the problems that arise in this case, they are, firstly, to ascertain the precise nature of the change that took place by the issuance of the Proclamation of Martial Law on 5th July 1977, and the promulgation on the same day of the Laws (Continuance in Force) Order-r 1977; secondly, to

determine the legal effect of these steps and, thirdly, in case these acts are not lawful, whether they can be validated on any juristic principle. 3. The consideration of our political history shows that the Armed Forces have, during the past two decades, stepped in to govern the country on three different occasions. In October 1958, when the 1956 Constitution was in force, the President of the Republic, General Iskandar Mirza, in collaboration with the Army, took over the country, abrogated the Constitution and placed the country under Martial Law, appointing General Muhammad Ayub Khan to govern the country, through a legal instrument, called the Laws (Continuance in Force) Order, 1958. The latter, who shortly thereafter had also assumed the office of President, framed a Constitution for the country, which was promulgated on 7th June 1962. This Constitution remained in force till 25th March 1969, when President Ayub Khan, being unable to control the agitation mounted against his rule, invited the Commander-in-Chief of the Army to step to save the country from internal disorder and chaos. The Commander-in-Chief, General Muhammad Yahya Khan, willingly obliged again placed the country under Martial Law by the Proclamation issued by him on 26th March 1969, abrogated the Constitution of 1962 and dissolved the National and Provincial Assemblies. A few days thereafter, on 31st March 1969, he promulgated the Provisional Constitution Order, which, with some variations, followed the scheme of the Laws (Continuance in Force) Order, 1958. This was the second intervention. 4. The events that took place thereafter are recent history. General Elections, on the basis of One-man One-vote were held throughout the country in December 1970, in pursuance of the Legal Framework Order, promulgated earlier on 30th March 1970. These resulted in a land-slide victory for Sh. Mujib-ur-Rehman's Awami League in East Pakistan and an impressive victory for Mr. Z. A. Bhutto's People's Party in West Pakistan. Owing to the secessionist movement started by the Awami League, the follies of General Muhammad Yahya Khan and the massive intervention of India, followed by armed aggression, East Pakistan was dismembered from the mother country on 16th December 1971. Thereafter the elected representatives belonging to Western Wing, alongwith two members from East Pakistan, met in Islamabad on April 14, 1972, as the National Assembly of Pakistan and proceeded to enact the Interim Constitution on April 21, 1972. Subsequently, this body framed the Permanent Constitution of Pakistan, which came into force on 14th August 1973. Some four years later country-wide elections were held on 7th March 1977, under its provisions. However, as soon as the Election Results were announced, practically the whole country rose in protest against them, being convinced that they were manipulated and the outcome of massive rigging. The main demands made in the general agitation that followed were that the Prime Minister should resign and that fair and free elections be held afresh. The ruling People's Party and the Opposition Parties, represented by an alliance, called the Pakistan National Alliance, held lengthy Conferences to resolve this grave problem, but without success. This led to the third Military intervention, in the early hours of 5th July 1977. 5. The Chief of the Army Staff General Muhammad Zia-ul-Haq proclaimed Martial Law, the Constitution was ordered to remain in abeyance, the National Assembly, Senate and Provincial Assemblies were dissolved, the Prime Minister and other Ministers ceased to hold offices. However, the President of Pakistan was continued in the office. On the same day the Laws (Continuance in Force) Order, 1977 was promulgated providing for the governance of the country in accordance with the provisions of the 1973 Constitution as nearly as may be, notwithstanding its abeyance, subject to certain stipulations. 6. So far as the two earlier interventions of October 1958, and March 1969, are concerned, this Court has had the occasion to examine the question of their legal effect. The legal effect of the intervention of 1958 came up for consideration in the case State v. Dossa P L D 1958 S C (Pak.) 23. Muhammad Munir, C. J., who wrote the leading judgment, observed therein that "it sometimes happens however that a Constitution and the national Legal Order under it is disrupted by an abrupt political change not within the contemplation of the Constitution. Any such change is called a revolution and its legal effect is not only the destruction of the existing Constitution but also the validity of the national Legal Order." The learned Chief Justice went on to observe "the essential condition to determine whether a Constitution has been annulled is the efficacy of the

change." In other words, if a revolution a legalised illegality. The revolution itself becomes a law creating fact because thereafter its own legality is judged not by reference to the annulled Constitution but by reference to its own success. For this view, reliance was placed on the writings of Hans Kelsen contained in his Book on the "General Theory of Law and State." Th., Court held that the 1958 revolution satisfied the test of efficacy and had thus become a basic law creating fact. It was accordingly. found that the Laws (Continuance in Force) Order, 1958, however transitory or imperfect it might be, was a new Legal Order and had destroyed the old Legal Order, with the result that the validity of the laws and correctness of judicial decisions were to be determined with reference to that Order and not the earlier Order. 7. However, when the validity of the second intervention of 1969 came up for examination, a totally different view was taken of its legal effect. This is evident from the judgment of this Court in the case entitled Asma Allani v. Government of Punjab P L D 1972 S C 139. Herein also the Proclamation of Martial Law by General Muhammad Yahya Khan and the abrogation of 1962 Constitution so as to introduce military rule, were considered and it was held that the assumption of power by General Muhammad Yahya Khan and installation of himself as the President and Chief Martial Law Administrator by the Proclamation of 1969 was entirely illegal. The ruling in Dossu's case that where a Constitution and the national Legal Order under it is disrupted by an abrupt political change not within the contemplation of the Constitution, such a change is called revolution and its legal effect is not only the destruction of the existing Constitution 'out also of the validity of the national Legal Order, irrespective of how and by whom such a change is brought about, was held not to be good law. General Yahya Khan was held to be a usurper and all the actions taken by him found to be illegal and illegitimate. In order to avoid the disastrous consequences of declaring all acts done during his rule, whether legislative or otherwise, to be of no legal effect, it was, however, held that those which were in the wider public interest could be condoned on the principle of condonation, notwithstanding their illegality. 8. This brings us to the consideration of the legal effect of the third and present intervention. The contention on behalf of the petitioner, of course, is that the acts of General Muhammad Zia-ul-Haq in placing the country under Martial Law, suspending the Constitution and ordering the governance of the country in accordance with the provisions of the Laws (Continuance in Force) Order, 1977, are, as held by this Court in Asma Jilani's case, illegal. Hence the Proclamation of Martial Law and the Laws (Continuance in Force) Order are liable to be declared as without lawful authority. 9. This contention is refuted by Mr. A. K. Brohi, appearing on behalf of the Federation of .Pakistan, who submits that the view of the consequences of the military take-over by this Court in Anna Jillani's case was not correct. On the other hand, the conclusions arrived at by this Court in the earlier case of Dosso were correct, because even an extra-legal act not within the contemplation of the Constitution which effectively destroys or supersedes the old national Legal Order is a law-creating fact and the validity of the said action is to be judged not by reference to the old Legal Order, but by reference to the new Legal Order. 10. The question, therefore, is as to which of the two views is correct? However, to ascertain whether the rule to be applied in the present case should be the one laid down in Dosso's case or the one laid down in Asma Jillani's; it must first be examined if the nature of the military interventions that took place in October 1958 and March 1969 are similar in character to the intervention now in question. 11. The Proclamation of Martial Law issued by the President Iskandar Mirza in October 1958, shows that he decided that :(a) The Constitution of the 23rd March 1956 will be arbrogated. (b) The Central and Provincial Governments will be dismissed with immediate effect. (c) The National Parliament and Provincial Assemblies will be dissolved.

(d) All political parties will be abolished. (e) Until alternative arrangements are made, Pakistan will come under Martial Law. General Muhammad Ayub Khan, Commander-in-Chief of Pakistan Army was, accordingly, appointed as the Chief Martial Law Administrator and all the Armed Forces of Pakistan placed under his command. Explaining the reasons for these steps the President, inter alia, observed ."The Constitution which was brought into being on 23rd March 1956, after so many tribulations, is unworkable. It is full of dangerous compromises, that Pakistan will soon disintegrate internally if the inherent malaise is not removed. To rectify them, the country must first be taken to sanity by a peaceful revolution. Then, it is my intention to collect a number of patriotic persons to examine our problems in -the political field and devise a Constitution more suitable to the genius of the Muslim people. When it is ready, and at the appropriate time, it will be submitted to the referendum of the people." The Proclamation read with the above declaration of intent shows . that the intention was to destroy the old national Legal Order. Accordingly the Constitution was abrogated and it was clarified that it was proposed to replace it by a new one. Although the Laws (Continuance in Force) Order, 1958 provided for the governance of the country as nearly as may be, in accordance with the Constitution of 1956, yet this was only for the interregnum. The said Constitution described as the late Constitution in the Laws (Continuance in Force) Order and, of course, was subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law. Hence it could truly be said that the intervention of 1958 was intended to and did in effect supersede the old national Order, ,"substituting it by a new national Legal Order. 11. The position of the 1969 intervention was similar to the 1958 intervention. By the Proclamation of Martial Law of 25th March, 1969, the whole of Pakistan was placed under Martial Law and the Constitution of the Islamic Republic of Pakistan, 1962, was abrogated. In the broadcast made by General Yahya Khan, Commander-in-Chief of the Pakistan Army, on the following day, I.e. 26th March, 1969, it was unambiguously stated that the Constitution of 1962 was to be replaced by a new Constitution as is evident from the following extract from his speech; ". . . It is my firm belief that a sound, clean and honest administration is a prerequisite for sane arid constructive . political life and for the smooth transfer of power to the representatives of the people elected freely and impartially on the basis of adult franchise. It will be the task of these elected representatives to give the country a workable constitution. . . , . ." Thus in both the above-noted instances the purpose of the intervention was not only to suppress the existing Constitutions, but to replace them by new Constitutions. The old Legal Order was to be replaced by a new legal Order. 12. The present situation, however, is radically different. Although by the Proclamation of 5th July, 1977 the whole of Pakistan has come under Martial Law, the Constitution has not been abrogated but merely kept in abeyance. The President of Pakistan elected under the 1973 Constitution is to continue in office. Furthermore, there is no intention to substitute the present Legal Order by a new Legal Order, for this Legal Order is to be revived after fresh' elections have been held. These too will be held under the provisions of the 1973 Constitution. The real character of the present intervention has been explained by the Chief Martial Law Administrator himself in his speech made on 5th July, 1977, the relevant portion whereof may usefully be reproduced below;-". . But the Constitution has not been abrogated. Only the operation of certain parts of the Constitution has been held in abeyance. Mr. Fazal Elahi Chaudhary has very kindly consented to continue to discharge his duties as President of Pakistan as heretofore under the same Constitution. I. am grateful to him for this. To assist him in the discharge of his national duties, a four-member Military Council has been formed. The Council consists

of the Chairman, Joint Chiefs of Staff, and Chiefs of Staff of the Army, Navy ;end Air Force. I will discharge the duties of the Chief of Army Staff and Chief Martial Law Administrator. Martial Law Orders and Instructions, as and when required, will be issued under my orders." The reasons necessitating the intervention were explained in the following words;--"The elections were held in our beloved homeland on March 7 last. The election results, however. were rejected by one of the contending parties, namely the Pakistan National Alliance. They alleged that the elections had been rigged on a large scale and demanded fresh elections. To press their demand for re-elections, they launched a movement which assumed such dimensions ?`pat people even started saying that democracy was not workable :n Pakistan. But, I genuinely feel that the survival of this country lies in democracy alone. It is mainly due to this belief that the Armed Forces resisted the temptation to take over during the recent provocative circumstances in spite of diverse massive political pressures. The Armed Forces have always desired and tried for the political solution to political problems. That is why the Armed Forces stressed on the then Government that they should reach a compromise with their political rivals without any loss of time... It must; be quite clear to you now that when the political leaders failed to steer the country of a crisis, it is an inexcusable sin for the Armed Forces to sit as silent spectators. It is primarily, for this reason, that the Army, perforce had to intervene to save the country. I would like to point out that I saw no prospects of a compromise between the People's Party and the P. N. A., because of their mutual distrust and lack of faith. It was feared that the failure of the P. N. A. and P. P. P. to reach a compromise would throw the country into chaos and the country would thus be plunged into a more serious crisis. This risk could not be taken in view of the larger interests of the country. The Army had, therefore, to act as a result of which the Government of Mr. Bhutto has ceased to exist ; martial law has been imposed throughout the country ; the National and Provincial Assemblies have been dissolved and the Provincial Governors and Ministers have been removed." However, a categorical assurance that there was no intention to establish a new Legal Order, but merely to help the country to get back on the rails of constitutionalism was thereafter given, in the following words;-" . I was obliged to step in to fill in the vacuum created by the Political leaders. I have accepted this challenge as a true soldier of Islam. My sole aim Is to organise free and fair elections which would be held in October this year. Soon after the polls, power will be transferred to, the elected representatives of the people . . . ." The intervention thus appears to be for a temporary period and for limited purpose of arranging fair and free elections so as to enable the country to return to the democratic way of life. Thus on the present occasion the Proclamation of Martial Law does not appear to be of the same type as the Proclamations of Martial Laws of 1958 and 1969, whereby not only the existing Constitutions were abrogated but that this was done with the intention of replacing them with new Constitutions. The purpose there was to destroy the existing Legal Orders and replace them with new Legal Orders. In the present case the situation is quite different. In view of the. break-down of the normal constitutional machinery and to fill the vacuum, the Armed Forces were obliged to take an extra-constitutional step. Martial Law was imposed, in the picturesque words used in the written statement filed by Mr. Brohi, not "in order to disable the constitutional authority, but in order to provide a bridge to enable the country to return to the path of constitutional rule." In the felicitous phrase of my Lord the Chief Justice, the act was more in the nature of a "constitutional deviation" rather than an overthrow of the Constitution. The Constitution of 1973 is not buried but merely suspended. It, however, continues to be the governing instrument subject to the provisions of the Laws (Continuance in Force) Order, 1977. In these circumstances neither the ratio decidendi of

Dosso v. State nor that of Asma Jillani v. The Punjab Government is strictly applicable to the present case. 13. The question next arises whether the above intervention was a step which could lawfully be taken. So far as this point is concerned, it is an admitted position that there is no provision in the Constitution authorising the Army Commander, even in the event of the break-down of the constitutional machinery to intervene in the manner that he did. But Mr. Sharif-ud-Din Pirzada, Attorney-General of Pakistan, submitted before us that since the country cannot be allowed to perish for the sake of the Constitution, the intervention was justified on the doctrine of State necessity, while Mr. Brohi contended that as the old Legal Order had been effectively replaced by a new Legal Order, henceforth all questions of legality were answerable with reference to it, in other words all such questions were to be determined not on the basis of the previous Legal Order but with reference to the Laws (Continuance in Force) Order, 1977. 14. The doctrine of "necessity", namely rendering lawful that which otherwise is unlawful, is well-established in jurisprudence (ID QUOD -ALIAS NON EST LICITUM, NECESSITAS LICITLJM FACIT"-that which otherwise is not lawful necessity makes lawful). In constitutional law the N application of Martial Law is but an extended application of this concept N of State necessity. The doctrine of necessity was applied by the Federal Court of Pakistan only recently as a legal justification for ostensibly unconstitutional actions to fill a vacuum arising out of a Court order. See Reference by H. E. The Governor-General to the Federal Court P L D 1955 F C 435. It will be recalled that the reference was necessitated, inter alia, to overcome, the difficulty caused by the circumstance that forty; four, Acts passed by the Constituent Assembly of Pakistan had not received the assent of the Governor-General, ac required by law. The Constituent Assembly had been dissolved by the Governor-General in October, 1954, and had not been reconstituted. By a Proclamation made on 16th April 1955, the Governor-General declared certain essential laws to be enforceable until their validity was decided upon by the new Constituent Assembly. It was held that he bad acted in order to avert an impending disaster and to prevent the State. and society from dissolution and that on the ground of necessity his Proclamation should be treated as having been given the force of law to the measures specified. The principal authority relied upon was the address to the Jury by Lord Mansfield in the case of R. V. Stratton and others (1779) 21 St. Tr. 1222. The Governor of Madras acted illegally and unconstitutionally in refusing to count the votes of some of the members of his Council. The Councillors accordingly imprisoned him for eight months and carried on the Government themselves. Upon being indicted in England they set up the defence of necessity. Lord Mansfield directed the jury that the defence was one of `civil' or `State necessity'. He remarked;-"In India you may suppose a possible case, but in that case, it must be imminent, extreme necessity ; there must be no other remedy to apply to for redress ; and in the whole they do, they must appear clearly to do it with a view of preserving the society and themselves. What immense mischief would have arisen to have waited for the interposition of the Council at Bengal." The principle clearly emerging from this address is that subject to the condition of absoluteness, extremeness and imminence, an act which would otherwise be illegal becomes legal if it is done bona fide under the stress of necessity, the necessity being referable to an intention to preserve the Constitution, the State or the society and to prevent it from dissolution, and affirms Chitty's statement that necessity knows no law and the maxim cited by Bracton that necessity makes lawful which otherwise is not lawful. 15. Situations are conceivable where the normal law of the land may have to give way before necessity, particularly in a situation where the welfare of the State and its subjects are at stake, and in proper G case it would be the Court's duty to recognize such a situation and to act 0 upon the principle "salus populi suprema lex" despite the express provisions of the Constitution. An instance .of this is furnished by the case . The Attorney-General of the Republic v. Mustafa Ibrahim and others (1964) 3 Cyprus L R 195. To appreciate the background of this decision, it may be mentioned that by December 1963 the structure of the Constitution of Cyprus had broken down. The island

divided up into armed camps. The Vice-President and the Turkish Cypriot members of the Council of Ministers ceased participating in the machinery of government; the Turkish Cypriot representatives no longer sat in the House of the Representatives; but the Constitution required the concurrence of Greek and Turkish Cypriots for many important purposes. The administration of justice was thrown into chaos. For some months Turkish Judges did not attend their Courts. The mixed Courts which had to be convened to dispose of cases where the parties belonged to different communities could not be constituted. The Supreme Constitutional Court had not met since August 1963, when its neutral ,President had resigned; and by July 1964 over 400 cases were awaiting trial by the Court. In June 1964 the neutral President of the High Court resigned. 16. In July 1964 the House of Representatives, sitting without its Turkish Cypriot members, passed a law to establish a Supreme Court which was to exercise the functions previously vested in the Supreme Constitutional Court and the High Court. This law was inconsistent with a number of important articles of the 1960 Constitution; it had not been passed in the manner prescribed by the Constitution; indeed, it included provisions which conflicted with certain articles declared by the Constitution to be unalterable. 17. In August 1964 four persons charged with serious offences and committed for trial at assizes were granted bail by a District Judge. The Attorney-General appealed to the Supreme Court against this order for bail; three Judges nominated by the Court in accordance with the ? 96.1 law heard the appeal. For the respondent it was argued that the 1964 law was a nullity as it was unconstitutional, so that the Court had no valid existence. The Court unanimously rejected this plea and held that it was validly constituted and had jurisdiction to entertain the appeal. The Constitution of 1960, it was observed, had not ceased to have legal force, but it had to be read subject to the doctrine of necessity. Measures not sanctioned by the letter of the Constitution could properly be taken if they were necessary to avert a grave public evil and were proportionate to the evil to be averted. In Cyprus the presuppositions of inter-communal co-operation, on which the Constitution had been based, had foundered, and the Constitution had become unworkable. The steps taken to rectify the situation were reasonably required in the circumstances. In support of this conclusion some pertinent observations were made by the three Judges constituting the Bench. Vassiliades, J., observed;-"This Court now, in its all important and responsible function of transforming legal theory into living law, applied to the facts of daily life for the preservation of social order, is faced with the question whether the legal doctrine of necessity . . . . should or should not, be read into the provisions of the written Constitution of the Republic of Cyprus. Our unanimous view is in the affirmative. The enactment of the Administration of Justice (Miscellaneous Provisions) Law, 1964, which would otherwise appear to be inconsistent with Articles 133.1 and 153.1 of the Constitution, can be justified, if it can be shown that it was enacted only to avoid consequences which could not otherwise be avoided and which; if they had followed, would have inflicted upon the people of Cyprus, when the Executive and Legislative Organs of the Republic are bound to protect, inevitable irreparable evil; and furthermore if it can be shown that no more was done than was reasonably necessary for the purpose, and that the evil inflicted by the enactment in question was not disproportionate to the evil avoided-Law was justified notwithstanding the provisions of Articles 133.1 and 153.1 of the Constitution." Triantafyllides, J., after reproducing the facts of .the Constitutional impasse observed:"Organs of Government set up under a Constitution are vested expressly with the competence granted to them by such constitution, but they have always an implied duty to govern too., It would be absurd to accept that if, for one reason -or other, an emergency arises, which cannot be met within the express letter of the constitution, then such organs need not take the necessary measures in the matter, and that they would be entitled to abdicate their responsibilities and watch helplessly the disintegration of the country or an essential function of the State, such as the administration of justice. Notwithstanding a constitutional deadlock, the State continues to exist and together with it continues to exist the need for proper government. The Government and the Legislature

are empowered and bound to see that legislative measures are taken in ensuring proper administration where what has- been provided for under the Constitution, for the purpose, has ceased to function" He went on to observe :.Having considered the jurisprudence and authoritative writings of other countries to which this Court has been referred, as well as some others, I am of the opinion that the doctrine of necessity in public law is in reality, the acceptance of necessity as a source of authority for acting m a manner not regulated by law but required, in prevailing circumstances, by supreme public interest, for the salvation of the State and its people. In such cases `salus populi' becomes `supremo lex'. " Another pertinent observation may also be reproduced: "Even though the Constitution is deemed to be a supreme law limiting the sovereignty of the Legislature, nevertheless, where the Constitution itself cannot, measure up to a situation which has arisen, especially where such situation is contrary to its fundamental theme, or where an organ set up under the Constitution cannot function and where, furthermore, in view of the nature of the Constitution it is not possible for the sovereign will of the people to manifest itself, through an amendment of the Constitution, in redressing the position, then, in my opinion according to the doctrine of necessity the legislative power, under Article 61 remains unhindered by Article 179, and not only it can, but it must, be exercised for the benefit of the people." He then went on to make the observation relied upon by Mr. Sharifuddin Pirzada that a State and people should not be allowed to perish for the sake of Constitution. On the contrary, the Constitution should exist for the preservation of the State and welfare of the people. However, he qualified his observations by laying down that where the doctrine of necessity has been invoked it is for the judiciary to determine if the necessity in question actually exists and also if the measures taken were warranted thereby. Josephides, J., also held that he interpreted the Constitution to include the doctrine of necessity in exceptional circumstances, as an implied exception to particular provisions of the Constitution in order to ensure the very existence of the State. Commenting on the situation that had arisen he remarked. "Faced with the non-functioning of the two superior Courts of the land and the partial break-down of the District Court, the Government had to choose between the alternatives, viz. either to comply with the strict letter of the Constitution (the relevant articles being unalterable under any Condition), that is, cross its arms and do nothing but witness the complete paralysis of the judicial power, which is one of the three pillars of the State; or to deviate from the letter of the constitution, which had been rendered inoperative by the force of events (which situation could not be foreseen by the framers of the Constitution) . . . . ." However, he laid down the following pre-requisites to be satisfied before this doctrine could become applicable :(a) an imperative and inevitable necessity or exceptional circumstances; (b) no other remedy to apply; (c) the measure taken must be proportionate to the necessity; and (d) it must be of a temporary character limited to the duration of the exceptional circumstances. 18. The doctrine of necessity was also invoked by two Judges of the Divisional Bench of the High Court of Southern Rhodesia (Lewis and Goldin, JJ.) in the famous ease Madzimbamuto v. V. Lardner-Burke (1967) 83 L Q R 64. The Divisional Bench held that although the existing Government of Mr. Smith and his colleagues was not the lawful Government of the Southern Rhodesia (having unilaterally declared

independence -UDI- and broken away from the British Crown and framed its own Constitution in 1965, in supersession of the Constitution enacted by the British Parliament in 1961) the Government could nevertheless continue to retain without trial two persons in terms of a Southern Rhodesia's statute which conferred the power to detain persons without trial only upon the lawful Government of Southern Rhodesia. This finding was grounded on the following hypothesis: "The Government is, however, the only effective Government of the country, and therefore on the basis of necessity and in order to avoid chaos and a vacuum in the law, this Court should give effect to such measures of the effective Government, both legislative and administrative, as could lawfully have been taken by the lawful Government under the 1961 Constitution for the preservation of peace and good Government and the' maintenance of law and order." 19. The appeal from this judgment was heard by a Bench of five Judges of the Appellate Division of the Rhodesian High Court (1968) 2 S A, of whom only one, Fieldsend A. J. A. agreed with the first Court with respect to the doctrine of necessity. According to him "in considering each individual case that comes before it the Court must not lose sight of the political situation and the political realities. The question is whether these political realities create such a situation that, judged by the yardstick of 1961 Constitution the Court should decide that situation sanctions for the accord of validity to some acts of measures done or enacted otherwise than by the machinery of that Constitution." He went on to add: "Lewis, J., in the Court fully relied on the maxim "salus populi suprema lex", which is in effect the doctrine of State necessity to justify a departure from the express terms of the 1961. Constitution. In his alternative argument in this Court Mr. Rathouse said that he preferred not to put his case squarely upon this basis, but to rely rather upon what he termed "natural necessity" to determine whether or not there is any room for the introduction of a doctrine of necessity to mitigate the strict application of the Constitution it is necessary first to ascertain the principles underlying the commonly accepted meaning of the doctrine. This can best be done by reference to certain of the cases from which these emerge." He then referred to several cases, of which the following two are of particular interest and are accordingly being reproduced hereunder. In R. v. Bekker & Naude (1900) 17 SC 340, Solomon, J., said at page 355 :"Martial Law is nothing more nor less than the law of self-defence or the law of necessity. It is put in force in times of public danger, when the maxim salus reipublicae extrema lex applies, and when in consequence it becomes necessary for the military authorities to assume control and to take the law into their own hands for the very purpose of preserving that Constitution which is the foundation of all the rights and liberties of its subjects. When such a state of things arises in any district, the ordinary rights and liberties of the inhabitants are subordinated to the paramount interest of the safety of the State . . . . Both the justification for proclaiming martial law and the actual exercise of authority there under are strictly limited by the necessities of the situation ;" and in White & Tucker v. Rudolph 1879 Kotze 15, Kotze, J. said at page 124: "It must be admitted that the law distinctly recognizes the maxim necessitas non habet legem, quod cogit defendit. The meaning of this is not, as some writers lay down, that necessity overrides all law, and is superior to it; but that the law justifies in certain cases, as where the safety of the State is in imminent danger, a departure from the ordinary principles protecting the subject in his right of private property. This right of private property is sacred and inviolable: any interference with it is, prima facie, wrongful and unlawful, and it is incumbent upon the respondent in the present instance to justify what he has done by showing that it was dictated by necessity that will justify a departure from the ordinary principles of law. It must be necessity extreme and imminent." His conclusion was expressed as follows :"From a consideration of all these sources and their similarities to and differences from the cases now under consideration, it seems that the only proper conclusion is that natural justice, in the form of a controlled common sense, dictates that, for the welfare of the mass of people innocently caught up in these events, validly must be accorded to some

acts of the usurping authorities, provided that no consideration of public policy to the contrary has to prevail. It is unnecessary, and indeed undesirable, to attempt to define precisely, the limits within which this validity will be accorded. The basis being broadly necessity, the decision is one which must be arrived at in the light of the circumstances of each case." The above view was favourably commented upon in the dissenting judgment of Lord Pearce in the Privy Council, although the majority rejected the principle of necessity as applied by the Rhodesian Judges (Madzimbamuto v. Lardner-Burke (1968) 3 All E R 561. Lord Pearce stressed that the British Parliament and Government had really made no effort whatever to govern Rhodesia after UDI and the argument that it was only Parliament and Parliament alone to determine whether maintenance of law and order would justify giving effect to laws made by the usurping Government to such extent as may be necessary for that purpose was altogether elusive and unreal if read as a response to the question whether and under what circumstances the necessity of avoiding chaos can be regarded (as it was conceded by the appellants that it can be regarded) as a source of law. His Lordship quoted with approval the following extract from the judgment of Fieldsend, J. :"The necessity relied on in the present case is the need to fill the vacuum which would result from a refusal to give the validity to the acts and legislation of the present authorities in continuing to provide for tile every day requirements of the inhabitants of Rhodesia over a period of two years. If such acts ware to be without validity there would be no effective means of providing money for the hospitals, the police, or the Courts, of making essential by-laws for new townships or of safeguarding the country and its people in any emergency which might occur, to mention but a few of the numerous matters which require regular attention in the complex modern state. Without constant attention to such matters the whole machinery of the administration would break down to be replaced by chaos, and the welfare of the inhabitants of all races would be grievously affected." Lord Pearce went on to observe; "The lawful Government has not attempted or purported to make any provision for such matters or for any lawful needs of the country, because it cannot. It has of necessity left all those things to the illegal . Government and its Ministers to provide. It has appointed no lawful Ministers. If one disregards all illegal provisions for the needs of the country, there is a vacuum and chaos. In my view the principle of necessity or implied mandate applies to the present circumstances in Rhodesia. I cannot accept the argument that there was no necessity since the illegal regime can always solve the problem by capaitulating. So too a foreign army of invasion can always return home. The principle of necessity or implied mandate is for the preservation of the citizen, for keeping law and order, rebus sic stantibus, regardless of whose fault it is that the crisis has been created or persists. Subject therefore to the facts fulfilling the three necessary questions, the principle of necessity or implied mandate applies in this case. This according to Lord Mansfield with whom I agree, is a question of fact. Does the ordinary orderly running of the country reasonably require it? Fieldsend, J., held that it did. The other Judges accepted different principles, and therefore their overall' conclusion is not of much assistance on this point. But Fieldsend, J., approached the case from what in my view is the right angle, and I would therefore accept his finding . . . . ." 20. Another instance wherein the principle of necessity was found to be applicable is furnished by the decision of the Supreme Court of Nigeria in the case Lakamni & Oala v. Attonery-General (West) decided on 24th April, 1970. After the rebellion in different parts of Nigeria, in January 1966, the Acting President handed over the country to the Armed Forces. The General Officer commanding the Nigerian Army accepted the invitation to form an interim Military Government. He suspended some parts of the

Constitution and started to administer the country. The State Government of Western Nigeria started to investigate the activities of public officers including E. O. Lakanmi and some members of his family. The Chairman of the Tribunal of Inquiry into the assets of such public officers made an order under Edict No. 5 of 1967 restraining the appellants (Lakanmi etc.) from disposing of their real property until the Military Government of the State directed. 21. The appellants sought certiorari to quash the order on the grounds that Edict No- 5 was void, since it purported to operate in the same field as the Federal Military Government's Decree No. 51 of 1966 which had earlier "covered the filed", and that .certain of its provisions were inconsistent with the Decree. The High Court of Ibadan rejected these arguments and the appellants appealed; while the appeal was pending, the federal Military Government passed three further Decrees in the same field, Nos. 37, 43 and 45 of 1968. The respondents took a preliminary objection that the High Court of Appeal had no jurisdiction, since the order complained of had been validated by Decree No. 45 of 1968. The Court of Appeal agreed. On a further appeal to the Supreme Court, the question arose of the validity of Decree No. 45. 22. The appellants argued that the Federal Military Government was not a revolutionary Government but a constitutional interim Government whose object was to uphold the 1963 Constitution except where the necessity to depart from it arose. The separation of powers was accordingly preserved after 1966 and the Government's power to make laws by Decrees was not therefore unfettered. Decree No. 45 could therefore be regarded as a legislative act which constituted an executive interference in the sphere of the judiciary, and was to that extent invalid. 23. The respondents argued that the Federal Military Government was a revolutionary Government which had unfettered power to rule by Decree. Nothing in the Constitution could make a Decree void, and validation laws should be regarded as a normal exercise of legislative functions. 24. The Supreme Court held that Edict No. 5 was ultra vires as Decree No. 51 covered the field. As to the validity of Decree No. 45, they accepted the appellants' argument and decided that the Federal Military Government was indeed a constitutional rather than a revolutionary Government, and that the 1963 Constitution remained law, except as derogated from under the doctrine of necessity. They refused to accept the view that the Federal Military Government derived its authority from the 1966 revolution and not from the 1963 Constitution. Separation of powers remained a part of the Constitution which had not been superseded under the doctrine of necessity; and as Decree No. 45 was not itself justified by the doctrine, it was invalid. 25. In taking the above decision the Supreme Court of Nigeria made several interesting observations and some of these may be reproduced there under with advantage :"It is to be noted from the Government Notice (No. 148) set out above that the invitation to the Armed Forces, which was duly accepted, was to form an interim Military Government. and it was made clear that only certain sections of the Constitution would be suspended. It was evident that the Government thus formed is an interim Government which would uphold the Constitution of Nigeria and would only suspend certain sections as the necessity arises." Thereafter the Court discussed the case of Uganda v. Commissioner of Prisons (1966) E A L 8,514, which followed the decision of this Court in State v. Dosso P L D 1958 S C (Pak.) 53. But the Court, however, reiterated its view that the Federal Military Government was not revolutionary Government and went on to observe;-". . . It made it clear before assuming power that the Constitution of the country still remains in force, excepting certain sections which are suspended. We have tried to show that the country is governed by the Constitution and Decrees which, from time to time, are enacted when the necessity arises and are then supreme when they are in conflict with the Constitution. It is clear that the Federal Military Government decided to govern the country by means of the Constitution and Decrees. The necessity must arise before a

decree is passed ousting any portion of the Constitution. In effect, the Constitution still remains the law of the country and all laws are subject to the Constitution excepting so far as by necessity the Constitution is amended by a Decree. This does not mean that the Constitution of the country cease, to have effect as a superior norm. From the facts of the taking-over, as we have pointed out, the Federal Military Government is an interim Government of necessity concerned in the political cauldron of its inception as a means of dealing effectively with the situation which has arisen and its main object is to protect lives and property and to maintain law and order . . . ." It was also observed that "by recognizing the fact that there is a doctrine of necessity, we do not alter the law but apply it to facts as they do exist." 26. The doctrine of necessity is also recognised in Islamic Law. Event in the Holy Qur'an the application of this doctrine is made permissible Verse, 173 of Chapter II (Sura-al-Baqr) as translated by Marmaduke Pickthal refers to it thus; "173. He hath forbidden you only carrion, and blood, and swine flesh, and that which hath been immolated to (the name of) any other than Allah. But he who is driven by necessity, neither craving nor transgressing, it is no sin for him. Lo ! Allah is Forgiving, Merciful." 27. However, before this doctrine can be invoked the following conditions must pre-exist : (a) that which is forbidden by Allah can be taken only where one is driven to it by necessity ; (b) that there is neither craving nor the intention to transgress the limits set by him ; (c) that oily that bare minimum is s taken as is necessary to save life. Thus the principle of necessity as also the conditions in which it can be resorted to are clearly set forth in Islam. 28. This somewhat lengthy review of the case-law of this country, the judgments of the superior Courts of Cyprus, Rhodesia, Nigeria and even the Privy Council show that necessity can be accepted as a justification for an extralegal act, in certain conditions. This position is also recognised in Islam. In the precedent cases, cited above it has also been observed that "Martial Law is nothing more nor less than the law of self-defence or the law of necessity (In R. v. Bekkar & Naude)", and that in constitutional law the application of Martial Law is but an extended application of the concept of State necessity (See Reference by H. E. The Governor-General to the Federal Court of Pakistan). Thus, in certain exceptional circumstances it is possible, as a measure of State necessity, to impose even Martial Law. 29. The question whether the conditions obtaining in Pakistan necessitated the above step has to be answered by reference to the happenings from 7th of March, 1977, up to 5th July, 1977, which reveal that the constitutional and moral authority of the National Assembly which had come into being as a result of the elections held on 7th March, 1977, as well as the Federal and Provincial Governments formed thereafter had been continuously and forcefully repudiated throughout the country over a prolonged of nearly four months, with the result that the national life stood d. A situation had arisen for which the Constitution provided no solution. The atmosphere was surcharged with the possibility of furthers violence, confusion and chaos. As the Constitution itself could not measure u to the situation the doctrine of State Necessity became applicable, for where the safety of the State and the welfare of the people are. in imminent danger necessity justifies a departure from the ordinary principles of law. In there circumstances the step taken by the Armed Forces of imposing Martial Law stands validated, on the principle of State Necessity, as urged by the learned Attorney-General. But by the same token this deviation must be of a temporary character, limited to the duration of the exceptional circumstances. Moreover the actions taken during this period will, for the reasons set forth so admirably by my Lord the Chief Justice, be open to judicial review. 30. I may now briefly comment upon the stand taken up by Mr. Brohi on this point. According to him the legal effect of the intervention was to be adjudged with reference to the new Legal Order, namely, the Laws (Continuance in Force) Order, 1977, and not the old Legal Order, namely, the Constitution of 1973, because, the aforesaid Order had been effectively replaced by the new Legal Order, the efficacy of the change being the basis of

its validity. In this connection Mr. Brohi relied upon the doctrine of Kelsen enunciated in his works on the Pure Theory of Law and the General Theory of Law and State. The views of Kelsen advocated by him in these works were explained to us by Mr. Brohi in some detail. However, in the facts and circumstances of our situation the doctrines propounded by Kelsen do not appear to be strictly applicable as the change-over which occurred on the 5th July 1977 cannot qualify as a "revolution" in Kelsenian terms. Although the Armed Forces are undoubtedly in effective control of the administration, it is neither their intention nor indeed have they established a new Legal Order in supersession of the existing Legal Order. The Constitution of 1973 remains the supreme law of the land, subject to the condition that certain parts thereof have bee held in abeyance. The President of Pakistan and the superior judiciary continue to function under the Constitution, subject to any limitations placed on their jurisdiction. The change is only in the nature of a constitutional deviation rather than the destruction of one Legal Order and its replacement by another. Even otherwise, the doctrines of Kelsen cannot be accepted in their entirety by Courts of Law. Whereas for Kelsen the efficacy of a revolution creates a new reality of which the pure science of law must take account for the Courts involved in practical decisions the efficacy of a revolution creates a new legal situation which they must take note of and proceed to decide the matter as raised before them by the contesting parties. In doing so they will have to take into account not only the efficacy of the change, but other values, such as the desirability of maintenance of peace, order, justice or good Government, to fill the vacuum in law and to avoid chaos, presumption in favour of the old regime because of its original legal status or against it because of its record of unconstitutional actions and conduct. In short, the responsibility of the Judge is not to the "objective reality" that exists for the academic observer but to the peace, order, justice, morality and good government. In fact, for Judges involved in practical decisions acceptance of the changed Legal Order is not so much on account of its efficacy as such but rather on necessity in the sense of "ID QUOD ALIAS NON EST. LICITUM, NECESSITAS LICITUM FACIT" (that which otherwise is not lawful necessity makes lawful). 31. As for the other points arising in the case and dealt with by my Lord the Chief Justice in his judgment, I am in complete agreement therewith and have nothing to add. ORDER OF THE COURT According to the unanimous view of the Court, this petition is dismissed as not being maintainable. S. A. H. Petition dismissed.

PLD 2000 SC 869 [Supreme Court of Pakistan] Present: Irshad Hasan Khan, C J., Muhammad Bashir Jehangiri, Sh. Ijaz Nisar, Abdur Rehman Khan, Sh.Riaz Ahmed, Ch. Muhammad Arif, Munir A. Sheikh, Rashid Aziz Khan, Nazim Hussain Siddiqui, Iftikhar Muhammad Chaudhary, Qazi Muhammad Farooq and Rana Bhagwan Das, JJ Syed ZAFAR ALI SHAH and others---Petitioners versus General PERVEZ.MUSHARRAF, CHIEF EXECUTIVE OF PAKISTAN and others---Respondents Constitutional Petitions Nos. 62, 63, 53, 57, 66, 64 of 1999 and 3 of 2000, decided on 12th May, 2000. (Constitution petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973). (a) Constitution of Pakistan (1973)------Art.184---Provisional Constitution Order (1 of 1999), Preamble---Oath of Office of (Judges) Order (1 of 2000), Art.3---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Power of judicial review of Supreme Court---Concept and scope---Restriction imposed by Provisional Constitution Order, 1999 does not in any way restrict the power of judicial review of Supreme Court whereunder the Court has an inherent power to interpret any provision of the Constitution or any other legislative instrument or law, even if that particular provision is the one which seeks to oust the jurisdiction of Supreme Court---No form of oath taken by or administered to the Judges of superior Courts can restrict the judicial power and derogate from the legal position that the Courts, as final arbiters in any constitutional controversy, retain their power and jurisdiction to say as to what a particular provision of the Constitution or the law means or does not mean even if that particular provision is one seeking to oust such jurisdiction of the Court---On no principle of necessity could powers of the judicial review vested in the superior Courts under Constitution of Pakistan (1973) be taken away---Any provision purporting to restrain the power of judicial review of the superior Courts is to be ignored altogether--Principles. Judicial power means that the superior Courts can strike down a law on the touchstone of the Constitution. The nature of judicial power and its relationship to jurisdiction are all allied concepts and the same cannot be taken away. It is inherent in the nature of judicial power that the Constitution is regarded as the supreme law and any law or act contrary to it or infringing its provisions is to be struck down by the Court in that the duty and function of the Court is to enforce the Constitution. The basic question, which needs to be resolved in the present case is whether the restriction imposed by the Provisional Constitution Order 1 of 1999 on the jurisdiction of Supreme Court does in anyway restrict the power of judicial review of Supreme Court whereunder if has an inherent power to interpret any provision of the Constitution. or any other legislative instrument or law, even if that particular provision is a provision which seeks to oust the jurisdiction of Supreme Court. Judiciary is the only forum recognized by both the rulers and the ruled where: (1) questions of validity and legitimacy are capable of being resolved finally with a view to controlling the recklessness of the Government in power and where (2) declining to resolve it would tantamount to self-condemnation, self-destruction and betrayal of the trust of the people of Pakistan. No form of oath taken by or administered to the Judges of

the superior Courts can restrict the judicial power and derogate from the legal position that the Courts, as final arbiters in any constitutional controversy, retain their power and jurisdiction to say as to what a particular provision of the Constitution or the law means or does not mean even if that particular provision is one seeking to oust such jurisdiction of the Court. Any attempt to control or circumscribe the judicial power of the superior Courts with a view to denying -them the right to decide the validity and the quantum of legislative power of the new regime, would be an exercise in futility. Changing the form of oath will neither take away power of judicial review nor the jurisdiction of Supreme Court. Notwithstanding the new oath or its language, the Courts shall continue to have jurisdiction to decide the controversy involved as if the new oath and the "new constitutional documents" under which the oath is administered, do not adversely affect the jurisdiction and power of the Court. Superior Courts follow the Code of Conduct prescribed for the Judges and inherently owe allegiance to the State of Pakistan, which requires Supreme Court to decide the issue of validity of the new regime under which the Judges are being asked to take new oath inasmuch as such allegiance cannot be taken away. The oath administered under the Constitution has to be respected because that draws its authority from the people of Pakistan whereas the oath under the Constitution to defend the same has a different meaning than an oath administered under a document, validity whereof is yet to be determined and thus the two are incomparable. The Objectives Resolution recognises the `Islamic doctrine of sovereignty' as expounded in the Holy Book (Qur'an), that sovereignty belongs neither to the ruler nor the ruled but Almighty Allah alone which is to be exercised by the people of Pakistan through their chosen representatives. The Objectives Resolution also envisages that the independence of Judiciary is to be fully secured. It is a fundamental principle of jurisprudence that Courts must always endeavour to expand their jurisdiction so that the rights of the people are guarded against arbitrary violations by the executive. The orders of the Chief Executive are subject to the jurisdiction of the Constitutional Courts of the land. By including paragraphs 2(b) and 7 in the Provisional Constitution Order, 1999, it has been recognized that the superior Courts, which are respected by the people being an embodiment of the ideals of justice and guardian of the rights of the people are not merely entitled to continue but have, in fact, done so in the past as well. The Oath of Office (Judges) Order, 2000 (Order 1 of 2000), dated 25th January, 2000 allows all the Courts to continue to function and exercise powers, which is a reiteration of what was earlier stated by the Oath of Office (Judges) Order, 1999 (Order 10 of 1999), paragraph 3 whereof states that Order 1 of 2000 shall apply to:. (1) newly appointed Judges; (2) that Oath shall be made before the constitutional authority; and (3) that it would be in accordance with the appropriate form set out in the Third Schedule to the Constitution. This required the newly appointed Judges to take oath before the constitutionally designated authority and as per the procedure prescribed by the Constitution and not by the Order 1 of 2000. Any provision purporting to restrain the power of judicial review of the superior Courts is to be ignored altogether. A Judge acting in his conscience and in good faith may decide to resign or he may decide that in the higher public interest he would retain office as has been done by the Judges of Supreme Court and other Judges of the Superior Judiciary. Contention that after having taken oaths -of their offices under the Provisional Constitution Order, 1999 as amended, the Judges of the superior Courts are bound to defend the Proclamation of Emergency and the Provisional Constitution Order, 1999 as amended, in that, the old Constitution has been replaced by a new revolutionary order on the basis of the verdict earlier given by Supreme Court in the case of Begum Nusrat Bhutto PLD 1977 SC 657, is totally misconceived in that it was clearly stated in the said judgment that on no principle of necessity could powers of the judicial review vested in the superior Courts under 1973 Constitution be taken away. The old Order has not been replaced by a new Order but it was merely a case of constitutional deviation for a temporary period. The evolution of judicial power is coterminous with the evolution of civilization and this is so because judicial power has to check the arbitrary exercise of powers by any organ or authority. Provisional Constitution Order, 1999 purports to suspend the Constitution on the one hand and, on the other, it says that the country will be governed in accordance with the provisions of the Constitution as nearly as possible. What emerges from this is

that the Fundamental Rights are left intact except those which had been suspended by the earlier Proclamation of Emergency dated 28-5-1999 i.e. Articles 15 to 19 and 24 of the Constitution. The Court must take into account before determining the legitimacy of a revolutionary regime, the two oblique arguments, which would attempt to undermine it: one relating to collapse of its jurisdiction with the disappearance of .the old Constitution; and the other relating to subservience of the Judiciary to the new regime. Judicial review, must, therefore, remain strictly judicial and in its exercise, Judges must take care not to intrude upon the domain of the other branches of Government. The power of judicial review should be exercised with caution. The Army take-over of 12th October, 1999 was extra constitutional. The superior Courts of Pakistan retain the power of judicial review despite the ouster of jurisdiction which came either from within the Constitution, or by virtue of Martial Law Orders or by legislation. Even non obstante clauses in these cases would fail to prevent such objectives of the incumbent administrations. Thus visualised, the purported ouster in the Proclamation and the Provisional Constitution Order, 1 of 1999 of the jurisdiction of the superior Courts is an exercise in futility and the power of judicial review remains intact. Both under Islamic doctrines as well as under its constitutional/ juridical personality, the superior Courts would continue to exercise this power. Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division 1994 SCMR 2142; William Marbury v. James Medison 2 Law Ed. 60; Spirit of Law by Montesquieu; Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657; Principles of Revolutionary Legality by J.M. Eekelaar and Constitutional Legitimacy---A Study of the Doctrine of Necessity by Leslie Wolf-Phillips ref. (b) Constitution of Pakistan (1973)------Arts.2A & 175---Independence, of Judiciary---Concept---Independence of Judiciary is basic principle of the constitutional system of governance--Judiciary has to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances; and also has to be strong and independent enough to dispense justice fairly and impartially--Efficient and independent Judiciary can foster an appropriate, legal and Judicial environment where there is peace and security in the society, safety of life, protection of property and guarantee of essential human rights and fundamental freedoms for all individuals and groups, irrespective of any distinction or discrimination on the basis of caste, creed, colour, culture, gender or place of origin etc. ---Such a legal and judicial environment, is conducive to economic growth and social development---Principles. The Objectives Resolution contained in the Preamble to the Constitution, which now forms substantive part thereof by virtue of Article 2A as well as declaration of Quaid-e-Azam about democratic set-up and social justice, envisage independence of Judiciary. The basic functions of the Judiciary are to promote the administration of justice, to protect Human Rights and to maintain Rule of Law in the country. The independence of Judiciary is a basic principle of the constitutional system of governance in Pakistan. The Constitution of Pakistan contains specific and categorical provisions for the independence of Judiciary. The Preamble and Article 2A state that "the independence of Judiciary shall be fully secured"; and with a view to achieve this objective, Article 175 provides that "the Judiciary shall be separated progressively from the executive".

In a system of constitutional governance, guaranteeing Fundamental Rights, and based on principle of trichotomy of powers, such as ours, the Judiciary plays a crucial role of interpreting and applying the law and adjudicating upon disputes arising among governments or between State and citizens or citizens inter se. The Judiciary is entrusted with the responsibility for enforcement of Fundamental Rights. This calls for an independent and vigilant system of judicial administration so that all acts and actions leading to infringement of Fundamental Rights are nullified and the rule of law upheld in the society. The Constitution makes it the exclusive power/responsibility of the. Judiciary to ensure the sustenance of system of "separation of powers" based on checks and balances. This is a legal obligation assigned to the Judiciary. It is called upon to enforce the Constitution and safeguard the Fundamental Rights and freedom of individuals. To do so, the Judiciary has to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances; and also has to be strong and independent enough to dispense justice fairly and impartially. It is such an efficient and independent Judiciary which can foster an appropriate legal and judicial environment where there is peace and security in the society, safety of life, protection of property and guarantee of essential human rights and fundamental freedoms for all individuals and groups, irrespective of any distinction or discrimination on the basis of caste, creed, colour, culture, gender or place of origin, etc. It is' indeed such a legal and judicial environment, which. is conducive to economic growth and social development. The independence of Judiciary requires that the Judiciary shall decide matters before it in accordance with its impartial assessment of the facts and its understanding of the law without improper influences, direct or indirect; from any source. The Judiciary in Pakistan is, independent. It claims and has always claimed that it has the right to interpret the Constitution and any legislative instrument and to say as to what a particular provision of the Constitution or a legislative instrument means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of the Supreme Court. Al-Qur'an: Sura Al-Nisa, Verses 135-136 by Allama Abdullah Yousaf. Ali; Letter sent by Hazrat Umar to Abu Musa Al-ash'ari, Governor Basra/Chief Qazi; Beijing Statement of Principles of the Independence of Judiciary in the LAWASIA Region (6th Conference of Chief Justices of Asia and the Pacific held at - Beijing on 19-8-1995); Government of Sindh v. Sharaf Faridi PLD 1994 SC 105; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Malik Asad Ali v. Federation, of Pakistan PLD 1988 SC 161; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 and Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504 and The Federalist Papers by Alexander Hamilton-James Madison-John Jay ref. (c) Corruption------ Connotation and scope---Effect of corruption on society and way of life of the people. `Corruption' is generally defined as the abuse of public office for private gain. In view of the fact that scope of corruption has widened, this definition would include the abuse of all offices of trust. It has diverse meanings and far-reaching effects on society, government and the people. Of late, the culture of corruption and bribe has embedded in the society to the extent that even routine works which should be done without any approach or influence, are commonly known to be done only on some such consideration. This bribe culture has plagued the society to the extent that it has become a way of life. Values in public life and perspective of values in public life, have undergone serious changes and erosion during the last few decades. What was unheard before is commonplace today. A new value orientation is being undergone in our life and culture.' People are at the threshold of the crossroads of values. It is for the sovereign people of the country to settle these conflicts yet the Courts have a vital role to play in these matters.

Once corruption pervades in the body politic and official circles, then the entire Government/administration becomes completely crippled and paralyzed. When corruption permeates in the social, political and financial transactions to such an extent that even proper and honest orders and transactions are suspected to the point of belief, being a result of corruption, one is compelled to infer all is not well and corruption has gone deep in the roots. No doubt, this is an age of "corruption eruption", but during the last few years there have been large scale prosecutions of former world leaders in various countries on the charges of corruption and corrupt practices, in some cases leading to convictions, which phenomenon must not be taken lightly and the issue must be addressed adequately and effectively through transparent institutionalized processes. (1988) 2 SCC 602; Kh. Ahmed Tariq Rahim's case PLD 1992 SC 646; Mian Muhammad Nawaz Sharif's case PLD 1993 SC 47~ and Benazir Bhutto's case PLD 1998 SC 388 ref. (d) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Allegations of corruption etc. against parliamentarians or politicians or members from the general public---Proceedings commenced against all said persons were to be decided on their own merits in accordance with law and on the basis of the legally admissible material brought before the concerned fora in those proceedings and only after the finalisation of the said proceedings that the country will be geared up for resort to democratic principles and corruption-free society which are prerequisites for good governance. (e) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan ---Factors---Validity---Misdeclaration of assets before the Wealth Tax Authorities qua the Election Commission and allegations of massive corruption and corrupt practices by the large number of politicians by itself may not be a ground for intervention of the Armed Forces but such aspect of the matter, when viewed in the overall context and with particular reference to the alleged massive corruption and corrupt practices, becomes a relevant factor. (f) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan ---Factors---Validitiy---Combined effect of the overall policies and methodology adopted by the former Government was the total collapse of the country's economy inasmuch as G. D. P. growth during the past three years had hardly kept pace with the growth of population and Pakistan had a debt burden which equalled the country's entire national income---Supreme Court also took judicial notice of the fact that the trade imbalance was persistent and due to defective economic policies and lack of economic discipline by the previous regime, the industrial sector had suffered a great set back. Federation of Pakistan v. Shaqkat Ali Mian PLD 1999 SC 1026 ref. (g) Provisional Constitution Order (1 of 1999)-----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999--Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity-=-On the day when the Army took over and for years prior to that time there was merely a feigned appearance of what could be called a form of "oligarchy" which means a Government in which the authority constitutionally reposes in

a few individuals and families and a small coterie of individuals who, because of economic and other power, could influence measurably the policy of the Government. New Dictionary of American Politics by Smith and Zucher, First Edn., p.114 and The Politics of American Democracy by M. Irish, Third Edn., pp. 52 to 81 ref. (h) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity---Low turnout of voters during past elections---Effect---General apathy and indifference is discernible and has a direct nexus with the unenviable performance of the former Governments--Had appropriate steps been taken by the Governments in the past to undo the damage done to the general thinking of the people, the things would have been totally different---Proportions which the misrule had taken beginning before the take-over by the Army, were to the discredit of all concerned. (i) Provisional Constitution Order (1 of 1999)-----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Arts.184(3). & 91(4), (5)---Extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Suspension of Assemblies and the Senate through extra-constitutional measures by the Chief of Army Staff--Factors---Validity---Doctrine of State necessity---Applicability---Role of public representatives---Principle of joint and ministerial responsibility in Parliamentary system---Rest of the members of representative bodies cannot be absolved of their responsibility if, despite wrongdoings by the cabinet, they remained silent spectators---Suspension of the Assemblies and the Senate through extra-constitutional measures taken by the Chief of Army Staff, warrants validation on the ground of State necessity and State survival. (j) Constitution of Pakistan (1973)------Art.58(2)(b) [since repealed]---Dissolution of National Assembly--Balance governing the powers of the President and the Prime Minister--Never safe to confer unfettered powers on a person who was holding the reins of the affairs of the country as "power corrupts and absolute corrupts absolutely"---Situation could have been avoided if checks and balances governing the powers of the President and the Prime Minister had been in the field by means of Art.58(2)(b) of the Constitution of Pakistan (1973). (k) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Arts.184(3) & 63(2)--Extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity---Ridiculing the Judiciary and tapping of telephones of Judges of superior Courts---Debates of Parliament of the relevant period clearly demonstrated that integrity and independence of the Judiciary of Pakistan were challenged by the Members of Parliament which had the effect of defaming and bringing the Judges into ridicule and disparaging remarks against the Judiciary crossed all limits and no Reference was made to the Chief Election Commissioner for their disqualification as Members of the Parliament under Art.63(2) of the Constitution of Pakistan (1973)---Such acts of tapping the telephones of Judges of the superior Courts and maligning the Judiciary were most detestable, immoral, illegal and unconstitutional. Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504 and Mohtarama Benazir Bhutto's case PLD 1998 SC 388 ref. (1) Provisional Constitution Order (1 of 1999)---

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity---Doctrine of State necessity--Applicability---Machinery of the Government at the Centre and the Provinces had completely broken down and the Constitution had been rendered unworkable, and a situation had arisen for which the Constitution provided no solution and the Armed Forces had to intervene to save the State from further chaos, for maintenance of peace and order, economic stability, justice and good governance and to safeguard integrity and sovereignty of the country dictated by highest considerations, of State necessity and welfare of the people. (m) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Precedents from foreign jurisdictions--Applicability ---Precedents from foreign jurisdictions, though entitled to reverence and respect but are not ipso facto applicable to the facts and circumstances prevailing on the day of taking over by the Armed Forces. (n) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Doctrine of State necessity---Applicability---To save and maintain the integrity, sovereignty and stability of the country and having regard to the welfare of the people while interpreting the legislative instruments i.e.. Provisional Constitution Order, 1999 and Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999, Court has to make every attempt to save "what institutional values remained to be saved" with a view to maintaining and upholding the independence of Judiciary which in turn would protect the State fabric and guarantee Human/Fundamental Rights---Doctrine of State necessity had not been rejected in the judgment of Supreme Court in Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504---Prerequisites of doctrine of State necessity stated. Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Attorney-General of the Republic v. Mustafa Ibrahim Cypress Law Reports 105; Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657 and Miss Asma Jilani's case PLD 1972 SC 139 ref. (o) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity---Doctrine of State necessity ---Application--All the elements viz. inevitable necessity; exceptional circumstances; no other remedy to apply, measures taken being proportionate to the necessity and of temporary character limited to the duration of exceptional circumstances, were present, inasmuch as, the Constitution provided no solution to meet the extraordinary situation prevailing on 12th October, 1999 when the Armed Forces took over the affairs of Pakistan. Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Attorney-General of the Republic v. Mustafa Ibrahim Cypress Law Reports 105 and Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657 ref. (p) State necessity, doctrine of------Applicability---Elements---Inevitable necessity; exceptional circumstances; no other remedy to apply; measures taken being proportionate to the necessity and of temporary

character limited to the duration of exceptional circumstances, were the elements for application of the doctrine. Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Attorney-General of the Republic v. Mustafa Ibrahim Cypress Law Reports 105 and Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657 ref. (q) Provisional Constitution of Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity--;.Doctrine of State necessity ---Applicability--Intervention by the Armed Forces on 12th October, 1999 was an imperative and inevitable necessity in view of the exceptional circumstances prevailing at that time, and, therefore, there was no valid justification for not validating the extra-constitutional measure of the Armed Forces on the technical distinction between "doctrine of necessity" and the "doctrine of State necessity". Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC. 657; The Classics of International Law by Hugo Grotius; A Treatise on the Law of the Prerogative of the Crown and the Relative Duties and Rights of the Subject by Joseph Chitty; The Gabcikovo-Nagymaros Project, decided by International Court of Justice; Corpus Juris Secundum, Vol.65, p.387; Constitutional and Administrative Law by Stanley De Smith and Rodney Brazier, 8th Edn. 1998; Makenete v. Lekhanya and others (1993) 3 LRC; Attorney-General of the Republic v: Mustafa Ibrahim Cypress Law Reports 105; Mitchell and others v. Director of Public Prosecutions and another 1986 LRC. (Grenada); States of Emergency---Their Impact on Human Rights; From Military to Civilian Rule, Edited by Constantine P. Danopoulos and Democracy, the Rule of Law and Islam, Edited by Eugene Cotran and Adel Omar Sherif ref. (r) Constitution of Pakistan (1973)------Art.232---Proclamation of Emergency---State of emergency--Interpretation---State of emergency includes "regimes of exception" i.e. regimes which have overthrown and not merely suspended the previous constitutional order and have assumed legislative and executive powers analogous to those under a formal state of emergency---Government to take steps to ensure that the Fundamental Rights of citizens are not affected and derogation must be proportionate to the emergency, while adopting constitutional as well as extra-constitutional means---Effort to be made to minimize emergencies and to induce the authorities concerned to respect. the Fundamental Rights. Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657; The Classics of International Law by Hugo Grotius; A Treatise on the Law of the Prerogative of the Crown and the Relative Duties and Rights of the Subject by Joseph Chitty; The Gabcikovo-Nagymaros Project decided by International Court of Justice; Corpus Juris Secundum, Vol.65, p.387; Constitutional and Administrative Law by Stanley De Smith and Rodney Brazier, 8th Edn. 1998; Makenete v. Lekhanya and others (1993) 3 LRC; Attorney-General of the Republic v. Mustafa Ibrahim Cypress Law Reports 105; Mitchell and others v. Director of Public Prosecutions and another 1986 LRC (Grenada); States of Emergency---Their Impact on Human Rights; From Military to Civilian Rule, Edited by Constantine P. Danopoulos and Democracy, the Rule of Law and Islam, Edited by Eugene Cotran and Adel Omar Sherif ref. (s) Provisional Constitution Order (1 of 1999)-----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Doctrine of State necessity ---Applicability--Invocation of the "doctrine of State necessity" depends upon the peculiar and extraordinary facts and circumstances of a particular situation---Superior Courts alone can decide as to whether any given peculiar and extraordinary circumstances warrant the application of doctrine of State necessity or

not--Such dependence has a direct nexus with what preceded the action itself--Material available on record generally will be treated at par with the "necessity/State necessity/continuity of State" for the purposes of attaining the proportions justifying its own scope as also the future and expected course of action leading to restoration of democracy. Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657; The Classics of International Law by Hugo Grotius; A Treatise on the Law of the Prerogative of the Crown and the Relative Duties and Rights of the Subject by Joseph Chitty; The Gabcikovo-Nagymaros Project, decided by International Court of Justice; Corpus Juris Secundum, - Vol.65, p.387; Constitutional and Administrative Law by Stanley De Smith and Rodney Brazier, 8th Edn. 1998; Makenete v. Lekhanya and others (1993) 3 LRC; Attorney-General of the Republic v. Mustafa Ibrahim Cypress Law Reports 105; Mitchell and others v. Director of Public Prosecutions and another 1986 LRC (Grenada); States of Emergency---Their Impact on Human Rights; From Military to Civilian Rule, Edited by Consiantine P. Danopoulos and Democracy, the Rule of Law and Islam,, Edited by Eugene Cotran and Adel Omar Sherif ref. (t) Doctrine of necessity------ Not restricted to criminal prosecution alone. (u) State necessity, doctrine of------Invocation---Conditions detailed. The invocation of the doctrine of State necessity depends upon the peculiar and extraordinary facts and circumstances of a particular situation. It is for the superior Courts alone to decide whether any given peculiar and extraordinary circumstances warrant the application of the above doctrine or not. This dependence has a direct nexus with what preceded the action itself. The material available on record generally will be treated at par with the "necessity/State necessity/continuity of State" for the purposes of attaining the proportions justifying its own scope as also the future and expected course of action leading to restoration of democracy. Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657; The Classics of-International Law by Hugo Grotius; A Treatise on the Law of the Prerogative of the Crown and the Relative Duties and Rights of the Subject by Joseph Chitty; The Gabcikovo-Nagymaros Project decided by International Court of Justice; Corpus Juris Secundum, Vol.65, p.387; Constitutional and Administrative Law by Stanley De Smith and Rodney Brazier, 8th Edn. 1998; Makenete v. Lekhanya and others (1993) 3 LRC; Attorney-General of the Republic v. Mustafa Ibrahim Cypress Law Reports 105; Mitchell and others v. Director of Public Prosecutions and another 1986 LRC (Grenada); States of Emergency---Their Impact on Human Rights; From Military to Civilian Rule, Edited by Constantine P. Danopoulos and Democracy, the Rule of Law and Islam, Edited by Eugene Cotran and Adel Omar Sherif ref. (v) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validation accorded to the action of the Armed Forces by Supreme Court---Effect---Held, though initially the status of the Government after taking over the affairs of Pakistan was de facto, but in view of the validation accorded by the Supreme Court through its short order, it had attained the status of a de jure Government. (w) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extraconstitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Doctrine

of State necessity---Applicability---All that is required to be considered that the extra-constitutional action should have nexus with the facts on the ground---Duty of superior Court is that it recognizes the evil, suggests remedial measures therefor and lays down infrastructure for a journey leading to the restoration of the democratic processes/institutions as expeditiously as possible---If, however, those responsible for achieving said objectives fall short of the measures within the contemplation of the law during their tenures respectively, then the remedy lies in identifying the facts on the ground and taking remedial measures to suppress the evil---Prolonged involvement of the Army in civil affairs runs a grave risk of politicizing it, which would not be in national interest and civilian rule in the country must be restored within the shortest possible time after achieving the declared objectives as reflected in the speeches of the Chief Executive dated 13th and 17th October, 1999 which necessitated the military take-over---Action of Armed Forces of taking over the affairs of Pakistan qualified for validation on the ground of State necessity/survival in circumstances, Recognition of a situation of whatever magnitude does call for remedial measures to be considered/contemplated with a view to purging the situation on the- ground. All that is required to be considered is that the action should have a nexus with the facts on the ground. Such consideration can be undertaken only by the superior Courts in the exercise of their powers under Articles 199 and 184 of the Constitution. It is the duty of the superior Courts that they recognize the evil, suggest remedial measures therefore and lay down infrastructure for a journey leading to the restoration of the democratic processes/institutions as expeditiously as possible. If those responsible for achieving these objectives fall short of the measure within the contemplation of the law during their tenures respectively, then the remedy lies in identifying the facts on the ground and taking remedial measures to suppress the evil. The action of 12th October, 1999 being what it is, qualifies for validation on the ground of State necessity/survival. It is for the representatives of the people to see to it that everything is in order and nobody can raise his little finger when their actions are in dine with the fundamentals of the Constitution. No rule except that by the representatives of the people within the contemplation of the Constitution and the law has the support of the Superior Judiciary. Courts are firmly committed to the governance of the country by the people's representatives and the definition of the term `democracy' to the effect that "it is Government of the people, by the people and for the people" and not by the Army rule for an indefinite period. Prolonged involvement of the Army in civil affairs runs a grave risk of politicizing it, which would not be in national interest and that civilian rule in the country must be restored within the shortest possible time after achieving the declared objectives as reflected in the speeches of the Chief Executive, dated 13th and 17th October, 1999, which necessitated the military take-over. (x) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Factors---Validity---Doctrine of State necessity--Applicability---Whole spectrum of circumstances prevalent on or before 12th October, 1999, the day when Armed Forces took over the affairs of Pakistan, revealed that the representatives of the people, who were responsible for running the affairs of the State, were accused of corruption and corrupt practices and failed to establish good governance in the country as a result whereof a large number of references had been filed against the former Prime Minister, Ministers, Parliamentarians and members of the Provincial Assemblies for their disqualification on account thereof---Process of accountability carried out by the former Government was shady, inasmuch as, either it was directed against the political rivals or it was not being pursued with due diligence---All institutions of the State including Judiciary were being systematically destroyed in the pursuit of self-serving policies---Democratic institutions were not functioning in accordance with the Constitution, they had become privy to the one man rule and the very purpose for which they were established stood defeated by their passive conduct---Attempts were made to politicize the army, destabilize it and create dissension within its ranks and had the former Prime Minister been successful in his designs, there would have been chaos and anarchy rather a situation of civil war where some factions of Armed Forces were

fighting against other---Action of Armed Forces of taking over the affairs of Pakistan having nexus with the facts on the ground, was qualified to be validated on the ground of State necessity/survival in circumstances. An overall view of the whole spectrum of circumstances prevalent on or before 12th October, 1999 revealed that the representatives of the people who were responsible for running the affairs of the State were accused of corruption and corrupt practices and failed to establish good governance in the country as a result whereof a large number of references had been filed against the former Prime Minister, Ministers, Parliamentarians and members of the Provincial Assemblies for their disqualification on account thereof. The process of accountability carried out by the former Government was shady, inasmuch as, either it was directed against the political rivals or it was not being pursued with due diligence. All institutions of the State -including Judiciary were being systematically destroyed in the pursuit of self-serving policies. The democratic institutions were not functioning in accordance with the Constitution, they had become privy to the one man rule and the very purposes for which they were established stood defeated by their passive conduct. Attempts were made to politicise the army, destabilise it and create dissension within- its ranks. Had the former Prime Minister been successful in his designs, there would have been chaos and anarchy rather a situation of civil war where some factions of Armed Forces were fighting against others. (y) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Arts. 91 & 184(3)--Term "Chief Executive", import of---Constitution of Pakistan (1973) envisages Parliamentary form of Government where the Prime Minister acts as, the Chief Executive of the country---By means of Proclamation of Emergency dated 14-10-1999 as also the Provisional Constitution Order, 1999 the Constitution has been only held in abeyance and the country is to be run as nearly as may be ii-o accordance with the Constitution, therefore, Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff while taking over the affairs of the country assumed to himself the title of "Chief Executive"---Validity---Since practically the Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff was performing the functions of the Prime Minister, he held the position of Chief Executive in the scheme of the Constitution of Pakistan. The term "Chief Executive" means President where there is a Presidential form of Government and Prime Minister in a Parliamentary form of Government. The Constitution of 1973 envisages Parliamentary form of Government where the Prime Minister acts as the Chief Executive of the country. By means of the Proclamation of Emergency as also the PCO 1 of 1999, the Constitution has only been held in abeyance and the country is to be run as nearly as may be in accordance with the Constitution, therefore, General Pervez Musharraf, while taking over the affairs of the country, assumed to himself the title of "Chief Executive". Since practically, he is performing the functions of the Prime Minister, he holds the position of Chief Executive in the scheme of the Constitution. Indian Constitutional Law by H.M. Seervai, 4th Edn., p,20; Fazalul Qadir Chaudhry's case PLD 1963 SC 486 and American Constitutional Law, 1995 Edn., p.204 ref. (z) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution -of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Nature---Coup d'etat or revolution---Coup d'etat and revolution are interchangeable in the context of step of taking over the affairs of Pakistan by the Armed Forces and nothing substantial would turn on considering it from one angle or another. In coup d'etat as well in revolution, power changes from one man to another from one clique to another depending upon the facts and circumstances of each case. Coup d'etat is

generally undertaken to achieve a particular objective motivated by various considerations. In the context of the present case the terms coup d'etat and revolution are interchangeable and nothing substantial would turn on considering it from one angle or another. Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Madzimbuto v. Lardner Burke (1968) 3 AER 561; Texas v. White 74 US (7 Wall) 700 (at p. 733), 1868; Madzimbuto v. Lardner Burke 1966 Rhodesian L. Rep. 228 (General Division); Revolution and Political Change by C. Welch and Bunker Taintor; Attorney-General v. Mustafa Ibrahim 1964 Cyprus LR 195 Sup. Ct.; Revolutions, published in the Irish Jurist, 1977 and Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657 ref. (aa) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Grant of power to Chief Executive of Pakistan to amend the Constitution---Extent---Power of the Chief Executive of Pakistan to amend the Constitution is strictly circumscribed by the limitations laid down by the Supreme Court---Limitations with regard to amendment of the Constitution by Chief Executive of Pakistan as laid down by the Supreme Court enumerated. If the Parliament cannot alter the basic features of the Constitution, power to amend the Constitution cannot be conferred on the Chief Executive of the measure larger than that which could be exercised by the Parliament. Clearly, unbridled powers to amend the Constitution cannot be given to the Chief Executive even during the transitional period even on the touchstone of `State necessity'. The Constitution of Pakistan is the supreme law of the land and its basic features i.e. independence of Judiciary, federalism and parliamentary form of Government blended with Islamic Provisions cannot be altered even by the Parliament. Resultantly, the power of the Chief Executive to amend the Constitution is strictly circumscribed by the limitations laid down by the Supreme Court. Mahmood Khan Achakzai's case PLD 1997 SC 426 ref. Following are the limitations laid down by the Supreme Court with regard to the powers of Chief Executive of Pakistan to amend the Constitution: (i) The Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff through Proclamation of Emergency, dated the 14th October, 1999, followed by PCO 1 of 1999, whereby he has been described as Chief Executive, having validly assumed power by means of an extra constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures as enumerated hereinafter, namely:-(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including, the power to amend it. (b) All acts which tend to advance or promote the good of the people. (c) All acts required to be done for the ordinary orderly running of the State; and (d) All such measures as would establish or lead to the establishment of the declared objectives of the Chief Executive. (ii) That Constitutional Amendments by the Chief Executive can be resorted to only if the Constitution fails to .provide a solution for attainment of his declared objectives and further that the power to amend. the Constitution by virtue of clause (6), sub-clause (i) (a) ibid is controlled by sub-clauses (b), (c) and (d) in the same clause.

(iii) That no amendment shall be made in the salient features of the Constitution i.e. independence of Judiciary, federalism, parliamentary form of Government blended with Islamic provisions. (iv) That Fundamental Rights provided in Part II, Chapter 1 of the Constitution shall continue to hold the field but the State will be authorized to make any law or take any, executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 as contemplated by Article 233 (1) of the Constitution, keeping in view the language of Articles 10, 23 and 25 thereof. (v) That these acts, or any of them, may be performed or carried out by means of orders issued by the Chief Executive or through Ordinances on his advice; (vi) That the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Armed Forces, if challenged, in the light of the principles underlying the law of State necessity as stated above. Their powers under Article 199 of the Constitution, thus, remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any legislative instrument enacted by the Chief Executive and/or any order issued by the Chief Executive or by any person or authority acting on his behalf. (vii) That the Courts are not merely to determine whether there exists any nexus between the orders made, proceedings taken and acts done by the Chief Executive or by any authority or person acting on his behalf, and his declared objectives as spelt out from his speeches, dated 13th and 17th October, 1999, on the touchstone of State necessity but such orders made, proceedings taken and acts done including the legislative measures, shall also be subject to judicial review by the superior Courts. (bb) Provisional Constitution Order (I of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--Constitution of Pakistan (1973), Arts.209 & 184(3)---Extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Supreme Judicial Council---Judges of the Supreme Court and High Courts cannot be removed without resorting to the procedure prescribed in Art.209 of the Constitution-Cases of the Judges who ceased to be Judges of the Supreme. Court and High Courts by virtue of Oath of Office (Judges) Order, 2000, however, was hit by the doctrine of past and closed transaction and could not be re-opened. (cc) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Restoration of democratic institutions---Supreme Court, in view of the circumstances explained by the Attorney-General, observed that there wag no choice but to grant reasonable time to enable the Chief Executive to restore the democratic institutions to the rightful holders of the public representations under the Constitution. Contention of the Attorney-General was that the Federation intended to restore true representative democracy in the country as early as possible. It was, however, not possible to give specific timeframe for the above, among others, for the reasons that the Authorities/Government require time for: (a) Revival of country's economy, which stands ruined. (b) For completion of the process of accountability. (c) Recovery of huge plundered national wealth including bank loans running into billions of rupees and foreign exchange abroad worth billions of US dollars.

(d) The task of unavoidable electoral reforms including preparation of fresh electoral rolls. (e) To ensure harmonious and efficient working of the important organs of the State, stable and good governance including maintenance of law and order, to prevent abuse of power, and to ensure and safeguard smooth functioning and enjoyment of democracy by the people. Supreme Court observed that the Court was not in favour of an Army rule in preference to a democratic rule. There were, however, evils of grave magnitude with the effect that the civilian Governments could not continue to run the affairs of the country in the face of complete breakdown. The remedy to the said evil was the holding of fair and impartial elections by the Chief Election Commissioner at the earliest possible time, but the same could not be achieved till the electoral rolls were updated. Ordinarily, Court would have allowed minimum time for holding of fresh elections as contemplated under the. Constitution, but the Attorney-General made a statement at the Bar that as per report. of the Chief Election Commissioner, updating of the electoral rolls could not be done before two years and thereafter objections and delimitation process etc. were to be attended to. In the absence of proper and authentic electoral rolls, millions of people will be disenfranchised. This statement of the Attorney-General was not rebutted. This being so, there was no choice but to grant reasonable time to enable the Chief Executive to restore the democratic institutions to the rightful holders of the office of public representatives under the Constitution. (dd) Constitution of Pakistan (1973)------Art. 2A---Independence of Judiciary---Extent---Stability in the system, success of the Government, democracy, good governance, economic stability, prosperity of the people, tranquillity, peace and maintenance of law and order depend, to a considerable degree, on the interpretation of Constitution and legislative instruments by the superior Courts and it is, therefore, of utmost importance that the Judiciary was independent and no restraints were placed on its performance and operation---Interpretation of Constitution by superior Courts---Scope and extent. Stability in the system, success of the Government, democracy, good governance, economic stability, prosperity of the people, tranquillity, peace and maintenance of law and order depend to a considerable degree on the interpretation of Constitution and legislative instruments by the superior Courts. It is, therefore, of utmost importance that the judiciary is independent and no restraints are placed on its performance and operation. It claims and has always claimed that it has the right to interpret the Constitution or any legislative instrument and to say as to what a particular provision of the Constitution or a legislative instrument means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court. Under the mandate of the Constitution, the Courts exercise their jurisdiction as conferred upon them by the Constitution or the law. Therefore, so long as the superior Courts exist, they shall continue to exercise powers and functions within the domain of their jurisdiction and shall also continue to exercise power of judicial review in respect of any law or provision of law, which comes for examination before the superior Courts to ensure that all persons are able to live securely under the rule of law; to promote, within the proper limits of judicial functions, the observance and the attainment of human and Fundamental Rights; and to administer justice impartially among persons and between the persons and the State, which is a sine qua non for the maintenance of independence of judiciary and encouragement of public confidence in the judicial system. (ee) Constitution of Pakistan (1973)------Arts. 184 & 199---Judicial review by superior Courts---Powers and scope. Superior Courts have the right to interpret the Constitution or any legislative instrument and to say as to what a particular provision of the Constitution or a legislative instrument means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of Supreme Court. Under the mandate of the Constitution, the Courts

exercise their jurisdiction as conferred upon them by the Constitution or the law. Therefore, so long as the superior Courts exist, they shall continue to exercise powers and functions within the domain of their jurisdiction and shall also continue to exercise power of judicial review in respect of any law or provision of law, which comes for examination before the superior Courts to ensure that all persons are able to live securely under the rule of law; to promote, within the proper limits of judicial functions, the observance and the attainment of human and Fundamental Rights; and to administer justice impartially among persons and between the persons and the State, which is a sine qua non for the maintenance of independence of judiciary and encouragement of public confidence in the judicial system. (ff) Interpretation of statutes---- Provision seeking to oust the jurisdiction of Supreme Court--Interpretation---Power of superior Courts---Scope---Superior Courts have right to interpret the Constitution or any legislative instrument and to say as to what a particular provision of the Constitution or a legislative instrument means or does not mean, even if that particular, provision is a provision seeking to oust the jurisdiction of Supreme Court. (gg) Constitution of Pakistan (1973) ----Art. 178---Provisional Constitution Order (1 of 1999), Preamble---Oath of Office of (Judges) Order (1 of 2000), Art.3---Oath of office by Judges of Supreme Court under Provisional Constitution Order, 1999 and Oath of Office of (Judges) Order, 2000---Object and beneficial effects necessitating such oath highlighted. Fresh oath under Oath of Office (Judges) Order No. l of 2000, does not in any way preclude the Judges of Supreme Court from examining the questions raised in the Constitutional petitions under Article 184(3) of the Constitution of Pakistan (1973), which have to be decided in accordance with their conscience and law so as to resolve the grave crises and avoid disaster by preventing imposition of Martial Law for which the Constitution does not provide any remedy. New oath of Office was taken by the Judges of Supreme Court under PCO No. l of 1999 read with Oath of Office (Judges) Order No. l of 2000 with 'a view to reiterating the well-established principle that the first and the foremost duty of the Judges of the superior Courts is to save the judicial organ of the State. This was exactly what was done. By virtue of PCO No.l of 1999, the Constitution has not lost its effect in its entirety although its observance as a whole has been interrupted for a transitional period. The activity launched by the Armed. Forces through an extra Constitutional measure, involves the violation of "some of the rights" protected by the Constitution, which still holds the field but some of its provisions have been held in abeyance. A duty is cast upon the Superior Judiciary to offer some recompense for those rights which were purportedly violated in view of the promulgation of PCO No. 1 of 1999. This could be achieved only by taking the Oath and not by declining to do so and thereby becoming a party to the closure of the Courts, which would not have solved any problem whatsoever but would have resulted in chaos, anarchy and disruption of peaceful life. Independence of judiciary does not mean that Judges should quit their jobs and become instrumental in the closure of the Courts. Indeed, the latter course would have been the most detestable thing to happen. Independence of judiciary means that the contentious matters, of whatever magnitude they may be, should be decided/resolved by the Judges of the superior Courts according to their conscience. This Court, while performing its role as "the beneficial expression of a laudable political realism", had three options open to it in relation to the situation arising out of the military take-over on twelfth day of October, 1999, firstly, it could tender resignation en bloc, which most certainly could be equated with sanctifying (a) chaos/anarchy and (b) denial of access to justice to every citizen of Pakistan wherever he may be; secondly, a complete surrender to the regime by dismissing Constitutional petitions for lack of jurisdiction in view of the purported ouster of its jurisdiction under PCO No. l of 1999 and thirdly, acceptance of the situation as it is, in an attempt to save what "institutional values remained to be saved". Supreme Court, after conscious deliberations and in an endeavour to defend and preserve the national independence, the security and stability of Pakistan, sovereignty and honour of the country and to safeguard

the interest of the community as a whole, decided to maintain and uphold the independence of judiciary, which, in its turn, would protect the State fabric and guarantee human rights/Fundamental Rights. It took the Oath under PCO No. l of 1999 so as to secure the enforcement of law, extend help to the law enforcing agencies for maintenance of public order and with a view to restoring democratic institutions, achieving their stability and guaranteeing Constitutional rights to the people of Pakistan. Oath of Office prescribed under Articles 178 and 194 of the Constitution for the Judges of the superior Courts contains a specific provision that - a Judge shall abide by the Code of Conduct issued by the Supreme Judicial Council. Same is the position with regard to the provisions regarding Oath of Office (Judges) Order No. l of 2000. The precise provisions in the Oath of Office (Judges) Order, 2000 are that a Judge, to whom oath is administered, shall abide by the provisions of Proclamation of Emergency of Fourteenth day of October, 1999, PCO 1 of 1999, as amended, and the Code of Conduct issued by the Supreme Judicial Council. But there is specific omission of words, "to preserve and defend the Constitution". Adherence to the Code of Conduct has not been subjected to any pre-conditions and there can be no deviation from it by a Judge who takes oath either under the Constitution or PCO No. l of 1999 or Oath of Office (Judges) Order 1 of 2000. One of the requirements of the Code of Conduct is that the oath of a Judge implies complete submission to the Constitution, and under the Constitution to the law. Subject to these governing obligations, his function of interpretation and application of the Constitution and the law is to be discharged for the maintenance of the Rule of Law over the whole range of human activities within the nation. Thus, the new Oath merely indicates that the Superior Judiciary, like the rest of the country, had accepted the fact that on 12th October, 1999, a radical transformation took place. (hh) Provisional Constitution Order (1 of 1999)-----Preamble---Effect of Provisional Constitution Order, 1999 on the Constitution of Pakistan (1973). ' By virtue of PCO No. 1 of 1999, the Constitution has not lost its effect in its entirety although its observance as a whole has been interrupted for a transitional period. The activity launched by the Armed Forces through an extra-Constitutional measure, involves the violation of "some of the rights" protected by the Constitution, which still holds the field but some of its provisions have been held in abeyance. (ii) Constitution of Pakistan (1973)-- . ----Art. 2A---Independence of Judiciary means that the contentious matters of whatever magnitude they may be, should be decided/resolved by the Judges of the superior Courts according to their conscience. Independence of judiciary means that the contentious matters, of whatever magnitude they may be, should be decided/resolved by the Judges of the superior Courts according to their conscience. (jj) Provisional Constitution Order (1 of 1999)-----Preamble---Oath of Office (Judges) Order (1 of 2000), Preamble--Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution of Pakistan (1973) before Supreme Court calling in question the validity of Provisional Constitution Order, 1999 [as amended], Oath of Office (Judges) Order, 2000 and Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Maintainability---Notwithstanding anything contained in the Proclamation of Emergency dated 14-10-1999, the Provisional Constitution Order, 1999 [as amended] and the Oath of Office (Judges) Order, 2000, all of which purportedly restrained Supreme Court from calling in question or permitting to call in question the validity of any of the provisions thereof, Supreme Court, in the exercise of its inherent powers of judicial review, has the right to examine validity of said instruments---Principles---Constitutional

petitions before Supreme Court under Art. 184(3) of Constitution of Pakistan (1973) are therefore, maintainable. Notwithstanding anything contained in the Proclamation of Emergency of the Fourteenth day of October, 1999, the Provisional Constitution Order No. l of 1999, as amended and the Oath of Office (Judges) Order No. l of 2000, all of which purportedly restrained Supreme Court from calling in question or permitting to call in question the validity of any of the provisions thereof, Supreme Court, in the exercise of its inherent powers of judicial review, has the right to examine the validity of the aforesaid instruments. Additionally, submission of the Federation in response to the Court's notice concerning its own legitimacy, also suggests that Supreme Court has an inherent authority, arising from the submission of both the parties to its jurisdiction, notwithstanding the preliminary objection raised in the written statement as to the maintainability of the Constitutional petitions. In the exercise of its right to interpret the law, Supreme Court has to decide the precise nature of the ouster clause in the above instruments and the extent to which the jurisdiction of the Courts has, been ousted, in conformity with the well-established principles that the provisions seeking to oust the jurisdiction of the superior Courts are to be construed strictly with a pronounced leaning against ouster. The Constitution petitions under Article 184(3) of the Constitution are, therefore, maintainable. (kk) Provisional Constitution Order (1 of 1999)--. ----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---State necessity, doctrine of, and salus populi est suprema lex, principle of---Applicability---Supreme Court, while recording in detail the factors for action by Armed Forces validated the same on the basis of the doctrine of State necessity and the principle of salus populi est suprema lex for a transitional period to prevent any further destabilization, to create corruption-free atmosphere at national level through transparent accountability and revival of economy before restoration of democratic institutions under the Constitution, in that Constitution offered no solution to the prevailing crisis. National Assembly is the highest representative body, which reflects the will and aspirations of the people of Pakistan. Similar is the status of a Provincial Assembly in a Province. Senate, being a symbol of unity of the federating units has its own utility for the country as a whole. It is, therefore, of utmost importance that the impugned suspension of the above democratic institutions is examined with great care and caution, otherwise it would adversely affect the democratic process in the country, which may cause instability, impair the economic growth and resultantly prove detrimental to the general well-being of the people. However, where the representatives of the people, who are responsible for funning the affairs of the State are themselves accused of massive corruption and corrupt practices and in the public as well as private sectors are benefiting therefrom and resist establishing good governance; where a large number of references have been filed against the former Prime Minister, Ministers, Parliamentarians and Members of the Provincial Assemblies for their disqualification on account of corruption and corrupt practices; where there is a general perception that corruption is being practised by diversified strata including politicians, Parliamentarians, public officials and ordinary citizens and that a number of Parliamentarians and Members of the Provincial Assemblies misdeclared their assets before Election Commission and Tax Authorities; where there was no political and economic stability and bank loan defaults were rampant and that as per report of Governor, State Bank of Pakistan Rs.356 billion are payable by the bank defaulters up to 12-10-1999, having no accountability and transparency; where economic stability in Pakistan was highly precarious and there was an overall economic slowdown as GDP growth during the past three years had hardly kept pace with the growth of population; where Pakistan has a debt burden, which equals the country's entire national income; where all the institutions of the State were being systematically destroyed and the economy was in a state of collapse due to self-serving policies of the previous Government, which had threatened the existence, security, economic life, financial stability and credit of Pakistan; where a situation had arisen under which the democratic institutions were not functioning in accordance with the provisions of the

Constitution, inasmuch as, the Senate and the National and Provincial Assemblies were closely associated with the former Prime Minister and there was no real democracy because the country was, by and large, under one man rule; where an attempt was made to politicize the Army, destabilize it and create dissension within its ranks and where the judiciary was ridiculed, leaving no stone unturned to disparage and malign it by making derogatory and contemptuous. speeches by some of the members of the previous ruling party inside and outside the Parliament and no Reference was made to the Chief Election Commissioner for their disqualification as members of the Parliament under Article 63(2) of the Constitution; where the disparaging remarks against the judiciary crossed all limits with the rendering judgment by this Court in the case of Sh. Liaquat Hussain v Federation of Pakistan PLD 1999 SC 504, declaring the establishment of Military, Courts as ultra vires of the Constitution. which resulted into a slanderous campaign against the judiciary launched by the former Primc. Minister registering his helplessness in the face of the Judiciary not allowing him the establishment of Military Courts as. a mode of speedy justice; where the image of the judiciary' was tarnished under a well-conceived design; where the telephones of the Judges of the superior Courts and other personalities were tapped in spite of the law laid down by this Court in the case of Mohtarma Benazir Bhutto v. President of Pakistan PLD 1999 SC 388, 'that tapping of telephones and eaves-dropping was immoral, illegal and unconstitutional; where storming of the Supreme Court was resorted to allegedly by some of the leaders and activists of the Pakistan Muslim League which ultimately- led to the issuance of contempt notices against them/contemners by the Full Bench of Supreme Court in a pending appeal; where Mian Nawaz Sharif's Constitutional and moral authority stood completely eroded and where situation was somewhat similar and analogous to the situation that was prevalent to July, 1977, the extra-Constitutional step of taking over the affairs of the country by the Armed Forces for a transitional period to prevent any further destabilization, to create corruption-free atmosphere at national level through transparent accountability and revive the economy before restoration of democratic institutions under the Constitution, is validated, in that, the Constitution offered no solution to the present crisis. Probably, the situation could have been avoided if Article 58(2)(b) of the Constitution (1973) had been in the field, which maintained parliamentary form of Government and had provided checks and balances between the powers of the President and the Prime Minister to let the system run without any let or hindrance to forestall the situation in which Martial Law can be imposed. With the repeal of Article 58(2)(b) of the Constitution, there was no remedy provided in the Constitution to meet the situation like the present one with which the country was confronted, therefore, Constitutional deviation made by the Chief of the Army Staff, for the welfare of the people rather than abrogating the Constitution or imposing Martial Law by means of an extra-Constitutional measure is validated for a transitional period on ground of State necessity and on the principle that it is in public interest to accord legal recognition to the present regime with a view to achieving his declared objectives and that it is in the interest of the community that order be preserved. Legal recognition/legitimacy can be accorded to the present regime also on the principle that the Government should be by the consent of the governed, whether voters or not. Here there is an implied consent of the governed i.e. the people of Pakistan in general including politicians/parliamentarians, etc. to the Army take-over, in that, no protests worth the name or agitations have been launched against the Army take-over and/or its continuance. The Court can take judicial notice of the fact that the people of Pakistan have generally welcomed the Army takeover due to their avowed intention to initiate the process of across the board and transparent accountability against those, alleged of corruption in every walk of life, of abuse of national wealth and of not taking appropriate measures for. stabilizing the economy and democratic institutions. Another principle, which is attracted is that since an extra-Constitutional action has been taken by General Pervez Musharraf wielding effective political power, it is open to the Court to steer a middle course so as to ensure that the framework of the pre-existing Order survives but the Constitutional deviation therefrom be justified on the principle of necessity, rendering lawful what would otherwise be unlawful. However, prolonged involvement of the Army in civil affairs runs a grave risk of politicizing it, which would not be in national interest, therefore, civilian rule in the country must be restored within the shortest possible time after achieving the declared objectives, which necessitated the military take-over and Proclamation of Emergency as spelt out from the speeches of the Chief Executive, dated 13th and 17th October, 1999. The acceptance of

the above principles do not imply abdication from judicial review in the transient suspension of the previous legal order. Sh. Liaquat Hussain v. Federation of Pakistan PLD 1990 SC 504 and Benazir Bhutto v. President of Pakistan PLD 1998 SC 388 ref. (ll) Provisional Constitution Order (1 of 1999)-----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution.of Pakistan (1973), Arts.184(3) & 199 Extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Powers of superior Courts---Scope and extent---Situation in the country having arisen for which the Constitution had provided no solution and the intervention by the Armed Forces through an extra-constitutional measure having become inevitable, Supreme Court validated the measures taken by Armed Forces including all past and closed transactions, as well as such executive actions as were required for the orderly running of the State and all acts which tended to advance or promote the good of the people on the basis of State necessary and the principle of salus populi est suprema lex as embodied in Begum Nusrat Bhutto's case reported as PLD 1977 SC 657---Chief Executive of Pakistan having validly assumed power by means of an extra-constitutional step, in the interest of the State and for the welfare of the people, was entitled to perform all such acts and promulgate all legislative measures as indicated by the Supreme Court---Superior Courts, however, continue to have the power of judicial review to judge the validity of any act or action of the Armed Forces, if challenged, in the light of the principles underlying the law of State necessity---Powers of superior Courts under Art.199 of the Constitution of Pakistan (1973), thus, remained available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any legislative instrument enacted by the Chief Executive and/or am order issued by the Chief Executive or by any person or Authority acting on his behalf---Courts were not merely to determine whether there existed any nexus between the orders made, proceedings taken and acts done by the, Chief Executive or by any Authority or person acting on his behalf, and his declared objectives as spelt out from his speeches dated 13th and 17th October., 1999, on the touchstone of State necessity but orders made, proceedings taken and acts done including the legislative measures, shall also be subject to judicial review by the superior Courts---Rule laid down by Supreme Court for validation of action of Armed Forces on 12-10-1999 detailed. Following is the text of rule laid down by the Supreme Court while validating the action of taking over the affairs of Pakistan by the Armed Forces of Pakistan on 12th October, 1999: "1. On 12th October, 1999 a situation arose for- which the Constitution provided no solution and the intervention by the Armed Forces through an extra-Constitutional measure became inevitable, which is hereby validated on the basis of the doctrine of State necessity and the principle of salus populi est suprema lex as embodied in Begum Nusrat Bhutto's case. The doctrine of State necessity is recognised not only in Islam and other religions of the world but also accepted by the eminent international jurists including Hugo Grotius, Chitty and de Smith and some superior Courts from foreign jurisdiction to fill a political vacuum and bridge the gap. 2. Sufficient corroborative and confirmatory material has been produced by the Federal Government in support of the intervention by the Armed Forces through extra-Constitutional measure. The material consisting of newspaper clippings, writings, etc. in support of the impugned intervention is relevant and has been taken into consideration as admissible material on the basis of which a person of ordinary prudence would conclude that the matters and events narrated therein did occur. The findings recorded herein are confined to the controversies involved in these cases alone. 3. All past and closed transactions, as well as such executive actions as were required for the orderly running of the State and all acts, which tended to advance or promote the good of the people are also validated.

4. That the 1973 Constitution still remains the supreme law of the land subject to the condition that certain parts thereof have been held in abeyance on account of State necessity. 5. That the superior Courts continue to function under the Constitution. The mere fact that the Judges of the superior Courts have taken a new bath under the Oath of Office (Judges) Order No. l of 2000, does not in any manner derogate from this position, as the Courts had been originally established under the 1-973 Constitution, and have continued in their functions in spite of the Proclamation of Emergency and PCO No. l of 1999 and other legislative instruments issued by the Chief Executive from time to time. 6.(i) That the Chairman, Joint Chiefs of Staff Committee and the Chief of the Army Staff through Proclamation of Emergency dated the 14th October, 1999, followed by PCO 1 of 1999, whereby he had been described as Chief Executive; having validly assumed power by means of an extra Constitutional step, in the interest of the State and for the welfare of the people, was entitled to perform all such acts and promulgate all legislative measures as enumerated hereinafter, namely:-(a) All acts or legislative measures which. were in accordance with, or could have been made under the 1973 Constitution, including the power to amend it; (b) All acts which tended to advance or promote the good of the people; (c) All acts required to be done for the ordinary orderly running of the State; and (d) All such measures as would establish or lead to the establishment of the declared objectives of the Chief Executive. (ii) That Constitutional amendments by the Chief Executive could be resorted to only if the Constitution failed to provide a solution for attainment of his declared objectives and further that the power to amend the Constitution by virtue of clause (6), sub-clause (i) (a) (ibid) was controlled by sub-clauses (b), (c) and (d) in the same clause. (iii) That no amendment shall be made in the salient features of the Constitution i.e. independence of judiciary, federalism, parliamentary form of Government blended with Islamic provisions. (iv) That Fundamental Rights provided in Part II, Chapter 1 of the Constitution shall continue to hold the field but the State will be authorized to make any law or take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 as contemplated by Article 233(1) of the Constitution, keeping in view the language of Articles 10, 23 and 25 thereof. (v) That these acts; or any of them, may be performed or carried out by means of orders issued by the Chief Executive or through Ordinances on his advice; (vi) That the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Armed Forces, if challenged, in the light of the principles underlying the law of State necessity as stated above. Their powers under Article 199 of the Constitution, thus, remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any legislative instrument enacted by the Chief Executive and/or any order issued by the Chief Executive or by any person or authority acting on. his behalf. (vii) That the Courts are not merely to determine whether there exists any nexus between the orders made, proceedings taken and acts done by the Chief Executive or by any authority or person acting on his behalf, and his declared objectives as spelt out from his speeches, dated 13th and 17th October, 1999, on the touchstone of State necessity but such orders made, proceedings taken and acts done including the legislative measures, shall also be subject to judicial review by the superior Courts.

6. That the previous Proclamation of Emergency of 28th May, 1998 was issued under Article 232(1) of the Constitution whereas the present Emergency of 14th October, 1999 was proclaimed by way of an extra- Constitutional step as a follow up of the Army take-over which also stands validated notwithstanding the continuance of the previous Emergency which still holds the field. 7. That the validity of the National Accountability Bureau Ordinance, 1999 will be examined separately in appropriate proceedings at appropriate stage. 8. That the cases of learned former Chief Justice and Judges of the Supreme Court, who had not taken oath under the Oath of Office (Judges) Order, 2000 (Order 1 of 2000), and those Judges of the Lahore High Court, High Court of Sindh and Peshawar High Court, who were not given oath, cannot be re-opened being hit by the doctrine of past and closed transaction. 9. That the Government shall accelerate the process of accountability in a coherent and transparent manner justly, fairly, equitably and in accordance with law. 10. That the Judges of the superior Courts are also subject to accountability in accordance with the methodology laid down in Article 209 of the Constitution. 11. General Pervez Musharraf, the Chief of the Army Staff and. the Chairman, Joint Chiefs of Staff Committee is a holder of Constitutional post. His purported arbitrary removal in violation of the principle of audi alteram partem was ab initio void and of no legal effect. 12. That this order will not affect the trials conducted and convictions recorded including proceedings for accountability pursuant to various orders made and Orders/laws promulgated by the Chief Executive or any person exercising powers or jurisdiction under his authority and the pending trials/proceedings may continue subject to this order. 13. This is not a case where old legal order has been completely suppressed or destroyed, but merely a case of Constitutional deviation for a transitional period so as to enable the Chief Executive to achieve his declared objectives. 14. That the current electoral rolls are outdated. Fresh elections cannot be held without updating the electoral rolls. The learned Attorney-General states that as per report of the Chief Election Commissioner this process will take two years. Obviously, after preparation of the electoral rolls some time is required for delimitation of constituencies and disposal of objections, etc. 15. That we take judicial notice of the fact that ex-Senator Mr. Sartaj Aziz moved a Constitution Petition No. 15 of 1996, seeking a mandamus to the concerned authorities for preparation of fresh electoral rolls as, according to Mr. Khalid Anwar, through whom, the above petition was filed, the position to the contrary was tantamount to perpetuating disenfranchisement of millions of people of Pakistan in violation of Articles 17 and 19 of the Constitution. Even MQM also resorted to a similar Constitution Petition bearing No.53 of 1996 seeking the same relief. However, for reasons best known to the petitioners in both the petitions, the same were not pursued any further. 16. That having regard to all the relevant factors involved in the case including the one detailed in paragraphs 14 and 15 above, three years' period is allowed to the Chief Executive with effect from the date of the' Army take-over i.e. 12th October, 1999 for achieving his declared objectives. 17. That the Chief Executive shall appoint a date, not later than 90 days before the expiry of the, aforesaid period of three years, for holding of general elections to the National Assembly and the Provincial Assemblies and the Senate of Pakistan. 18. That this Court has jurisdiction to review/re-examine the continuation of the Proclamation of Emergency dated 12th October, 1999 at any stage if the circumstances so

warrant as held by this Court in the case of Sardar Farooq Ahmed Khan Leghari v. Federation of Pakistan PLD 1999 SC 57." (mm) State necessity, doctrine of------Doctrine of State necessity is recognised not only in Islam and other religions of the world but also accepted by the eminent international jurists to fill a political vacuum and bridge the gap.

(nn) Maxim: ----"Salus populi est suprema lex"----Applicability.

(oo) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--Effect of Provisional Constitution Order, 1999; Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999 and Oath of Office (Judges) Order, 2000 was that Constitution of Pakistan (1973) still remained the supreme law of the land subject to the condition that certain parts thereof had been held in abeyance on account of State necessity. (pp) Constitution of Pakistan (1973)------Arts. 175 & 184(3)---Provisional Constitution Order (1 of 1999), Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble---Constitution of Pakistan (1973), Preamble and Art.184(3)---Oath of Judges of superior Courts under Oath of Office (Judges) Order, 2000---Effect--Powers of superior Courts---Superior Courts continued to function under the Constitution of Pakistan (1973)---Mere fact that the Judges of the superior Courts had taken a new oath under the Oath of Office (Judges) Order, 2000 did not in any manner derogate from the said position, as the Courts had been originally established under the Constitution of Pakistan (1973,) and had continued their functions in spite of the Proclamation of Emergency by the Chief Executive of Pakistan and Provisional Constitution Order, 1999 and other legislative instruments issued by the Chief Executive from time to time. (qq) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--Constitution of Pakistan (1973), Preamble and Art. 184(3)---Powers of Chief Executive of Pakistan---Scope and extent---Judicial review of powers of the Chief Executive of Pakistan by superior Courts---Scope---Chief Executive of Pakistan having validly assumed power by. means of an extra-constitutional step, in the interest of the -State and for the welfare of the people, was entitled to perform all such acts and promulgate all legislative measures as indicated by Supreme Court---Superior Courts, however, continue to have the power of judicial review to judge the validity of any act or action of the Armed Forces, if challenged; in the light of the principles underlying the law of State necessity---Powers of superior Courts under Art. 199 of the Constitution of Pakistan (1973), thus, remained available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any legislative instrument enacted by the Chief Executive and/or any order issued by the Chief Executive or by any person or authority acting on his behalf---Courts were not merely to determine whether there existed any nexus between the orders made; proceedings taken and acts done by the Chief Executive or by any Authority or person acting on his behalf, and his declared objectives as spelt out from his speeches dated 13th and 17th October, 1999, on the touchstone of State necessity but orders made, proceedings taken and acts done including the legislative measures, shall also be subject to judicial review by the superior Courts.

The Chairman, Joint Chiefs of Staff Committee and the Chief of Army Staff through Proclamation of Emergency dated the 14th October, 1999, followed by PCO 1 of 1999, whereby he had been described as Chief Executive, having validly assumed power by means of an extra Constitutional step, in the interest of the State and for the welfare of the people, was entitled to perform all such acts and promulgate all legislative measures as enumerated hereinafter, namely:-(a) All acts or legislative measures which were in accordance with, or could have been made under the 1973 Constitution, including the power to amend it; (b) All acts which tended to advance or promote . the good of the people; (c) All acts required to be done for the ordinary orderly running of the State; and (d) All such measures as would establish or lead to the establishment of the declared objectives of the Chief Executive. (ii) That Constitutional amendments by the Chief Executive could be resorted to only if the Constitution failed to provide a solution for attainment of his declared objectives and -further that the power to amend the Constitution by virtue of clause (6), sub-clause (i) (a) (ibid) was controlled by sub-clauses (b), (c) and (d) in the same clause. (iii) That no amendment shall be made in the salient features of the Constitution i.e. independence of judiciary, federalism, parliamentary form ,of Government blended with Islamic provisions. (iv) That Fundamental Rights provided in Part II, Chapter I of the Constitution shall continue to hold the field but the State will be authorized to make any law or take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 as contemplated by Article 233(1) of the Constitution, keeping in view the language of Articles 10, 23 and 25 thereof. (v) That these acts, or any of them, may be performed or carried out by means of orders issued by the Chief Executive or through Ordinances on his advice; (vi) That the superior Courts continue to have the power of judicial review to judge the validity of any act 'or action of the Armed Forces, if challenged, in the light of the principles underlying the law of State necessity as stated above. Their powers under Article 199 of the Constitution, thus, remain available to their full extent, and may be exercised as heretofore, notwithstanding -anything to the contrary contained in any legislative instrument enacted by the Chief Executive and/or any order issued by the Chief Executive or by any person or authority acting on his behalf. (vii). That the Courts are not merely to determine whether there exists any nexus between the orders made, proceedings taken and acts done by the Chief Executive of by any authority or person acting on his behalf, and his declared objectives as spelt out from his speeches, dated 13th and 17th October, 1999, on the touchstone of State necessity but such orders made, proceedings taken and acts done including the legislative measures, shall also be subject to judicial review by the superior Courts. (rr) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--Validation of Proclamation of Emergency dated 14-10-1999 in continuation of Emergency proclaimed on 28-5-1998---Proclamation of Emergency dated 28th May, 1998 issued under Art.232(1) of Constitution of Pakistan (1973) and Proclamation of Emergency dated 14-10-1999 issued by Chief Executive by way of an extra-constitutional step as a follow up of the Army take-over stood validated notwithstanding the continuance of the Emergency proclaimed on 28th May, 1998 still held the field. (ss) Provisional Constitution Order (1 of 1999)---

----Preamble---Proclamation of Emergency by Chief Executive of. Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), .Preamble--Constitution of Pakistan (1973), Preamble, Arts.209 & 184(3)---Past and closed transaction, doctrine of---Applicability---Cases of former Chief Justice and Judges of Supreme Court who had not taken oath under the Oath of Office (Judges) Order, 2000 and those Judges of the Lahore High Court, High Court of Sindh and Peshawar High Court, who were not given oath, could not be reopened being hit by the doctrine of past and closed transaction. The cases of former Chief Justice and Judges of the Supreme Court, who had not taken oath under the Oath of. Office (Judges) Order, 2000 (Order 1 of 2000), and those Judges of the Lahore High Court, High Court of Sindh and Peshawar High Court; who were not given oath, cannot be reopened, being hit by the doctrine of past and closed transaction. The practical effect of the above observation is that the action of the Chief Executive in this behalf has been validated. It is a well-settled principle that in such situations the Court may refuse relief in respect of a particular decision, but go on to determine the general question of law or interpretation that the case raises. Clearly, the Judges of the Superior Judiciary enjoy constitutional guarantee against arbitrary removal. They can be removed only by following the procedure laid down in Article 209 of the Constitution by filing an appropriate reference before the Supreme Judicial Council and not otherwise. The validity of the action of the Chief Executive was open to question on the touchstone of Article 209 of the Constitution. But none of the Judges took any remedial steps and accepted pension as also the right to practise law and thereby acquiesced in the action. Furthermore, the appropriate course of action for Supreme Court in these proceedings would be to declare the law to avoid the recurrence in future, but not to upset earlier actions or decisions taken in this behalf by the Chief Executive, these being past and closed transactions. The Courts can refuse relief in individual cases even though the action is flawed, depending upon the facts and circumstances of each case. The action of Chief Executive in the context given above has not encroached on the judicial power or impaired it in the process. However, the observations made herein as to the declaration of law under Article 209 of the Constitution would not entitle the relevant authorities or Supreme Court to reopen the cases of the above Judges which have become final. The Judges of the Supreme Court and High Courts cannot be removed without resorting to the procedure prescribed in Article 209 of the Constitution, but the cases of Judges who ceased to be Ridges of the Supreme Court and High Courts by virtue of Oath of Office (Judges) Order, 2000 (Order 1 of 2000) is hit by the doctrine of past and closed transaction and cannot be reopened. (tt) Constitution of Pakistan (1973)------Arts. 209 & 184(3)---Provisional Constitution Order (1 of 1999), Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--Constitution of Pakistan (1973), Preamble and Arts.184(3) & 209--Accountability, process of---Government shall accelerate the process of accountability in a coherent and transparent manner justly, fairly, equitably and in accordance with law---Judges of superior Courts were subject to accountability only in accordance with the methodology laid down in Art.209 of the Constitution of Pakistan (1973).

(uu) Constitution of Pakistan (1973)------Arts. 243 & 184(3)---Command of Armed Forces---Removal of Chief of the Army Staff and Chairman, Joint Chiefs of Army Staff Committee--Procedure---Chief of the Army Staff and Chairman, Joint Chiefs of Army. Staff Committee being a holder of constitutional post, his arbitrary removal in violation of the principle of audi alteram partem was ab initio void and of no legal effect. (vv) Provisional Constitution Order (1 of 1999)---

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--Constitution of Pakistan (1973), Preamble and Art.184(3)---Validity of extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces accorded by Supreme Court---Effect---Order of Supreme Court validating the extra-constitutional step of taking over the affairs of the country by the Armed Forces and rules laid down in the said order will not affect the trials conducted and convictions recorded including proceedings for accountability pursuant to various orders made and orders/laws promulgated by the Chief Executive of Pakistan or any person exercising powers or jurisdiction under his authority and the pending trials/proceedings may continue subject to the present order of validation by the Supreme Court. (ww) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--Constitution of Pakistan (1973), Preamble and Art.184(3)---Extraconstitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Effect---Effect of action of Armed Forces was not that legal order in the country had been completely suppressed or destroyed, but it was merely a Constitutional deviation for a transitional period so as to enable the Chief Executive of Pakistan to achieve his declared objectives. (xx) Constitution of Pakistan (19'73)------Arts. 224 & 184(3)---Provisional Constitution Order (1 of 1999), Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Elections---Time frame---Current electoral rolls being outdated, fresh elections. could not be held without updating ,the electoral rolls and after preparation of the electoral rolls as some time was required for delimitation of constituencies and disposal of objections etc.---Supreme Court, after having regard to all the relevant factors involved allowed three years' period to the Chief Executive of Pakistan with effect from the date of the Army take-over i.e. 12-10-1999 for achieving his declared objectives---Chief Executive of Pakistan shall appoint a date, not later than 90 days before the expiry of three years, for holding a general election to the National Assembly and the Provincial Assemblies and the Senate of Pakistan. (yy) Provisional Constitution Order (1 of 1999)------Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--Constitution of Pakistan (1973), Preamble and Art. 184(3)---Extra constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan---Validity---Jurisdiction to review/re-examine by Supreme Court the continuation of Proclamation of Emergency. dated 12-10-1999---Scope--Supreme Court having validated the extra-Constitutional step of taking-over the affairs of the country by the Armed Forces subject to rules laid down in the validating order, had jurisdiction to review/re-examine the continuation of Proclamation of Emergency dated 12-10-1999 at any stage, if the circumstances so warrant. Sardar Farooq Ahmed Khan Leghari v. Federation of Pakistan PLD 1999 SC 57 ref. Ahmad Saeed Karmani's case PLD 1956 (W.P) Lah.807; Darvesh M. Arbey's case PLD 1977 Lah.846; Iqbal Ahmad Khan's case PLD 1977 Lah.337; Muhammad Bachal Memon's case PLD 1987 Kar.296; Muhammad Naeem Akhtar's case 1992 CLC 2043; Shams-ud-Din's case 1994 MLD 2500; Manzoor Ahmed Wattoo's case PLD 1997 Lah.38; Muhammad Anwar Durrani's case PLD 1989 Quetta 25; A.K. Fazalul Quader Chaudhry's case PLD 1966 SC 105; Pit Sabir Shah's case PLD 1994 SC 738; Tfie Speaker, Balochistan Provincial Asembly, Quetta's case PLD 1996 SCMR-1969; Mrs. Shahida Zahir Abbassi's case PLD 1996 SC 632; Mahmood Khan Achakzai's case PLD 1997 SC 426; Wukala Mahaz Barai Tahafaz-e-Dastoor's case PLD 1998 SC 1263; Sardar Farooq Ahmed Khan Leghari's case PLD 1999 SC 57; Syed Jalal Mehmood Shah's case

PLD 1999 SC 395; Sh. Liaqat Hussain's case PLD 1999 SC 504; Miss Benazir Bhutto' case PLD 1988 SC 416; Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473; Dosso's case PLD 1958 SC (Pak.) 533; Miss Asma Jilani's case PLD 1972 9C 139; Begum Nusrat Bhutto v.- Chief of Army Staff 'and others PLD 1977 SC 657; Special Reference No: 1 of 1955 PLD 1955 SC 435; Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104; William Marburty v. James Medison 2 Law Edn.60; PLD.1955 FC 435; R v. Stratton (1779) (21 St. Tr. 1222); Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Al-Jehad Trust v. Federation of Pakistan 1999 SCMR 1379; Usif Patel and 2 others v. The Crown PLD 1955 FC 387; Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Controller of Patents and Designs, Karachi v. Muhammad Quadir Hussain 1995 SCMR 529; Zahid Akhtar v. Government of Punjab PLD 1995 SC 530; Federation of Pakistan v. N.-W.F.P. Government PLD 1990 SC 1172; Mian Aziz A. Sheikh v. The Commissioner of Income-tax, Investigation, Lahore PLD 1989 SC 613; Mst. Kaneez Fatima v. Wali Muhammad PLD 1993 SC 901; Fazle Ghafoor v. Chairman, Tribunal of Disputes, Dir, Swat at Chitral at Mardan 1993 SCMR 1073; Ghulam Hamdani. v. Muhammad Iqbal 1993 SCMR 1083; M. Ismail Qureshi v. M. Awais Qasim 1993 SCMR 1781; Zaheeruddin v. The State 1993 SCMR 1718; Brig. Retd. Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division 1994 SCMR 2142; Speech of the Chief Executive dated 17-10 1999; Mokotso v. H.M. King Moshoehoe II 1989 LRC (Const.) 24; Mitchell v. Director of Public Prosecutions 1986 LRC (Const.) 35; Hamza Shehbaz Sharif v. Federation of Pakistan 1999 PCr.LJ 1584; Huddaibia Engineering v. Pakistan PLD 1998 Lah. 90; Mushtaq Ahmed Gormani v. State PLD 1958 SC 333; Amanullah Khan v. Federal Government of Pakistan PLD 1990 SC 1092; M. Inayat Khan v. M. Anwar and 2 others PLD 1976 SC 354; Ex-Major-General Akbar Khan v. The Crown PLD 1954 FC 87; F.B. Ali v. The State PLD 1975 SC. 506; Shahida Zahir Abbasi v. President of Pakistan PLD 1996 SC 632; Muhammad Umar Khan v. The Crown PLD 1953 Lah. 528; Reference by the President of Pakistan under Art. 162 of the Constitution of Islamic Republic of Pakistan PLD 1957 SC (Pak.) 219; Federation of Pakistan v. Moulvi Tamizuddin Khan PLD 1955 FC 240; Attorney-General of the Republic v. Mustafa Ibrahim and others 1964 Cyprus Law Reports 195; Ziaur Rehman's case PLD 1973 SC 49; PLD 1989 SC 166; 1997 SCMR 1043 at 1057 and 1059; Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161; William Marbury v. James Medison 2 Law Ed. 60; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; Federation of Pakistan v. M. Nawaz Khokhar PLD 2000 SC 26; Anatulay VIII (1988) 2 SCC 602; Kh. Ahmed Tariq Rahim's case PLD 1992 SC 646; Federation of Pakistan v. Shaukat Ali Mian PLD 1999 SC 1026; Makenete v. Lekhanya and others (1993) 3 LRC; Mitchell and others v. Director of Public Prosecutions and another 1986 LRC (Grenada); Edwin Ward Scadding v. Louis Lorant 10 ER 164; Toronto R. Co. and City of Toronto 46 DLR 547; Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Fazalul Qadir Chaudhry's case PLD 1963 SC 486; Madzimbuto v. Lardner Burke (1968) 3 AER 561; Texas v. White 74 US (7 Wall) 700 (at p.733), 1868; Madzimbuto v. Lardner Burke 1966 Rhodesian L.Rep. 228 (General Division) and Muhammad Yusuf v. The Chief Settlement and Rehabilitation Commissioner Pakistan, Lahore and another PLD 1968 SC 101; Al-Qur'an: Sura Aale-e-Imran, Verses 4-135; Surah Maida, Verses 5/9; Sura AI-Nisa, Verses 135-136; Spirit of Law- by Montesquieu; The Constitutional History of England by F.W. Maitland; Law of Necessity by Glanville William, p.216; Principles of Revolutionary Legality by J.M. Eekelaar, pp.29,30,39 to 43; Cases in Constitutional Law by D.L. Keir and F.H. 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Wheare; Voyage through History by Masarrat Husain Zuberi; Corpus Juris Secundurn, Vol. 65, pp.115, 116, 118, 387, 389; Sorensen, pp. 271, 272; Judicial Review on Administration Action by De Smith, p. 544; States of Emergency---A Study prepared by the International Commission of Jurists, pp.14, 17, 18, 21, 23; Constitutional and Administrative Law by Hilaire Barnett;

Constitutional and Administrative. Law by Stanley De Smith and Rodney Brazier; Public Opinion .and Political Developments in Pakistan by Inamur Rehman; Pakistan in the 80s Law and Constitution, Edited by Wolfgang Peter Zingel Stephanie Zingel Ave Lalemant; In Defence of the Continuity of Law--Pakistan's Courts in Crises of State by Dieter Conrad; Black's Law Dictionary; A History of Militarism,. Civilian and Military by Alfred Vagts: Recognition of Governments in International Law with particular Reference to Governments in Exile by Stefan Talmon; The Man on Horseback---The Role of the Military in Politics by S.E. Finer; Machiavelli On Modern Leadership by Michael A. Ledeen; Through the Crisis; Standard Journal of International Law; The Indian Army and the Pakistan Army by Stephen P. Kohento; Beijing Statement of Principles of the Independence of Judiciary in the LAWASIA Region; The Federalist Papers by Alexander Hamilton-James Madison-John Jay; Corruption and Government, Cause,. Consequences and Reform by Susan Rose-Ackerman; Commonwealth Finance Minister Meeting held on 21-23rd September, 1999 at Grand Cayman, Cayman Islands; Money Laundering---A Practical Guide to New Legislation h) Rowan Bosworth-Davies and Graham Saltmarsh, 1994 Edn.; New Dictionary of American Politics by Smith and Zucher, First Edn., p.114; The Pollitics of American Democracy by M. Irish, Third Edn., pp.52 to 81; The Hidden Wiring---Unearthing the British Constitution by Peter Hennessy, pp.35, 37; Arthur Berriedale Keith---The Chief Ornament of Scottish Learning by Ridgway F. Shinn Jr.; The 1~rtgiish Constitution by Walter Bagehot; The Classics of International Law by Hugo Grotius; A Treatise on the Law of the Prerogative of the Crown and the Relative Duties and Rights of the Subject by Joseph Chitty; The; (iabcikovo-Nagymaros Project, decided by International Court of Justice; From Military to Civilian Rule, Edited by Constantine P. Danopoulos; Democracy, the Rule of Law and Islam, Edited by Eugene Cotran and Adel Omar Sherif; Constitutional Limitations by Colley, Eighth Edn., Vo1.2, 8:1357; Indian Constittitionai Law by H.M Seeravi, 4th Edn., p.20; American Constitutional Law, 1995 Edn., p.204 Revolution and Political Change by C. Welch and Bunker Taintor and Revolutions published in Irish Jurist, 1977 ref. Ch. Muhammad Farooq, Senior Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record for Petitioner (in C.P. No. 62 of 1999). . Khalid Anwar, Senior Advocate Supreme Court, M Rafique Rajwana, Advocate Supreme Court, Umar Bandial, Advocate Supreme Court, Ms. Saadia Abbasi, Advocate and S. Abul Aasim Jafri. .Advocate-on-Record for Petitioners (in C.P. No. 63 of 1999). Habibul Wahabul Khairi, Advocate Supreme Court for Petitioner (in C.P. No. 53 of 1999). Petitioner in person (in C.P. No.57 of 1999). Fazal Illahi Siddiqui, Advocate Supreme Court for Petitioner (in C.P. No.. 3 of 2000). Petitioner in person (in C.P. No. 66 of 1999). Petitioner in person (in C.P. No. 64 of 1999). Aziz A. Munshi, Attorney-General for Pakistan, Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Tanvir Bashir Ansari, Deputy Attorney-General, Mansur Ahmad, Deputy Attorney-General, S.A. Mannan, Advocate Supreme Court, Sh. Maqbool Ahmad, Advocate Supreme Court, Ch. Bashir Ahmad, Advocate Supreme Court, Ch. Fazle Hussain, Advocate-on-Record, Mehr Khan Malik, Advocate-on-Record and Waqar Rana, Advocate for Respondent (Federation). M. Ashraf Khan Tanoli, Advocate-General, Balochistan, M.Younis Khan Tanoli, Advocate-General, N.-W.F.P., Maqbool Illahi Malik, Advocate-General, Punjab, Nasim Sabir, Additional Advocate-General, Punjab, Tariq Mahmood Khokhar, Additional Advocate-General, Punjab, Rao M. Yousuf Khan, Advocate-on-Record, Raja Qureshi, AdvocateGeneral, Sindh, Abdul Haleem Pirzada, President, Supreme Court Bar Association, Kadir Bakhsh Bhutto, Vice-Chairman, Pakistan Bar Council and Dr. Farooq Hassan for President, Lahore High Court Bar Association (on Court's Notice).

S.M. Zafar, Senior Advocate Supreme Court assisted by Syed Ali Zafar, Advocate Supreme Court, Haider Zaman Qureshi and Raja Zafar Khalid, Advocates: Amicus curiae. Dates of hearing: 1st November, 6th December, 1999; 31st January, 1st to 3rd March; 6th to 10th, 13th, 14th, 22nd, 24th March; 1st to 5th and 8th to 12th May, 2000. JUDGMENT IRSHAD HASAN KHAN, CJ.---Through this common judgment we propose to dispose of Constitution Petitions Nos. 62 to 64, 66, 53, 57, of 1999 and Constitution Petition No. 3 of 2000, challenging the validity and legal effect of the army take-over, the issuance of Proclamation of Emergency (hereinafter referred to as the Proclamation) and promulgation of Provisional Constitution Order No. 1 of 1999 (hereinafter referred to as the PCO) and the Oath of Office (Judges) Order, 2000 (hereinafter called the Order I -of 2000). Some of the Constitution Petitions, fully or partly, support the army take-over, the Proclamation, the PCO and the Order I of 2000. 2. The above petitions raise questions of great public importance and of far reaching consequences.. 3. Ch. Muhammad Farooq, learned Senior ASC, for the petitioner in C.P. No. 62 of 1999, Mr. Khalid Anwar, learned Senior ASC, for the petitioners in C.P. No. 63 of 1999, Mr. Habib-ul-Wahabul Khairi, learned ASC, petitioner in C.P. No. 53 of 1999, Syed Iqbal Haider, petitioner in C.P.No. 57 of 1999, Mr. Shahid Orakzai, petitioner in C.P. No. 64 of 1999, Syed Imtiaz Hussain Bukhari, petitioner in C.P. No. 66 of 1999 and Mr. Fazal Illahi Siddiqui, learned ASC, petitioner in C.P. No. 3 of 2000 as well as Mr. Aziz A. Munshi, learned Attorney-General for Pakistan; Syed Sharifuddin Pirzada, learned Senior ASC for the Federation; Mr Abdul Haleem Pirzada, President, Supreme Court Bar Association; Dr. Farooq Hasan for President, Lahore High Court Bar Association; Mr. Kadir Bakhsh, Vice-Chairman, Pakistan Bar Council; Advocates-General of the Provinces and Mr. S.M. Zafar, learned Senior ASC as amicus curaie have addressed elaborate arguments as to the validity or otherwise and legal effect of the army take-over by General Pervez Musharraf. The parties have also filed voluminous documents on the factual aspects of the case and set out their respective versions of the events culminating in the army take-over, issuance of the Proclamation on 12th October, 1999 and other legal instruments referred to above. , 4. Facts of the case, briefly stated, are that the Chairman Joint Chiefs of Staff Committee and Chief of Army Staff General Pervez Musharraf on 12-10-1999 seized power in Pakistan by dismissing the Government of the then Prime Minister Mian Muhammad Nawaz Sharif, putting him under house arrest, on charges of interfering in the affairs of the Armed Forces, politicising the Army, destabilising it and trying to create dissension within its ranks. He briefly addressed the nation on radio and television at 3-00 a.m. on 13-10-1999. The text of the Chief of Army Staff's speech reads thus: TEXT OF THE COAS SPEECH "My dear countrymen, Assalam-o- Alaikum. You are all aware of the kind of turmoil and uncertainty that our country has gone through in recent times. Not only have all the institutions been played around with, and systematically destroyed, the economy too is in a state of collapse. We are also aware of the self-serving policies being followed, which have rocked the very foundation of the Federation of Pakistan. The armed forces have been facing incessant public clamour to remedy the fast declining situation from all sides of the political divide. These concerns were always conveyed to the Prime Minister in all sincerity, keeping the interest of the country foremost. It is apparent that they were never taken in the correct, spirit. My singular concern has been the well-being of our country alone. This has been the sole reason that the army willingly

offered its services for nation building tasks, the results of which have already been judged by you. All my efforts and counsel to the Government it seems were to no avail. Instead they now turned their attention on the army itself. Despite all my advices they tried to interfere with the armed forces, the last remaining viable institution in which all of you take so much pride and look up to, at all times, for the stability, unity and integrity of our beloved country. Our concerns again were conveyed in no uncertain terms but the Government of Mr. Nawaz Sharif chose to ignore all these and tried to politicize the army, destabilize it and tried to create dissension within its ranks. I was in Sri Lanka on an official visit. On my way back the PTA commercial flight was not allowed to land at Karachi but was ordered to be diverted to anywhere outside Pakistan, despite acute shortage of fuel, imperiling the life of all the passengers. Thanks to Allah, this evil design was thwarted through speedy army action. My dear countrymen having briefly explained the background, I wish to inform you that the armed forces have moved in as a last resort, to prevent any further destabilization. I have done so with all sincerity, loyalty and selfless devotion to the country with the armed forces firmly behind me. I do not wish to make a lengthy policy statement at this moment. I shall do that very soon. For the moment I only wish to assure you that the situation in the country is perfectly calm, stable and under control. Let no outside forces think they can take advantage of the prevailing situation. Dear brothers and sisters, your armed forces have never and shall never let you down, Inshallah, we shall preserve the integrity and sovereignty of our country to the last drop of our blood. I request you all, to remain calm and support your armed forces in the reestablishment of order to pave the way for a prosperous future for Pakistan. " May Allah guide us on the path of truth and honour. Allah Hafiz." 5. On 14-10-1999 the Chief of the Army Staff General Pervez Musharraf issued the Proclamation, effective from 12-10-1999, whereby the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) was held in abeyance and the whole of Pakistan brought under the control of Armed Forces. The text of the Proclamation dated 14-10-1999 reads thus: "PROCLAMATION OF EMERGENCY" "In pursuance of deliberations and decisions of Chiefs of Staff of the Armed Forces and Corps Commanders of Pakistan Army, I, General Pervez Musharraf, Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff proclaim Emergency throughout Pakistan, and assume the office of the Chief Executive of the Islamic Republic of Pakistan. "I hereby order and proclaim as follows: (a) (b) The Constitution of the Islamic Republic of Pakistan shall remain in abeyance; The President of Pakistan shall continue in office;

(c) The National Assembly, the Provincial Assemblies and Senate shall stand suspended; (d) The Chairman and Deputy Chairman of the Senate the Speaker and Deputy Speaker of the National Assembly and the Provincial Assemblies shall stand suspended; (e) The Prime Minister, the Federal Ministers, Ministers of State, Advisors to the Prime Minister, Parliamentary Secretaries, the Provincial Governors, the Provincial Chief Ministers, the Provincial Ministers and the Advisors to the Chief Ministers shall cease to hold office;

(t) The whole of Pakistan will come under the control of the Armed Forces of Pakistan. This Proclamation shall come into force at once and be deemed to have taken effect on and 12th day of October, 1999." This was followed simultaneously by the Provisional Constitution Order No. l of 1999, as amended, dated 14-10-1999, which reads thus: TEXT OF PROVISIONAL CONSTITUTION ORDER NO. 1 OF 1999 "In pursuance of Proclamation of the 14th day of October, 1999, and in exercise of all powers enabling him in that behalf, the Chairman Joint Chiefs of Staff Committee and Chief of Army Staff and Chief Executive of the Islamic Republic of Pakistan under the Proclamation of Emergency of 14th October, 1999 (hereinafter referred to as the Chief Executive) is pleased to make and promulgate the following Order1. (1) This Order may be called Provisional Constitution Order No. 1 of 1999.

(2) It extends to the whole of Pakistan. (3) It shall come into force at once. 2. (1) Notwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, Pakistan shall, subject to this Order and any other Orders made by the Chief Executive, be governed, as nearly as may be, in accordance with the Constitution. (2) Subject as aforesaid, all courts in existence immediately before the Commencement of this Order shall continue to function and to exercise their respective powers and jurisdiction: Provided that the Supreme Court or High Courts and any other Court shall not have the powers to make any order against the Chief Executive or any person exercising powers or jurisdiction under his authority. (3) The Fundamental Rights conferred by Chapter 1 of Part II of the Constitution, not in conflict with the Proclamation of Emergency or any Order made thereunder from time to time shall continue to be in force. 3. (1) The President shall act on, and in accordance, with the advice of the Chief Executive. (2) The Governor of a Province shall act on, and in accordance with the instructions of the Chief Executive. 4. (1) No Court, tribunal or other authority shall call or permit to be called in question the Proclamation of Emergency of 14th day of October, 1999 or any Order made in pursuance thereof. (2) No judgment, decree, writ, order or process whatsoever shall be made or issued by any Court or tribunal against the Chief Executive or any authority designated by the Chief Executive. 5. Notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the Chief Executive all laws other than the Constitution, all Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan whether made by the President or the Governor of a Province; shall be inserted and shall be deemed' to have always been so inserted, shall continue in force until altered; amended or repealed by the Chief Executive or any authority designated by him.

5-A(1) An Ordinance promulgated by the President or by the Governor of a Province shall not be subject to the limitation as to its duration prescribed in the. Constitution. (2) The provisions of clause (1) shall also apply to an Ordinance issued by the President' or by the Governor which was in force immediately before the commencement of the proclamation Order of Chief Executive of the Fourteenth day of October, 1999. Subject to the Proclamation Order of the Chief Executive of the Fourteenth day of October, 1999 and the provisions of the Provisional Constitution Order No. 1 of 1999 as amended, the President of the Islamic Republic of Pakistan on the advice of the Chief Executive, and the Governor of the Province on instructions of the Chief Executive, may issue and promulgate Ordinances which shall not be subject to the limitation as to their duration prescribed in the Constitution. 6. The Proclamation of Emergency issued on 28th day of May, 1998, shall continue but subject to the provisions of Proclamation of Emergency, dated 14th day of October, 1999 and this Provisional Constitution Order and any other Order made thereunder. 7. All persons who, immediately before the commencement of this Order, were in the service of Pakistan as defined in Article 260 of the Constitution and those persons who immediately before such commencement were in office as Judge of the Supreme Court, the Federal Shariat Court or a High Court or Auditor-General or Ombudsman and Chief Ehtesab Commissioner, shall continue in the said service on the same terms and conditions and shall enjoy the same privileges, if any." 6. On 13th December, 1999, the Chief of Army Staff, General Pervez Musharraf, after assuming the office of the Chief Executive of Pakistan, promulgated the Oath of Office (Judges) Order, 1999 (Order X of 1999), which reads thus: ' OATH OF OFFICE (JUDGES) ORDER, 1999 ORDER NO. 10 OF 1999 "Whereas in pursuance of the Proclamation of Emergency of the fourteenth day of October, 1999, and the Provisional Constitution Order No. 1 of 1999, the Constitution of the Islamic Republic of Pakistan has been held in abeyance; Whereas Pakistan is to be governed, as nearly as may be, in accordance with the Constitution; Whereas all Courts in existence immediately before the commencement of this Order have been continued to function and exercise their respective powers and jurisdiction; And whereas to enable the Judges of the Superior Courts to discharge their functions, it is necessary that they take Oath of their office; Now, therefore, in pursuance of the aforesaid Proclamation and Provisional Constitutional Order, the Chief Executive is pleased to make and promulgate the following Order:1. Short title and commencement.---(1) This Order may be called the Oath of Office (Judges) Order, 1999. (2) It shall come into force at once. 2. Interpretation.--In this Order, "Superior Court" means the Supreme Court of Pakistan or a High Court or the Federal Shariat Court and "Judge" includes Chief Justice. 3. Oath of Judges.---A Judge of Superior Court appointed after the commencement of this Order shall, before entering upon office, make Oath before the authority specified in the Constitution and in the appropriate from set out in the Third Schedule to the Constitution. "

(Sd.) General The Chief Executive of the Islamic Republic of Pakistan Chairman Joint Chief of Staff Committee and Chief of Army Staff (Pervez Musharraf) Rawalpindi 31st December, 1999. On 25th January, 2000, the Chief Executive promulgated the following amended Oath of Office (Judges) Order, 2000 (Order I of 2000): "OATH OF OFFICE (JUDGES) ORDER, 2000 ORDER NO. 1 OF 2000 "Whereas in pursuance of the Proclamation of Emergency of the Fourteenth day of October, 1999, and the Provisional Constitution Order No. 1 of 1999, as amended, the Constitution of the Islamic Republic of Pakistan has been held in abeyance; Whereas Pakistan is to be governed, as nearly as may be, in accordance with the Constitution and the Chief Executive has and shall be deemed always to have had, the powers to amend the Constitution; Whereas all Courts in existence immediately before the commencement of this Order have been continued to function and to exercise their respective powers and jurisdiction; subject to the Proclamation of Emergency and Provisional Constitution Order No. l of 1999 as amended. And whereas to enable the Judges of the Superior Courts to discharge their functions, it is necessary that they take Oath of their office; Now, therefore, in pursuance of the aforesaid Proclamation and Provisional Constitution Order as amended and in exercise of all other powers enabling him in that behalf, the Chief Executive is pleased to make and promulgate the following Order:1. Short title and commencement.---(1) This Order may be called the Oath of Office (Judges) Order, 2000. (2) It shall come into force at once

2. Interpretation.---In this Order, "Superior Court" means the Supreme Court of Pakistan or a High Court or the Federal Shariat Court and "Judge" includes Chief Justice. 3. Oath of Judges.---(1) A person holding office immediately before the commencement of this Order as a Judge of Superior Court shall not continue to hold that office if he is not given or does not make, Oath in the form set out in the Schedule, before the expiration of such time from such commencement as the Chief Executive may determine or within such time from such commencement as the Chief Executive may determine or within such further time as may be allowed by the Chief Executive. (2) A Judge of Superior Court appointed after the commencement of this order shall, before entering upon office, make Oath in the form set out in the Schedule. (3) A Person referred to in clauses (1) and (2) who has made Oath as required by these clauses shall be bound by the provisions of this Order, the proclamation of Emergency of the Fourteenth day of October, 1999 and the Provisional Constitution Order No. 1 of 1999 as, emended and, notwithstanding any judgment of any Court., shall not call in question or permit to be called in question the validity of any of the provisions thereof. '

(4) A Judge of Supreme Court or Federal Shariat Court shall make Oath before the President/Chief Executive or a person nominated by him and a Judge of High Court shall make the Oath before the Governor or a person nominated by him. 4. The Chief Executive may, for- the purpose of removing any difficulties,, or for bringing the provisions of this Order into effective operation, make such provisions as he may deem to be necessary or expedient. The Oath of Office (Judges) Order No. 10 of 1999 is hereby repealed. " (Sd.) General The Chief Executive of the Islamic Republic of Pakistan Chairman Joint Chief of Staff Committee and Chief of Army Staff (Pervez Musharraf) Islamabad 25th January, 2000. " 7: We have heard the learned counsel appearing on behalf of the petitioners with great patience and Mr. Aziz A. Munshi, the learned Attorney General for Pakistan, Syed Sharifuddin Pirzada, Senior ASC, learned counsel appearing on behalf of the Federation of Pakistan, Mr. Abdul Haleem Pirzada, President, Supreme Court Bar Association and Dr. Farooq Hasan for President, Lahore High Court Bar Association as also Mr. S.M. Zafar, learned amicus curaie: CONSTITUI'ION PETITION NO. 62 OF 1999 Syed Zafar Ali Shah v. General Pervez Musharraf etc. 8. The petitioner in this petition is an Advocate of the Lahore High Court as well as the Supreme Court of Pakistan. He is also a former member of the suspended National Assembly of Pakistan having been elected from Constituency No. NA-35, Islamabad. Besides, he is President of Pakistan Muslim League, Islamabad capital territory and former Parliamentary Secretary, Law and Parliamentary Affairs. 9. It is pleaded that sometime prior to the eventful day viz 12th October, 1999, the petitioner had left for the United States to attend 54th Session of the United Nations General Assembly, being a member of the delegation headed by Mr. Muhammad Siddique Kanju, Minister of State for Foreign Affairs. On 12th October, 1999, while he was in New York he learnt that the Prime Minister of Pakistan had removed General Pervez Musharraf, who was out of country, from his office and appointed Lt. General Ziauddin as the Chief of Army Staff. He had also learnt that Lt. General Mahmood Ahmed, Corps Commander 10 Corps had. captured the Pakistan Television Station, Islamabad, and after entering the Prime Minister's House forcibly had arrested the Prime Minister and his Colleagues present there. General Pervez Musharraf had appeared on the PTV on 13th October, 1999 at 3-00 a.m. and announced the dismissal of the Prime Minister. and his Government. Thereafter, on 14th October, 1999, he proclaimed state of emergency throughout Pakistan, assumed the office of the Chief Executive of the Islamic Republic of Pakistan and issued Provisional Constitutional Order No. 1 of 1999 whereby the Constitution was held in abeyance, the National and Provincial assemblies as well as the Senate were suspended and the country-was placed under the control of the Armed Forces and formation of the National Security Council, and the Cabinet was announced.

10. Ch. Muhammad Farooq, learned counsel for the petitioner, highlighted the grounds of challenge contained in the petition and also the grievance of the petitioner emanating from dismissal of the Pakistan Muslim League Government, holding in abeyance of the Constitution and suspension of the Senate, National and the Provincial Assemblies. He also referred extensively to the written statement filed by the respondents and the rejoinder filed by the petitioner in order to augment his petition and meet the points raised in the written statement. Referring to the grounds of challenge he emphasised that the Army take-over having been directed against an elected Prime. Minister and lawful Government was immoral, illegal and unconstitutional, the role of the Chief Executive assumed by General Pervez Musharraf was ultra vires the Constitution, and he and his colleagues had not only violated the oath taken by them under Article 244 of the Constitution but also committed the offence of high-treason by subverting the Constitution. The Chief Executive was performing his functions without taking oath of office and his actions being tainted with mala fide could not be justified on any ground whatsoever. He further submitted that the axed Government having been formed by duly elected representatives and in accordance with the Constitution and the law, was vested with a legal right to complete its tenure unless replaced by another Constitutional Government and its sudden and un-constitutional dismissal had tarnished the image of Pakistan and put at stake the interest of the country, in the global context, as well as of the Armed Forces, which were held in high esteem by one and all. According to him the expenditure being incurred on the present set up from national Exchequer was unauthorized. He thoroughly dissected the Proclamation of Emergency and the PCO and dubbed them as void ab initio and ultra vires the Constitution. He expressed his surprise on issuance of the Proclamation of Emergency from Karachi instead -of the Capital of the country. He was of the view that both the instruments offended against the Objectives Resolution enshrined in Article 2A, an integral and substantive part of the Constitution, which had not only laid down in most unequivocal terms that the State shall exercise its powers and authority through the chosen representatives of the people but had also guaranteed that the method of governance shall be based on Federalism, Parliamentary form of Government, Independence of Judiciary and the Injunctions of Islam as set out in the Holy Qur'an and Sunnah. Referring to the written statement he submitted that it .had been filed in the connected petition without any prayer to 6e treated as written statement in this petition, therefore, the assertions made in this petition had gone virtually unchallenged. He also took exception to the preliminary objections taken in the written statement. that this Court was bereft of jurisdiction to entertain the petition; the petition was not maintainable owing to suspension of the Fundamental Rights and. the General Elections held on 3rd February, 1997, were a farce. He stated vociferously that the turn out of voters was about 36% ; the election was transparent by all standards having been held under the Military umbrella and organized and conducted honestly, justly and fairly by a Chief Election Commissioner who was ex-Chief Justice, Peshawar High Court and an appointee of Mohtarma Benazir Bhutto and. the factum of transparency had been confirmed by the local and the foreign observers. He lamented that the democratic process was interrupted at regular intervals with the result that the country, which was created by force of vote had remained under Military rule for 30 long years. 11. Adverting to the objection in regard to bar of jurisdiction contained in the Proclamation of Emergency and the PCO, he submitted that these unconstitutional provisions cannot oust the jurisdiction of this Court which in the past .had not abdicated its jurisdiction even in the face of bar of jurisdiction contained in Articles. 63A(6) 66, 69, 199(3), 236(2), 239(5), 245(2), 270-A and 48(4) and had struck down the orders, decisions or actions which were found to be coram non judice, mala fide, in excess of jurisdiction or without jurisdiction. He cited the following authorities in support of his contention:- . (1)PLD 1956 (W.P) Lahore 807 (F.B) (Ahmad Saeed Karmani's case). (2) PLD 1977 Lahore 846 (Darvesh M. Arbey's case). (3) PLD 1977 Lahore 1337 (Iqbal Ahmad Khan's case). (4) PLD 1987 Karachi 296 (F.B) (Muhammad Bachal Memon's case).,

(5) 1992 CLC 2043 (D.B), (Muhammad Naeem Akhtar's case). (6) 1994 MLD 2500 (D.B) (Shams-ud-Din's case). (7) PLD -1997 Lahore 38 (F.B), (Manzoor Ahmed Wattoo's case). . (8) PLD 1989 Quetta 25 (F.B)(Muhammad Anwar Durrani's'case). (9) PLD 1966 SC~ 105 (A.K. Fazalul Quader Chaudhry's case). (10) PLD 1994 SC 738 (Pir Sabir Shah's case).

(11) PLD 1996 SCMR 1969 (The Speaker, Balochistan Provincial Assembly, Quetta's case). (12) PLD 1996 SC 632 (F.B) (Mrs. Shahida Zahir Abbassi's case). (13) (14) (15) (16) (17) PLD 1997 SC 426 (Mahmood Khan Achakzai's case). PLD 1998 SC 1263 (Wukala Mahaz Barai Tahafaz-e-Dastoor's case). . PLD 1999 SC 57 (Sardar Farooq Ahmed Khan Leghari's case). PLD 1999 SC 395 (Syed Jalal Mehmood Shah's case). PLD 1999 SC 504 (Sh. Liaqat Hussain's case).

Criticizing the third preliminary objection raised in the written statement about non-maintainability of the petition on account of suspension of the Fundamental Rights he submitted that the Fundamental Rights enshrined in the Constitution could not be suspended being based on the last Sermon of the Holy Prophet (p.b.u.h.) and the Islamic principles. Besides, the power conferred on the Courts by Article 4 of the Constitution cannot be curtailed even if the Fundamental Rights are suspended. In any event, notwithstanding the curb of suspension imposed by the Proclamation of Emergency and the P.C.O., the Fundamental Rights were alive and enforceable and the petition was maintainable, in view of the law laid down by this Court in the cases of Miss Benazir Bhutto PLD 1988 SC 416, Mian Muhammad Nawaz Sharif PLD 1993 SC 473, Wukala Mahaz Barai Tahafaz-e-Dastoor PLD 1998 SC 1263, Sardar Farooq Ahmed Khan Leghari PLD 1999 SC 57 and Sheikh Liaqat Hussain PLD 1999 SC 504. 12. He also took exception to the assertion made in the written statement that the Military take over was welcomed by the people of Pakistan as was evident from 'the public statements made by, leaders of various political parties. He was of the view that the people, by and large, were unhappy and disappointed and the coup d'etat was supported either by a few self-styled political leaders who wanted to secure slots in the new setup or those politicians whose political parties had no representation in the Parliament. 13. He also raised a technical point that in view of the imminent threat of external aggression, the President of Pakistan had already issued a Proclamation of Emergency under Article 232(1) of the Constitution, therefore, the Proclamation of Emergency issued by General Pervez Musharraf was void ab initio being an unwarranted duplication. 14. Referring to the Constitutional status and role of the Armed Forces he submitted that according to Article 243 of the Constitution the Armed Forces were under the command and control of the Federal Government and in view of the explicit provisions of Article 245 of the Constitution, were obliged, under the directions of the Federal Government, to. defend Pakistan against external aggression or threat of war and, subject to law, act in aid of civil power when called upon to do so and there was no provision in the Constitution empowering them to take over the Federal Government or perform functions of any organ of the State. In order to lend support to the contention he read out the following excerpts from the case of Sheikh Liaqat Hussain PLD 1999 SC 504 by one of us (Irshad Hasan Khan, J.) (now the Chief Justice):-

"The soldiers and the citizens stand alike under the law. Both must obey the command of the Constitution and obedient to its mandates. The Armed Forces have to act within the scope of their jurisdiction as defined in the Constitution." "A Government elected by the Constitution can only perform its functions and ensure observance of the provisions of the Constitution by making the civil power superior to and not subordinate to the Armed Forces during peace as well as war." 15. He further submitted that the Prime Minister had not done anything unconstitutional by removing the Chief of the Army Staff as under Article 243 of the Constitution he was fully empowered to do so. It was not the first time that he had exercised this power because in the past also he had removed the Chiefs of the Army, Navy and Air Force. The reaction of the Chief of the Army Staff and his colleagues was unjustified because under Article 91(4) of the Constitution the Cabinet was responsible to the National Assembly and not to them. While elaborating the role of the Armed Forces he made an outburst that the concept of Military Government was alien to the civilized world but unfortunately in our country the power is taken over by the Army after every decade on one pretext or the other. 16. He repeatedly and emphatically submitted that the Military take over and its concomitant two invalid instruments cannot be validated by invoking either the Kelsen's theory highlighted in Dosso's case PLD 1958 SC 533 as it was rejected in cases of Miss Asma Jilani PLD 1972 SC 139 and Begum Nusrat Bhutto PLD 1977 SC 657 or the `doctrine of necessity' propounded in the latter cases which according to the judgment of this Court' in the case of Sheikh Liaqat Hussain PLD 1999 SC 504 has been buried for ever and cannot be dug out from its grave. Besides, a parallel cannot be drawn between the situations prevailing at the time of imposition of Martial Law by General Ziaul Haq and the present take-over by General Pervez Musharraf. General Ziaul Haq had imposed Martial Law as the people had not accepted the result of the rigged election and there were violent demonstrations whereas in the present case there was no breakdown of law and order, the Federal and the Provincial Governments were running smoothly and the acts of terrorism committed by some anti-state elements in Karachi were successfully combated and curbed by imposing Governor's Rule. The Proclamation of Emergency and the P.C.O. were too invalid to be validated by any doctrine or the Agenda announced by the Chief Executive in his speech delivered on 17th October, 1999. 17. Another argument advanced by him with all the vehemence at his disposal was that the Army take-over had posed a grave danger to the Federalism as it had impaired the judicially recognized trichotomy of powers by eliminating the Executive, suspending the Legislature and making an attempt to curtail the independence of Judiciary. . 18. Reverting to the criticism leveled in the written statement against the person and policies of the former Prime Minister, he submitted that the allegation of making a fortune through kickbacks and other corrupt methods was vague, bald and false and could not serve as a springboard for justifying the take-over. The allegation that these amendments were bulldozed was a figment of the imagination of the respondents. The criminal cases registered against the former Prime Minister and his colleagues were also false and fabricated. The allegation that the former Prime Minister had taken steps to impair the Independence of Judiciary were also without any substance. The controversy in regard to freezing of the Foreign Exchange Accounts can be settled in the light of the detailed report of the State Bank of Pakistan. The Governor Rule imposed in the Province of Sindh was validated by this Court in the case of Syed Jalal Muhammad Shah PLD 1999 SC 395. 19. Ch. Muhammad Farooq, elaborating his arguments made a reference to The State v. Dosso PLD 1958 SC (Pak.) 5'33, wherein this ,Court, relying on Kelsen's theory of "revolutionary legality", validated the imposition of Martial Law by General Muhammad Ayub Khan and then proceeded to refer the case of Miss Asma Jilani v. Government of the Punjab PLD 1972 SC 139, wherein this Court overruled the dictum laid down in the case of Dosso (supra). Extensive references were made from Miss Asma Jilani's case, wherein at page 178 Placitum-I, it was observed:--

"Nevertheless, with utmost respect to the learned Chief Justice, I do feel that in laying down a novel juristic principle of such far reaching importance he did proceed on the basis of certain assumptions, namely:(1) "that the basic doctrines of legal positivism", which he was accepting, were such firmly and universally accepted doctrines that "the whole science of modern jurisprudence" rested upon them; (2) that any "abrupt political change not within the contemplation of the Constitution" constitutes a revolution, no matter how temporary or transitory the change, if no one has taken any step to oppose it; and (3) that the rule of international law with regard to the recognition of States can determine the validity also of the States' internal sovereignty. " "These assumptions were, in my humble opinion, not justified. As I have earlier indicated Kelsen's theory was, by no means, a. universally accepted theory nor was it a theory which could claim to have become a basic doctrine of the science of modern jurisprudence, nor did Kelsen ever attempt to formulate any theory which "favours totalitarianism". At page 179 Placitum-I, of the above report, it was observed:"Kelsen has done so but unfortunately he still continues to be grievously misunderstood. He was only trying to lay down a pure theory of law as a rule of normative science consisting of `an aggregate or system of norms'. He was propounding a theory of law as a `mere jurists' proposition about law'. He was not attempting to lay down any legal norm or legal norms which are `the daily concerns of Judges, legal practitioners or administrators'. In his early works this distinction was not made clear but in 1960 he attempted in his book `Rechtslehre' to clarify the confusion by pointing out, as Julius Stone observes, `that the propositions of the pure theory of law are mere jurists' propositions about law and that they do not bind the Judge, in the way in which legal norms bind him. At pages 181.-182, Placita-L, M, N of the report, it was observed: "Kelsen in his attempt to evolve a pure science of law as distinguished from a natural science attached the greatest importance to keeping law and might apart. He did not lay down the proposition that the command of the person in authority is a source of law ...." "I am also unable to agree with the learned Chief Justice that upon the principles of International Law if the territory and the people remain substantially the same there is "no change in the corpus or international entity of the State and the revolutionary Government and the new State are, according to International Law, the legitimate Government and the valid Constitution of the State". With great respect I must point out that this proposition does not find support from any principle of International Law. According to Oppenheim's view as propounded in his bbok on International Law if the revolutionary Government is ineffective and or has no "reasonable expectancy of permanence" and/or does not "enjoy the acquiescence of the population", then the international community may well-refuse to recognise it, even though its territorial integrity remains unchanged and its people remain substantially the same." "In any event, if a grand-norm is necessary for us I do not have to look to the Western legal theorists to discover one. Our own grundnorm is enshrined in our own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the people without the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm' which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March, 1949. This Resolution has been described by Mr. Brohi as the `corner stone of Pakistan's legal edifice' and recognized even by the

learned Attorney-General himself `as the bond which binds the nation' and as a document from which the Constitution of Pakistan `must draw its inspiration'. This has not been abrogated by any one so far, nor has this been departed or deviated from by any regime, military or. Civil. Indeed, it cannot be, for, it is one of the fundamental principles enshrined in the Holy Qur'an: Says, `O Allah, Lord of sovereignty. Thou givest sovereignty to whomsoever Thou pleasest; and Thou takest away sovereignty from whomsoever Thou pleasest. Thou exaltest whomsoever Thou pleasest and Thou abasest whomsoever Thou pleasest. (Pt.3, Ch.3, A1 `Imran, Ay,26.) The basic concept underlying this unalterable principle of sovereignty is that the entire body politic becomes a trustee for the discharge of sovereign functions. Since in a complex society every citizen cannot personally participate in the performance of the trust, the body politic appoints State functionaries to discharge these functions on its behalf and for its benefit, and has the right to remove the functionary so appointed by it if he goes against the law of the legal sovereign, or commits any other breach of trust or fails to discharge his obligations under a trust. The functional Head of the State is chosen by the community and has to be assisted by a Council which must hold its meetings in public view and remain accountable to public. It is under this system that the Government becomes a Government of laws and not of men, for; no one is above the law. It is this that led Von Hammer, a renowned orientalist, to remark that under the Islamic system `the law rules through the utterance of justice, and the power of the Governor carries out the utterance of it.' Reference was also made to head-note from page 143 of the report, which reads thus:"It is clear that under the Constitution of 1962, Field-Marshal Muhammad Ayub Khan had no power to hand over power to anybody. Under Article 12 of the Constitution he could resign his office by writing under his hand addressed to the Speaker of the National Assembly and then under. Article 16 as soon as the office of President fell vacant the Speaker of the National Assembly had to take over as the acting President of the Country and an election had to be held within a period of 90 days to fill the vacancy. Under Article 30 the President could also proclaim an emergency if the security or economic life of Pakistan was threatened by internal disturbances beyond the power of a Provincial Government to control and may be for the present purposes that he could also proclaim Martial Law if the situation was not controllable by the civil administration. It is difficult, however, to appreciate under what authority a , Military Commander could proclaim Martial Law. " He then proceeded to refer passages from pages 206, 267 and 270, which are reproduced hereunder respectively as follows"I too am of the opinion that recourse has to be taken to the doctrine of necessity where the ignoring of it would result in disastrous consequences to the body politic and upset the social order itself but I respectfully beg to disagree with the view that this is a doctrine of validating the illegal acts of usurpers. In my humble opinion, his doctrine can be invoked in aid only after the Court has come to the conclusion that the acts of the usurpers were illegal and illegitimate. It is only then that the question arises as to how many of his acts, legislative or otherwise, should be condoned or maintained, notwithstanding their illegality in the wider public interest. I would call this a principle of condonation and not legitimization." "The learned Attorney-General has very frankly conceded that it is this Court that can put the final seal on the validity or otherwise of a law. He has also frankly conceded that it is difficult for him to support the provision of section 3(1)(a) of the President's Order No. 3 of 1969 which prohibits the Court from receiving or entertaining any complaint etc. The Court's power to discover law applicable to a situation has been accepted in the GovernorGeneral's Reference No. 1 of 1955 (PLD 1955 FC 435). In the case under report the Governor-General having found himself in a difficult situation and having been unable to find any legal basis to meet the situation had to approach the then Federal Court

for a solution of the problem and the Court answered the reference and indicated the manner in which the problem could be legally solved. " "It is, thus, evident that the very foundations upon which the decision rested did not exist. I, therefore, think that this Court should make it clear that the validity or otherwise of an existing order can only be determined with reference to the laws of Pakistan and not to any theory of international jurisprudence. It is also necessary to state firmly that the question of existence of a revolution or its success are questions of fact which can only be decided upon evidence, and not assumed. This will remove once for all the temptations that have been placed in. the way of an adventurer seizing power illegally and destroying an existing legal order." 20. In order to reinforce his standpoint as to theory. of `revolutionary legality' Ch Muhammad Farooq made extensive references from the case of Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657, wherein at pages 671-674 of the report, it was observed as under:-"Mr. A.K. Brohi, learned counsel appearing for the Federation of Pakistan, which was also made a party at his request, has taken two preliminary objections as to the maintainability of this petition:(a) That it is directed against the Chief of the, Army Staff, whereas the orders of detention had been passed by the Chief Martial Law Administrator; and (b) That the petitioner is not an aggrieved person in terms of Article 184(3) of the Constitution read with Article 199 thereof, as she does not allege any violation of her own Fundamental Rights, but only those of the detenus. "He also maintains that this Court has no jurisdiction to grant any relief in this matter owing to the prohibition contained in Articles 4 and 5 of the Laws (Continuance in Force) Order, 1977, which clearly contemplate that no Court, including the High Court and the Supreme Court, can question the validity of any Martial Law Order or Regulation, or any order made thereunder by a Martial Law Authority. He submits that under clause (3) of Article 2 of the aforesaid Laws (Continuance in Force) Order the right to enforce Fundamental Rights stands suspended, and for this reason as well the petition is not maintainable. "As to the legal character of the new regime, and the validity of the Laws (Continuance in Force) Order, 1977, and the various Martial Law Regulations and Orders issued by the Chief Martial Law, Administrator and the President under its authority, Mr. Brohi submits that up to the 5th of July, 1977, Pakistan was being governed under the 1973 Constitution, but on that day a new Legal Order came into force by virtue of the Proclamation issued by the Chief Martial Law Administrator, and this Legal Order has displaced-albeit temporarily-the old Legal Order. The validity or legality of any action which takes place after the 5th of July, 1977 can only be tested against the guidelines provided by the new Legal Order. According to him, the grundnorm of the old Legal order, as provided by the 1973 Constitution, has given way to a new grundnorm. provided by the Proclamation and the Laws (Continuance in Force) Order, and to that extent the jurisdiction of the superior Courts has been altered. He submits that as the transition from the old Legal Order to the new Legal Order has not been brought about by arty means recognised or contemplated by the 1973 Constitution, therefore, it constitutes a meta-legal or extra Constitutional fact, attracting the doctrine of "revolutionary legality". In this context, according to Mr. Brohi, whenever a Constitution and the national Legal order under it are disrupted by an abrupt political change not within the contemplation of the Constitution, such a change is called a revolution, which term also includes coup d'etat. In such a situation the Court has to determine certain facts which may be termed "constitutional facts", which relate to the existence of the Legal Order within the framework of which the Court itself exists and functions. If it finds that all the institutions of State power have, as a matter of fact, accepted the existence of the new Legal Order, which 'has, thus, become effective, then all questions of legality or illegality are to be determined within the framework of the new Legal Order: Mr. Brohi submits that, on this view of the matter, a viable alternative can be found between the two

extreme positions adopted by this Court in Dosso's Case (PLD 1958 SC (Pak.) 533) and Asma Jillani's case-one holding that every revolution, once successful is legal, and the other holding that a revolution as such is illegal. According to him, the Supreme Court in Dosso's case could have decided the controversy by simply holding that, as a matter of constitutional fact, a new Legal Order had come into being in the country, and the question in issue in that case could only be decided by reference to this new Legal Order which had attained effectualness. He contends that the view taken by the Supreme Court in Asma Jillani's case leaves several questions unanswered, by rejecting Kelsen's pure theory of law, because it does not provide any guidelines as to what law the Courts ought to apply in case a revolution has become effective by suppressing or destroying the old Legal Order. As a result, Mr. Brohi submits that this Court should, therefore, lean in favour of holding that a new Legal Order has effectively emerged in Pakistan by means of a meta-legal or extra-Constitutional change, and for the time being this is the legal framework according to which all questions coming before the Court must be decided. In his view it is not necessary for the Court, nor is it a concomitant of judicial power to either side with the revolution or to act as a counter-revolutionary, by giving its seal of approval to a military intervention or to condemn it by describing it as illegal. Judicial restraint requires that the Court should only take judicial notice of events which have transpired in the country, and decide as a constitutional fact, whether the new Legal Order has become- effective or not. " "As to the necessity for the imposition of Martial Law on the 5th of July, 1977, Mr. Brohi has stated that the events leading thereto fall into two phases:(i) The first phase relates to the unconstitutional and illegal governance of this country by the detenus and their associates and terminates on the eve of the imposition of Martial Law; and (ii) The second phase relates to the preparations which were being made by detenus and their associates for the fomenting of civil war within the country and their intention to frustrate and prevent the holding of free and fair elections and thereby consolidate their illegal tenure of office." . "He submits that the Court may take judicial notice of the picture emerging from the mosaic of these events, which are cited merely to illustrate the overall pattern of-events, and not to embark upon a detailed factual inquiry which would be outside the scope of these proceedings. According to the learned counsel, the specific illegalities committed by or at the instance of the former Government will form the subject-matter of independent legal proceedings in which the persons concerned will be afforded a reasonable opportunity for their defence in accordance with law." "Mr. Brohi goes on to state that massive rigging took place during the elections held on the 7th of March, 1977 in accordance with the directions issued at the -highest Government level, and that the then Chief Election Commissioner, in an interview given to the daily Millat, Karachi, pointedly commented on the widespread irregularities committed in relation to these elections, and recorded this opinion that results in more than 50%a of the seats were affected thereby. He had, further .expressed the view that the appropriate course would be to hold fresh elections." "Mr. Sharifuddin Pirzada next submits that although he would generally support Mr. Brohi's submissions as to the legal character of an effective revolution, yet he does not wish to adopt a position contrary to the one he took up while appearing as amicus curiae in Asma Jillani's case, regarding the validity and applicability of Kelsen's pure theory of law relating to the meta-legal character of the change and the birth of a new grundnorm. He submits that there are several renowned jurists who do not fully subscribe to Kelsen's view and consider that effectualness alone, to the exclusion of all considerations of morality and justice, cannot be made a condition of the validity of the new Legal Order. The learned counsel, however, submits that the circumstances culminating in the imposition of Martial Law on the 5th of July, 1977 fully attract the doctrine of State necessity and of salus populi est suprema lex, with the result that the action taken by the Chief Martial Law Administrator must be regarded as valid, and the Laws (Continuance in Force) Order, 1977, must be treated as being a supra-Constitutional instrument, now

regulating the governance of the country. The learned Attorney-General contends that the doctrine of necessity is not only a part of the legal systems of several European countries, including Britain, but is also recognised by the Holy Qur'an. Hecontends that consequently all actions taken by the Chief Martial Law Administrator to meet the exigencies of the situation and to prepare the country for future election with a view to the restoration of democratic institutions must be accepted by the Courts as valid, and there can be no question of condonation, which concept can apply only in the case of the acts of a usurper. On this view of the matter, Mr. Sharifuddin Pirzada submits that . the Court cannot grant any relief to the detenus, under Article 184(3) of the Constitution, as the Fundamental Rights stand suspended by virtue of clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977. " . "Mr. Brohi as well as Mr. Sharifuddin Pirzada were also asked to address the Court on the possible effect and implications of the new oath of office administered to the Judges of the Supreme Court and the High Courts after the imposition of Martial Law. They both stated that, in their view, the new oath has not in any manner restricted the independence of the superior judiciary, nor affected their obligation to perform their judicial functions according to law; it only indicates that the superior judiciary, like the rest of the country, has accepted the fact, which is even otherwise also evident, that, on the 5th of July, 1977, a radical transformation took place in the pre-existing Legal Order. Both the learned counsel are agreed, and Mr. Yahya Bakhtiar, learned counsel for the petitioner, joins them, that the taking of the fresh bath by the Judges of this Court does not in any way preclude them from examining the 'question of the validity of the new Legal Order and decide the same in accordance with their conscience and the law." At page 681 of the report, it was observed: "I have no cavil with the propositions and observations referred to by Mr. Brohi, but I do not see how they affect the correctness of the view taken in Asma Jillani's case. Even if the Court erred in observing that the assumption regarding the success of the revolution was not justified for the reason that a few days after the pronouncement of the Court President Iskander Mirza was himself deposed by Field Martial Muhammad Ayub Khan, and the Court should have assumed the facts as stated by Muhammad Munir, C.J., the view taken by the Court as to the applicability of Kelsen's theory is not affected by this error. The Court. has given sound reason for rejecting it, particularly the fact that it was at best a theory about law, which had not been universally accepted by other renowned jurists. Unless, therefore, compelling reasons are shown for departing from the view. taken by this Court in Asma Jillani's case, I would like to adhere to the same for the reasons so ably stated in the judgments of Hamoodur Rehman, C.J. and Muhammad -Yaqub Ali, J. (as he then was)." At page 693, it was observed: "The stage has now been reached for a somewhat detailed examination of the circumstances culminating in the imposition of Martial Law on the 5th of July, 1977. A brief mention thereof has already been made in the earlier part of this judgment, while summarising the contentions raised by Messrs. A.K. Brohi and Sharifuddin Pirzada. It may be stated that many of the averments made in this behalf in the written statement filed by Mr. A.K. Brohi have been strenuously controverted by the detenus who have filed written rejoinders and also appeared in person before the Court. Mr. A. K. Brohi has filed a rejoinder in reply to these statements of the detenns, and Mr. Zulfikar Ali Bhutto has filed a further written statement in response thereto. An affidavit of General (Retd.) Tikka Khan, a former Chief of Staff of the Pakistan Army and Minister of State in Mr. Bhutto's Government has also been placed on me record in refutation of certain actions attributed to him in the respondent's written statement. While taking note of all these statements and counter-statements, I think that in the present proceedings the Court is not called upon .to record a judicial finding as to the factual correctness or otherwise of the several allegations and counter-allegations made by the parties against each other. The Court is primarily concerned with ascertaining the broad trends and circumstances which culminated in the overthrow of, the Government of Mr. Z.A. Bhutto. For this purpose, we must take judicial notice of various events which happened in the country during the period commencing from the 7th of March, 1977 on which date the General Elections to

the National Assembly of Pakistan were held, resulting in an overwhelming majority for the Pakistan People's Party led by Mr. Z.A. Bhutto. Ample material appears to be available on the record of this Court to enable us to arrive at the necessary conclusions." At pages 701-702 it was observed: "On the basis of the material thus brought to the notice of the Court by Messrs A.K. Brohi and Sharifuddin Pirzada, consisting.mostly of official reports and decisions as well as contemporary reports in the official newspapers, 1 think the Court is entitled to take judicial notice of the following facts:(1) That from the evening of the 7th of March, 1977 there were widespread allegations of massive official interference with the sanctity of the ballot in favour of candidates of the Pakistan People's Party; (2) That these allegations, amounting almost to widespread belief among the people, generated a national wave of resentment and gave birth to a protest agitation which soon spread from Karachi to Khyber and assumed very serious proportions; (3) That the disturbances resulting, from this movement became beyond the control of the civil armed forces; (4) That the disturbances resulted in heavy loss of life and property throughout the country; (5) That even the calling out of the troops under Article 245 of the Constitution by the Federal Government and the consequent imposition of local Martial Law in several important cities of Pakistan, and they calling out of troops by the local authorities under the provisions of the Code of Criminal Procedure in smaller cities and towns did not have the desired effect; and the agitation continued unabated;" (6) That the allegations of rigging and official interference with elections in favour of candidates of the ruling party were found to be established by judicial decisions in at least four cases, which displayed a general pattern of official interference; (7) That public statements made by the then Chief Election Commissioner confirmed the widespread allegations made by, the Opposition regarding official interference with the elections, and endorsed the demand for fresh elections; (8) That in the circumstances, Mr. Z.A. Bhutto felt compelled to offer himself to a Referendum under the Seventh Amendment to the Constitution, but the offer did not have any impact at all on the course of the agitation, and the demand for his resignation and for fresh elections continued unabated with the result that the Referendum Plan had to be dropped; (9) That in spite of Mr. Bhutto's dialogue with the leaders of the Pakistan National Alliance and the temporary suspension of the Movement against the Government, officials charged with maintaining law and order continued to be apprehensive that in the event of the failure of the talks there would be a terrible explosion beyond the control of the civilian authorities; (10) That although the talks between Mr. Bhutto and the Pakistan National Alliance leadership had commenced on the 3rd of June, 1977, on the basis of his offer for holding fresh elections to the National and Provincial Assemblies, yet they had dragged on for various reasons, and as late as the 4th of July, 1977, the Pakistan National Alliance leadership was insisting that nine or ten points remained to be resolved and Mr. Bhutto was also saying that his side would similarly put forward another ten points if the General Council of P.N.A. would not ratify the accord as already reached on the morning of the 3rd of July, 1977; (11) That during the crucial days of the dead-lock between Mr. Z.A. Bhutto and the Pakistan National Alliance leadership the Punjab Government sanctioned the distribution

of fire-arms licenses on a vast scale, to its party members, and provocative statements were deliberately made by the Prime Minister's Special Assistant, Mr. G.M. Khar, who had patched up his differences with the Prime Minister and secured this appointment as late as the 16th of June, 1977; and (12) That as a result of the agitation all normal economic, social and educational activities in the country stood seriously disrupted, with incalculable damage to the nation and the country." 21. Ch Muhammad Farooq, maintained that in the light of the abovementioned circumstances/conditions prevailing in the country at the relevant time the Court reached the conclusion that the imposition of Martial Law, which was for a limited period so as to attain limited objectives, was valid. He submitted that the Court can take note of the fact that no such circumstances existed in the present case as the State institutions were working normally and even meeting of the National Assembly had been convened for 15th October, 1999. 22. He submitted that this Court took notice of the salient points of the speech made by General Muhammad Ziaul Haq on the evening of the 5th of July, 1977 wherein the reasons for the action he had taken of overthrowing the Government of Mr. Z. A. Bhutto and dissolving the Federal and Provincial Legislatures, were summarized in the following terms:"From the objective narration of events as they were happening from the 7th of March, 1977 onwards, one is left in no doubt that the Constitutional and moral authority of the National Assembly which had come into being as a result of the elections held on the 7th of March, 1977, as well as of the Federal and Provincial Governments formed thereafter as a result of mandates given to them by the National and the Provincial Assemblies had, been continuously and forcefully repudiated throughout the country over a prolonged period of nearly four months, thus, resulting in serious disruption in all spheres of national life. It can only be a matter of conjecture at this stage, whether an accord between the Government and the Pakistan National Alliance would have finally emerged if the Army had not intervened. From the material placed on the record, in the shape of deliberations of official committees, it has become abundantly clear that the situation was surcharged with possibilities of further violence, confusion and chaos. "Having found that the extra-Constitutional step taken by the Armed Forces of Pakistan was justified by requirements of State necessity and welfare of the people it is now necessary to examine its legal consequences." 23. He then referred to pages 714-715, to quote some other extracts from the speech of General Ziaul Haq, the then Chief Martial Law Administrator, wherein he had declared the objectives of imposition of Martial law in the country. These extracts run as under:"But the Constitution has not been abrogated. Only the operation of certain parts of the Constitution has been held in abeyance. Mr. Fazal Elahi Chaudhry has very kindly consented to continue to discharge his duties as President of Pakistan as heretofore under the same Constitution. I am grateful to him for this. To assist him in the discharge of his national duties, a four-member Military Council has been formed. The council consists of the Chairman, Joint Chiefs of Staff, and Chiefs of Staff of the Army, Navy and the Air Force. "I will discharge the duties of the Chief of Army Staff and Chief Martial Law Administrator. Martial Law Orders and instructions as and when required will be issued under my orders." "He further stated on this occasion that: "I want to make it absolutely clear that neither I have any political ambitions nor does the Army want to be detracted from its profession of soldiering. I was obliged to step in to fill in the vacuum created by the political leaders. I have accepted this challenge as a true soldier of Islam. My sole aim is to organise free and fair elections which would beheld in

October this year. Soon after the polls power will be transferred to the elected representatives of the people. I give a solemn assurance that I will not deviate from this schedule. During the next three months my total attention will be concentrated on the holding of elections and I would not like to dissipate my powers and energies as Chief Martial Law Administrator on anything else." "As to the place of Judiciary, he stated that:"It will not be out of place to mention here that I hold the Judiciary of the country in high esteem. I will do my best to refrain from doing anything which is likely to restrict the power of the Judiciary. However, under unavoidable circumstances, if and when Martial Law Orders and Martial Law Regulations are issued, they would not be challenged in any Court of law." "It will be seen that the declared objectives of the imposition of Martial Law are to create conditions suitable for the holding of free and fair elections in terms of the 1973 Constitution, which was not being abrogated, and only certain parts of which were being held in abeyance, namely the parts dealing with the Federal and the Provincial Executives and Legislatures. The President of Pakistan was to continue to discharge his duties as heretofore under the same Constitution. Soon after the polls the power is to be transferred to the elected representatives of the people. It is true that owing to the necessity of completing the process of accountability of holders of public offices, the holding of elections had to be postponed for the time being but the declared intention of the Chief Martial Law Administrator still remains the same, namely, that he has stepped in for a temporary period and for the limited purpose of arranging free and fair elections so as to enable the country to return to a democratic way of life." He also referred a passage from page 721 of the report, which reads thus:"It has already been seen that the conditions culminating in the Proclamation of Martial Law on the 5th of July, 1977, were-so grave that the very existence of the country was threatened, that chaos and bloodshed, was apprehended and there eras complete erosion of the constitutional authority of the Federal Government, leave alone that of the various Provincial Governments. The situation had indeed deteriorated to such an extent that it justified an extra-Constitutional step, resulting in the suspension of certain parts of the Constitution itself by the Armed Forces. Such being the case, the situation was obviously at least of the kind contemplated by clause (12) .of Article 232 of the Constitution. In the circumstances, the Chief Martial Law Administrator was justified in providing in clause (3) of Article 2 of the Laws (Continuance in Force) Order that the right to. enforce Fundamental Rights shall be suspended. It was clearly an order which could have been made under the 1973 Constitution. No exception can, therefore, be taken to the validity of this provision." He then referred to the conclusions reached by the Court after somewhat lengthy discussion of the various questions raised therein, which were summed up as follows:"(i) That the legal character and validity of any abrupt political change, brought about in a manner not contemplated by the pre-existing Constitution or Legal Order, cannot be judged by the sole criterion of its success or effectiveness, as contemplated by Kelsen's pure theory of law. Not only has this theory not been universally accepted, or applied, it is also open to serious criticism on the ground that, by making effectiveness of the political change as the sole condition or criterion of its legality, it excludes from consideration sociological factors or morality and justice which contribute to the acceptance or effectiveness of the new Legal Order. The legal consequences of such a change must, therefore, be determined ,by a consideration of the total milieu in which the change is brought about, including the motivation of those responsible for the change, and the extent to which the old Legal Order is sought to be preserved or suppressed; (ii) That in any case the theory of revolutionary legality can have no application or relevance to a situation where the breach of legal continuity is of a purely temporary nature and for a specified limited purpose. Such a phenomenon can more appropriately be described as one of constitutional deviation rather than of revolution;

(iii) That examined in this light, the Proclamation of Martial Law on the 5th of July, 1977, appears to be an. extra-Constitutional step necessitated by. the complete breaks down and erosion of the constitutional and moral authority of the Government of Mr. Z.A. Bhutto, as a result of the unprecedented protest movement launched by the Pakistan National Alliance against the alleged massive rigging of elections to the National Assembly, held on the 7th of March, 1977. It was a situation for which the Constitution provided no solution, and the Armed Forces had, therefore, to intervene to save the country from further chaos and bloodshed, to safeguard its integrity and sovereignty, and to separate the warring factions which had brought the country to the brink of disaster; (iv) That the imposition of Martial Law, therefore, stands validated on the doctrine of necessity, and the Chief Martial Law Administrator is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognised by judicial authorities as falling within the scope of the law of necessity; (v) That it has also become clear from a review of the events resulting in the culmination of Martial Law, and the declaration of intent made by the Chief Martial Law Administrator, that the 1973 Constitution still remains the supreme law, subject to the condition that certain parts thereof have been held in abeyance on account of State necessity; and the President of Pakistan as well as the superior Courts continue to function under this Constitution. In other words, this is not a case where the old Legal Order has been completely suppressed or destroyed, but merely a case of constitutional deviation for a temporary period and for a specified and limited objective, namely, the restoration of law and order and normalcy in the country, and the earliest possible holding of free and fair elections for the purpose of the restoration of democratic institutions under the 1973 Constitution; (vi) That, accordingly, the superior Courts continue to have' the power of judicial review to judge the validity of any act or action of the Martial Law Authorities if challenged in the light of the principles underlying the law of necessity as set out in this judgment. Their powers under Article 199 of the Constitution, thus, remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance; and (vii) That the provisions contained in clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977, suspending the right to enforce Fundamental Rights are valid for the reason that ,the situation prevailing in the country was obviously of such a nature as to amount to an Emergency contemplated by clause (1) of Article 232 of the Constitution, and the right . to enforce Fundamental Rights could, therefore, be legitimately suspended by an order of the kind which could have been made under clause (2) of Article 233 of the constitution." 24. He then made reference to the, case of Sardar Farooq Ahmed Khan Leghari v. Federation of Pakistan PLD 1999 SC 57, to contend that though Proclamation of Emergency was validated, but the action of suspension of fundamental rights was overruled. To substantiate his view, he took the Court through paragraphs 78 to 82, wherein Irshad Hasan Khan, J. (as he then was), now the Chief Justice observed "78. I appreciate the frank and bold statement made by Syed Sharifuddin Pirzada, though appearing on behalf of the Government that a judicial order to the Executive could be' passed to revoke the Proclamation of Emergency if the material presented against the same satisfied the Court, on solid grounds, that the circumstances did not warrant to proclaim emergency. I am also inclined to agree with him. " "79. Clearly, the petitions are maintainable. I fully subscribe to the reasoning assigned by the Hon'ble Chief Justice in repelling the contention of the learned 4ttorney-General on the question of maintainability." "80. I am not impressed by the plea raised by the learned Attorney-General that this Court has no authority ~ to examine the Proclamation of Emergency issued by the

President. The Parliament, the President, the Executive and Judiciary are the creatures of the Constitution. Each organ of the State has to function within the sphere allotted to it under the Constitution. Neither of them can be permitted to invade into the functions and powers of the other organs of the State. As to what power was granted to the Courts and what limitations were imposed on it are questions which have always been, and always will be, the subject of a close examination by the superior Courts, under the Constitutional scheme envisaged by the Constitution of Islamic Republic of Pakistan, 1973. The independence of the judiciary can never be taken away." "81. Loyalty to the State is the basic duty of every citizen. Obedience to the Constitution and law is equally applicable to every citizen wherever he may be and every other person for the time being within Pakistan including the Government in power and the Courts. Clearly, the Court can, exercise the power vested in it under the Constitution to examine the validity of the proclamation with a view to ascertain as td whether the pre-conditions laid down under Article 232(1) of the Constitution exist or not or it is without jurisdiction, coram non judice or mala fide. But the Courts while exercising judicial power must also abide by the Constitution. It is true that the powers available under the above provisions are drastic and might be abused. The danger of abuse is theoretically present. But in this case, it is wholly absent. The Proclamation is intra vires of the Constitution. There has been no abuse of exercise of power by .the President. In fact, Mr. Shahzad Jehangir emphatically stated that no motive could be attributed to the President and that he acted in good faith." "82. Fundamental Rights provide Constitutional safeguards to civil liberties. These rights guaranteed by the Constitution are essential human rights which inherently belong to every citizen of a country governed in a civilized mode. Not one of these safeguards can, the President of Pakistan, the Parliament, the Executive or the Judiciary, disturb under the scheme of the Constitution, except those having reasonable nexus with the object of the Proclamation of Emergency during its continuance. This is essential to ensure so that the Government may not derogate from Fundamental Rights. If arbitrary and unlimited powers for suspending Fundamental Rights is conceded to. the Government, during the period of Emergency, and without having any reasonable nexus with the object of Proclamation, the dangers to human liberties are frightful to contemplate. Such a concession to the Government is likely to lead to despotism and anarchy, which cannot be countenanced by the Courts. I respectfully do not subscribe to the view taken by the Indian Supreme Court in the case of Muhammad Yaqub (supra) that it is open to the President to suspend the enforcement of any of the Fundamental Rights conferred under the Constitution during the continuance of emergency and wherever such suspension is made it is in the interest of the country and no further proof of it is necessary. In my humble view only such Fundamental Rights can be suspended which have nexus with the reasons which led to the Proclamation of Emergency. A satisfactory solution can, therefore, be had only if the power available to the President under the Constitution to proclaim emergency is exercised with the least encroachment upon the rights and liberties of the citizens. " He also referred to paragraph 21 of the report at page 394, wherein Muhammad Bashir Jehangiri, J. observed as under:"21. It would, thus, be noticed that we have developed an unfortunate trend over a period of half a century of our independent national existence to rush to suspend the Fundamental Rights on one pretext or another. As soon as the country had tested its nuclear capability, the 'respondents, for no reason readily understandable, clamped a state of emergency under the cover of which firstly, the citizens of Pakistan were stripped off all the fundamental rights but later on only the Fundamental Rights provided for in Articles 10, 15, 16, 17, 18, 19, 23, 24 and 25 were ordered to remain suspended. Even if, Proclamation- of a state of emergency was justified as we have held the suspension of Fundamental Rights were unwarranted a move which created fresh doubts about the intention of the Government. Not only the Government revealing the extent of its faith in the patriotism of ordinary Pakistanis, it was also insulting their intelligence unnecessarily. The learned Attorney-General had, of course, argued that in the first rush of excitement after the nuclear explosions, it did not have enough time to weigh these matters with the care they deserved. Worse, even when it had an opportunity to make amends, it thought

fit not to do so. The President (which means the Government and the Federation) has modified the emergency order and restored some rights like the freedom to practise religion but the order carrying this direction does not touch the freedoms which have a practical bearing on every day life like the freedom from arbitrary arrest or the freedom of speech and association." Ch Muhammad Farooq, also referred some passages from the case of Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504, which read as under:"25. It may be stated that it seems to be correct that after the taking over of the executive power by the Governor in Sindh, commission of the crimes has been reduced including the acts of terrorism. This is also visible if one is to visit Karachi and see the situation obtaining now and talk to the common people, of which this Court can take judicial notice. According to the learned Attorney-General's submission, the establishment of the Military Courts in Karachi and other parts of Sindh also contributed in bringing the normalcy in Sindh. In this behalf, it may be stated that the law and order situation started improving immediately on the taking over of the executive power by the Governor on 3-10-1998. Whereas the impugned Ordinance was promulgated on 20-11-1998. According to Mr. M. Akram Sheikh, learned counsel, the above improvement in the law and order situation was because of sharpening up of the administrative response. There are more people to catch and lesser people to influence or interfere with the process of apprehending and prosecuting accused persons and not on account of establishment of the Military Courts. Be that as it may, even if we were to accept the above contention of the learned Attorney General, the question which needs consideration is that if the establishment of the Military Courts is not warranted by the Constitution, simpliciter the fact that their establishment had contributed to some extent in controlling the law and order situation or the factum of delay in disposal of the criminal cases by the Courts existing under the general laws or under the special laws, as was urged by the learned Advocate-General, Sindh, would justify this Court to uphold their validity. In my humble view, if the establishment of the Military Courts under the impugned Ordinance is violative' of the Constitution, we cannot sustain the same on the above grounds or on the ground of expediency. Acceptance of the Doctrine of Necessity by this Court inter alia in the case of the State v. Dosso and another (PLD 1958 SC (Pak.) 533), turned out to be detrimental to the evolution and establishment of a democratic system in this Country. It may be observed that some critics feel that the same had encouraged and caused the imposition of the Martial Law in this country more than once, which adversely affected the attainment of maturity by the Pakistani nation in the democratic norms. As a fall out, our country had been experiencing instability in the polity. The doctrine of necessity cannot be invoked if .its effect is to violate any provision of the Constitution, particularly keeping in view Article 6 thereof which provides that "Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason." "It may be pointed out that the concept of imposition of Martial Law in Pakistan in connection with the maintenance or restoration of order in any area was visualized till the framing of the present Constitution of 1973, as highlighted in the above two judgments of the full Benches of Sindh and Lahore High Courts." "26. It may be observed that the present Constitution of the Islamic Republic of Pakistan, 1973, does not admit the imposition of Martial Law in any form. This is indicated from the language employed in Article 237 of the Constitution which empowers the Parliament to make any law indemnifying any person in the service of the Federal Government or a Provincial Government, or any maintenance or restoration of order in any area in Pakistan. But it does not admit the imposition of Martial Law in any form. This is indicated from the language employed in Article 237 of the Constitution which empowers the Parliament to make any law indemnifying any person in the service of the Federal Government or a Provincial Government, or any maintenance or restoration of order in any area in Pakistan. But it does not cover indemnification, for acts done during the period of Martial Law. In contrast to the above provision of the present Constitution, our three late Constitutions of 1956, 1962 and Interim Constitution of 1972, provided for enacting of law for indemnifying any person in the service of the Federal Government or

a Provincial Government or any other person, in respect of any act done in connection with the maintenance or restoration of order in any area in Pakistan where Martial Law was in force." "45. The soldier and the citizen stand alike under the law. Both must obey the command of the Constitution and obedient to its mandates. The Armed Forces have to act within the scope of their jurisdiction as defined under the Constitution as long as the acts of the Armed Forces fall within the scope of their jurisdiction the same are protected while such are in excess of their jurisdiction, are exceptionable. It is only where the civil power is completely broken, Courts in the country have ceased to function, the danger of imposition of Martial Law cannot be ruled out notwithstanding the provisions of Article 6 of the Constitution, which provides that any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason. But in all other cases, the expression to call the Armed Forces `in aid of civil power' excludes the substitution of Civil Courts by the Military Courts. The Armed Forces should be kept in strict subordination to be governed by the civil power and the State as is apparent from a bare reading of Article 243 of the Constitution, which provides that the Federal Government shall have the control and command of the Armed Forces. The necessity of the Armed Forces for the preservation of the society, peace, defence, integrity and solidarity of Pakistan cannot be under estimated. Needless to say that during the present emergency and until the danger of terrorism and internal disturbances is removed, the Armed Forces may be called by the Federal Government to "act in aid of civil power" `subject to law' and confer on it such other powers as the situation may require. However, the Armed Forces cannot be permitted to substitute the ordinary Civil Courts while acting `in aid of civil power'. A Government elected by the Constitution can only perform its functions and ensure observance of the provisions of the Constitution by making the civil power superior to and not subordinate to the Armed Forces during peace as well as war. This is the foundation stone of Constitution of Pakistan as reflected in Article 2A that sovereignty over the entire universe belongs to Almighty Allah alone and the authority to be exercise by the people of Pakistan within the limits prescribed by Him is a sacred trust and that the State shall exercise its powers and authority through the chosen representatives of the people, wherein the fundamental rights shall be guaranteed, including equality of status, of opportunity and before law, social economic and political justice and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality and that the independence of the Judiciary shall be fully secured. Clearly, the integrity of the territories of the Federation, its independence and all its rights, including the sovereign rights on land, sea and air, shall be safeguarded by the Armed Forces, under the control and directions of the Federal Government. The term `in aid of civil power' implies that some assistance may be necessary to the civil power for the performance of its functions and not the taking over of the civil powers, especially the judicial powers of the Judiciary." "47. Examination of the above case-law also fortifies the view that the phrase `to act in aid of civil power' used in Article 245(1) of the Constitution, clearly does not include the power to substitute the existing judicial system and/or to establish a parallel system. It is true that the State has a right to protect itself against terrorist activities including all those who would destroy it, and it could be said that that right has been linked with the right of the individual to his self-defence but in the exercise of such right and with a view to preserving the society and the State, it must take all measures in conformity with the Constitution and not in derogation thereof. Clearly, in order to protect the innocent citizens against terrorist activities the Army can act `in aid of civil power' by rendering such assistance as may be needed under the direction of the Federal Government excluding the power to share the judicial power exclusively vesting in the Judiciary and/or to supplant the existing system by establishment of parallel Courts as has been done pursuant to the impugned Ordinance. When the Army is `acting in the aid of civil power' to restore peace and normalcy, the power to apprehend accused, their investigation, arrest and assistance in expeditious submission of the challan to the Courts, production and attendance of witnesses and their security including that of the Presiding Officers and the Advocate, is incidental to the directions of the Federal Government `to act in aid of civil power'. It is difficult to enumerate the acts/steps that may be taken by the Armed Forces while `acting in aid of civil power' but in the exercise of the said power

they cannot either directly or indirectly share the judicial powers of the Courts or replacement thereof. The impugned legislation, to that extent, is therefore, wholly unwarranted and cannot sustain even on ground of alleged necessity, as canvassed by the learned Attorney-General, the learned Advocate-General, Sindh and Syed Iqbal Haider. The term `to act in aid of civil power' no matter how liberally it may be construed, would not in any manner whatsoever embrace the judicial powers conferred on the Courts under the scheme of the Constitution." "48. I am fully inclined to agree with the learned Attorney-General that the impugned Ordinance was promulgated bona fide with a view to restore peace and normalcy in the country and, particularly, in Sindh, but, however,-bona fide an action may be in itself, it cannot be a touchstone for judging the constitutionality of the impugned Ordinance. Its validity is to be judged only on the touchstone of the Constitutional provisions. Reading Articles 175, 203 and 245 together and in the light of the judgment rendered by this Court in the case of Mehram Ali (supra), it indubitably leads to the conclusion that the Military Courts envisaged under the Constitution tantamount to establishment of parallel Courts for which there was no warrant. The bare reading of Article 245 would show that it does not contemplate declaration of Martial Law or Mini-Martial Law in any form whatsoever. It is not the case of the learned Attorney-General that the Courts are not functioning. He, however, argued that the Courts were not deciding the cases expeditiously on account of fear of the terrorists. If that is so, the proper course was to take appropriate measures by improving methods of investigation, expeditious submission of challan to the trial Courts security of witnesses/litigants as well as the Presiding Officers of the Courts and to take long/short term measures including appropriate increase in the strength of Judges in the light of the various reports of the Law Commission. "49. Thus, visualized, the Courts established pursuant to the impugned Ordinance do .not fall within the purview of any of the Constitutional provisions. The Constitution envisages trichotomy of powers of the three organs of the State, namely, Legislature, Executive and the Judiciary. The Legislature is assigned the task of law-making, the Executive to execute such laws and the Judiciary to construe and interpret the laws. None of the organs of the State can encroach upon the fields allotted to others. The Constitution does not countenance the take-over of the judicial functions by the Armed Forces at the direction of the Federal Government in the purported exercise of power conferred on it under Article 245 of the Constitution. Article 245 does not by itself create the law but enables the making of a law, which should have nexus with the phrase to act in aid of civil power'. The replacement of Courts either partially or wholly is not recognized under any provisions of the Constitution. A bare reading of Article 243 would show that the Armed Forces are subject to the control and authority of the Federal Government i.e. a civilian Government. No circumstances existed in the country, which indicated the breaking down of the judicial organ, necessitating establishment of Military Courts. It is imperative for the preservation of the State that the existing judicial system should be strengthened and the principle of trichotomy of power is adhered to by following, in letter and spirit, the Constitutional provisions and not by making deviation thereof on any ground whatsoever." 58. The plea raised on behalf of the learned Attorney-General that the Doctrine of Necessity is not outdated and can be invoked in the present case for a `limited purpose' cannot be countenanced, for, if it is approved of, it may very frequently be resorted to at the incidence of a situation presently prevailing in the country, by the Executive. In, fact, such approval whereby the Executive is allowed to cross the barriers of Constitutional provisions at its whim, would turn a democratic rule into a despotic one. Clearly, any deviation from the Constitution may lead to anarchy. It is true that the takeover by the Chief of the Army Staff as Martial Law Administrator was validated by this Court in Begum Nusrat Bhutto's case PLD 1977 SC 657 wherein it, was inter alia observed :`On no principles of necessity could power of judicial review vested in the superior Courts under the 1973 Constitution, be taken away' (p.716 last para. extending to page 717). "However, in the case of Asma Jilani (supra), this Court took the view that the acts of usurper may be condoned and/or validated by the application of the law of necessity.

Viewed from this angle, the impugned Ordinance being ultra vires the Constitution cannot be validated even on the touchstone of State necessity. Additionally, in view of the plea raised by the learned Attorney-General that the establishment of Military Courts is spelt out from the power vesting in the Federal Government under Article 245 is contradictory with the theory of State necessity, inasmuch as, the concept of law of necessity, would arise only if an act which would otherwise be illegal becomes legal if it is done bona fide, in view of State necessity, with a view to preserving-- the State or the society from destruction by the terrorists. In the instant case, we have no doubt that the impugned Ordinance was issued bona fide with a view to suppress the menace of terrorism. Nevertheless, the constitutionality of the Ordinance is not to be judged on the question of bona fides of the Federal Government simpliciter but on the touchstone of the Constitutional provisions. Here, impugned legislation is ultra vires the Constitution in so far as it takes away the functions of the Courts in determining the guilt or innocence of an accused. Be that as it may, the prerequisites for the application of Doctrine of Necessity are not satisfied in the instant case for upholding the impugned legislation,. even for a limited period. The prerequisites, as laid down in the case of Attorney-General of Republic v. Mustafa Ibrahim 1964 CLR 195, which was also referred in the Begum Nusrat Bhutto's case (supra), are :"(a) (b) (c) An imperative and inevitable necessity or exceptional circumstances; no other remedy to apply; the measure taken must be proportionate to the necessity; and

(d) it must be of a temporary character limited to the duration of the exceptional circumstances.' "In the instant case, the Courts are functioning and the question of backlog and expeditious disposal of terrorists' case can be remedied by taking effective measures, in the light of the guidelines provided by this Court in the short order as well as the recommendations in the concluding paragraphs of this note. The Courts are functioning properly and administering justice according to the Constitution and the law. These Courts, therefore, cannot be replaced by Military Courts as attempted to be done either partially or wholly by virtue of the impugned Ordinance. The role of Armed Forces as contemplated under Article 245 is to defend the country from external aggression or threat of war or to come to the `aid of civil power' subject to law. The second function of coming in the `aid of civil power' to be performed by the Armed Forces is subject to a condition precedent of enacting a law. The law so made must have nexus with the term `to act in aid of civil power'. The role of Armed Forces while acting `in aid of civil power' does not in any way confer the power either directly or indirectly to interfere with the Courts established under Article 175(1) of the Constitution and/or to supplant them." "59. Let me now discuss the contention raised on behalf of the petitioners as to the independence of Judiciary, which, according to them, has been set at naught with the promulgation of the Ordinance in question. The Constitution of the Islamic Republic of Pakistan, 1973 in its preamble (now made a substantive part thereof vide Article 2A) declares that "the independence of the Judiciary shall be fully secured" therein. According to a consensus of the jurists, the independence of the Judiciary means that every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences, inducements or pressures, direct or indirect, from any quarter or for any reason; and that the Judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or by way of review, overall issues of a judicial nature. This Court vide its judgment in the case of Sharaf Afridi (supra), has separated the Judiciary from the Executive." Reliance was also placed on the case of Miss Asma Jilani (supra), wherein at page 181 sideline `L' of the report, it was observed: "Kelsen's attempt to justify the principle of effectiveness from the standpoint of International Law cannot also be justified, for it assumes `the primacy of International Law over National Law.' In doing so he has, to my mind, overlooked that for the

purposes of International Law the legal person is the State and not the community and that in International Law there is no `legal order' as such. The recognition of a State under International Law has nothing to do with the internal sovereignty of the State, and this kind of recognition of a State must not be confused with the recognition of the Head of a State or Government of a State. An individual' does not become the Head of a State through the recognition of other States but through the -municipal law of his own State. The question of recognition of a Government from the point of view of International Law becomes important only when a change in the form of Government also involves a break in the legal continuity of the State or where the question arises as to whether the new Government has a reasonable expectancy of permanence so as to be able to claim to represent the State" (vide Oppenheim's International Law, Vol. I, page 127) At page 183 sideline,`O' of the report, it was observed: "The principle enunciated in Dosso's case, therefore, is wholly unsustainable, and it cannot be treated as good law either on the principle of stare decisis or even otherwise." "We have also in this connection been referred to a case from Cyprus sub-nomine. The Attorney-General of the Republic v. Mustafa Ibrahim and others 1964 CLR 195 where the Supreme Constitutional Court of Cyprus also applied the doctrine of necessity to validate a certain legislation which was otherwise inconsistent with certain Articles of the Cyprus Constitution on the ground that they would be justified `if it can be shown that it was enacted only in order to avoid consequences which could not otherwise be avoided, and which if they had followed, would have inflicted upon the people of Cyprus, whom the Executive and Legislative organs of the Republic are bound to protect, inevitable irreparable evil, and furthermore if it can be shown that no more was done than was reasonably necessary for that purpose, and that, the evil inflicted by the enactment in. question, was not disproportionate to the evil avoided'. This the Court thought was its duty to do in view of its `all important and responsible function of transmitting legal theory into living law, applied to the facts of daily life for the preservation of social order'." ACTS CONDONED UNDER THE PRINCIPLE OF CONDONATION: "Applying this test I would condone: (1) all transactions which are past and closed, for no useful purpose can be served by reopening them; (2) all acts and legislative measures which are in accordance with, or could have been made under, the abrogated Constitution or the previous legal order; (3) all acts which tend to advance or promote the good of the people;

(4) all acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment of, or in our case, the objectives mentioned in the Objectives Resolution of 1954: (5) I would not, however, condone any act intended to entrench the usurper more firmly in his power or to directly help him to run the country contrary to its legitimate objectives. (6) I would not also condone anything which seriously impairs the rights of the citizens except in so far as they may be designed to advance the social welfare and national solidarity." (1) From the foregoing it is evident that, in the first place, President's Order No.3 of 1969 and Martial Law Regulation No.78 do not exist so far as this Court is concerned, and therefore, they are not valid laws.

(2) In the second place even if it be assumed that they do exist, they can not deprive the Court of its inherent jurisdiction to consider the validity or otherwise of those laws or any action taken thereunder." ILLUSTRATION OF INTERFERENCE AGAINST ORDERS PASSED BY MARTIAL LAW AUTHORITIES "(3) Supposing by an order passed under Martial Law Regulation No. 78, `X' has been ordered to be detained. While executing this order, however, instead of `X', `Y' is arrested and detained. It is absurd to say that the Court is deprived of its jurisdiction to consider the validity of the order vis-a-vis the person detained merely because the order is by a Martial Law Authority." At pages 268-269 of the report, it was observed: "It has been contended by the learned Attorney-General that President's Order No. 2 has provided for a remedy in a matter like this. I am unable to agree with him. Having regard to the provisions made in section 3 of the President's Order No. 3 of 1969, any question regarding the correctness, legality or propriety of exercise of any powers or jurisdiction of a Martial Law Authority could not be referred to the Chief Martial Law Administrator for decision by a Martial Law Authority itself, for the Court's jurisdiction even to receive or entertain any complaint in that respect has been sought to be ousted. The position, therefore, is that any order passed by a Martial Law Authority, if it is labelled as such, it must be accepted as a good order whether it is in fact made or could be made under any Martial Law Order or Regulation, or not. Such an unlimited and undefined power, which is at the same time arbitrary and not governed by any rule of law, can never be accepted as good by any Court of law. Such an unlimited power is not only foreign to Islamic Law but is also not recognised in any modern society." "I, therefore, fully agree that Dosso's case must be reviewed on the grounds mentioned by my Lord the Chief Justice." 25. Ch Muhammad Farooq reiterated the principles laid down in the case of Sh. Liaquat Hussain (supra) reproduced above, summary whereof is given below : " 1. Armed Forces cannot abrogate, abridge or displace civil power. 2. Doctrine of necessity-imposition of Martial Law in Pakistan has been done away with. 3. No Martial Law can be imposed-Parliament cannot enact a law to indemnify the acts done during Martial Law. 4. Command of the Armed Forces vests with Federal Government. 5. Martial Law cannot come in scheme of the Constitution. 6. Impugned legislation cannot be sustained on ground of alleged necessity. 7. Control of the Armed Forces vests with Federal Government i.e. a civilian Government. 8. Loyalty to the State, duty of every citizen-Doctrine of Necessity discussed. 9. Judiciary custodian of Fundamental Rights." 26. Ch. Muhammad Farooq also made extensive references from the case of Darvesh M. Arbey, Advocate v. Federation of Pakistan and 2 others PLD 1977 Lah. 846, as follows: "6. It is important to note that even a nexus or connection has not been provided by the amendment between the offences made exclusively triable by the Military Courts by virtue of this amendment and the subject for which the Armed Forces had been called in Lahore i.e. to restore law and order. The result is that even to that extent this amendment

in the Army Act, has in fact, resulted in the displacement of the ordinary- criminal Courts in the District of Lahore by the Military Courts." "The provision in the proviso to section 3 of Act X of 1977 that the authorised Army Officer can transfer any such case, in his discretion to the ordinary criminal Courts, does not in our view improve the status of the ordinary Courts." "7. It is, therefore, obvious that to the extent that the Courts established by the Armed Forces are trying civilians of Lahore for offences which have no nexus with the object for which they are said to have come, they (i.e. the Armed Forces) are not acting "in aid" of the civil power but in derogation or replacement thereof. This is certainly not envisaged by Article 245(1) that the "laws" subject to which the Armed Forces are required to act under that Article are intended to be of a nature as would not place the Armed Forces in a position superior or dominant to that of the civil power or to bestow such powers on them that; instead of acting in aid of the civil power, the Armed Forces, in fact, start acting in supersession or displacement of the civil power. We are, therefore, of the view that as far as Act X of 1977; (which amends the Army Act, 1962), is concerned, the most essential precondition prescribed by clause (3) of Article 245 which is mentioned by the learned Attorney-General as the 2nd jurisdictional fact; is absent. Consequently, we hold that clause (3) of Article 245 does not have the effect of ousting the jurisdiction of this Court under Article 199." 27. Ch Muhammad Farooq submitted that out of 87 Members of the Senate, 217 Members of the National Assembly and (nearly 500) Members of the Provincial Assemblies, charges so far have been levelled against very few including the ex-Prime Minister (in a sub judice Helicopter Case) and Sardar Mehtab Abbasi, ex-Chief Minister of N.-W.F.P. detained under NAB Ordinance. He further submitted that F.I.R. in hijacking case was filed after one month's contemplation/deliberations. He repelled the impression that 13th and 14th Constitutional Amendments were passed in haste with Parliament as a Rubber Stamp and contended that both amendments were passed unanimously with the support of all parliamentary parties and that in the case of Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263. at page 1444, the Supreme Court by majority. upheld the 14th Amendment declaring it to be intra vireo of the Constitution. subject to clarification in respect of paragraph (a) to Explanation to clause (1) of Article 63-A of the Constitution, which reads thus: "(i) That paragraph (1) to be read in conjunction with paragraphs (b) and (c) to Explanation to clause (1), of Article 63A of the Constitution. It must, therefore, follow as a corollary that a member of a House can be disqualified for a breach of party discipline in terms of said paragraph (a) when the alleged breach relates to the matters covered by paragraphs (b) and (c) to the Explanation to clause (1) of Article 63-A of the Constitution and that the breach complained of occurred within the House." "(ii) That paragraph (a) to Explanation to clause (1) of Article 63A of 'the Constitution is to be construed in such a way that it should preserve the right of freedom of speech of a member in the House subject to reasonable restrictions as are envisaged in Article 66 read with Article 19 of the Constitution." 28. Ch.Muhammad Farooq vehemently argued that the impugned proclamation and PCO are ultra vires the Constitution and that the jurisdiction of this Court is not barred to examine the controversy. He referred to the case of Ahmed Saeed Kirmani (supra), wherein it was observed: . "Article 89 of the Constitution of Pakistan does not confer a total or absolute immunity on the proceedings of the Provincial Assembly. ".."The High Court has jurisdiction in appropriate cases to exercise its extraordinary writ jurisdiction in connection with such proceedings e.g., when the so-called proceedings are really outside the Constitution." (pp. 816, 818) E, F." The observations relied upon in the case of Darvesh M. Arbey (supra) are as under:

"No nexus or connection provided by amendments introduced by Act X of 1977, between offences made exclusively triable by Military Courts and restoration of law and order, object for which armed forces called in" ......... ......... ..... : "Amendment, to such extent, resulting in displacement of ordinary criminal Courts by Military Courts" ......... ...... ...... "Provision authorising army officers to transfer any case to ordinary criminal Courts in their discretion not improving status of ordinary Courts at all" ......... ..... .. ......... ......... "Courts established by Armed Forces to such extent as they try civilians for offences having no nexus with restoration of law and order, held, not acting in `aid' of civil power but in derogation or replacement thereof and such position not envisaged by cl,(1) of Art. 245." -- "Laws subject to which Armed Forces required to act under Art. 245(1) of the Constitution" ......... ......... "Intended to be of a nature not placing Armed Forces in a position superior or dominant to that of civil power or to enable them to act in supersession or displacement of civil power" ......... ......... "Act X of 1977 accordingly, held, lacks essential precondition prescribed in cl. (3) of Art. 245 of acting in aid of civil power in pursuance of Federal Government's direction and jurisdiction of High Court under Art. 199 not ousted in view of cl. (3) of Art. 245." The observations relied upon in the case of Iqbal Ahmad Khan (supra) are as., under: "Act X of 1977 having been held to be ultra vires and beyond scope of Art. 245 by Full Bench in case reported as PLD 1977 Lah.846, Army Officers/Military Tribunals devoid of jurisdiction to deal with cases transferred to them from ordinary criminal Courts under provisions of Act X of 1977""Order passed by Army Officers/Military Tribunals committing petitioners to custody of police/jail authorities of extending - remand order, in circumstances, held, without any legal substance and ineffective." The observations relied upon in the case of Muhammad Bachal Memon (supra) are as under: "Where actions taken between 5-7-1977 and 29-12-1985 under any Martial Law. Regulation, Martial Law Order, enactment, rule etc. were mala fide, without jurisdiction. or coram non judice, immunity provided under Art. 270-A(2) would not save them completely from scrutiny of Superior Courts and, therefore, Art. 270-A(2) did not provide a complete bar in respect of such actions."..............."Clause (1) of Article 270-A, Constitution of Pakistan, 1973 given validity to the laws including Martial Law Orders and Regulations made during 5-7-1977 to 30-12-1985 and provides that the same shall not be called into question in any Court on any ` ground whatsoever notwithstanding any judgment of any Court or anything contained in the Constitution."Proviso of clause (1) of Article 270-A although covers a small period of 30-9-1985 to 30-12-1985, yet it does provide a scope for examining the laws made by the C.M.L.A. daring this period.""More important in respect of the actions of Martial Law Authorities is clause (2) of Article 270-A which has provided that actions taken by the Martial Law Authorities during the specified period shall not be called into question on any ground whatsoever notwithstanding any judgment of any Court.""In spite of the bar provided, the jurisdiction of the Superior Courts .to scrutinise actions of Military Authorities is not completely barred in respect of those actions which were mala fide, without jurisdiction or coram non judice."."If the actions were mala fide, coram non judice or without jurisdiction, then in spite of the validity conferred on such actions and the immunity, the Superior Courts were not completely debarred from scrutinising the actions. However; the scope of scrutiny was limited to actions which were mala fide, coram non judice and without jurisdiction. In other respects the immunity was considered complete."The legislature was aware of the interpretation placed by the Supreme Court of .Pakistan on a similar provision. Therefore, when it enacted clause (2) of Article 270-A of the Constitution, the Legislature knew that it is providing validity and immunity to the actions to the extent already explained and interpreted by the Supreme Court and that this validity did not extend to action which were mala fide, coram non judice of without jurisdiction. ""By reading only clause (2) of Article 270-A without taking into consideration the other provisions of the same Article, it would be clear that the legislature had intended that if the impugned actions were mala fide,

without jurisdiction or coram non judice, then the immunity provided under Article 270-A, clause (2) would not save them completely from the scrutiny .of the Superior Courts and, therefore, clause (2) of the Article 270-A does not provide a complete bar in respect of such actions. " The observations relied upon in the case of Muhammad Naeem Akhtar (supra) are as under: "Action of Speaker in accepting resignation in question, would neither come within the meaning of term "any proceedings in the Provincial Assembly" used in Art. 69(1) read with Art. 127 of the Constitution, nor such action could be described as an exercise of power by the Speaker for regulating the procedure or the conduct of business in the Assembly" "Constitutional petition against action . of Speaker in accepting resignations of Members of Assembly was, thus, maintainable. " . The observations relied upon- in the case of Shams-ud-Din ,(supra) are as under:"Internal proceedings which were carried out by the Assembly, during its session, were not amenable to the jurisdiction of Court, however, all other administrative actions by the Speaker including recruitment of employees, would not enjoy immunity from judicial review particularly when such action of Speaker, prima facie, was in violation of existing rules or the discretion vested in him to take certain decisions in' order to run smoothly the functions of Provincial Assembly . Secretariat, had not been exercised judiciously, High Court under Art. 199 of the -Constitution was competent to examine validity or otherwise of such action." The observations relied upon in the case of- Manzoor Ahmad Wattoo (supra) are as under: "Bar of jurisdiction . provided in provision of cl. (2) of Art. 236, Constitution of Pakistan (1973) does not cover a Proclamation which is without jurisdiction, coram non judice or mala fide" ..... ..... "Superior Courts have the jurisdiction to examine a Proclamation under their power of judicial .review and declare same as invalid and unconstitutional." The observations relied upon in the case of Muhammad Anwar Durrani (supra) are as under: "Ousted only in respect of irregularity of procedure" .."Where interpretation of Constitutional instrument is involved, jurisdiction of High Court is unaffected." The observations relied upon in the case of A.K. Fazalul Quader (supra) are as under: "Letter purporting to communicate a resignation from membership of National Assembly, addressed to President of Pakistan, instead of to Speaker, National Assembly" ..... ..... ..... "Member,later, protesting [by two telegrams and a letter, addressed to Speaker, dispatched before his letter of "resignation" had reached the Speaker (Speaker being out of country)] that he had not intended to resign from membership of Assembly, but from membership of "Council Muslim League National Assembly Party" ...... ...... ......"Speaker declaring that member had resigned his seat within meaning of Art. 107(a), by Gazette Extraordinary Notification" ...... ...... ...... "Consequent action taken by Chief Election Commissioner to fill vacancy and a new member elected accordingly" . ..... .... . "Member challenging vires of Speaker's Gazette Notification by petition under Constitution of Pakistan (1962), Art. 98" ..... ..... - "Plea taken on behalf of Speaker that matter was not justiciable in view of bar of jurisdiction raised by Constitution of Pakistan (1962), Art. 111 " . .... . "Held, that member had not intended to resign from membership of National Assembly (in circumstances of case)" "Letter complying with conditions of Art. 107(a) takes effect automatically and does not require "acceptance" by any authority" ..... .....Locus poenitentiae available to member" ..... .... . "Communication to Speaker essential ingredient of application of Art. 107" ..... ..... ......

"Speaker to construe documents together" ..... ..... ..... "Constitution of Pakistan (1962), Art. lll(2)" ... .... ..... "Question of `resignation' of member not a question of `procedure', `conduct of business', or of `maintenance or order' within meaning of Art. 111(2):" ..... .......... "Supreme Court and High Court have power to "intervene" (under Art. 98) in cases of "excess" of lawful authority." The observations relied upon in the case of Pir Sabir Shah (supra) are as under: "Provision of Art. 236(2) of the constitution will not cover Proclamation by the President under Art. 234 of the Constitution which is without jurisdiction, coram non judice or mala fide" ....."Superior courts will have jurisdiction to examine such a Proclamation." ..... ..... ..... "Clause (2) of Article 236 of the Constitution of Pakistan will not cover a Proclamation which is without jurisdiction, coram non judice or mala fide and the superior Courts will have jurisdiction to examine a Proclamation from the above three jurisdictional legal aspects." The observations relied upon in the case of Mrs Shahida Zahir Abbasi (supra) are as under: "Bar contained in Art. 199(3) of the Constitution on the powers of High Court is not absolute in nature"."Such bar is not applicable to the cases namely where the impugned action is mala fide or without jurisdiction or coram non judice." The observations relied upon in the case of Mahmood Khan Achakzai (supra) are as under:"Contention that the Judges of the Superior Courts having taken oath under the impugned Amended Constitution (by Constitution (Eighth Amendment) Act, 1985) and had been receiving salary which had been increased from time to time could not strike out the impugned Constitutional Amendment (Constitution (Eighth Amendment) Act, 1985, was repelled" ..... ... . "Power and jurisdiction of judicial review could not be controlled and fettered on such basis" .... ..... ..... "Judges of the Superior Courts had taken oath to defend, preserve and protect the Constitution" ...... ....... ...... ...... "If any illegal amendment was made or had been made in the constitution, the Courts were competent to examine the same and make interpretation to reconcile its provision in which inferior rights must yield to higher rights" ........"Salary paid to the Judges was not a bounty or favour it was a Constitutional duty to provide salary and benefits to the judges by which independence of judiciary was guaranteed" ...... ...... "Courts while striking down any illegal and unconstitutional provision or interpreting the Constitution defend, protect and preserve the Constitution." ...... ...... ...... "Fact that any question is a political question will not deter the Court from determining it provided the same involves the interpretation of Constitution or the validity of such question is to be determined on the touchstone of the Constitution" ..... ..... ..... "Court should not adopt "political question doctrine" for refusing to determine difficult and knotty, questions having political. overtones which would amount to abdication of judicial power which neither the Constitution permits nor the law allows" ..."Any action taken, act done or policy framed which violates the provisions of the Constitution or .is not permissible under the Constitution or law, -the Court, irrespective of the fact that it is a political question, must exercise powers of judicial review" ..... .... "Abuse, excess or non-observance of the provisions of the Constitution has to be checked by the Court unless its jurisdiction is barred by the Constitution or law." ..... ... ..... "Provision of Art. 270-A, Constitution of Pakistan 1973, as provided legal cover for deviation by President from the mandate given by Supreme Court in Begum Nusrat Bhutto v. Chief of Army Staff PLD 1977 SC 657" ...... ...... ....... "Validity of Art. 270-A, Constitution of Pakistan 1973, having been determined consistently, competence of Parliament and the laws enacted up to 30-12-1985 which had been validated and protected, could not be questioned" ...... ...... ...... "Actions under such laws, however, could be challenged on grounds of coram non judice, mala fides and lack of jurisdiction."

The observations relied upon in the case of Wukala Mahaz Barai Tahafaze Dastoor (supra) are as under: "Bar contained in Art. 63-A(6) does not completely take away the jurisdiction of Supreme Court or High Courts" ........... "Jurisdiction of Supreme Court and High Courts tinder Art. 199 of the Constitution, in respect of actions t en under Art. 63-A of the Constitution, will be available in c as of such order being coram non judice, mala fide or without jurisdiction" ............Any amendment in the Constitution which purports to alter the existing federal structure or the Islamic character of the Constitution or the existing parliament by system or which undermines independence of judiciary or abrogates or abridges any Fundamental Right may be regarded as repugnant to the basic structure of the Constitution." ..... ... ...... "Supreme Court as a guardian of the Constitution, has a right and the power to declare an amendment in the Constitution as un forceable or void if the same is construed to be violative of a basic structure of the Constitution or is found to have been assed in derogation of a Fundamental Rights. However, the question as to what are the basic essential features of the Constitution f Pakistan is yet to be answered with clarity. Nevertheless, regarding certain basic essential' features of the Constitution, there can hardly be expressed any. doubt. Any amendment in the Constitution which purports to alter the existing federal structure or Islamic character of the Constitution or the existing Parliamentary system or which undermine independence of judiciary or abrogates or abridges any fundament 1 right may be regarded as repugnant to the basic structure o f the Constitution." The observations relied upon in the case of Sardar Farooq Ahmed Khan Leghari (supra) are as under: "Provisions of Art. 236(2), Constitution of Pakistan (1973), which bar the jurisdiction of the Courts from examining the validity of any Proclamation will not cover a Proclamation which is without jurisdiction, coram non judice or mala fide. The observations relied upon in the case of Jalal Mehmood Shah (supra) are as under: "Provision of Art. 236(2) of the Constitution will not cover a Proclamation- which is without jurisdiction. coram non judice or mala fide " ... ..... ..... "Superior Courts have jurisdiction to examine a Proclamation from the said three jurisdictional legal aspects " The observations relied upon in the case of Federation of Pakistan and another v. Ghulam Mustafa Khar PLD 1989 SC 26 are as under: "Article 270-A 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 male fide""Drawing a distinction between malice in fact and malice in law was not necessary for such purpose." Support was also sought from the following authorities: 1. 2. 3. Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504. Speaker Balochistan Provincial Assembly v. M. Azam 1996 SCMR 1969. Yousaf Ali v. uhammad Aslam Zia PLD 1958 SC 104.

to contend that notwithstanding the PCO promulgated on 14-10-1999, this Court has jurisdiction to hear and decide the controversy raised in the petition on merits. learned counsel laid great emphasis on certain observations made in the cases of: 1. 2. Pir Sabir Shah (supra) Sardar Farooq hmed Khan Leghari (supra)

3.

Sh. Liaquat Hus sain (supra)

The observations relied upon in the case of Farooq Ahmad Khan Leghari (supra) are as follows : Per Irshad Hasan Khan. J. (as he then was) (now Chief Justice) "However, whether in a particular situation the extent of powers used is proper and justifiable? is a question which would remain debatable and beyond judicially discoverable and manageable standards unless the exercise of the excessive power is so palpably irrational or mala fide as to invite judicial intervention. In fact, once the issuance of the Proclamation is held valid, the security of the kind and degree of power used under the Proclamation, falls in a narrow compass. There is every risk and fear of the Court undertaking upon itself the task of evaluating with fine scales and through its own lenses the comparative merits of one rather than the other measure. The Court will, thus, travel unwittingly into the political arena and subject itself more readily to the charges of encroaching upon policy making. The `political thicker' objection sticks more easily in such circumstances. Although, therefore, on the language of Article 356(1), it is legal to hold that the President may exercise only some of the powers given to him, in practice it may not always be easy to demonstrate the excessive use of the power. " "The learned Attorney-General, while giving a brief legislative history of Emergency Provisions in the sub-continent, in particular, argued that emergency provisions of enforcement of Fundamental Rights, had been provided since the promulgation of the Government of India (Consolidated) Act, 1924, which were retained in the Government of India Act, 1935. " "In this connection it was also said that external aggression means armed aggression and as for some time past there was no armed aggression against the territory of India, the continuance of the Proclamation was unjustified. This contention must also fail on the ground which we have just mentioned." "The Parliament, the President, the Executive and Judiciary are the creatures of the Constitution. Each organ of the State has to function within the sphere to it under the Constitution. Neither of them can be permitted to invade into the functions and powers of the other organs of the State. As to what power was granted to the Courts and what limitations were imposed on it are questions which have always been, and always will be, the subject of a close examination by the superior Courts, under the Constitutional scheme envisaged by the Constitution of Islamic Republic of Pakistan, 1973. The independence of the judiciary can never be taken away." "Loyalty to the State is the basic duty of every citizen. Obedience to the Constitution and law is equally applicable to every citizen wherever he may be and every other person for the time being within Pakistan including the Government in power and the Courts. Clearly, the Court can, exercise the power vested in it under the Constitution to examine the validity of the proclamation with a view to ascertain as to whether the pre-conditions laid down under Article 232(1) of the Constitution exist or not or it is without jurisdiction, coram non judice or mala fide. But the Courts while exercising judicial power must also abide by the Constitution. " The observations relied upon in the case of Liaquat Hussain (supra) are as follows : Per Ajmal Mian. CJ. (as he then was) "The civil power is to be preserved and invigorated through the employment of the Armed Forces. The Armed Forces can be called in aid under the above clause by the Federal Government inter alia to perform police functions for limited purpose of suppressing riots or preventing threatened disorder or for the purpose of maintaining law and order and security or to assist/help in natural calamities alongwith the civil authorities. But the Armed Forces cannot abrogate, abridge or displace civil power of

which Judiciary is an important and integral part. In other words, the Armed Forces cannot displace the Civil/Criminal Courts while acting in aid of civil power. They can certainly arrest those who threaten to disturb peace and tranquillity. They may also assist in investigation of a case and the prosecution of the same but the case is to be tried by a Court established in terms of the judgment of this Court in the case of Mehram Ali (supra). The employment of the expression `subject to law' clearly demonstrates that the Armed Forces will have to act .within the parameters of the Constitution and the law obtaining. The scope of the above power which is exercisable by the Armed Forces in aid of the civil power can only be enlarged by amending Article 245 of the Constitution. In this behalf Mr.Aitzaz Ahsan has invited our attention to the case of Goplan v. State of Madras AIR (37) f 950 SC 27 in which the Indian Supreme Court took the view that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution and the Courts cannot declare limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument." "I may point out that Article 190 of the Constitution has also employed the expression "shall act in aid of the Supreme Court" by providing that all Executive and Judicial Authorities throughout Pakistan shall act in aid of the Supreme Court. Can the. Executive Authority when called in aid by the Supreme Court under the above Article substitute or displace it. The object of the above Article 190 seems to be to assist or to help the Supreme Court in getting its directions, orders and judgments implemented and executed." "There cannot be two opinions that the representative Government in Sindh had failed to eradicate terrorism from the Province of Sindh particularly from Karachi: In my opinion in the case of Syed Jalal Mehmood Shah, I had held that invocation of Article 245 of the Constitution by the Federal Government was warranted by the situation which was obtaining in Sindh. The relevant portion reads as follows 14. That it may be observed that under paragraph (c) of clause (2) of Article 232 of the Constitution the Federal Government can assume to itself or direct the Governor of a Province to assume on behalf of Federal Government all or any of the functions of the Government of the Province, and all or any of the powers vested in or exercisable by, anybody or authority in the Province other than the Provincial Assembly. Indeed this power, like any other power vested in a state functionary, is to be exercised in good faith. It is a matter of common knowledge, of which this Court can take judicial notice that the Provincial Government of Sindh had failed to restore law and order in the Province during its tenure of nearly two years, particularly in Karachi where hundreds of people became victim of terrorism and lost their lives. The acts of terrorism had been going on for quite some period in Sindh particularly in Karachi. Inter alia the previous Federal Government was dismissed under repealed Article 58(2)(b) of the Constitution by the then President on the ground that it had resorted to extra judicial killing in Sindh, which ground was upheld by a Bench of this Court headed by the then Hon'ble Chief Justice Mr. Justice Sajjad Ali Shah. [The case of Mohtarma Benazir Bhutto and another v. President of Pakistan and others (PLD 1998 S.C. 388)]. Thus prima facie the Federal Government's above action under paragraph (c) of clause (2) of Article 232 of the Constitution was warranted by the situation obtaining.' " "The above principle of law enunciated in the case of Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 (supra) covers an executive action. No mala fide can be attributed to the Parliament as it is sovereign to legislate on any subject for which it has been empowered by, the Constitution to legislate with the parameters thereof. The Court cannot strike down a statute on the ground of mala fide, but the same can be struck down on the ground that it is violative of the constitutional provision. In this respect reference may be made to the case of Mehr Zulfiqar Ali Babu and others v. Government of the Punjab and others PLD 1997 SC 11. In the present case I have already held hereinabove that neither Article 245 of the Constitution nor Entry No.l of tile Federal Legislative List read with Entry No.59 empowers the Legislature to legislate a statute which may establish or convene Military Courts in substitution of the ordinary criminal and civil courts. In this view of the matter, the above contention of the learned Attorney-General is not germane to the controversy at issue."

Per Irshad Hasan Khan. J. (as he then was) (now Chief Justice) "These Courts, therefore, cannot be replaced by Military Courts as attempted to be done either partially or wholly by virtue of the impugned Ordinance. The role of Armed Forces as contemplated under Article 245 is to defend the country from external aggression or threat of war or to come to the `aid of civil power' subject to law. The second function of coming in the `aid of civil power' to be performed by the Armed Forces is subject to a condition precedent of enacting a law. The law so made must have nexus with the term `to act in aid of civil power'. The role of Armed Forces while acting `in aid of civil power' does not in any way confer the power either directly or indirectly to interfere with the Courts established under Article 175(1) of the Constitution and/or to supplant them." 29. The learned counsel further submitted that the Motorway was initiated to strengthen the links with the Central Asian Republics to earn revenue, just as Suez Canal does for Egypt. Repelling the contention in paragraph 25 of the written statement learned counsel referred Syed Jalal Mehmood Shah's case PLD 1999 SC 395, wherein this Court validated the Governor Rule but scrutinized the notification only in respect of powers of Speakers and Deputy Speakers. He also read out last paragraph from page 400 of the report, which reads thus:"In a Parliamentary form of Government the Legislature not only legislates but it is also instrumental for the election/appointment of the Prime Minister or the Chief Minister and the Members of the Cabinet, as the case may be, inasmuch as only the Member commanding the majority of the Members of the Parliament/Provincial Assembly can be elected/appointed as the

there was dictatorship of the Prime Minister under the cover of democracy, the steps were taken by the Government of the chosen Representatives to put economy on sound footings, the democratic Government showed highest respect to the Superior Judiciary. 12. That the Federal Government, comprising the Prime Minister and its Cabinet were only responsible to the National Assembly under Art. 91(4) of the Constitution, and, the Chief of the Armed Forces, who had been removed by the Prime Minister on 12-10-1999, in the exercise of his Constitutional and lawful authority, cannot be allowed to be a Judge on the acts and deeds of the Prime Minister, Members of the Cabinet, the Chief Ministers, the Provincial Cabinets and the Members of the two Houses and the Provincial Assemblies. 13. The petitioner has established beyond any doubt that the impugned Proclamation of Emergency And PCO 1 of 1999 and the entire super-structure of actions/declarations of respondent No. l 'based thereon, lack constitutional and legal authority. and merit grant of relief claimed in Paras. (a) to (h) and (1) in C.P. No. 62 of 1999 by accepting the petition with costs. "' CONSTITUTION PETITION N0.63 OF 1999 32. Mr. Khalid Anwar, learned Senior ASC, appearing on behalf of the petitioners in Constitution Petition No. 63 of 1999, submitted that he represented the petitioners from very wide spectrum including Speaker, National Assembly, Chairman Senate, the Leader of the House in the Senate with members of Provincial Assemblies and various political parties across the political divide. 33. At the outset, Mr. Khalid Anwar has placed on record formulations of his main points as follows: Formulation of Main Points

"I. The central point can be stated quite simply. Pakistan was being governed under the Constitution of Pakistan. The validity of the Constitution has not been; and cannot be, challenged by any one. With effect from October 12, 1999 an authority unknown to law has purported to suspend the Constitution. It is not for the Petitioners but for the Government to justify this; So far no justification has been forthcoming. The Written Statement contains a vague reference to the so-called "Doctrine of Necessity". This doctrine, has, firstly, not been defined, secondly; its scope and ambit has not been set out, and, thirdly, it has not been explained as to how it could have been invoked in the circumstances prevailing on that day or how long it will last; This doctrine has been referred to in the case of Begum Nusrat Bhutto. On the assumption that that case was correctly decided (which assumption is not admitted) there can be no conceivable doubt that the ratio of that case is wholly inapplicable for the following inter alia reasons: (i) In that case the factual position was that since the elections had been massively rigged there was no Constitutional Government in existence. There being a vacuum it had to be filled in. (ii) There had been a total collapse of law and order and the civil Government was incapable of controlling the nationwide agitation. (iii) (iv) (v) No legal means existed for filling in the vacuum. The C.M.L.A. announced that his sole intention was to hold elections. . The C.M.L.A. did not have a seven point agenda existing for upto twenty years.

(iv) The Attorney-General made a solemn commitment to the Supreme Court that elections would be held within six months. (vii) The Chief Justice certified the sincerity of the C.M:L.A. in the above circumstances and observed that it would be very unfair to doubt his commitment. (viii)The avowed intention of the C.M.L.A. was to preserve the Constitution. (ix) The C.M.L.A. did not announce in advance that he would not permit the electorate to elect specified political leaders. "None of the above criteria are fulfilled in the present case. Therefore, even if the reasoning in Begum Nusrat Bhutto's case was correct that would not justify the Government's stand in the present matter." "II. We now come to the second question which relates to the correctness of the decision in Begum Nusrat Bhutto. Reliance was placed on the earlier judgment by Munir, C.J. in the case of the Governor-General's Reference, 1955 (hereinafter referred to as the "Reference"). Unfortunately there was no application of mind to the question as to whether the facts of that earlier case were at all applicable in the changed circumstances of 1977. This is despite the fact that the fundamental difference was glaringly obvious. In the earlier case the entire discussion proceeded on the hypothesis that the Head of State had a supreme obligation to take all necessary steps for the preservation of society. Obviously this, is completely different from the present situation. There was also no application of mind as to the criteria laid down by Munir, C.J. He had stated that: (i) There must be a condition (i.e. situation) of "absoluteness, extremeness and imminence". In other words, there must be an immediate situation requiring action now for which no Legal remedy is available at all.

(ii) The act must have been done under stress of necessity, and this necessity must be referable to a need to preserve and prevent from dissolution, the Constitution, the State or the Society. (iii) The act must be done bona fide. (iv) Additionally the act must only be of a temporary nature and the remedy .must be proportionate, i.e. no more than is necessary to remedy the situation.. "In the facts of the present case. one thing is clear beyond any doubt: whatever the crisis, whatever the emergency, whatever the necessity, there had been a complete resolution in favour of the Army Command within a matter of two hours at most. By that time the Army was in full control, the former Prime Minister had been dislodged and arrested, the country was completely peaceful and quiet. What then prevents the holding of fresh elections? "The above is on the assumption that Munir, C.J.'s views regarding the doctrine of necessity are correct. In fact there is a complete consensus in the legal community that his opinion derailed the country from the constitutional track and caused a decisive setback to the nation. "III. In the Petition an objection has been taken as to the nature of the so-called Proclamation of Emergency. In what way is this different from Martial Law. This objection remains unanswered despite a lengthy Written Statement having been filed by the Government. It follows, therefore, that the Government has no answer to 'this objection either." 34. Elaborating his above formulations, he submitted that the written statement has not addressed the questions raised. in. the petition, inasmuch as, the petition has been filed by various elected persons whereas the written statement solely targets Mian Muhammad Nawaz Sharif, the former Prime Minister, who is not petitioner in the instant petition, and levels various allegations of mismanagement, corruption and even of hijacking (though sub judice) against him and, thus, seeks to justify the action of 12th October, 1999. He argued that assuming that Mian Muhammad Nawaz Sharif was guilty of various charges levelled against him in the written statement, but this fact does not justify that the Constitution, which is the real petitioner, should be condemned and the constitutional dispensation should come to an end. He further submitted that it is the blessing of the Constitution that various office holders including the Judges of this Court and the Attorney-General for Pakistan are holding their respective offices. 35. Mr Khalid Anwar then dilated upon the significance of judicial power which, according to him, means that the Court can strike down a law as the Supreme Court did in Mehram Ali's and Sh. Liaquat Hussain's cases. He emphasised that the nature of judicial power and its relationship with jurisdiction are all allied concepts and contended that one facet of judicial power cannot be taken away though jurisdiction can be curtailed but this has to be decided by the Court itself. He submitted that the concept of judicial review was laid down in the United States by Chief Justice John Marshal in the case of William Marbury v. James Medison (2 Law Ed. 60), wherein the US Supreme Court had observed that it Vas inherent in the nature of judicial power that the Constitution was regarded as the supreme law and any law or act contrary to it or infringing its provisions was to be struck down by the Court and that this was the duty and function of the Court to enforce the Constitution. He argued that the concept of judicial review did not exist in England because the supreme law in England was that the Queen in Parliament can do anything and that once an Act of Parliament had been passed, the Courts were to follow it. The Founding Fathers of the United States Constitution, however, deviated from it and in doing so indeed followed the view expounded by Montesquieu in his treatise "Spirit of Law", which enumerates the concept of separation of powers: the judicial, the legislative and the executive powers, who based his opinions on the practice, but not the law of England, in that, in practice, there was separation of powers in England but constitutionally that was not. He submitted that unlike Constitution of Pakistan, the Constitution of United States does not confer power on the Supreme Court to strike down

laws but the Supreme Court of United States stated so in the case of William Marbury v. James Medison (supra). 36. Mr Khalid Anwar then analyzing the Proclamation of Emergency, posed two questions: (i) what was the source of power to issue the Proclamation and (ii) what was the nature of power that had been exercised, and contended that so far as the deliberations/discussions of the Chiefs of the Armed Forces and Corps Commanders were concerned, these were only a historical fact and not a source of power. He argued that a Proclamation of emergency can never be a source of power and that an `emergency' issued under Article 232 of the Constitution does not include the power to suspend the Constitution, therefore, the power so exercised under the present Proclamation of Emergency was a new concept, unknown to the jurisprudence of Pakistan. The learned counsel further argued that as per the Proclamation, respondent has assumed the office of Chief Executive whereas no such office exists, though the office of Chief Executive did exist in the Original Constitution under Article 90, prior to adoption of 8th Amendment, which reads thus: "90 (1) Subject to the Constitution, the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the Federal Ministers which shall act through the Prime Minister who shall be the Chief Executive of the Federation." Mr Khalid Anwar then went on to quote the definition of "Proclamation" given in Black's Law Dictionary, which is as follows: "Proclamation. ---The act of publicly proclaiming or publishing; a formal declaration; an avowal; a public announcement giving notice of a governmental act that has been done or is to be done. The act of causing some governmental matters to be published or made generally known. A written or printed document in which are contained such matters, issued by proper authority, usually by a high governmental executive (President, Governor, Mayor). "The declaration made by the bailiff, by authority of the Court, that something is about to be done. "In equity practice, proclamation made by sheriff upon a writ of attachment, summoning a defendant who has failed to appear personally to appear and answer the plaintiff's bill." 37. The learned counsel then read out the first speech of the respondent delivered in the early hours of 13th October, 1999, scrutinized its contents and contended that in Chief Executive's. own words, the situation in the country was calm, stable and under control, therefore, there was no need for issuance of the Proclamation. He made comparison of the present situation vis-a-vis the conditions which prevailed in July, 1977 and argued that due to chaos and political unrest, the constitutional machinery had completely broken down in 1977. Mr. Khalid Anwar reiterated that the Court should examine the source of power behind the issuance of Proclamation by resolving the question whether a Proclamation, in the absence of law, ipso facto, could be a source of power for any authority. He referred to extracts from the book titled, "The Constitutional History of England" by F.W. Maitland, which reads thus:"A still better illustration, however, at once of the actual tractability of parliaments and of the theoretic supremacy of king in parliament is afforded by an act of 1539, which has been called the Lex Regia of England, and the most extraordinary act in the Statute Book -power was given to the king to make proclamations with the advice of his council, or a majority of his council, to make proclamation which should have the force -of statutes; the punishment for disobedience might be fine or unlimited imprisonment; it was not to extend to life, limb, or forfeiture. This act was repealed in the first year of Edward VI - you will at once see the importance of its enactment and its repeal; they seem distinctly to confirm the doctrine that the king is not supreme, king and parliament are supreme; statute is distinctly above ordinance or proclamation; statute may give to the king a subordinate legislative power, and what one statute has given another statute may take away."

"This act, however, was at once repealed on the accession of Edward VI, by a statute of 1547 "We must now look at the powers wielded by the king with the assistance of his council. We will bring the subject under four heads - (1) legislation, (2) taxation, (3) judicature, (4) administration." "In 1610 the commons protested - `it is the indubitable right of the people of this kingdom not to be made subject to any punishment that shall extend to their lives, lands, bodies or goods, other than such as are ordained by the common laws of this land, or the statutes made by their common consent in parliamentBy reason whereof there is a general fear conceived and spread among your majesty's people, that proclamations will, by degrees, grow up and increase to the strength and nature of laws.' To all this, and there is more of it, the only answer is that the proclamations shall go no further than is warranted by law." "Before this answer was given the great oracle of the law had been consulted. Coke, then Chief Justice of the Common Pleas, was summoned to the council, and the question was put to him, whether the king by proclamation might prohibit the erection of new buildings in London and the making of starch from wheat. He was pressed to answer in the affirmative. He refused to answer without consulting his brethren. He consulted with three Judges, and they answered that the King cannot by his prerogative create any offence which was not one before, but. the King may by proclamation admonish all his subjects that they keep the laws and do not offend them upon punishment to be , inflicted by the law-neglect of a proclamation aggravates the offence; lastly, if an offence be not punishable in the Star Chamber, the prohibition of it by proclamation cannot make it so. This probably was sound law-that is to say, there was a distinct precedent for it coming from the middle of the Tudor period. In Mary's reign the Judges had delivered this opinion: "The King, it is said, may make a proclamation quoad terrorem populi, to put them in fear of his displeasure, but not to impose any fine, forfeiture, or imprisonment: for no proclamation can make anew law, but only confirm and ratify an ancient one.' But though James I had the opinion of his Judges against him, still he went on issuing proclamations. It is difficult for us to realize the state of things -that of the Government constantly doing what the Judges consider unlawful. The key is the Court of Star Chamber--the very council which has issued these proclamations enforces them as a legal tribunal, and as yet no one dares resist its judicial power." "(2) It seems probable that at the beginning of Elizabeth's reign the opinion of the Judges was taken by the council as to the legality of these impositions, and that their opinion was not favourable. The queen, however, did not abandon the impost, that she herself set an impost on sweet wines. James imposed a duty on currants over and above the tax which was set on them by the statute of tonnage and poundage. Bate refused to payI think, we must say that the King succeeded in obtaining from the barons of the Exchequer a declaration that there is a large sphere within which there is no law except the King's will. `The matter in question is material matter of state, and ought to be ruled by the rules of policy; and if so, the king has done well to execute his extraordinary power .... .... .... .... .... .... .... .... .... .... ....They said that the king cannot set impositions upon imported goods at his pleasure, but that he may do so for the good of the people, thus, if foreign princes set taxes on English goods the king may retaliate. Their doctrine seems to have been that the king may not set impositions merely for the sake of revenue, but that he may do so for other ends, as for the protection of English merchants: obviously this is an unstable doctrine ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...They carried a bill enacting that no imposition should be set without the consent of parliament, but the lords rejected it. The immediate consequence had been that in 1608 the king, having the judgment in Bates case at his back, issued a book or rates imposing heavy duties upon almost every article of merchandise. The subject was resumed in the short parliament of 1614; the commons passed a unanimous vote denying the king's right of imposition. They refused to grant any subsidy until this grievance should be redressed. James dissolved the parliament."

It is by means of the judicial power of the Court of Star Chamber that the king enforces his proclamations. We have already said something of this Court. Let us remember that a statute of 1487 (3 Hen, VII, c.I) gave authority to certain persons to punish certain crimes. These persons are the chancellor and treasurer of England and the keeper of the privy seal, or two of them, calling to them a bishop and a temporal lord of the king's council and the two chief justices, or in their absence two other justices. The offences that they are to punish are riots, unlawful assemblies, bribery of jurors, misdoing of sheriff, and some others which we may describe as interference with the due course of justice. It is evidently contemplated by the statute that the accused persons will not be tried by jury. The statute does not mention the Star Chamber, but that is a room which the council has long used ... ... ... ... ... ... ... (b) It did not confine itself to dealing with the crimes specified in the statute of 1487. Its jurisdiction over crime was practically unlimited, or limited only by this-that it did not pass sentence of death. We know it best as dealing with what may be called political crimes-sedition and the like; but it dealt also with commoner offences-robbery, theft, and so forth. It dealt with some misdoings for which the common law had as yet no punishment, in particular with libels." "Now was this the Court created by the statute of Henry ~ VII? Under Charles I (for we must anticipate this much) the opinion had gained ground that it was, that consequently whatever it did beyond the. sphere marked out by that statute was an unlawful usurpation of jurisdiction." "... ... But that it was a tyrannical Court, that it became more and more tyrannical, and under Charles I was guilty of great infamies is still more indubitable. It was a Court of politicians enforcing a policy, not a Court of Judges administering the law. It was cruel in ifs punishments and often had recourse to torture. It punished jurors for what it considered perverse verdicts; thus, it controlled all the justice of the kingdom. The old process of attaint, of which we have before spoken, had long gone out of use, but in the Star Chamber the jurors had- to fear a terrible tribunal which would resent a -verdict against the king." "On 22nd January, 1655, Cromwell dissolved this body. His third parliament met on 17th September, 1656; it offered him the kingly title which he refused; it instituted an upper house consisting of his nominees, and then fell quarrelling as to whether this was a House of Lords. On 4th February, 1658, he dissolved it; on 3rd September he died." "The parliament was the Convention Parliament, and of some of its doings we have already spoken. With the King's assent, for Charles was restored in May, it passed an act declaring the dissolution of the Long Parliament; it was dissolved on 29th December, 1666. Charles's second parliament met on 8th May, 1661, and was not dissolved until 31st December, 1678, having, thus, sat between seventeen and eighteen years. "The second parliament met on 20th May, 1690; it held six sessions and was dissolved in the autumn of 1695. Meanwhile it had passed another Triennial Act-carefully to be distinguished from the acts of 1641 and 1664. It was passed in 1694 (6 and 7 William and Mary,c.2). This act was directed not so much against intermissions of parliament, though it repeated what was already law, namely, that a parliament shall be holden once in three years at least, but against long parliaments: no parliament is -to endure for more than three years-it is then to die a. natural death:" 38. Mr Khalid Anwar, quoting relevant extracts, traced the history of evolution of the `doctrine of necessity' and its ultimate rejection by the British Courts. By referring the case law he contended that the `doctrine of necessity' and Divine Rule by King/Queen, was buried long ago by the British Courts but in Special Reference No. 1 of 1955 PLD 1955 FC 435, wherein opinion was authored by Muhammad Munir, the then Chief Justice, this doctrine was resurrected and that doctrine of necessity. was applied in Begum Nusrat Bhutto's case (supra) and the same is now being sought to be employed by the respondents in the present case, though it stands rejected in a recent judgment passed by this Court, in Sh. Liaquat Hussain's case (supra) PLD 1999 SC 504.

39. Mr Khalid Anwar, however, elaborated that the `doctrine of necessity' is accepted as a defence in criminal prosecution and tortuous acts, which concept is different from that of State necessity and this Court in the case of Begum Nusrat Bhutto PLD 1977 SC 657, mixed the two and thereby found justification for legalizing Martial Law. He submitted that except 1973 Constitution, all the previous Constitutions had clauses providing 4or acts of indemnity. To substantiate his point of view, the learned counsel referred to a book by Glanville William on "Law of Necessity" at page 216 whereof, under the heading, "The Defence of Necessity" it has been observed: "The defence of necessity is not so much a current as a perennial legal problem. The Chinese sage Mencius, a contemporary of Plato and Aristotle, was asked by K `wan: `Is it the rule that males and females shall not allow their hands to touch in giving or receiving anything?' Mencius replied: `It is the rule'. K `wan asked: `If a man's sister-in-law be drowning, shall he rescue her with his hand?' Mencius said: `He who would not so rescue the drowning woman is a wolf. For males and females not to allow their hands to touch in giving and receiving is the general rule; when a sister-in-law is drowning, to rescue her with the hand is a peculiar exigency.' . "Notwithstanding the doubts expressed by some modern writers, one can say with some assurance that the defence is recognised by English law. This does not even need judicial authority; it can be proved by a hypothetical example. P is rendered unconscious in an accident, and an immediate operation is necessary to save his life. D, a Surgeon, performs this operation; afterwards P ungratefully prosecutes him for assault. What defence had D? Not the surgeon's usual defence of consent, for here P was unconscious throughout. D's only defence is that of necessity, and it can hardly be doubted that this is open to him." "The law for necessity dispenses with things which otherwise are not lawful to be done'. Sir William Scott said in The Gratitudine (1801): `Necessity creates the law;-it supersedes rules; and whatever is reasonable and just in such cases, is likewise legal'. "ILLUSTRATIONS OF NECESSITY" Examples of necessity given in the old books are: pulling down a house to prevent a fire from spreading; jurors departing from the Court without leave of the Judge because an affray breaks out and they are in peril of death; prisoners leaving a burning jail; and jettisoning cargo to lighten a boat in a storm. In modern times the most striking application of the defence was in R. v. Bourne, where necessity was, held to justify abortion." Reference was also made to the following passages from the above book at page 223, under the sub-heading, "The Theoretical Basis" wherein it has been observed: "It is time to turn to the theoretical question: What is the basis of the defence of necessity? Bacon thought that an act done under necessity was not voluntary; but we no longer hold that opinion. An act dictated by necessity is still an exercise of the will, as Hobbes pointed out: `There is nothing there involuntary, but the hardness of the choice'. Strictly speaking there is perhaps no such thing as necessity, in the context in which lawyers speak of it. A particular act is never necessary, in the sense that there is literally no option, even though the only alternative is one's own death. One is reminded of the Comte d'Argenson's reply to the Abbe who had excused himself for writing scurrilous attacks, on the ground that `he must live'-'I do not see the necessity'. "What it comes to is this, that the defence of necessity involves a choice of the lesser evil. It requires a judgment of value, an adjudication between competing `goods' and a sacrifice of one to the other. The language of necessity disguises the selection of values that is really involved." "If this is so, is there any legal basis for the defence? The law itself enshrines values, and the Judge is sworn to uphold the law. By what right can the judge declare some value, not expressed in the law, to be superior to the law? How, in particular, can he do this in the face of the words of a statute? Does not the defence of necessity wear the appearance of an appeal to the Judge against the law?

"The doubts cast upon the doctrine of necessity come from those who fear its abuse; and abused it certainly has been, as in the terrible case of Gregson v. Gilbert (1783), where 150 slaves were pushed overboard, because water was running short. It was under the plea of State necessity that the Star Chamber used the rack to extract information not only from the accused but even from witnesses. Yet it is ancient wisdom that the abuse of a rule does not take away its uses-abusus non tollit usus. `Sir', said Johnson, you must not neglect doing a thing immediately good, from fear of remote evil from fear of its being abused. A man who has candles may -sit up late, which he would not do if he had not candles; but nobody will deny that the art of making candles, by which light is continued to us beyond the time that the sun gives us light, is a valuable art, and ought to be preserved' "Some fear the effect that an argument of State necessity may have upon private rights and individual liberty. `Necessity', declared Pitt. 'is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves' ....................... First, Coke: ` The law of God saith, Non facias malum, ut rode fiat bonum'-thou shalt not do evil, that good may come thereof. On the other hand Wilmot, L.C.J., asserted roundly that `the end directs and sanctifies the means'; and Bentham in effect agreed. Bentham's qualifications do not essentially affect his acceptance of the maxim. `The end justifies the means. Yes: but on three conditions, any of which failing, no such justification has place." (1) One is, that the end be good. (2) That the means chosen be either purely good, or if evil, having less evil in them than on a balance there is of real good in the end. (3) That they have more of good in them, or less of evil, as the case may be, than any others, by the employment of which the end might have been attained'. "Many will think that, even with these conditions, some means are ethically barred irrespective of ends. The opposite doctrine that ends can justify means that lying, trickery and torture are all right so long as you do them from a good motive-is now commonly regarded as being characteristic of Communism and Totalitarianism. There are ethical differences between Communist and free societies, but I do not think they can be stated so simply as this. In England we hang and incarcerate criminals, and such punishments can be justified only by reference to their purpose" "In reality the difference between the two views seems to be one of emphasis. Most of us think that the moral values we cherish are, in the long run, more important for society and for human welfare than any gain that may seem immediately to accrue from disregarding them. This attitude does not altogether exclude a saving for necessity." "Bacon attempted to restrict the doctrine of necessity by saying that it was an-excuse only for invading private rights, not where the act was against the commonwealth. Necessity privileges quoad iura privata, but necessitas publica maior est quam privata. The examples given by Bacon clarify his meaning. You may throw cargo overboard in a storm to lighten the vessel, but not if the cargo consists of ordnance and munitions which you have been commanded to take to relieve a besieged town. You may pull down a -house to stop a fire spreading, but you may not, if attacked in a house, set fire to it as the only way of saving your life. In the latter case, if the fire that you start spreads to a neighbour's house, you are liable to him in damages. Bacon concocted this somewhat fanciful illustration to help his point; there is no judicial authority on it. Bacon went on to say that a man may commit a mere trespass to save his own life; a trespass is not a thing against the commonwealth, as setting fire to houses is. It is clear from this example that what is involved is an assessment of values; the infliction of an evil is justifiable if it is the lesser of two alternative evils "A second limitation postulated by Bacon was that necessity is no defence where the exigency was caused by the fault of the actor."

"NECESSITY AND PREROGATIVE" "A further element of confusion arose in public law. At first sight the doctrine of necessity is somewhat difficult to separate from the prerogative. The difference is that the defence of necessity is open to everybody, . while the prerogative relates only to the King" "On the other hand there were some politically necessary things that only the King could do; these belonged to his prerogative. Thus, he could (and can) erect sea walls and embankments against sea or tide, and enter the land of a subject to do to. It was said that before Magna Carta, c.21, he could take wood for the repair of his castles. He requisitioned ships, subject to the payment of compensation, and by the prerogative of purveyance similarly requisitioned provisions for his household and armed forces, including even the impressment of labour. Such powers rested upon the prerogative justified by necessity. In the Case of the King's Prerogative in Saltpetre (1606), the Judges declared that the King had a prerogative to dig for saltpetre, for the necessary defence of the realm, notwithstanding that gunpowder had been invented within time of memory. The opinion, which was an advisory one, was hedged about with various qualifications, and reads more like a piece of legislation than a statement of existing law. The King was required to restore the place afterwards; and in practice compensation was paid. "This doctrine of State necessity was brought into bad odour by the excesses of Charles I. Trying to govern without Parliament, Charles justified the exaction of ship-money on the ground of public necessity. Now if it were assumed as a premise that Parliament was not there to grant money, the exaction was necessary, and might reasonably have been regarded as lawful. The weakness in the King's case was that he was deliberately refraining from summoning the constitutional organ for taxation. The necessity was, therefore, a self-induced necessity, which in law is not one at all. Although Hampden lost, when he challenged the tax, it is the subsequent reversal of the decision by a special statute of 1640 that is taken to settle the legal principle." "Since the Revolution the law may be stated as follows. The King cannot acquire new prerogatives by reference to State necessity. The Case of Saltpetre, though not overruled, is based upon an obsolete political philosophy. However, necessary the behaviour, the Government must today invoke the aid of Parliament if the behaviour involves breaking the letter of the law. It can act under the doctrine of necessity only to the same extent as a private person. Parliament's alleged failure to give adequate powers cannot be an excuse for conduct, because the necessity of the powers claimed is for Parliament to decide, not for the Judges over the head of Parliament. The question is not whether it is necessary to do the act but whether it is necessary to do it without the sanction of Parliament." "Paradoxically, this seems to give necessity less scope in public than in private law. The doctrine is a dispensing power exercised by the Judges when Parliament cannot reasonably be expected to act. Since Parliament generally can act in great national emergencies, the doctrine is less applicable to these than it is to the minor troubles of individuals." "This does not altogether exclude necessity in public affairs. At one time the Parliamentarians might have wished to confine it in this way, for they were impressed more by the danger of the notion than by its utility. Milton called necessity "the tyrant's plea"; and Selden said: 'there is not anything in the world more abused than this sentence, salus populi suprema lex esto'. Cromwell declared: `Necessity hath no law. Feigned necessities, imaginary necessities are the greatest cozenage that men can put upon the Providence of God, and make pretences to break known rules by'.' It is this attitude of mind that explains such sweeping judicial utterances as that of Prat, C.J., in Entick v. Carrington (1765): `With respect to the argument of State necessity, or a distinction that has been aimed at between State offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions'. Notwithstanding the esteem in which this pronouncement is commonly held, it does not seem to represent the law. Our books do take notice of State necessity in the particular matter of throwing up bulwarks against the enemy, to mention only one. The view of all lawyers who have considered the subject is that the Crown may by necessity use force to quell insurrection or repel invasion; and this is about all that a so-called declaration of

martial law within the realm amounts to. It is also clear from Humphrey v. O'Connor (1864) that a constable may commit what would otherwise be an assault upon an innocent person if that is the only way of preserving the peace." "A more difficult case of State necessity was presented in R. v. Stratton (1779). The Governor of Madras acted illegally and unconstitutionally in refusing to count the votes of some of the members of his Council. Councillors accordingly imprisoned him for eight months and carried on the Government themselves. Upon being indicted in England they set up the defence of necessity. Lord Mansfield directed the jury that the defence was one of `civil or State necessity'. He remarked:-. `In India you may suppose a possible case, but in that case, it must be imminent, extreme necessity; there must be no other remedy to apply to for redress; and in the whole they do, they must appear clearly to do it with a view of preserving the society and themselvesWhat immense mischief would have arisen to have waited for the interposition of the council at Bengal?' "The jury returned a verdict of guilty. Notwithstanding Lord Mansfield's direction, it may be doubted whether the doctrine of necessity is appropriate to such politically harmful effects as the defendants in that case tried to avoid. In all other cases where the doctrine of necessity has been invoked, the harm sought to be avoided was of an immediate and physical kind. It is submitted that indirect social evils are for the consideration of the legislature, and do not fall within the purview of the doctrine." 40. Repelling the plea on behalf of the Federation that the Judges of the Superior Courts, after having taken oaths of their offices under the PCO, are bound to defend the same, in that, the old Constitution has been replaced by a new revolutionary order, Mr Khalid Anwar vehemently contended that it is incorrect. To meet the argument, he referred to the book titled "Principles of Revolutionary Legality" authored by J.M. Eekelaar, wherein at pages 29-30 and 39 to 43, it has been observed as under: "Indeed, in most societies the Courts are the means, recognized by rulers and ruled alike, through which questions of validity and legitimacy are resolved. In practical terms, then, whether the `ruled' can be taken to have accepted the validity of the rule-making authorities and, indeed, whether there exists a 'juristic postulate' about this validity depends upon whether this validity has been accepted by the Courts. Jurisprudence can in this way recognize that a society whose judicial agencies accept its rulers as legitimate is radically different from one in which this acceptance is lacking. Rules and Principles "If the Courts choose to. follow their duty and apply the `law' so defined, an absurd result could be reached. If an absolute monarch died without making provision of a successor, the `law' would compel them to insist on regarding him as the lawful ruler. To avoid such futility, it would be reasonable to limit the legitimacy of a ruler to the period in which he remains in effective power." Constitutional Principles "The present purpose is not to attempt to make an exhaustive list of the kinds of principles that may be relevant to a decision whether revolutionary activity should be given legal justification, but the more limited one of salvaging this area of investigation from total extinction by the operation of positivist dogmatism. But it may be helpful to set out some of the principles which may be pertinent to revolutionary situations: 1. The principle of effectiveness.

2. The principle of legitimate disobedience to authority exercised for improper purposes. 3. The principle of necessity.

4. The principles that violation of a right demands a remedy and that no one should profit from his own wrongful act. As a .revolution will invariably have involved the violation of some of the `rights' protected by the previous Constitution, a combination of hose principles suggests that, even if the new order is considered legitimate, some recompense should be offered to those whose rights were infringed. 5 The principle that a Court will not permit itself to be used as an instrument of injustice. 6 The principle that it is in the public interest that those in de facto impregnable control should be accorded legal recognition. This was the main principle upon which the four Commonwealth tribunals rested their decisions. Put more crudely, the principle states that might, once established, ipso iure becomes right. It gives effect to the acceptable policy value that it is in the interest of the community that order be preserved. But one might be reluctant to hold that it is the only relevant principle and that there cannot be others which would militate against automatically accepting revolutionaries as legitimate regardless of any other circumstance.. 7 The principle, common to both public and private international law and which Grotius considered a central tenet of natural law, that promises are to be kept: pacta sunt servanda. A Government elected under a Constitution expressly or impliedly pledges with the electorate that it will hold to the Constitution. If it abrogates that Constitution, it breaks faith with the electorate and, therefore, contravenes this principle unless and until it submits itself once more to the same electorate to express its acceptance or rejection of the action. 8 The principle that government should be by the consent of the governed, whether voters or not. There is nothing new in this principle. Authority can be found in political writings at least from the Middle Ages to the present day. 9 International law now probably supports the principle of the right to self-determination and of the unacceptability of relied discrimination. As the Rhodesian Court, in particular, relied heavily on an appeal to international law for support for the principle it in fact applied (that revolutionary success demands legal recognition) it would have been proper to have weighed against that principle other norms of international law relevant to the situation." Authority of the Court "In concluding the defence of the proposition that principles of the kind enumerated above may properly be taken into account by a Court in order to determine whether or not to uphold the legitimacy of a revolutionary regime, it is necessary to consider two oblique arguments which would attempt to undermine it. One is to take theoretical objection to the jurisdiction of a Court which indulges in the exercise. The claim is that, as the Court acquired its authority to determine disputes by 'virtue of jurisdiction conferred on it by the old Constitution, the disappearance of that Constitution implies the collapse of the court's own authority. The other argument is the severely practical one that, whatever the legal theorist or the Judges may say, any Court making a finding adverse to a revolutionary regime is certain to be disbanded so that in reality a judiciary will be allowed to function only if it is subservient to the new regime. "The second questionable premises is that by suffering the Court to continue to function, the new executive thereby assimilates the Court into its own revolutionary order and that this compels the de jure recognition of the Government. But against this it might be urged that the very .submission by the revolutionaries to litigation before the Court concerning their own legitimacy suggests that the Court may have an inherent authority arising. from the submission of both parties, rulers and ruled, to its jurisdiction. "The dismissal of Judges is an extreme step which might have dangerous domestic and international consequences for a revolutionary executive. Nor should it be too readily assumed that a regime which takes this step will easily find a replacement judiciary without leaving itself open to ridicule.Had the Rhodesian Court, for

example, held that the revolutionary regime could be considered lawful only if confirmed in office by the electorate which had elected them under the old Constitution and if some satisfactory evidence was produced that the new Constitution was broadly acceptable to the majority of the population (in accordance with principles 7 and 8 listed above) is it inconceivable that the regime might have preferred to attempt to comply with that finding rather than to dismiss the Judges? The opportunities open to the judiciary to influence the course of events should not be dismissed out of hand. It may be that this is unaccustomed territory for the judiciary to enter. But this is rue for many areas of law in modern times, especially with respect to the interaction between the executive and the citizen. It is hard to believe that our legal and cultural tradition is too weak to develop sound and acceptable principles in this new context. But in order that they may take root, it is necessary to rid ourselves of the conceptual block which would forever bar the entry of juristic thought into this domain. " 41. According to the learned counsel the history of civilization is indeed he history of evolution of the doctrine of separation of powers. Thus, no matter if one is the wisest such as Socrates, the most knowledgeable such as Aristotle and the most virtuous such as Imam Abu Hanifa, all need be subject to the limits of checks and balances to prevent tyranny. He then quoted references from the book titled CASES IN CONSTITUTIONAL LAW authored by D. L. KEIR and F. H. LAWSON, 5th Edition, at pages 73 to 116, which are as follows: "By the word prerogative we usually understand that special preeminence, which the king hath, over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity. It signifies, in it's etymology (from prae and rogo), something that is required or demanded before, or in preference to, all others. And hence it follows, that it must be in it's nature singular and eccentrical; that it can only be applied to those rights and capacities which the king enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects: for if once any one prerogative of the crown could be held in common with the subject, it would cease to be prerogative any longer. And, therefore, Finch lays it down as a maxim, that the prerogative is that law in case of the king, which is law in no case of the subject." "1. The King's `special pre-eminence' carried with it certain property rights which he enjoyed as feudal lord and conferred on him certain advantages in litigation. Such had throughout the Middle Ages been the meaning generally, and almost solely, attached to the term Prerogative. The apocryphal statute Praerogativa Regis, in the thirteenth century, was wholly concerned with the King's exceptional rights as feudal lord. The chief among his advantages in litigation was that he could not be made defendant to an action at law; this was hardly a prerogative in the earlier Middle Ages since it was shared by other lords, being. merely an application of the feudal rule that a lord cannot be sued in his own Court. It later came quite correctly to be regarded as a prerogative; for which the King's Courts had become national Courts and absorbed the greater part of the legal business of the country, the King's immunity ceased to have any real connexion with feudalism. It was further recognized that the King's goods and chattels were under no tribute, toll, or custom, nor otherwise distrainable. Such prerogative as these were capable of full enumeration and description. They were that part of the common law which concerned the King, and could be discussed and applied by the Courts in West-minister Hall." "2. But the Stuarts had also inherited from their medieval predecessors powers of Government which were not so defined. True, the medieval lawyers had held the view that the law was a bridle on the King, and in their famous maxim, `The King can do no wrong', they had insisted that his power extended to do only what was right. They held, further, that the King could do certain things only in certain ways.." "Yet even in the exercise of his residuary powers he was considered to be subject to law. The power of supplementing and overriding positive law was given to him, not that he might arbitrarily exert his own personal will, but that he might provide for cases where the positive law either was insufficient or worked injustice. Moreover, he was in practice dependent for the execution of his decisions on the cooperation of persons whom he could not effectively control. The characteristic vice of Government in the later Middle Ages was not the arbitrary power but the executive weakness of the King."

"It was expressed in the maxim that the King can do no wrong. This maxim lost its medieval significance and came to mean first that no intention of abusing his power can be attributed to him, and finally that whatever he does is right. "The gist of the decision was that the King might impose what duties he pleased if it was only for the purpose of regulation of trade and not of raising revenue, and the Court could not go behind the King's statement that the duty was in fact imposed for the regulation of trade." "We are of opinion, that when the good and safety of the kingdom in general is concerned, and the whole kingdom in danger, your majesty may, by Writ, under the Great Seal of England, command all the subjects of this your kingdom, at their charge, to provide and furnish such number of Ships, with men, munition, and victuals, and for such time as your majesty shall think fit, for the defence and safeguard of the kingdom from such danger and peril; and that by law your majesty may compel the doing thereof, in case of refusal or refractoriness. And we are also of opinion, that in such case, your majesty is the sole Judge, both of the danger, and when and how the same is to be prevented and avoided." "Recourse must be had to ordinary means before extraordinary, but if the latter are . necessary (and Salus populi suprema lex) a parliament should be summoned." "2. The Parliament moves too slowly to be consulted in an emergency. Answer: even in the Statute of Proclamations, 31 Hen. 8, which was made to provide for emergencies, power to tax by proclamation without parliamentary consent is expressly excluded. 3. Some time the existence of danger will justify taking the subject's goods without his consent. Answer: admitted, but this is only in case of immediate danger, when the necessity of self preservation overrides all law. It is not a prerogative, but belongs equally to every subject, and cannot be used to justify an invasion of property except where the necessity is immediate. A similar right is admitted to exist while war is actually raging, but that is on the principle, inter arma silent leges. "But in times of war, and when salus populi was at stake, private property must give way to the common good. Quod necessitas cogit, defendit. And this not only when war is actually raging, but also upon rumours of wars. Matters of war and peace are for the King; sometimes dangers are not fit to be communicated to the people, and yet it is very fit that preparation be made beforehand." "HOLBORNE (for the defendant) refused to admit that the King's allegation of imminent danger was conclusive, and contended that the allegation was not clearly set out on the face of the writ. "[To state this argument in the language of the twentieth century, parliament is established to limit the power of the king; how can it do so, if he may tax whenever he chooses to allege the existence 'of an emergency?] "[The modern counterpart of this argument would be that the law will not give him a power which he might be tempted to use to interfere wrongfully with the property of the subject.] He is said, it is admitted, to judge of the necessity, but `in judgment so to do it, is all one as to leave it to him arbitrarily, if he will, which is that only which was intended to be prevented.' "It is admitted that the subject must serve in case of necessity, but only in person; if his goods are to be taken the necessity must be immediate, and mere rumours of wars or apprehension of danger are not enough." "I never read nor heard, that Lex was Rex; but it is common and most true, that Rex is Lex, for he is `lex loquens', a living, a speaking, an acting law: and because the king is `lex loquens', therefore, it is said, that `rex censetur habere omnia jura in scrinio pectoris sui.'

"iii The Judges who decided them have been denounced as time-servers or traitors, but it is by no means certain that they decided contrary to law." "But in fact the. parliamentary lawyers found it difficult, having gone so far, to deny that the King had the best means of knowing about foreign affairs, and was the fittest person to judge of an emergency." "that the people's liberties strengthen the king's prerogative, and that the king's prerogative is to defend the people's liberties." "The absolute power of the king is not that which is converted or executed to private use, to the benefit of any particular person, but is only that which is applied to the general benefit of the people, and is salus populi; as the people is the body, and the king the head; and this power is [not] guided by the rules, which direct only at the common law, and is most properly named Policy and Government; and as the .constitution of this body varieth with the time, so varieth this absolute law; according to the wisdom of the king, for the common good; and these being general rules and true as they are, all things done within these rules are lawful." Prerogative (iv) "Much of the contents of the Prerogative perforce disappeared when the Star Chamber was abolished. They could not be exercised without the intervention of a Court. The prerogative of executing martial law, at any time of peace, had already been taken away by the Petition of Right; so had the power to commit per special mandatum regis. The decision in R. v. Hampden hadbeen reversed by a special Act. The Crown still had full legal control of foreign policy, and prerogatives such as the power of dissolving parliament, of appointing to offices and of pardon. But these prerogatives could not affect the property of the subject. Arid from the time of the Long Parliament it had been clear that wherever any prerogative came into conflict with the exclusive right of Parliament to tax, it must give way to it." "There was one doctrine of the Prerogative and one prerogative right which were dangerous to Parliament, and were not yet dead. Nothing had been done directly to kill the notion that certain prerogatives were inseparably annexed to the Crown, so that no statute could avail to take them away, and no attempt had been made to destroy the dispensing power. The Restoration period, and especially the reign of James II, showed that unless Parliament could contrive to advance still further, all was not irreparably lost to the Crown. By means of dispensations, the King could legalize anything which was no malum in se, provided his dispensation deprived no third party of his rights; that is to say, his dispensing power could have no effect where property or private law was at stake, but could be used to evade a statue which expressed the wishes of Parliament on a point of public law. Moreover, because the prerogative to dispense with statutes, was looked upon as inseparably annexed to the Crown, there was no means of curbing the power of a king who did not owe his authority and even his title to Parliament." "But this writ and the Star Chamber both disappeared in the time of the Long Parliament. Hence that portion of the Prerogative which could be exercised only through the intervention of a Court disappeared for good in 1641. Nor can it be revived, for the Privy Council case of In re Lord Bishop of Natal (p.113 below) clothed with judicial authority the doctrine. found in the old books, that the King by his Prerogative cannot establish a Court to administer any but the common law, and as such a Court would nowadays be almost useless, it is very unlikely that his prerogative will be exercised" "The rest of the prerogative might survive, but only subject to the approval of the ordinary Courts. In every case the King must make good at common law his claim to the prerogative; the mere plea of prerogative no longer ousts the jurisdiction of the Court. The plea of matter of State has no more .force than the plea of prerogative; further, inasmuch as the common law knows no matter of State except such as is comprised in the more force than the plea of prerogative; further, inasmuch as the common law knows no matter of State except such as is comprised in the. more convenient and technical term Prerogative, there was no point in keeping two phrases where one would do.."

But the idea that Government is, apart from Prerogative, entitled to special treatment died very hard. In Carr's Case (1860), 7 St. Tr. 929, Scroggs, C.J. went so far as to say, `If you Write on the subject of Government, whether in terms of praise or censure, it is not material; for no man has a right to say anything of Government'. The modern view was first clearly stated by Lord Camden in his famous judgment in Entick v. Carrington. "With respect to the argument of State necessity, or a distinction that has been aimed at between State offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions." "Those powers which the executive exercises without Parliamentary authority are comprised under the comprehensive term of the prerogative. Where, however, Parliament has intervened and has provided by statute for powers, previously within the prerogative, being exercised in a particular manner and subject to the limitations and provision contained in the statute, they can only be so exercised. Otherwise, what use would there be in imposing limitations, if the Crown could at its pleasure disregard them and fall back on prerogative?" "7. Since the Case of Proclamations (p.110 below) it has been clear law that the Crown could not create a new offence except by Act of Parliament, and it had always been understood that unparliamentary legislation of every kind was against the law ...... "A controversy of land between parties was heard by the King, and sentence given, which was repealed for this, that it did belong to the common law: then the King said, that the thought the law was founded upon reason, and that he and others had reason, as well as the Judges: to which it was answered by me, that true it was, that God had endowed His Majesty with excellent science, and great endowments of nature; but His Majesty was not learned in the laws of his realm of England, and causes which concern the like, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it: that the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege. " It is a settled Constitutional principle or rule of law, that although the Crown may by its Prerogative establish Courts to proceed according to the Common Law, yet that it cannot create any new Court to administer any other law; and it is laid down by Lord Coke in the 4th Institute, that the erection of a new Court with a new jurisdiction cannot be without an Act of Parliament." 42. Mr Khalid Anwar argued that as per the above case law of Great Britain, Chief Justice Coke, whose writings are regarded as an important source of common law, expounded the view that the Bench should be independent of the Crown and arbiter of the Constitution to decide all disputed questions whereas Bacon took the view that the Court is under the King but then following Plato's theory he (Bacon) wanted the King to be a philosopher. Dilating further on the point, the learned counsel contended that the evolution of judicial power is coterminous with the evolution of civilization and this is so because judicial power has to check the arbitrary exercise of power by any organ or authority. He next argued that in UK the doctrine of parliamentary sovereignty was evolved and the Parliament includes the Queen, the House of Lords and the House of Commons acting together. To support his contention Mr Khalid Anwar, referred some passages from the book titled "English Constitutional Conflicts of the Seventeenth Century 1603-1689" by J. R. Tanners, at pages 20, 41-45, 62, 65, 70, 78, 79, respectively, which are reproduced as follows: "That which concerns the mystery of the King's power is not lawful to be disputed; for that is to wade into the weakness of Princes, and to take away the mystical reverence that belongs unto them that sit in the throne of God .... As for the absolute prerogative of the

Crown, that is no subject for the tongue of a lawyer, nor is lawful to be disputed. It is atheism and blasphemy to dispute what God can do; good Christians content themselves with His Will revealed in His Word: so it is-presumption and high contempt in a subject to dispute what a King can do, or say that a King cannot do this or that, but rest with that which is the King's revealed will in his law. " "Bacon was by far the greater man, for in him the philosopher included both the lawyer and the statesman; and thinking after the manner of a philosopher he advocated a large reform of English law. Coke on the other hand, with, a mind fanatically narrow, was possessed with a profound veneration for the law as it stood-for its technicalities as well as its substance-and he was convinced that it was not by change and reform but by the following of precedents that the liberties of England were to be defended. Thus, upon one of the great test questions in the politics of the time-the nature and limits of the royal prerogative-Bacon half suggested, half accepted the mystical views of James; while Coke resolutely opposed the inferences which the King drew from the principles which he laid down, and entrenched himself in precedents, and verbal interpretations of statute law. Coke's idea was that the Bench should be independent of the Crown and should act as arbiter of the Constitution to decide all disputed questions. Bacon, on the other hand, referred all disputed questions to the King, saying, with his mind running upon the ivory throne on which King Solomon sat to give judgment, that the Judges. `should be lions, but yet lions under the throne'. This Coke represented a rigid conservatism-the conservatism of Constitutional liberties as they were; Bacon represented reform-but reform carried out by a philosopher-king wielding a sovereignty unlimited and half-divine. We shall come upon the same antagonism again, a generation later, in the persons of Pym and Strafford." "But that State is rare in which the kings are philosophers or the philosophers kings. Bacon was not a king, and James was not really a philosopher. The philosopher had. fallen on evil days, for the kings were Stuarts; and what was really needed was the conservation of existing liberties against encroachment, and not the efficient paternal Government which Bacon and Strafford dreamed of but which-James and Charles could never hope to attain." "In the eyes of his contemporaries Coke's legal fame overtopped his other claims to greatness. In 1631, when his death was expected, Charles I gave orders that his papers should be secured, lest anything against the prerogative should be found among them and published, `for he is held too great an oracle among the people, and they may be misled by anything that carries such an authority as all things do which he either speaks or writes.' `His parts', says Fuller, `were admirable; he had a deep judgment, faithful memory, active fancy; and the jewel of his mind was put into a fair case ...His learned and laborious works on the laws will last to be admired by the judicious posterity whilst Fame has a trumpet left her and any breath to blow therein." "The Petition of Right dealt first with the two main grievances of arbitrary taxation and arbitrary imprisonment, providing (1) `That no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such-like charge, without common consent by Act of Parliament', and (2) That no free man be detained in prison without cause shown. But to these were added two other grievances which had been felt bitterly by the humbler classes: the billeting upon them of Buckingham's disorderly levies, and the attempt which had been made, not so much to enforce discipline among the soldiers as to punish ordinary crimes committed by soldiers by the application of martial law instead of the ordinary law of the land. It was, therefore, further provided, (3) that soldiers and mariners should not be billeted upon inhabitants against their wills, thus, recognising the ancient custom, `no man is forced to take soldiers but inns, and they to be paid by them'; and (4) that commissions for proceedings by martial law `against soldiers and mariners or other dissolute persons joining with them' be revoked, and no fresh commissions be granted in time to come. "The King fought hard to save his emergency power of imprisoning without showing cause. The petition, he said, involved `the very intermitting of that constant rule of Government practised for so many ages within this Kingdom', and it would soon

`dissolve the foundation and frame of our monarchy'. The middle party in the Lords tried to save the situation for him by proposing the addition of a saving clause:" "On March 10, 1629 an abrupt dissolution followed, `the most gloomy, sad, miserable day for England that happened in five hundred years last past'. But for the present the victory was with the King, for it was only in Parliament that he could be fought. Sir Benjamin Rudyerd, the reasonable Parliamentarian, who had said in the House on April 28, 1628, that `moderation is the virtue of virtues and the wisdom of wisdoms', recognises this." "The King took quite a different view of Parliaments. `They are of the nature of cats', he wrote to Wentworth later, `they ever grow cursed with age'. He now inflicted on the nation the 'loss of Parliaments' for a period of eleven years. This opened the way for him to take vengeance on his enemies, and his prosecution of Eliot and other leaders of the Common was to illustrate the truth of Wentworth's own observation, that it was ill contending with the King outside of Parliament." "The decision in Hampden's case also caused a 'general loss of confidence in the Courts of law. As Clarendon points out, shipmoney had been declared lawful 'upon such grounds and reasons as every stander-by was able to swear was not law'. The reasoning of the Judges 'left no man anything which he might call his own', and all men 'found their own interest, by the unnecessary logic of that argument, no less concluded than Mr. Hampden's'. It is not necessary to go so far as Hallam, and to say, 'Those who had trusted in the faith of the Judges ...looked with indignation on so prostituted a crew'; but the parliamentary leaders now perceived that the majority of the Judges was likely to be always against them, even if the minority was not dismissed. This knowledge made Parliament a necessity for them. They had nothing to hope for from the Judges, who were leaving them to work out their own salvation independently of the Courts of law; and the only other place where salvation was to be found was in Parliament. " 43. Mr Khalid Anwar argued that jurisprudence recognises four categories of facts: (1) adjudicative facts, pertaining to decision on merits; (2) jurisdictional facts, containing exercise of jurisdictional powers; (3) constitutional facts, relating to nature of the powers exercised under different Articles of the Constitution; and (4) the law constitutive facts, pertaining to nature of legal system as a whole from which all law constitutive facts may be inferred and that last category is important. He elaborated that this Court is the sole institution to confer or deny legitimacy on the Government and no other body can do so and that no one can take away this power from the Court. He argued that law to be enforced must be one which is enacted by Parliament and no other law including the Proclamation of Emergency by giving it the colour or status of law and that this Court can only allow the enforcement of laws enacted by Parliament or expounded by the Court and cannot countenance or allow its use for the purpose of enforcing what is essentially, if not Martial Law, a step child of Martial Law. He further submitted that laws tend to protect not only the people but also the Sovereign. He further submitted that this Court, which is the embodiment of the laws of Pakistan, should interpret the Proclamation and the PCO, which are subservient to the Constitution and not above it. To support his assertions, the learned counsel referred to the following passages at pages 312 and 313, from the book titled "THE CONSTITUTION OF ENGLAND FROM QUEEN VICTORIA TO GEORGE VI" by Arthur Berriedale Keith, which read thus:"2. Judicial Control of the Executive and other Authorities. "It is an essential duty of the executive Government to obey the law of the land, whether or not there is any means of compelling it to do so, and the judiciary has an absolute duty to restrain actions of the executive which are illegal. It cannot refrain from doing so because of any considerations of State convenience; the ancient doctrine of Entick v. Carrington (1765), 19 St. Tr. 1029 is perhaps hardly likely to be ignored in Britain itself, but it has been found desirable to remind colonial Courts that they must give it full effect, even if it should be found that to do so may interfere with the convenience of the administration. In fact, as shown in discussing the rights of the subject, the Courts have been busy in recent years in reasserting the principle that Parliament alone can impose taxation, and the executive must not do so without precise authorisation; that interference

with liberty must be strictly justified by law, and is not to be excused merely because the person affected might be treated by the crown as an enemy, though it has not done so; or because, under earlier regulations made inoperative by the creation of the Irish Free State, arrest and deportation of an alleged revolutionary would have been legal." "It rests with the Courts to define and by doing so limit the prerogative power of the Crown, a term the extent of which has been a subject of some discussion in recent years." 44. He made a distinction between the necessity and prerogative by stating that doctrine of necessity may be availed by all citizens but the prerogative is for the King and as of "Glorious Revolution" 1688, no new prerogative may be created by reference to doctrine of necessity. He emphasised that the liberty to choose is an important right and that common wisdom ought to be given more weightage than that of the wisdom of one man. He reiterated that doctrine of necessity was rejected in Britain since 1765. Elaborating that Martial Law is justified only to quell insurrection or riots or rebellion from within and invasion from outside, he argued that the insurrection, riots and rebellion are ex facie, an assault on the Rule of Law, therefore, to curb an unconstitutional action, this measure can be adopted. He, however, vehemently contended that Martial Law is not meant to be an instrument of social reform or economic progress as envisaged in the 7-point Agenda of the Chief Executive, therefore, though this Agenda is admirable and noble but the suspension of the Constitution could not be justified for the sake of realizing the same. - He next submitted that social reform and economic progress are in the best interest of the nation which takes place under the law and not in violation thereof. 45. He submitted that R v. Stratton (1779) (21 St.Tr.1222), which was relied upon by Muhammad Munir, C J, provided that the 'doctrine of necessity' may be relied upon only in imminent danger and extreme necessity so as to preserve the society, when no other remedy for redress is available, in that, this doctrine is detrimental to political system. He next submitted that the task of removing the social evils be left for the consideration of the Parliament and should not be undertaken under the doctrine of necessity. Mr Khalid Anwar then read the speech of the Chief Executive dated 17-10-1999 and formulated the following propositions:"(1) That though the speech claims occurrence of deterioration of the system in a period of 52 years and lays emphasis on the Provincial autonomy but the same is restricted by the PCO. (2) That the Chief Executive accepts in unqualified terms the importance of the Constitution by saying that in earlier Martial Laws the Constitutions were abrogated and politicians condemned, therefore, there was no justification for issuance of proclamation of emergency on the 12th October, 1999 to suspend the Constitution. (3) That the Chief Executive states that he was not imposing the Martial Law and the present period is a pause to democracy. 46. He submitted that in Moulvi Tamizuddin's case the Federal Court on a technical point struck down the judgment of Chief Court of Sindh despite the fact that in, at least, three cases the superior Courts had upheld the view that the assent of the Governor-General to section 223-A of the Government of India Act, 1935, was not required, and this practice was accepted by Quaid-e-Azam, the Constituent Assembly and the Executive organ of the State. - He referred the following passage in support of his contention: "Pakistan's Constituent Assembly met in Karachi for the first time on August 11 and unanimously elected Jinnah to preside over its meetings, amid thunderous applause, as its first business. Jinnah took the chair, thanking the assembled delegates for the greatest honour that is possible for this Sovereign Assembly to confer-by electing me as your first President ....I sincerely hope that ....we shall make this Constituent Assembly an example to the world. The Constituent Assembly has got two main functions to perform. The first is the very onerous and responsible task of framing our future Constitution of Pakistan and the second of functioning as a full and complete Sovereign body as the Federal Legislature of Pakistan. We have to do the best we can ...."

47. Mr Khalid Anwar submitted that in Begum Nusrat Bhutto's case (supra) there was Martial Law and the CMLA claimed vast powers including power to amend the Constitution and this Court granted him that power. He further submitted that the circumstances in which the powers to amend the Constitution were granted to CMLA have been referred to in Mehmood Khan Achakzai's case (supra), which 'show that the need for granting the power to amend the Constitution arose, in that the then Chief Justice, who had assumed the office by virtue of nullification of 6th and 7th Constitutional Amendments by the CMLA, would have, ipso facto, lost that office if power to amend the Constitution had not been granted. He further submitted that this Court should not confer such power on the Chief Executive. He next submitted that the Court should examine the scope/ambit of emergency promulgated by the Chief Executive, which is not envisaged by the Constitution, to determine as to what this emergency entails and under its cover what the Government can do and cannot do. He emphasised that the curse of the country is not less laws instead more laws, but no enforcement thereof. He also made a reference to the example of Chancellor Halmet Kohl of Germany and Finance Minister of France, who were involved in financial bungling and rightly condemned but without impinging upon the system of Constitutional governance. He argued that every law has two facets: (1) what is the content of the law and (2) who has the power to make it. He drew a distinction between Martial Law and Emergency to contend that the Martial Law is a nullification of the Constitution whereas the present emergency is claimed to have been imposed to save the system, therefore, minimum period should be taken for restoration of democracy. 48. Mr Khalid Anwar submitted that it would be improper to impute responsibility for writing judgment in Begum Nusrat Bhutto's case to Anwarul Haq, the then Chief Justice alone, who was only a primus inter pares (first among equals), in that, indeed, it was a decision, which was given by the Court, comprising all the Judges on the Bench then. 49. He submitted that it is not the judicial function of this Court to pronounce upon the competence, ability and integrity, especially of four rulers/politicians, namely, General Muhammad Ziaul Haq, General Agha Muhammad Yahya Khan,, Mohtarma Benazir Bhutto and Mian Muhammad Nawaz Sharif. He referred to the case of Begum Nusrat Bhutto wherein this Court relying on the statement of Mr Sharifuddin Pirzada, the then Attorney-General, appdaring on behalf of the respondents therein, observed that the election would1 be held in six month's time or as soon as the accountability process is completed and that the petitioner's counsel when asked for a framework for election to be determined, the Court responded that it would be unfair t o cast doubt on the sincerity of CMLA, to contend that it is no part of the judicial power of the highest Court of the land to pass a verdict on the sincerity or insincerity of the rulers whether civilian or military and prayed that Rio such edict should be issued by this Court on the present ruler. The learned counsel next submitted that the conditions prevalent at the time of promulgation of Martial Law in 1977 were like rebellion/resurrection, in that, as per determination of the Chief Election Commissioner, the elections conducted earlier in March that year were a farce, therefore, there was no Constitutional justification for the Government to remain in power and the Supreme Court, which is the ultimate guardian/custodian of the constitutional values had to find a bridge for bringing the country back to legal/constitutional dispensation. He argued that the doctrine of unwritten limitations on the judicial power has a long heritage in American Constitutional law and that the Courts refrain from entering into the political environment to determine a political question, in that, it is a dangerous/perilous terrain for the Court to tread. He argued that the foundation of power of the Court is ethical, resting upon the prestige and dignity of this august institution, therefore, every Government is in need of seeking from the Court the seal of legitimacy for its powers. He submitted that the judicial powers are the weakest and the most powerful. Mr. Khalid Anwar submitted that this Court should not authorize the Chief Executive to take political decisions and it should restrict him within legal/constitutional limits. In support of his contentions, the learned counsel relied upon certain passages from the research paper titled `Judging the State' by one Paula R. Newberg. 50. The learned counsel argued that Article 58(2)(b), which authorized the President to dissolve the National Assembly, now repealed by virtue of the 13th Amendment, is,

sometimes, referred to as a safety valve and that with the removal of that safety valve the continuance of the Constitutional governance has been placed in jeopardy, was not, in fact, a safety valve but a valve to control the flow of democratic power. He submitted that Article 58(2)(b) was borrowed from a similar provision i.e. section 45 of the Government of India Act, 1935, which was repealed on 14th August, 1947 by PCO-22 of 1947. He submitted that the scope of Article 58(2)(b) was even wider than section 45 of the Act of 1935. He then referred to Article 58(2)(b) of the Constitution which reads thus: "[(2) Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his discretion where, in his opinion,(b) a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate ifs necessary.]" 51. Mr Khalid Anwar next submitted that perusal of the two speeches of the Chief Executive delivered on 13th and 17th October, 1999, shows that he claimed no power to amend the Constitution. but m the subsequent proclamations he does. The learned counsel argued, that the Proclamation of Emergency does not explain the source of its authority and that since the PCO is based on the Proclamation, therefore, if the Proclamation is found to be ultra vires the Constitution then the super-structure thereon i.e. the PCO would also stand demolished. He further contended that the Proclamation does not confer any power on the Chief Executive in that it merely states that the country has been brought under the control of the Armed Forces. He next argued that the PCO is, at best, a quasi Constitutional order and that it cannot be accepted as a constitutional dispensation of either temporary or permanent nature. He submitted that the PCO is a Constitutional conundrum/riddle , as, on the one hand, it purports to suspend the Constitution and, on the other, says that the country will be governed in accordance with the provisions of the Constitution as nearly as possible. He contended that the maker of the document does not reject the Constitution nor does he claim any such right but merely claims the right to fine tune the document and that what emerges from this is that he leaves the Fundamental Rights intact except those suspended by the earlier Proclamation of Emergency dated 28-5-1999 i.e. Articles 15 to 19 and 24 of the Constitution. He contended that, thus, what remains intact is the Objectives Resolution, which is now substantive part of the Constitution under Article 2A thereof. 52. He argued that the Objectives Resolution recognises the `Islamic doctrine of sovereignty' as expounded in the Holy Book, that sovereignty belongs neither to ruler nor the ruled but Almighty Allah alone and the consequential doctrine is that authority is to be exercised by the people of Pakistan through their chosen representatives, and that such authority shall be exercised within the limits prescribed by Almighty Allah, which is a sacred trust. He contended that this is a complete doctrine of Islamic sovereignty and that this is the law of God and the law of nature. He further submitted that these being the contours of Islamic doctrine of sovereignty, there is need of a physician/surgeon to prescribe the medicine/surgery after diagnosing the disease/ailment in the body politic of the nation. He submitted that the remedy is certainly not to kill the chosen representatives but to bring them on the path of rectitude. He next argued that the Chief Executive by accepting the Objectives Resolution accepts the Islamic doctrine of sovereignty which is a right of the people to govern themselves through the chosen representatives, to have a democratic State, an independent Judiciary as well as preservation of democracy and protection of political unity. The learned counsel also referred to Articles 4 and 5 of the Constitution which are left intact by the PCO. He argued that it is a fundamental principle of jurisprudence that Courts must always endeavour to extend their jurisdiction and not restrict it. Mr Khalid Anwar argued that proviso to Article 2 clause (2) of the PCO does not confer absolute immunity on Chief Executive of the nature of Articles 248(1), 269 and 270-A of the Constitution. He, submitted that the immunity conferred by these Articles has been restricted in cases of Ghulam Mustafa Khar (supra) and Sardar Farooq Ahmed Khan Leghari (supra). 53. Mr Khalid Anwar next contended that as the legislator is deemed to know the previous law before he amends it, the drafters of the PCO are deemed to have known that notwithstanding the clauses inserted. therein the Court has jurisdiction to examine the vires of any action and that by missing out this important point the drafters have accepted

it tacitly/impliedly that the orders of the Chief Executive are subject to the jurisdiction of the Constitutional Courts of the land. He further submitted that by including paragraphs 2(b) and 7 in the PCO, its author has recognized that Courts and Judges are not merely entitled to but are in fact continuing in office, which fact also implies that both the documents i.e. the Proclamation of Emergency and the PCO have accepted the necessity of Judges to continue, they being the guardian of the Constitution. 54. He next argued that the Order 1 of 2000, dated 25th January, 2000 allows all the Courts to continue to function and exercise powers, which is a reiteration of what was earlier stated by the Oath of Office (Judges) Order, 1999 (Order 10 of 1999), paragraph 3 whereof states that Order I of 2000 shall apply to: (1) newly appointed Judges; (2) that Oath shall be made before the Constitutional authority; and (3) that it would be in accordance with the appropriate form set out in the Third Schedule to the Constitution. He submitted that the doctrine of necessity required the newly appointed Judges to take oath before the constitutionally designated authority and as per the procedure prescribed by the Constitution and not by the Order 1 of 2000. He pin-pointed the defects/deficiencies in the Order 1 of 2000 viz. assuming the power to amend the Constitution stipulated in the preamble of the said Order and without prescribing any amendment of the Proclamation or the PCO in pursuance of which it is promulgated. He submitted that amendment in the Constitution is not justified for three reasons: (1) that it is being done by means of subordinate instrument as the preamble of the Order 1 of 2000 recognises the supremacy of the Proclamation and the PCO; (2) that the contents of the preamble are simply a statement of intent and (3) that it claims to do so retrospectively, which a preamble cannot do. He further argued that paragraph 3 of the above Order is ultra vires Article 209 of the Constitution. Mr. Khalid Anwar, however, added that a Judge acting according to his conscience and in all good faith may decide to resign or he may decide that in the higher public interest he should retain his office. In this connection, the learned counsel referred to the book titled "Constitutional Legitimacy" `A Study of the Doctrine of Necessity' authored by Leslie Wolf-Phillips, wherein the following passage occurs: "A former member of "the Argentine Supreme Court has justified the role of the Court as `the beneficial expression of a laudable political realism'. He saw choices before the Court in a revolutionary situation as irresponsible resignation, acceptance of the situation, an attempt to save what `institutional values' remained to be saved: It has exercised a function of institutional salvation by guarding human rights and the independence of the judiciary. It has been as if they said to the military menwe recognise the practical power that you exercise, because otherwise there would be chaos instead of order and authority in the country..." 55. He next submitted that Order 1 of 2000, is contrary to the PCO, which is a sub-constitutional Order and re-affirms the right of the Judges to continue in office. He argued that the Proclamation states that the whole of Pakistan will come under the control of Armed Forces, which does not and cannot amount to a charter or open legal licence to suspend the Constitution but is only intended to ask the Armed Forces of Pakistan to discharge their constitutional obligation to restore ordinary governance in accordance with the mandate of the Constitution. He contended that this submission. is in line with Asma Jilani's case having the same legal and conceptual reiteration, which Hamoodur Rehman, C J (as he then was), had made. He submitted that emergency is to re-affirm the restoration/establishment of Constitutional rule and not to abrogate or reject it and this follows from the Proclamation itself if interpreted in the light of Asma Jilani's case. 56. He argued that there being a conflict between the PCO and Order 1 of 2000, it is the Order which must yield to the superior mandate of the PCO. Mr. Khalid Anwar also referred to some observations from the case of Miss Asma Jilani (supra) from pages 183, 193, 194, 195, 196, 197 and 198 which were also referred to by Ch.Muhammad Farooq, learned ASC. 57. Mr Khalid Anwar further argued that if necessity was to remove the Prime Minister then that necessity was fulfilled on 12th October, 1999. He submitted that this Court is the ultimate guardian of the Constitution and various rights of the people of Pakistan. He

submitted that this Court is the only institution, which is respected by the people because it is an embodiment of the ideals of justice and guardian of Rule of Law. He contended that the Proclamation and the PCO are to be authoritatively and definitively interpreted in the present case and that there are three possible interpretations: "(1) that under the PCO the Chief Executive may amend the Constitution, make new laws. postpone elections indefinitely and take whatever action he deems fit and appropriate --- which is a Duke of Willington theory of Martial Law that it is the will of the Army Commander- If Court would accept this interpretation, his petition will be dismissed. (2) The petitioner's interpretation is contained in the prayer at pages 67-69 of the petition, which if accepted in terms thereof, the previous Government is restored, (3) The Court examines the situation with a view to giving finding of what may be termed as a law constituting fact, which relates to the nature of the legal system while giving this finding the Court will not proceed on the basis of political speeches and statements of intent and render a verdict about sincerity of either of the present rulers or the former rulers, instead the Court will proceed on the objective realities." 58. He submitted that the following Latin American countries had experienced Army take-overs. Some of these countries' Constitutions explicitly restricted the role of military, others did so impliedly. Some explicitly described it as treason, as for example, Article 3 of the Constitution of Costa Rica states, "No person or group of persons may assume representation of the people, usurp their rights, or make petitions in their name. Violation of this article is sedition." Others laid dawn that it was the duty of the Armed Forces to guarantee stability to the Government as is the case in Bolivia where it was so prescribed in their Constitution. In the case of Ecuador Article 114 states that, "Military authorities shall not obey higher orders that have as their purpose an attack upon the organs of the public power or that are manifestly contrary to the Constitution or laws." Article 112 of the El Salvador Constitution states that "The Armed Forces are established to protect the integrity of the territory and the sovereignty of the Republic, enforce the law, maintain public order and guarantee Constitutional rights ....Article 114 says "The Armed Forces are nonpolitical and essentially obedient". In the case of Panama, President Dr. Arnulfo Arias was deposed by a coup which was led by Colonel Omar Torrijos Herrera and Colonel Jose Maria Pinilla was installed as President by the, military leaders. Colonel Torrijos later obtained legality from the newly elected Assembly in order to legalise the almost unlimited powers already possessed by him. In Paraguay, a military General seized power in a coup and later provided for in the Constitution against armed rising in these words: "Any armed force or gathering of armed persons that arrogates to itself the rights of the people and makes demands on their behalf commits the crime of sedition". In the case of Venezuela, its Constitution of 1961 contains two articles of particular interest to the problem of Constitutional breakdown: Article 132 which asserts that `The National Armed Forces form a non-political, obedient and non-deliberative institution, organised by the State to ensure the national defence the stability of democratic institutions and respect for the Constitution and the laws.;and Article 1 250 follows Article 136 of the Mexican Constitution in its declaration that `This Constitution shall not lose its effect even if its observance is interrupted by force or if it is repealed by means other than those provided therein. In such eventuality, every citizen, whether or not vested with authority, has the duty to collaborate in the reestablishment of its effective validity.' In the case of Brazil, section 6, Article 91 of the 1967 Brazil Constitution declares that "It is the mission of the armed forces, which are essential to the execution of the national security policy, to defend the country and to guarantee the constituted powers, and law and order." In Chile, Dr: Salvador Allende Gossens was elected to the Presidency in 1970 and his Government was overthrown in a coup planned and executed by the Armed Forces. The Commander-in-Chief appointed by Allende was proclaimed President on 11th September, 1973. Constitutional Act No.2 of September 1976 states the role of the Armed Forces as follows: "In observance of their essential duty to safeguard the sovereignty of the Nation and the permanent superior values of the Chilean people... the armed forces undertook the leadership of the Republic .... .

The 1886 Cronstitution of Colombia also gives no lead to the military in political intervention. Article 168 provides that the military may not deliberate' and may not `assemble except by order of the legitimate authority He argued that whatever limits are on exercise of power, the contents of the PCO be spelt out lucidly leaving nothing to chance: His precise submission was that the status of present Government is that of a de facto government and not of a de jute government. 59. Mr, Khalid Anwar then referred to paragraph No. 842 at page 599 of the book titled COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES by Joseph Story to contend that Courts exist to uphold the rule of law and not to grant legitimacy to unconstitutional form of Government.:"The considerations above stated lead us to the conclusion, that in republics there are, in reality, stronger reasons for an independent tenure of office by the Judges, a tenure during good behaviour, than in a monarchy. Indeed, a republic with a limited Constitution, and yet without a judiciary sufficiently independent to check usurpation, to protect public liberty, and to enforce private rights, would be as visionary and absurd, as a society organized without any restraints of law. -It would become a democracy with unlimited powers, exercising through its rulers a universal despotic sovereignty. The very theory of a balanced republic of restricted powers presupposes some organized means to control, and resist, any excesses of authority. The people may, if they please, submit all power to their rulers for the time being; but, then, the Government should receive its true appellation and character. It would be a Government of tyrants, elective, it is true but still tyrant; and it would become the more fierce, vindictive, and sanguinary, because it would perpetually generate factions in its own bosom, which could succeed only by the ruin of their enemies. It would be alternately characterized, as a reign of terror, and a reign of imbecility. It would be as corrupt, as it would be dangerous. It would form. another model of that profligate and bloody democracy, which, at one time, in the French revolution, darkened by its deeds the fortunes of France, and left to mankind the appalling lesson, that virtue and religion, genius and learning, the authority of wisdom and the appeals of innocence, are unheard and unfelt in the frenzy of popular excitement; and, that the worst crimes may be sanctioned, and the most desolating principles inculcated, under the banners, and in the name of liberty. In human governments, there are but two controlling powers; the powers of arms and the power of law. If the latter are not enforced by a judiciary above all fear, and above all reproach, the former must prevail; and thus, lead to the triumph of military over civil institutions. The framers of the Constitution, with profound wisdom, laid the corner stone of our national republic in the permanent independence of the judicial establishment. " Mr. Khalid Anwar referred to the following passages at pages 1621, 146-151, 168-169, from the book titled CONSTITIJTIONS IN CRISIS, Political Violence and the Rule of Law by John E. Finn :"Carl J. Friedrich and Carl Schmitt similarly began their well-known studies of Constitutional emergency powers with a review of the Roman dictatorship, and others have found in that institution `a theoretical standard ...a sort of moral yardstick against which to measure modern institutions of Constitutional dictatorship.' There were four conditions to the Roman dictatorship, all of which, Friedrich argued, are of contemporary utility: 1. The appointment of the `dictator' must take place according to precise constitutional forms. 2. The dictator must not have the power to declare or to terminate the state of emergency. 3. Dictatorial, discretionary powers must obtain for only a (relatively) precise time, and the limit must not be subject to indefinite extension.

4. The ultimate objective of Constitutional emergency powers must be the defense and restoration of the Constitutional order." Constitutional Dictatorship and the Prerogative "More recently, Arthur Schlesinger, Jr., devoted much of The Imperial Presidency to the problems of emergency government. Schlesinger conceded, as have all who preceded and followed him, that there will be times when the President must act in extraordinary fashion to ensure national survival. `Crises threatening the life of the nation,' he wrote, `have happily been rare. But, if such a crisis comes, a President must act.' The question is whether the Constitution authorizes these extraordinary actions. "Schlesinge, concluded that emergency government should be recognized for what it is: an extra-constitutional resort to raw political power, necessary but not lawful.' The alternative view, that the Constitution contemplates (if it does not authorize) extraordinary power, renders the document so meaning-less that it fails to possess real authority even in normal conditions, a conclusion Corwin had reached earlier in his pointed analysis of the -effects of World War II find the New Deal upon American Constitutional law. "The similarities between Schlesinger's argument and the Lockean defense of executive prerogative are, of course; substantial. In the Second Treatise of Government, Locke argued, as did Jefferson later, that `a strict and rigid observation of the laws [in some cases] may do harm.' The executive must have a Power-the prerogative-to act 'according to discretion, for the public good, without the prescription of law, and sometimes even against it.' "The prerogative of the Crown, or some institution like it, suggested for Schlesinger that the American presidency `must be conceded reserve powers to meet authentic emergencies.' Without clearly specifying the source of their authority, Schlesinger argued that the invocation and use of emergency powers must be subject to a number of restraints, most of which are directed toward establishing the authenticity of the emergency: " 1. there must be a clear, present and incontestable danger to the life of the nation;

2. the President must define and explain to Congress and the people the nature of this threat; 3. the perception of the emergency, the judgment that the life of the nation is truly at stake, must be broadly shared by Congress and by the people; 4. time must be of the essence; waiting for normal legislative action must constitute an unacceptable risk; 5. existing statutory authorizations must be inadequate, and Congress must be unwilling or unable to prescribe a national course; 6. the problem must be one that can be met in no other way than by presidential action beyond the laws and the Constitution; 7. the President must report what he has done to Congress, which will serve as the Judge of his action; 8. none of the presidential acts can be directed against the political process itself.

"In so far as Schlesinger conceded that at times ,the Constitution must be suspended, these restraints cannot strictly trace their authority to the constitutional document. Schlesinger failed to provide any source at all for their origination; presumably they find authority in political necessity and their fidelity to the Roman principle that all exercises of emergency power must be directed to defense and restoration of the constitutional order. But we might well-wonder why these extratextual principles should bind in the

absence of an obligation to respect limitations set forth in the constitutional document itself. As Madison counseled, `The restrictions, however, strongly marked on paper will never be regarded when opposed to decided sense of the public, and after repeated violations in extraordinary cases they will lose even their ordinary efficacy.' It is difficult to see why a crisis severe enough to overwhelm the constitutional document would not also overwhelm extratextual restraints. "There is yet another difficulty with Schlesinger's argument. The second principle-which requires that the President must define and explain to Congress and the people the nature of the crisis-implies the continued constitutional status of both Congress and the President. But once we suspend the Constitution, the status of the offices and institutions it creates are themselves problematic. An official who claims the Lockean prerogative, the power to suspend the Constitution; `risks the absurdity of saying: `An officer who shall be recognized by criteria set forth in this Constitution shall have the power to act contrary to this Constitution." Officers in the strict sense cannot have such a power because `we need rules they cannot lawfully change if we are t o recognize those persons who lawfully claim the authority to act as officials.' Arguably, then, an individual who claims the Lockean prerogative is not the `President' but rather is an individual `strategically situated' to exercise emergency power. Consequently, the constitutional status of an officer who claims the Lockean prerogative is troublesome, as is the status of the `Congress' to which he must report his actions. Moreover, as some critics have observed, the crucial issue must be the severity of the danger, not how `Congress' Judges its severity. Surely a President should not fail to act simply because Congress does not share his or her sense of alarm. "This formulation of the problem denies the possibility that the Constitution's military powers are sufficient to cope with all emergencies. Instead, Bessette and Tulis defend a liberal method of interpretation that compensates for the shortcomings of these powers. Their argument indicates that one possible way to make sense of the claim to perpetuity is to treat it as a claim about how to interpret constitutional language: When faced with a crisis, constitutional maintenance demands that we interpret the document in such a way as authorize whatever powers and measures are necessary to cope with f emergency. The argument complements . Hamilton', who argued in Federalist 23 that a properly framed constitution accounts for the inevitability of crisis, so that there can be `no limitation of that authority which is to provide for the defense and protection of the community in a mater essential ,to its efficacy.' Hamilton merely restated the position, Machiavelli adopted in his discussion of the Roman Republic in the Discourses: "Now in a well-ordered republic it should never be necessary to resort to extra constitutional measures; for although they may for the time be beneficial, yet the precedent is pernicious, for if the practice is once established of disregarding the laws for good objects, they will in a little while be disregarded under that pretext for evil purposes. Thus, no republic will ever be perfect if she has not by law provided for everything having a remedy for every emergency, and fixed rules for applying it." "No doctrine, involving more pernicious consequences, was ever invented by the wit of man that any of [the Constitution's] provisions can be suspended during any of the great exigencies of Government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the Government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence." "There are subtle and important differences between this position and the one advanced by Bessette and Tulis (Hamilton's requires framers with extraordinary prescience, whereas Bessette and Tulis defend a method of interpretation that makes up for their lack of it;. but both have the signal benefit of not impairing the constitutional status of the other branches of the Federal Government. Other institutions, thus, have some constitutional basis for questioning a President's exercise of emergency power, a legitimacy they cannot claim one the Constitution is set aside. "The decisive fact is that under the United States Constitution the functioning of the coordinate institutions of American Government is not suspended nor is their authority dissolved..when the President undertakes extraordinary actions."

"It gives to the President a strong weapon which we cannot renounce under any circumstances." Press later wrote: "If ever in history, dictatorial powers were indispensable to a public authority, they were so for the national government of the young German Republic." "As it appeared in final form, Article 48 in full provided: "If a State does not fulfil the duties incumbent upon it according to the national Constitution or laws, the President of the Reich may compel it to do so with the aid of the armed forces." "If the public safety and order in the German Reich are seriously disturbed or endangered, the President ...may take the measures necessary to the restoration of public safety and order, and may if necessary, intervene with the assistance of the armed forces. To this end, he may temporarily suspend in whole or in part, the Fundamental Rights established in Articles 114, 115, ,117, 118, 123, 124 and 153." "The President ...must immediately inform the Reichstag of all measures taken in conformity with sections one or two of this Article. The measures are to be revoked upon the demand of the Reichstag. In cases where delay would be dangerous, the State Government may take for its territory temporary measures of the nature described in section two." "The measures are to be revoked upon the demand of the President or the Reichstag.". "A national law shall prescribe the details. The national law promised in the last sentence was never enacted. But even without supplemental legislation, it was clear that emergency powers were ultimately subject to civilian, and in particular legislative, control. Article 48 nevertheless also reinforced the President's constitutional position because his authority derived directly and independently from the text and not from the delegated authority of the legislature, as was later the case with executive ordinances issued under Weimar's many enabling acts. In this respect Article 48, like so much of the Weimar Constitution, reflected an uneasy compromise between parliamentary and Presidential Government." "Hitler also used Article 48 to intimidate his opposition in the March elections, in which the National Socialists, coupled with the Nationalists, finally secured an absolute majority in the Reichstag. Again in accordance with constitutional precedent, Hitler then sought an enabling act in which the Reichstag would effectively yield its legislative competence to the executive. The Reichstag, over the objection of the Social Democrats, granted the authority (in the Law for the Relief of the People and the Reich) for a period of four years, but conditioned it with limitations designed to protect itself and the institutional structure of the republic. Paragraph two sentence one provided; "The statutes decreed by the government may deviate from the Constitution with the reservation that they should not affect the institutions of the Reichstag and of the Federal Council" These qualifications did not, however, prevent Hitler from abolishing life tenure for civil servants or from compromising the independence of the judiciary. Nor did the act contain protections for individual liberties. " 60. He argued that judicial power is such which can never transform that which is unconstitutional into that which is constitutional. Mr. Khalid Anwar referred to the following passages from the book titled "The Federalist Papers" by Alexander Hamilton-James Madison-John Jay, wherein, at pages 464 to 470, 479 and 481 it was observed as under:"No. 78: Hamilton" "We proceed now to an examination of the judiciary department of the proposed government. "

"In unfolding the defects of the existing Confederation the utility and necessity of a federal judicature have been clearly pointed out. It is the less necessary to recapitulate the considerations there urged as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its extent. To these points, therefore, our observations shall be confined. " "The manner of constituting it seems to embrace these several objects; 1st. The mode of appointing the Judges, 2nd. the tenure by which they are to hold their places, 3rd. The partition of the judicial authority between different Courts and their relations to each other." "Second. As to the tenure by which the Judges are to hold their places: this chiefly concerns their duration in office, the provisions ' for their support, the precautions for their responsibility. "According to the plan of the convention, all Judges who 'nay be appointed by the United States are to hold their offices during good behavior; which is conformable to the most approved of the State Constitutions, and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan is no light-symptom of the rage for objection which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of Government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any Government to secure a steady, upright, and impartial administration of the laws." "Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules .by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.. "This simple view of the matter suggests several important consequences. It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves that though individual oppression may now and then proceed from the Courts of justice, the general liberty of the people can never by endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the executive. For I agree that "there is no liberty if the power of judging be not separated from the legislative and executive powers." And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone but would have everything, to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being over powered, awed, or influenced by its co-ordinate branches; and that as nothing-can contribute so much to its firmness and independence as permanency in office, this quality may, therefore, be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security. "The complete independence of the Courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to 'the legislative authority; such, for instance, as that it shall pass no bills of

attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of Courts of justice, whose duty must be to declare all acts contrary to the manifesto tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing." , "This independence of the Judges is equally requisite to guard the Constitution and the rights of individuals from 'the effects of those ill-humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies. in questioning that fundamental principle of republican government which admits the right of the people to alter or abolish the established Constitution whenever they find it ,inconsistent with their happiness; yet it is not to be inferred from this principle that the representatives' of the people; whenever a momentary inclination happens to lay hold of a majority of their constituents incompatible with the provisions in the existing Constitution would, on that account, be justifiable in a violation of those provisions; or that the Courts would be under a greater obligation to connive at infractions in this shape than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it prior to such an act. But it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community. " "First. To all cases in law and equity, arising under the Constitution and the laws of the United States. This corresponds to the two first classes of causes which have been enumerated, as proper for the jurisdiction of the United States. No. 81 : Hamilton "The judicial power of the United States is" (by the plan of the convention) "to be vested in one Supreme Court, and in such inferior Courts as the Congress may, from time to time, ordain and establish." 61. Mr Khalid Anwar describing the distinction between the judicial, legislative and executive power explained that whereas the executive and legislative power is pro-active the judicial power is essentially passive but it does not mean that it is weak but it means that it has to be invoked and that the Judges are to remain neutral, detached and impartial during judicial proceedings. Explained that the Bill of Attainder was criticized and condemned because in practice it amounted to pronouncement of legislative judgment which is an encroachment on the powers of the Judiciary. He appreciated the fact that in this case the Court vastly expanded the frontiers and scope of judicial powers and transformed its nature. Mr Khalid Anwar also placed reliance on the following observations made in the case of Al Jehad Trust v. Federation. of Pakistan PLD 1996 SC 324:"7. Our conclusions and directions in nutshell are as under:(i) The words "after consultation" employed inter alia in Articles 177 and 193 of the Constitution connote that the consultation should be effective, meaningful, purposive, consensus oriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and the Chief Justice of a High Court as to the fitness and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President/Executive. (ii) That if the President/Executive appoints a candidate fund to be unfit and unsuitable for judgeship by the Chief Justice of Pakistan and the Chief Justice of the High

Court concerned, it will not be a proper exercise of power under the relevant Article of the Constitution. (viii) That an appointment of a sitting Chief Justice of a High Court or a Judge thereof in the Federal Shariat Court under Article 203-C of the Constitution without his consent is violative .of Article 209, which guarantees the tenure of office. Since the former Article was incorporated by the Chief Martial Law Administrator and the latter Article was enacted by the Framers of the Constitution, the same shall prevail and, hence, such an appointment will be void." "(xiii) That since consultation for the appointment/confirmation of a Judge of a Superior Court by the President/Executive with consultees mentioned in the relevant Articles of the Constitution is mandatory, any appointment/confirmation made without consulting any of the consultees as interpreted above would be violative of the Constitution and, therefore, would be invalid." "82 We are interpreting the word `consultation' to widen and enlarge its normal scope for the reasons, firstly, that the Constitution-makers have not debated this word 'consultation' and fixed its parameters. Secondly, we would like to assign meaning to `consultation', which is consistent and commensurate with the exalted position of Judiciary as is envisaged in Islam. Thirdly, we would like to give positive interpretation to 'consultation' which promotes independence of Judiciary." "88. Under Article 197 of the Constitution there is a provision for appointment of Additional Judges and' it appears that there is no requirement that they can be appointed only after the sanctioned strength of the Judges of the High Court is filled in with the permanent appointees. From this it appears that even against the vacancies within the sanctioned strength a person can be appointed as Additional Judge of the High Court for a period to be specified and then can be made permanent as communicated under Article 193. We are of the view that such Judges have legitimate expectancy to be entitled and considered for appointment upon expiry of their period of appointment as Additional Judges if and when they are so recommended for the purpose by the Chief Justice of the High Court and the Chief Justice of Pakistan. If such appointments are refused to be made then there should be strong reasons recorded in writing. Extension to be made or not is not the sole discretion of the Federal Government unless such request is made by the Chief Justice of the High Court and the CJP." "93. Article 209 of the Constitution relates to the composition of the Supreme Judicial council and its functions. It enables the Council to take action or remove a Judge from the office on the ground of his incapability to perform the duties of his office for the reason of physical or mental incapability or misconduct. Sub-Article (7) of this Article provides that a Judge of the Supreme Court or of a High Court shall not be removed from the office except as provided by this Article. Sub-Article (8) of this Article provides that the Council shall issue the Code of Conduct to be observed by the Judges of the Supreme Court and High Courts. It is clear from the above provisions that the security of tenure is provided under Article 209 and also the forum for removal from the office as Judge of the High Court or of the Supreme Court. This provision is incorporated in the Constitution by the Constitution-makers. Subsequently, Chapter III-A setting up the Federal Shariat Court was inserted in the Constitution vide P.O. No.l of 1980 providing in Article 203-C(4) that a Judge or Chief Justice of the High Court can be appointed to the Federal Shariat Court without his consent for a period not exceeding two years. After such appointment it is open to the President to modify the terms of the appointment of such Judge in the Federal Shariat Court or assign him any other office or require him to perform such other functions as the President may deem fit. If a Judge or Chief Justice of a High Court refuses to accept the appointment to the Federal Shariat Court, then he stands retired. No doubt, Chapter III-A inserted in the Constitution for the purpose of setting up of the Federal Shariat Court envisages that the provisions of this chapter shall; have effect notwithstanding anything contained in the Constitution, still the appointment of a Judge or a Chief Justice of a High Court to the Federal Shariat Court in such manner without his consent accompanying by such harsh conditions in the final analysis is tantamount to removal or forcible retirement which can and should be done only under Article 209 of the Constitution under which the Supreme Judicial Council is constituted and is

authorised to take action of such punitive nature. If the Government finds a particular Judge or the Chief Justice of a High Court to be uncooperative and if there is sufficient material to support the charge of misconduct, then in all fairness action should be taken against him and proceedings should be initiated before the Supreme Judicial Council in the manner prescribed under Article 209. We are not striking down provisions (4), (4-B) and (5) of Article 203-C as void being inconsistent with Article 209 but we do say that, keeping in view the rules of interpretation, if there is choice between two forums or provisions, then the provision beneficial to the affected Judge should have been adopted or restored to, and in such circumstances, the resultant action is to be considered as void in absence of cogent reasons without going into the constitutionality of Article 203-C of the Constitution. The Constitution is to be read as a whole and if there is any inconsistency, the same can be removed or rectified by the Parliament. In support of the proposition, reliance can be placed on the cases of Fazlul Quader Chowdhry v. Muhammad Abdul Haque PLD 1963 SC 486 and Hakim Khan v. Government of Pakistan PLD 1992 SC 595. At page 424, paragraph 21 of the above report it was observed:"21. (a) As regards the Islamic concept of justice, it may be pertinent to point out that in the early days of civilisation, the legislative, the executive and the judicial powers were vested in one person in a State, namely, in a Chieftain or a monarch or a ruler. The concept that there are three organs of the State which share the power of a State, namely, the Executive, the Legislature and the Judiciary, is somewhat a modern concept. Upon the advent of Islam, the Judicial functions were separated from the executive functions at its very initial stage by the Holy Prophet (p.b.u.h.) by appointing a Qadi for each Province. The separation of judiciary from executive was implemented more effectively during the Caliphate of Second Caliph Hazrat Umar as he appointed Qadis free of control of the Governors. The reason being that the foundation of Islam is on justice. The concept of justice in Islam is different from the concept of the remedial justice of the Greeks, the natural justice of the Romans or the formal justice of the Anglo-Saxons. Justice in Islam seeks to attain a higher standard of what may be called "absolute justice" or "absolute fairness". We find repeated references to the importance of justice and of its being administered impartially in Holy Qur'an and some of them are as follows:-In one of the Verses of the Holy Qur'an Allah commands that--Sura Aale-e-Imran "O ye .who believe: Stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be against rich or poor, for Allah can best protect both. Follow not the lusts of your hearts; lest ye swerve, and if ye distort justice or decline to do justice, verily Allah is well-acquainted with all that ye do. "(4-135) And in other Surah Allah commands as under--Surah Maida, 5/9 "O ye who believe stand out firmly for Allah, as witnesses to fair dealing, and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just, that is next to Piety: and fear Allah, for Allah is well-acquainted with all that ye do." "Since there is a conflict between the above two. Articles, efforts are to be made to resolve the same by reconciling it. The Constitution is to be read as a whole as an organic document. A close scrutiny of the various provisions of the Constitution highlights that it envisages that the independence of judiciary should be secured as provided by the founder fathers of the country by passing Objectives Resolution and by providing security of tenure. The Constitution also envisages separation of judiciary from the executive. Keeping in view the various provisions of the Constitution, it is not possible to reconcile the above provisions of Article 203-C and Article 209. In such a situation, the question arises, which of the Article should prevail. One view can be that since Article 203-C was incorporated subsequent to Article 209 was incorporated by consensus by the

framers of the Constitution and whereas Article 203-0 was incorporated by the then Chief Martial Law Administrator and as the same is detrimental to the basic concept of independence of judiciary and the separation of judiciary, the former should prevail. I am inclined to prefer the latter interpretation as it will be more in consonance with the various provisions of the Constitution and in accord with justice and fairplay. A person cannot be appointed on adverse terms in a new Court without his consent." ' Reliance was also placed on the following observations made in the case of Mahmood Khan Achakzai (supra) "For reasons to be recorded later, we pass following short order: "What is the basic structure of the Constitution is a question of academic nature which cannot be answered authoritatively with a touch of finality but it can be said that the prominent characteristics of the Constitution are amply reflected in the Objectives Resolution which is now substantive part of the Constitution as Article 2A inserted by the Eighth Amendment. "The Objectives Resolution was Preamble of the Constitutions made and promulgated in our country in 1956, 1962 and 1973. Perusal of the Objectives Resolution shows that for scheme of governance the main features envisaged are Federalism and Parliamentary Form of Government blended with Islamic provisions. The Eighth Amendment was inserted in the Constitution in 1985, after which three elections were held on party-basis and the resultant Parliaments did not touch this Amendment, which demonstrates amply that this Amendment is ratified by implication and has come to stay in the Constitution unless amended in the manner prescribed in the Constitution as contemplated under Article 239 and Article 58(2)(b) brought in the Constitution by the Eighth Amendment, which maintains Parliamentary Form of Government has provided checks and balances between the powers of the President and the Prime Minister to let the system work without let or hindrance to forestall a situation in which martial law could be imposed. " "24. In the Pakistan Resolution passed on 23-3-1940 at Lahore it was resolved that. regions with Muslim majority, should be grouped together to constitute "Independent States" in which constituted units shall be autonomous and sovereign and rights of minorities to be protected. After partition Constituent Assembly of Pakistan passed Objectives Resolution, which was inserted in 1956 Constitution as Preamble. Objectives Resolution retained as Preamble in the Constitution of 1973 also can be read in order to gather the intention of the Constitution makers as to what type of governance and working set up was intended. It is noteworthy that to the Objectives Resolution it is mentioned that sovereignty over the entire universe belongs to Almighty Allah and the State shall exercise its power through the chosen representatives of the people. It is also mentioned in the Objectives Resolution that principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be enabled to order their lives in accordance with teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah and independence of judiciary shall be fully secured. Objectives Resolution was even retained in the Interim Constitution of 1972 as Preamble. This Court examined Preamble of Interim Constitution of 1972 in the case of Miss Asma Jillani v. Government of Punjab and another PLD 1972 SC 139 with relevant portion at page 141 with leading judgment by learned C.J. Hamoodur Rehman, who held as under:-"In any event, if a grund norm is necessary, Pakistan need not have to look to the Western legal theorists to discover it. Pakistan's own grund norm is enshrined in its own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March, 1949. This has not been abrogated by any one so far, nor has this been departed or deviated from by any regime, military or civil. Indeed, it cannot be, for, it is one of the fundamental principles enshrined in the Holy Qur'an."

"25. This question with regard to grund norm was examined again in the case of. State v. Ziaur Rehman PLD 1973 SC 49 and the same learned C.J. has clarified the position and the relevant portion of page 54 of the report is reproduced as under:-"In Asma Jillani's case PLD 1972 SC 139 it has not been laid down that the Objectives Resolution is the grund norm of Pakistan but that the grund norm is the doctrine of legal sovereignty accepted by the people of Pakistan and consequences that flow from it. It does not describe the Objectives Resolution as "the cornerstone of Pakistan's legal edifice' but has merely pointed out that one of the counsel appearing in the case had described it as such. It is not correct, therefore, to say that the Objectives Resolution has been declared 'to be a transcendental part of the Constitution' or 'to be a transcendental part of the Constitution' or to be a `supra Constitutional instrument which is unalterable and immutable". The "grund norm' referred to by the Supreme Court was something even above the Objectives Resolution which "embodies the spirit and the fundamental norms of the Constitutional concept of Pakistan'. It was expected by the Objectives Resolution itself to be translated into the Constitution. Even those that adopted the ' Objectives Resolution did not envisage that it would be a document above the Constitution. It is incorrect, therefore, to say that it was held by the Supreme Court that the Objectives Resolution of the 7th March, 1949, stands on a higher pedestal than the Constitution itself. " "27. We are going into the question of validity of the Constitution (Eighth Amendment) Act, 1985, later but for the time being it would suffice to say that freedom bestowed upon the Parliament in clause (6) of Article 239 after amendment does not include power to amend those provision so the Constitution by which would be altered salient features of the Constitution, namely federalism, Parliamentary Form of . Government blended with Islamic provisions. As long as these salient features reflected in the Objectives Resolution are retained and not altered in substance, amendments can be made as per procedure prescribed in Article 239 of the Constitution." 62. Mr Khalid Anwar submitted that in the light of above observations it is not permissible to alter by amendment the salient features of the Constitution including Federal structure of the country and the parliamentary system of governance blended with Islamic provisions. Mr. Khalid Anwar also referred to the following observations of this Court in the case of Mahmood Khan Achakzai (supra). Per Sajjad Ali Shah, C.J. "28. Having disposed of the question with regard to the basic structure of the Constitution as stated above, now I advert to the second important issue with regard to the Eighth Amendment inserted in 1985 in the Constitution of 1973. Before I go into the arguments and contentions of the learned counsel appearing on behalf of appellants and petitioners, it would be pertinent to recapitulate the history very briefly. It was done so very succinctly by Mr. Abdul Hafeez Pirzada, who supported the stance of Mr. Abdul Mujeeb Pirzada, who is appellant. in C. A. No. 397-K- of 1990. Pakistan came into existence in 1947 after .which for the first time Constitution of 1936 was promulgated contemplating parliamentary form of Government. This Constitution was abrogated in 1958 and Martial Law was imposed. President Muhammad Ayub Khan gave to the country Constitution of 1962 contemplating Presidential form of Government which was again abrogated in 1969 when Martial Law was imposed. In the aftermath of Martial Law of 1969 C.M.L.A. General Yahya Khan did away with One Unit in West Pakistan and in the result four Provinces; Punjab, Sindh, N.W.F.P., and Balochistan re-emerged. This was done in response to persistent demand from-East Pakistan to stop acting on the principle of parity between two Provinces of East and West Pakistan as it was felt in East Pakistan that population-wise they had edge over people in West Pakistan. Demand of the people of East Pakistan was also conceded and elections were held by General Yahya Khan on the basis of adult franchise and one-man-one-vote. There was also discontentment in the East

Pakistan and elections were fought on the basis of Six Points of Awami League of Sheikh Mujeebur Rahman of East Pakistan demanding maximum autonomy allowing only three subjects for Centre and in other words it was a demand for a loose confederation. In the result of election Awami League of Sh. Mujeebur Rahman won with sweeping majority in East Pakistan and Pakistan People's Party was declared as having won as majority party in the West Pakistan. General Yahya Khan started negotiations between the parties for amicable settlement but was not successful and in the meantime military action was taken in East Pakistan as there was law and order situation resulting in riots and loss of life and damage to property. Finally, war broke out between Governments of India and Pakistan with India supporting morally and materially militant groups in East Pakistan. Finally, we lost East Pakistan as there was unilateral declaration of independence and a new country, Bangladesh came into existence." Per Saleem Akhtar,J. "42. The Constitution of India also provides for amendment of the Constitution. Before amendment of Article 368 it was identical to the original Article 239 of our Constitution. However when the Supreme Court of India struck down the amendments holding that it was in conflict with basic structure, Article 368 was amended and is identical to our amended Article 239. From a general assessment of the Constitutions 'of various countries it seems clear that in all the Written Constitutions, provision for amendment has been made. The object being to keep the Constitution alive and in line with the pace of progress, aspiration, will, needs and demands of the people. Constitution cannot be made static and stoic. It must progress, blossom and flower. A rigid Constitution having no provision for amendment is likely to suffer crack by violence or Constitutional deviation. Perhaps it is the historical experience that political philosophers and jurists favour provision for amendment in a written Constitution. Such provisions may restrict the power of amendment specifically as provided in France and Germany. But where an unrestricted power is given to the Legislature then Court will see whether an amendment to the existing Constitution has been duly proposed, adopted and assented in the manner required by the Constitution so as to become a part thereof. However, there are factors which restrict the power of the Legislature to amend the Constitution. It is the moral or political sentiment, which binds the barriers of Legislature and forms the Constitutional understandings. The pressure of public opinion is another factor which restricts and resists the unlimited power to amend the Constitution. In Pakistan although Article 239 confers unlimited power to the Legislature, yet it cannot by sheer force of morality and public opinion make laws amending the Constitution in complete violation of the provisions of Islam. Nor can it convert democratic form. in completely undemocratic one. Likewise by amendment Courts cannot be abolished which can perish only with the Constitution. It seems to be an emerging legal theory that even if the Constitution is suspended or abrogated, the judiciary continues to hold its position to impart justice and protect the rights of the people which are violated and impinged by the actions of the powers and authorities which saddle themselves by unconstitutional means. As held in Asma Jillani's case, such actors are usurps and the Courts had only condoned their action without approving it. The provisions of the Constitution cannot be suspended except as provided by the Constitution itself. The concept of abrogation of the Constitution is alien to the Constitution. The fact that whenever there occurred Constitutional deviation, it was legalised by condonation or validation granted by the Supreme Court, clearly demonstrates that such deviations and actions were void ab initio and unconstitutional. The validation or condonation was granted merely to avoid any disruption of civil and personal rights, to maintain continuity of administration and governance and to bring the polity and system of government on democratic and constitutional rails. But such situation, with reference to Article 6 of the Constitution has to be viewed with greater seriousness." "50. The learned Advocate for the respondents and the learned amicus curiae have contended that the competency of the members of the National Assembly is protected by the doctrine of de facto. Reference has been made to Farzand Ali v. Province of West Pakistan PLD 1970 SC 98 and Sabir Shah v. Federation of Pakistan PLD 1994 SC 738. This is a well-recognized doctrine embedded in our jurisprudence. Under this doctrine bona fide acts in public interest performed by persons assuming authority which turns out to be illegal are assumed to have been performed by a de jure authority/person and

binding. This doctrine is intended to avoid dislocation, instability and confusion while declaring a de-facto authority illegal. In order to create stability, regularity and to 'prevent confusion in the conduct of public business and insecurity of private rights the acts of the officers de facto are not sufficient to be questioned because of want of legal authority except by some direct proceeding instituted for the purpose by the State or someone claiming office de jure ... ... ...' (Constitutional Limitations by Cooley - 8th Edition, Vo1.2, page 1357). Besides this, Mr. Khalid Anwar has referred to Norton v. Shelby County 118 US 425 where it was observed that the doctrine of de facto is based on considerations of policy and public interest. For good order and peace of society the title of persons in apparent authority is to be respected and obeyed until their title is investigated in some regular mode prescribed by law. In Gokaraju v. State of Andhra Prashad AIR 1981 SC 1473 it has been observed that `the acts of the officers de facto performed by them within the scope of their assumed official authority in the interest of the public or third persons and not for their own benefit are generally as valid and binding as if they were the acts of officers de jure'. This doctrine can be applied if the Parliament is declared to be illegally constituted and Eighth Amendment is declared unconstitutional. It is only in such situation that to preserve continuity, prevent disorder and protect private rights, this doctrine can be pressed in service." "51. Mr. Syed Sharifuddin Prizada has contended that the Eighth Amendment has introduced checks and balances between the power of the President and the Prime Minister. As discussed above, the Constitution of 1973 had vested supreme power to the Prime Minister and though democratic in form it was Prime Minister in character. Amendments made in Articles 48, 58, 91 and 92 have curtailed the power of the Prime Minister and have strengthened the hand of the President. In a democratic system check and balance is provided to avoid autocratic rule and to provide balance of power for a proper functioning of the Government according to the Constitution. No doubt the amendments particularly Article 58(2)(b) have tilted the balance in favour of the President, yet this Court has structured and circumscribed the discretionary power of dissolution. One reason given in favour of Article 58(2)(b) is that it prevents Constitutional deviation. This seems to be plausible because when Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary, the President may exercise his power before any person, agency or authority taking advantage of such situation strikes not at the Assembly but at the Constitution. One may comment that to save the Constitution, Assembly is dissolved. The exercise of power under Article 58(2)(b) or Constitutional deviation can be avoided not by the letters of the Constitution but by political ethics, morality and maturity. Unless a responsible Government exists which has respect for law, opportunity shall continue to be provided for Constitutional strike. "53. It has also been pointed out that the controversy involves political question which the Courts should avoid to decide. The contention is more relevant with reference to the balance of power between the President and the Prime Minister. Such question is a political question to be decided by the Constituent Power. It, therefore, requires determination of what is a political question. A political question is one which because of its political sensitivity is not fit for adjudication by the Court or the Constitution requires it to be determined finally by any other organ of the State. This political question doctrine' is based on the respect for the Constitutional provisions relating to separation of power among the organs of the State. But where in a case the Court has jurisdiction to exercise power of judicial review, the fact that it involves political question, cannot compel the Court to refuse its determination. 63. Mr. Khalid Anwar then referring to the case of Wukala Mahaz Barai Tahafaza-e-Dastoor (supra), submitted that the rationale behind the said judgment .was that under the. 14th Amendment of the Constitution, certain restrictions were placed on speeches made .by the Members of National Assembly contrary to party policy and that any violation "thereof would lead to disqualification, but this Court by a majority decision held, as an aspect of judicial activism, that notwithstanding the language of the amendment, speeches made outside Parliament were not covered. The learned counsel termed it as an expansion of judicial power, in that, the amendment itself did not differentiate between speeches inside the parliament or outside it.

64. Mr. Khalid Anwar also referred to the short order in the case of Mehram Ali and others v. Federation of Pakistan etc. PLD 1999 SC 1445, to contend that this Court demonstrated expansion of judicial power in a wider shade. He made reference to the following observations of this Court in the case of Sardar Farooq Ahmad Khan Leghari and others v. Federation of Pakistan and others PLD 1999 SC 57: "It has been pleaded that the petitions are also not maintainable because, the act of the President in proclaiming Emergency was in his sole power based on his own satisfaction which is not justiciable in a Court of law. It has also been averred that the Proclamation of Emergency as well as the order passed under Article 233(2) of the Constitution having been approved by the resolution of the joint sittings of the Parliament, now, expressed the will and satisfaction of the people of Pakistan. It has been further averred that the will of the people of Pakistan having been expressed in the resolution of the joint sittings of the Parliament, an individual or a citizen of Pakistan has no locus standi to call in question the Proclamation of Emergency and the orders suspending the Fundamental Rights. "12. The arguments were concluded on 28-7-1998 and the aforementioned Constitution Petitions were disposed of on the same day by the following Short Order:"For the reasons to be recorded later on, we unanimously hold as under: (1) That the petitions are maintainable. (2) That the materials placed before this Court and shown to us in the chambers, prima facie indicate that the President was justified in issuing the Proclamation under clause (1) of Article 232 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution). (3) That keeping in view the effect of the Proclamation provided for in clause (1) of Article 233 of the Constitution, which authorises the State to make any law or to take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 of the Constitution and also keeping in view the language of Articles 10, 23 and 25 (which are hedged with- qualifications), we are of the view that an order under clause (2) of Article 233 of the Constitution for suspending the enforcement of the Fundamental Rights was not justified and, therefore, the original order dated 28-5-1998 and the order dated 13-7-1998 varying the above earlier order are declared as without lawful authority and of no legal effect. (4) That this Court has jurisdiction to review/re-examine the continuation of Emergency at any subsequent stage, if the circumstances so warrant." . "Then it was urged by Ch. Muhammad Farooq, learned Attorney General, that there is a significant distinction between the above two Articles inasmuch as once a Proclamation of Emergency is issued under clause (1) of Article 232 of the Constitution and an order under clause (2) of Article 233 thereof is passed for suspending the enforcement of Fundamental Rights mentioned therein, this Court cannot enforce, any Fundamental Right and, hence, it cannot entertain a petition under Article 184(3) of the Constitution, whereas there is no such suspension of the enforcement of Fundamental Rights in a case of issuance of a Proclamation under Article 234 of the Constitution. Indeed the above distinction exists. However, it may be pointed out that the suspension of the jurisdiction of this Court to enforce any one or more Fundamental Rights mentioned in an order passed by the President under clause (2) of Article 233 depends on the questions, as to whether the preconditions provided for in clause (1) of Article 232 were present at the time of the issuance of the Proclamation, and, whether the suspension of enforcement of anyone or more Fundamental Rights was warranted in terms of the constitutional framework. In other words, the exercise of power by the President under clause (1) of Article 232 is conditional and can be invoked if the conditions/prerequisites contained therein are present. If the said conditions do not exist, the exercise of power by the President under the above clause will be without jurisdiction and coram non judice. For example, if we were to hold that the expression "the security of Pakistan, or any part thereof is threatened by war or external aggression" used in clause (1) of Article 232 means actual war or actual external aggression, the exercise of power under the above

clause would be without jurisdiction if factually no actual war or actual external aggression existed at the time of issuance of the Proclamation under the above provision; or if we were to hold that the reasons which prompted the issuance of Proclamation under aforesaid clause (1) of Article 232 have no nexus with the objects contained therein, such exercise of power by the President will also be without jurisdiction and coram non judice. " " 17. It seems that by now it is a well-entrenched proposition of law that notwithstanding the ouster of jurisdiction of the Court and the fact that the formation of opinion in terms of the relevant provision of the Constitution or of a statute is to be based on the satisfaction of a State functionary mentioned therein, the Court has the jurisdiction to examine whether the pre-requisites provided for in the relevant provision of the Constitution/statute for the exercise of the power thereunder existed, when the impugned order was passed. If the answer of the above question is in the negative, the exercise of power will be without jurisdiction calling for interference by the Court. "It may also be pointed out that the above views run counter to the Fundamental Rights guaranteed by the Constitution and the aforesaid International Covenants of Civil and Political Rights, European Convention on Human Rights and American Convention on Human Rights. In my view, a distinction is to be made between an emergency which is imposed when a country is engaged in an actual war or is subjected to actual external aggression and when the same is imposed on account of imminent danger thereof for the purpose of suspension of fundamental rights and continuation of the emergency. In the former case, the above Latin maxim inter arma silent leges (i.e. when there is an armed conflict, the law remains silent) or that the national success in the war is to be ensured in order to escape from national plunder or enslavement even if the personal liberty and other rights of the citizens are sacrificed as observed by Lord Atkinson in the case of King v. Halliday (supra) would be applicable. But in the latter case the` rule of proportionality is to be followed as propounded by some of the eminent authors and adopted under above Article 4 of the International Covenants of Civil and Political Rights, Article 15 of the European Convention of Human Rights 1967 i.e. a public emergency permits a State to take derogatory measures in derogation of the covenants subject to the condition that the rule of proportionality is observed meaning thereby, that the derogatory steps/actions should be to the extent required by the exigencies of the situation provided such measures are not inconsistent with their other obligations under the international law. The above view is reinforced by the report of International. Law Association, 1986 referred to hereinabove in para. 36 (xix), that while imposing emergency following factors should be considered :(i) (ii) severity of cause defined generally as threatening' the life of the nation. good faith on the part of the imposing Government;

(iii) proportionality (relating to geographic scope, duration, and choice of measures strictly required by the exigencies of the situation); (iv) proclamation or notification; non-derogability of certain rights; (vi) respect for other international obligations;

(vii) non-discrimination. "The rule of proportionality is also in consonance with the view obtaining in U.S-A. and Australia etc. namely, that a distinction has been drawn between the power of judicial review during actual war and after the cessation of hostilities already referred to hereinabove. Reference may again be made to the observation of Latham, C.J. in the case of Australia Communist Party (supra) that "tit Court in its decisions applied a rule that there must be a real- and substantial connection between the legislation and the defence situation so created in order that the legislation could be valid".

"47. In the present case the President passed first order under clause (2) of Article 233 of the Constitution on 28-5-1998 providing the right to move any Court including a High Court and the Supreme Court for the enforcement of all Fundamental Rights conferred by Chapter 1 of Part II of the Constitution and all proceedings pending in a Court which were for the enforcement or involving determination of any question as to the enforcement of any of the said rights, shall remain suspended for the period during which the said Proclamation was to remain in force." He submitted that this Court, however, held that it has jurisdiction despite the suspension of Fundamental Rights. 65. Mr Khalid Anwar further argued that the alleged emergency took place on the evening of 12th October, 1999, which arose out of challenge to the removal from office of the Army Chief. He submitted that the Army Act is a complete code in relation to such matters and, therefore, if any illegality had been committed that should have been challenged under the Army Act and that with the removal of the Prime Minister from office, whether rightly or wrongly, the principle of proportionality, which is defined in this judgment as being limited to the geographic scope, duration and choice of measures strictly required by the exigencies of the situation, does not justify destruction of Constitutional governance for an indefinite period of time on a completely unrelated exigency, namely, the introduction of social or economic or financial policies. Mr. Khalid Anwar referred to the case of Al-Jehad Trust v. Federation of Pakistan 1999 SCMR 1379 to contend that the people of Northern Areas have been held to be entitled to self government, the right to vote, the right for enforcement of fundamental rights and, therefore, the people of Pakistan cannot be deprived of the similar rights. 66. Mr. Khalid Anwar next, quoting Article 14 of the Constitution which is to the effect that "the dignity of man and subject to law, the privacy of home, shall be inviolable", referred to a US case Roe v. Wade decided in 1972 whereunder the right of abortion was decided as a penumbra of right to privacy and, thus, expanded its judicial power. 67. Mr Khalid Anwar made a distinction between the ratio decidendi and obiter dicta, -saying that ratio decidendi contemplates the essential facts and principles upon which the case is decided and the rest is obiter dicta. He further submitted that on the basis of principle of stare decicis all these observations of the Court are obiter dicta and did not bind the Court. He submitted that assuming but not conceding that the doctrine of necessity is valid, still the finding in Begum Nusrat Bhutto's case is not applicable to the facts of the present case. . 68. Mr. Khalid Anwar referred to various observations from the case of Usif Patel and 2 others v. The Crown PLD 1955 FC 387 and Reference No. 1 of 1955 by His Excellency the Governor-General PLD 1955 FC 435. He also referred to the following passages from the book titled "Dissolution of Constituent Assembly of Pakistan and The Legal Battles of Moulvi Tamizuddin Khan" by Syed Sharifuddin Pirzada: "It is submitted that the reasoning of Justice Munir is fallacious and his conclusions are erroneous. They have been aptly dealt with by Justice Cornelius in his dissenting opinion. On the question of dissolution Justice Muhammad Bukhsh in his Judgment has given cogent reasons. Reference may, therefore, be made to extracts from the aforesaid two judgments." "The Governor-General's power of dissolution of Federal Legislature is withdrawn because the dissolution of Federal Legislature will mean the dissolution of the Constituent Assembly, which is not permissible under the provisions of Independence Act.".The language employed in the Proclamation, however, is somewhat extraordinary. Relevant extract from it reads as follows. "The Governor-General having considered the political crisis with which the country is faced, has with regret come to the conclusion that the constitutional machinery has broken down. He, therefore, has decided to declare a state of emergency throughout Pakistan. The Constituent Assembly as at present constituted has lost the confidence of the people and cannot longer function."

Mr. Khalid Anwar also relied on a passage from the book titled "Destruction of Pakistan's Democracy", by Allen McGrath, which reads thus : "Instead, the Court upheld Umar Khan's sentence, not by relying on the precedents found in Anglo-American cases dealing with civil disturbances, but instead, by citing cases arising from British suppression of the Irish and African peoples in the nineteenth century. In the cases relied on, the British judiciary had allowed the colonial military authorities powers beyond those they would have been allowed to exercise at home or in other colonies during times of peace. Convictions of civilians by military boards were upheld by the Privy Council in several cases where civilian Courts were functioning at the time of the trial and sentencing. Munir relied oh cases which have been called `forgotten episodes' which had `provided a few fragmented rules'. An American Constitutional historian has commented on these cases, calling them `harsh'. And adding, `the many vigorous protests from eminent legal authorities suggest that such measures are looked upon as usurpations and wholly out of harmony with the genius and spirit of English institutions. "Munir was utilising cases which represented Britain the conqueror rather than Britain the law-giver. What resulted was a law of military rule in Pakistan not based on the restrained regulations for the use of the military which the British had found sufficient to control India. Instead, he relied on law which had arisen from the actions of the British Authorities taken amidst the bitter armed conflicts with conquered peoples in revolt in Ireland and South Africa, and applied that law to his own countrymen in peacetime." He next relied on the extracts from the book titled "Transfer of Power Vol. VII", which read as follows: "Q. Nobody objects to interim dominion status. Suppose there are two constituent Assemblies. Is it open to one of them to declare itself absolutely independent and the other to declare itself a dominion: That was the point that Mr. Devadas Gandhi made. "A. If you grant independence and at the same time try to impose restrictions, the independence becomes a mockery. "My dear Prime Minister, "I am much conceived to hear from my colleagues whom you consulted yesterday that you propose to call the India Bill, "The Indian Independence Bill". This, I am, assured, is entirely contrary to the text, which corresponds to what we shave previously been told were your intentions. The essence of the Mountbatten proposals and the only reason why I gave support to them in because they establish the phase of Dominion status. Dominion status is not the same as Independence, although it may be freely used to establish independence. It is not true that a community is independent when its Ministers have in fact taken the Oath of Allegiance to The King. This is a measure of grave constitutional importance and a correct and formal procedure and nomenclature should be observed. The correct title would be, it seems to me, "The Indian Dominions Bill". I should, however, be quite willing to support if it were called, "The India Bill, 1947" or "The India Self-Government Bill. I am glad to hear you are considering such alterations. Believe me, Yours sincerely, WINSTON S. CHURCHILL" "My dear Churchill, I have delayed replying to your letter while awaiting any further communication from the Viceroy on the point raised by your colleagues as to the title of the Bill. Owing to the time factor, it was impossible to make a change evens if it was desirable.

"I do not agree with the point which you make. Dominion Prime Ministers constantly stress the point that they are independent States within the British Commonwealth. They bear allegiance to The King who is The King of all the Dominions. The insistence on independence does not touch the point of allegiance, but emphasizes the complete freedom of every member of the Commonwealth from control by any other member. "I think this is a most valuable counter to the demand for independence outside tile Commonwealth as it shows that this demand can be satisfied within it. This is, in fact, the meaning of Dominion Status. Yours sincerely, C. R. ATTLEE" Mr Khalid Anwar next referred to the following passage from "The Statute of Westminster and Dominion Status" by K. C. Wheare, which reads thus: "There appear to be three distinguishing characteristics of the Dominions. First, they were marked off from the rest of the political world by the characteristic that they were territorial communities, other than Great Britain, which shared with Great Britain a common allegiance to the Crown; they all had the same king". "By this criterion the Dominions were distinguished in status from foreign nations in international law and relations. They were shown to be `within the British Empire'. But, thus far, they .are not distinguished from other portions of the British Empire. India equally with Great Britain and the Dominions owed allegiance to the Crown; all the territorial communities within the British Empire owed allegiance in some form or another. How were the Dominions to be distinguished from these other communities? There was a second criterion. The Dominions were all equal in status to Great Britain; and, consequently they were all equal in status to one another. They were `in no way subordinate one to another in any aspect of their domestic or external affairs'. Equality is a difficult term. It is not certain what are its full implications here." 69. Mr. Khalid Anwar vehemently argued that as a result of this Court's judgment in Moulvi Tamizuddin Khan's case (supra) whereby it was held that assent of the Governor-General was necessary to all laws passed by the Constituent Assembly, some 44 Constitutional Amendments were rendered invalid and as to section 223 A of the Government of India Act it was held that since it had not received such assent, it was not yet law. The Court did so notwithstanding the fact that the three organs of the State namely, the Legislature, the Executive and the Judiciary were unanimous on the point that the Constituent Assembly was a sovereign body and that when it functioned as a Constitution making body, the laws so framed by it did not require the assent of the Governor-General, though when it functioned as an ordinary Legislature, it required assent. He then referred to section 223-A of the Government of India Act, 1935, which reads as under "223-A. Every High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases any government within those territories writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them." 70. Mr Khalid Anwar next submitted that under the Indian Independence Act, 1947, Britain transferred unconditionally and in unqualified manner all its powers to the people of Pakistan. This was irrevocable cession of power. He referred to the old version of section 19 of the Indian Independence Act, 1935, whereunder the Governor-General had the power to dissolve the legislature, to contend that such power was withdrawn in 1947. He then submitted that the conditions prevailing during that time do not fit in or apply to the present conditions. 71. Mr Khalid Anwar argued that in Reference No. 1 of 1955, sent by the Governor-General, the then Chief Justice Muhammad Munir, while expressing his opinion justifying the emergency, limited its scope by the following four conditions:

(i) (ii)

immediate action for maintenance of law and order; he exercises de facto powers, not de jure power;

(iii) only those de facto powers which the legislature would certainly have given to the Governor-General if the emergency could have been foreseen trusting that whatever he had honestly done was for the safety of the State, will be ratified by an Act of Indemnity and; (iv) the legislature would have, without any doubt, approved and indemnified the same." He contended that on the basis of Chief Justice Munir's formulation, the present Emergency deserves to be declared as unconstitutional. 72. Rebutting the plea on behalf of the government that the present Proclamation of Emergency is not Martial Law, in that, the Martial Law Courts are not operating, Mr. Khalid Anwar vehemently contended that apart from the fact that Martial Law Courts are not functioning, there is no difference between Martial Law as it existed in the past and the present Proclamation of Emergency. He submitted that there was a divergence between the stated objectives of the Chief Executive and the contents of the PCO whereunder he purportedly assumed the power to amend the Constitution. He explained that this happened merely because the present PCO is a copy of the previous PCOs. As to the plea of the Government that, there is a difference between Martial Law and an Emergency, in that, in an emergency powers of the Government are more restricted, Mr. Khalid Anwar contended that this Court should determine the limits of such powers. He next contended that the Constitution cannot be amended as the Proclamation does not confer any such power on the Chief Executive. He reiterated that this Court has jurisdiction and the power to declare the nature of Constitutional dispensation in Pakistan. 73. 1. Arguments of Mr Khalid Anwar, can be summarized as follows: That he will not request this Court to do the impossible.

2. That he referred to the nature of judicial power and its relationship with jurisdiction and maintained that no authority can take away power of this Court to confer legitimacy on a Government. 3. That the deliberations of Chiefs of Staff of -the Armed Forces and Corps Commanders of Pakistan Army alluded to therein was a historical fact and not a source of power. 4. That the Chief Executive had assumed an office which was non existent.

5. That there was no need to proclaim or continue Emergency as the situation in the country was calm and there were no agitations or demonstrations before the Army take-over. 6. That a Proclamation ipso facto cannot be a source of power in the absence of law.

7. That the doctrine of necessity was defective and in any event it cannot be invoked to justify the Military take-over and the instruments issued and actions taken subsequently. 8. That the National Accountability Ordinance, 1999 offends against the settled law and human rights having created an offence retroactively, was unconstitutional and also did not meet the criteria of establishment of Special Courts. 9. That the seven-point Agenda is in the best interest of the country which takes place under the law and not in violation of the law.

10. That seven-point Agenda was a political Agenda as the points unfolded by it were contained in the manifestos of the Pakistan Muslim League and the Pakistan People's Party. 11. That the suspension of the Constitution cannot be justified on the ground of good intentions of the Chief Executive. 12. That the PCO No. 1 of 1999 is devoid of legal authority being based on the Proclamation of Emergency dated 14-10-1999 which had neither disclosed the source of power under which it was issued nor had conferred any power on the Chief Executive, who was its sole author. 74. When asked by the Court to suggest a workable solution for resolving the controversy raised in these petitions, Mr. Khalid Anwar respectfully replied in the following terms:First, the Court can condone past and closed transactions in order to avoid chaos and anarchy though they were not valid; Secondly, the Court. can condone those actions which are conducive to return to constitutional rule. He, however, emphasised that the Court may either allow the petitions as a whole or in the alternative may confine it to a declaration in this case and lay down a roadmap and a time frame for return to democratic rule and holding of elections. CONSTITUTION PETITION NO. 53 OF 1999 75. At the outset, Mr. Habib-ul-Wahab-ul-Khairi, learned ASC, petitioner in Constitution Petition No. 53 of 1999, quoted verses 8 to 10 from Chapter V Sura Al-Ma'idah and verse 135 from Chapter IV Sura AnNisa of the Holy Qur'an to contend that the Islamic concept of `Adl', which is a universal concept and also provides for equity and `Ihsan', should be followed by this Court in' deciding the present and the connected petitions. He further submitted that it is the Judiciary alone which can make or mar the destiny of our nation, because the absence of justice invariably leads to the disintegration and ultimate destruction. He argued that Judges are the watchmen and their watchman is their conscience as they are answerable to their conscience and God. 76. He. stressed that so far as Judiciary is concerned, there was no need of the PCO because the Courts. were functioning normally on October 12, 1999. He supported the law laid down in the case of Begun Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657, with special reference to the observations made at pages 692 (citation-F), 715-717 (citation-UV), 721-22 and 733 (citation- HH). He also quoted an extract from the above judgment wherein views of Mr. Brohi and Syed Sharifuddin Pirzada were recorded , to the effect that notwithstanding fresh oath administered to the then Judges of the Superior Courts, their independence and impartiality to decide the cases had not been affected. He contended with vehemence that this Court has the power and jurisdiction to hear these petitions. 77. It was next contended that a Judge of the Superior Court cannot be removed otherwise than by following the procedure laid down in Article 209 of the Constitution. He further contended that the Judges are deputies of God for administering justice, therefore, the Judiciary should guard against attacks on its independence. He submitted that even after the promulgation of PCO, the Judges of the superior Courts have to abide by the provisions of the Code of Conduct and perform their primary duty of administering justice according to their conscience. He then quoted some extracts from the case of Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416, which read as under: "Our Constitution envisages democracy as ethos and a way of life in which equality of status, of opportunity, equality before law and equal protection of law obtains. It has its foundation in representation; it is not a system of self-government, but a system of control and the limitations of government. A democratic polity is usually identified by the manner of selection of its leaders and by the fact that the power of the government

functionaries is checked and restrained. In a democracy the role of the people is to produce a government and, therefore, the democratic method is an institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive, struggle for the people's vote. Fundamentally democracy rests upon the idea of freedom." "Parliamentary Government is a government of the party and a party government is a vital principle of a representative government. The political party is a connecting link between the Executive and the Legislature, between the Cabinet and the Parliament. It is also a connecting link between the Cabinet and the people and between the Parliament and the people. For this reason the political parties are necessary and important features in a Parliamentary democracy. They are important because the group victorious at a general election becomes the government. In a nutshell a Parliamentary democracy depends for its success on the organization of political parties and its disciplined support of Parliamentary majority is sine qua non of Cabinet Government composed of the Prime Minister and the Ministers from the majority party. They, thus, provide leadership to public offices through the elections.. They are now necessary part of a democratic government. Rival parties make elections meaningful by giving voters a choice among candidates who represent different interests and points of view. The party or parties that are out of power serve as a "loyal opposition" as understood in Parliamentary democracy. That is, they criticise policies and actions of the party in power. In this way the party in power is called on to justify its actions and is made responsible to the people." . "Therefore, there cannot be any doubt that the Ideology of Pakistan is based on Muslim nationhood and includes Islamic Ideology which in clear terms in the Constitution means Injunctions of Holy Qur'an and Sunnah and was the principal factor in the concept of Muslim nationhood. It is this Pakistan Ideology which resulted in the partition of the sub-continent and is knows as a two-nation theory." "Quaid-e-Azam in his speech on the Pakistan Resolution of the All India Muslim League on 24th March, 1940, said: "Mussalmans are a nation according to any definition of opinion and they must have their home and their territory and their State. We wish our people to develop to the fullest spiritual, cultural, economic, social and political like in a way that we think best and in consonance with our own ideas according to the genius of our people. " "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. Any invasion of "integrity of Pakistan" will 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". This is not all. Any attempt to create doubts in the people's belief either vocally or by force against the comprehensive concept of Ideology of Pakistan which is the basis of the creation of the country will also be an invasion of the sovereignty or integrity of Pakistan as it would undermine the security and solidarity of the State by destroying the legal order." "It was contended by the learned counsel for the petitioner that the Partition Agreement which guaranteed the safeguards of the minorities in Pakistan should also be regarded as a part and parcel of the expression "Ideology of Pakistan". I do not see how it can be included within it as this was a special creed which led to the Partition of India and has its own meaning and significance and even today preserves the sovereignty and 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. " "While raising this submission the learned Attorney-General filed to notice that this Order was an existing law under sub-Article (3) of Article 270-A and was not protected

either under sub-Article (6) of this Article nor was it specified in the First Schedule under Article 8(3) (b) of the Constitution. Article 2 of this Order places it higher than the Constitution by the use of the words "shall have effect" which mean shall have legal effect, while Article 3 is worded so as to make it a substitute of Article 17(2) of the Constitution. It provides additional constraints apart from sovereignty or integrity of Pakistan. Upon the revival of the Constitution the Fundamental Rights were also revived including Article 17 without any amendment. Article 17(2) was, therefore, a higher norm than this Order which could not prevail as against it in spite of the enacting words "notwithstanding anything contained in the Constitution." It can only co-exist as a subordinate legislation if it is consistent with the Fundamental Right. Abdul Wali Khan's case has confined the restrictive clause to sovereignty or integrity of Pakistan. This being so other specified constraints are outside the purview of Article 17(2) and cannot operate to override the fundamental norm; and as President's Order No. 20 of 1978 is existing law under sub-Article (3) of Article 270-A, no question of any repeal by implication arises. What I find is that this Order is the basis for extensive amendments in section 3 and the other provisions of the Act by Ordinance 41 of 1978. Before the amendment of this section the only words which found place in it were "sovereignty or integrity of Pakistan" which were inserted in the light of the constraints in Article 17(2) of the 1973 Constitution. Sections 3-A and 3-B of the Political Parties Act, 1962, were inserted by Ordinance 42 of 1979 on 30-8-1979 and 3-C by Ordinance 53 of 1979, 'dated 8-10-1979. Section 3-B was further amended by Ordinance 52 of 1979 promulgated on 27-9-1979. President's Order 20 of 1978 by its status as being an ordinary law cannot give any protection to the impugned as being an ordinary law cannot give any protection to the impugned provisions of the Political Parties Act as against Fundamental Right 17(2). Therefore, even if it co-exists with the Political Parties Act, 1962, it is of no effect although it remains on the statute book." "8. The foregoing observations are for the implementation of a very important part of the mandate of Article 17(2). It might help avoid any large scale national effort to overthrow a fully entrenched political party which otherwise falls within the mischief of Article 17(2) - by unorganized force or by organized one which might be projected as right. In either case the Courts including the superior ones are the worst-hit, besides other consequences. For example, superior Courts, in such situations are made to lose their effectiveness; which in ordinary course, in the case of normal Government, can and do exercise checks through the balancing process, in eventualities of undue acquisition or use of State Power. Our code of conduct, when left free to operate ordains as follows:-"The Constitution, by declaring that all authority exercisable by the people is a sacred trust from Almighty Allah, makes it plain that the justice of this nation is of Divine origin. It connotes full implementation of the high principles which are woven into the Constitution, as well as the universal requirements of natural justice. The oath of a Judge implies complete submission to the Constitution, and under the Constitution to the law .... On equipondernace stand the heavens and the earth. By equiponderance, oppression meaning unjust and unequal burdens is removed. The Judge's task is to secure that such equality should prevail in all things." 78. He emphasised that Pakistan owes its existence to Islamic ideology and justice or 'Adl' is the pivot of Islam, therefore, the Judiciary in Pakistan is not a creation of the Constitution, as is assumed, but it came into existence with the creation of the country and can never be abolished. He argued that the Judiciary derives its powers and duties from the Islamic principles and since Islam gives fundamental importance to the system of justice, the Courts will continue to exist and the Judges will perform their functions in accordance with the Islamic principles and their conscience. He further submitted that with the suspension of the Constitution, Islam is not suspended. In the beginning, all the powers, viz., executive, legislative and judicial, vested in one man, the Holy Prophet (p.b.u.h.), but with the advent of the institution of Khilafat, they were gradually separated. 79. He contended that whenever the Armed Forces take over the government of the country, they promulgate PCO and the Judges of the Superior Courts are required to take fresh oath under it. Elucidating his point the learned counsel submitted that the oath taken by the then Judges of the Superior Courts under the PCO of 1981 and the oath taken by

the Judges of this Court under the Order 1 of 2000 was only recognition of the ground realities and it did not disqualify, in any way, the Judges of the Superior Courts from doing justice according to the law and their conscience. He submitted that in other words, with the taking of fresh oath by the Judges of the Superior Courts under the new dispensation, the judicial system of the country has neither been abolished nor replaced by a new one. In this behalf, he referred to the following observations of this Court in Begum Nusrat Bhutto's case PLD 1977 SC 656:"Mr. Brohi as well as Mr. Sharifuddin Pirzada were also asked to address the Court on the possible effect and implications of the new oath of office administered to the Judges of the -Supreme Court and the High Courts after the imposition of Martial Law. They both stated that, in their view, the new oath has not in any manner restricted the independence of the superior judiciary, nor affected their obligation to perform their judicial functions according to law; it only indicates that the superior judiciary, like the rest of the country, has accepted the fact, which is even otherwise also evident, that on the 5th of July, 1977, a radical transformation took place in the pre-existing Legal Order. Both the learned counsel are agreed, and Mr. Yahya Bakhtiar, learned counsel for the petitioner, joins them, that the taking of the fresh oath by tile Judges of this Court does not in any way preclude them from examining the question of the validity of the new Legal Order and decide the same in accordance with their conscience and the law." At page 704-K it was observed:"It will be seen that the explanation given by General Muhammad Ziaul Haq for the Army.'s intervention is a true reflection of the situation which had been developing over the past four months as a result of the Pakistan National Alliance agitation and repudiation of Mr. Bhutto's constitutional and moral authority as Prime Minister of Pakistan. The statement correctly brings out the necessity for the imposition of Martial Law. It is also clear that this sincere and unambiguous declaration of his objectives by the Chief Martial Law Administrator was a major factor in persuading the people of Pakistan to willingly accept the new dispensation as an interim arrangement to bridge the gap between the break-down of the previous administration and the induction of the new elected Government under the terms of the 1973 Constitution. The new arrangement, therefore, acquired its effectiveness owing to its moral content and promise of restoration of democratic institutions. I may add here that the willingness of the Judges of the superior Courts to take the new oath after the proclamation of Martial Law was also founded upon the same considerations. " 80. Justifying the Military take-over, Mr. Khairi submitted that removal of the Chief of the Army Staff, who was holding a constitutional post and was responsible for the defence of the country, in a derogatory manner, amounted to high treason, especially in view of the fact that he was first appointed as Chief of the Army Staff by the then government and was later appointed as Chairman, Joint Chiefs of Staff Committee and confirmed as such just a week before his removal. There was, thus, no option with the Army but to take over the affairs of the country as a last resort. 81. He alleged that a conspiracy was hatched by Mr. Nawaz Sharif against the Armed Forces, whereby he removed Gen. Pervez Musharraf while the latter was out of Pakistan and instead appointed Lt. Gen. Ziauddin Butt. 82. Mr. Khairi next contended that Mr. Nawaz Sharif was responsible for creating dissension among the ranks of the Armed Forces. In this connection, Lt. Gen. Tariq Pervaiz had had a meeting with the former Prime Minister without permission of the higher Army authorities, which was a grave breach of discipline. Thus, he was retired for violating the discipline of the Army. 83. Mr Khairi submitted that since with the appointment of Lt. Gen. Ziauddin Butt as Chief of the Army Staff, the defence of the country was jeopardized and the order of removal of General Pervez Musharraf from his office, passed by the former Prime Minister had no sanctity in law, therefore, by refusing to obey an illegal order, the military authorities had not committed any wrong. In this context, reliance was placed on Begum Nusrat Bhutto's case, wherein at page 727 (EE), it is observed as under: -

"It is thus abdundantly clear that submission to the authority of the ruler and obedience to his commands does not extend to illegal and un-Islamic directives or orders.." He further relied on Controller of Patents and Designs, Karachi v. Muhammad Quadir Hussain 1995 SCMR 529 at page 533 placitum-B and 534 placitum-C, which read as under: "There can be no cavil with the proposition that the Government of Pakistan or for that matter any of the holder of its offices, or any Government functionary do not enjoy any conventional prerogative as was or is available to Crown in England except those discretionary powers which are either specifically conferred by the Constitution or under any law passed by the Parliament. We are also of the view that any discretionary power available to Government or its functionaries in the nature of prerogative either under the Constitution or under any of the Act of the Parliament is subject to the-process of Judicial review by the Superior Courts, in accordance with their jurisdiction under the Constitution. However, any exercise of discretionary power in the nature of a prerogative claimed by the Government or holder of any of its offices, or its functionaries has to be justified either under some statute law or under the provisions of the Constitution, before it is pressed into service before a Court. "7. Considering the above definitions of the word `prerogative', we are of the view that the expression `prerogative of the Federal Government, used in section 79 of the Act is to be understood in the sense of a discretionary power of the Government conferred on it under the provision of the Act. Prerogative as commonly understood a divinely right or an unbridled or uncontrolled discretion of a Ruler or a Sovereign is neither available in Pakistan nor it is contemplated in that sense, under section 79 of the Act. Since the prerogative of the Federal Government mentioned in section 79 of the Act is exercisable only as a discretionary power wider the Act in public interest, it is naturally subject to review by the Superior Courts in exercise of their power of judicial review under the Constitution. A careful study of various provisions of the Act will show that the right to claim a patent under the Act is not an absolute right. For instance, the Controller, under section 69 of the Act has the discretion to refuse to grant a patent for an invention or register a design of which the use would, in his opinion, be contrary to law or morality. The controller, under section 68 of the Act, in case of any doubt or difficulty arising in giving effect to the provisions of the Act, is empowered to make a reference to the Central Government for seeking directions in the matter. By reading sections 68 and 69 of the Act together it can be gathered that the Central Government in exercise of its prerogative or discretionary power, under section 79 of the Act, can withhold the grant of a patent or restriction of a design, if it reaches the conclusion that such withholding will be in the public interest or for the public good or would be against any provisions of the Act or morality." He also sought support from the judgments reported as Zahid Akhtar v. Government of Punjab PLD 1995 S.C. 530; in this behalf. 84. He also referred to Article 243 of the Constitution, which deals with the Armed Forces. Clause (1) of the said Article provides that the Federal Government shall have control and command of the Armed Forces. He submitted that although the word `government' is not defined in the Constitution, but certainly Prime Minister alone is not the `government'. It is the cabinet headed by the Prime Minister. He submitted that the order passed by the Prime Minister removing the Chief of the Army Staff was not approved by the Cabinet, but was the result of whims of one man. He next submitted that though under the Constitution, procedure for the appointment of Chief of the Army Staff is given but no procedure for his removal has been laid down therein. In this behalf, he also referred to sections 16, 17 and 20 of the Pakistan Army Act and contended that procedure for dismissal or removal of personnel of the Armed Forces is laid down therein, but it does not contain any provision regarding removal of the Chief of the Army Staff. The above sections read thus:16. Dismissal or removal by Federal Government.-The Federal Government may dismiss or remove from the service any person subject to this Act. .

17. Dismissal or removal by Chief of the Army Staff or other authorised officer.- (1) The Chief of the Army Staff may dismiss or remove from the service any junior commissioned officer or warrant officer or any person enrolled under this Act. (2) An officer having power to convene a district Court martial or an officer not below the rank of lieutenant-colonel empowered by the Chief of the Army Staff in this behalf may dismiss or remove from the service any person enrolled under this Act who may be serving under his command. 20. Discharge or dismissal when out .of Pakistan.- (1) Any person subject to this Act, who is entitled under the conditions of his service to be discharged, or whose discharge is ordered by competent Authority, and who, when he is so entitled or ordered to be discharged, is serving out of Pakistan, and requests to be sent to Pakistan, shall, before being discharged, be sent to Pakistan with all convenient speed. (2) Any person subject to this Act who is dismissed from the service and who, when he is so dismissed is serving out of Pakistan, shall be sent to Pakistan with all convenient speed. (3) When any such person as is mentioned in subsection (2) is sentenced to dismissal combined with any other punishment, such other punishment, or in the case of a sentence of imprisonment for life or for a shorter term, a portion of such sentence, may be inflicted before he is sent- to Pakistan. Explanation- For the purposes of this section, the word "discharge" shall include retirement or release, and the word "dismissal" shall include removal." He was of the view that it is the constitutional duty of the Supreme Court to safeguard the defence of the country and even the Armed Forces are obliged to obey the orders passed by this Court in this regard. In support of his plea, he relied upon the judgment reported as Al-Jehad Trust v. Federation of Pakistan 1999 SCMR 1379, wherein at page 1396 (citation F) it was observed as under:"20. Keeping in view the above judgments of this Court in the cases of Mian Muhammad Nawaz Sharif (supra), Azizullah Memon (supra), AI-Jehad Trust (supra), Mahmood Khan Achakzai (supra) and Mehram Ali (supra), and the above Articles 2A and 17 of the Constitution, the people of Northern Areas are entitled to participate in the governance of their area and to have an independent judiciary to enforce inter alia the Fundamental Rights." . At page 1400 of the above report, it was observed thus: "25.It is apparent that direction/directions to take administrative actions/measures required by the Constitution can be issued against the Federation, but no direction can be issued to the Legislature to legislate a particular law. However, a direction can be issued to the Federation to initiate administrative and legislative measures for complying with the mandate of the Constitution ...." 85. He vehemently contended that democratic governments come into existence as a result of free and fair elections, but all the elections except the election for the Constituent Assembly held in Pakistan, were a total fraud, therefore, the governments coming into existence on the basis of such fraudulent elections had no constitutional and moral sanctity. First elections under the 1973 Constitution were held on 7th March, 1977, which were not free and fair and their real facet is to be found in the judgment in Nusrat Bhutto's case (supra), wherein this Court dilated upon the details of large scale rigging that took place in those elections and concluded that the government of Mr. Bhutto had no legal and moral authority to continue in office. He further contended that in order to guard against the corrupt practices in elections, Article 218 of the Constitution has laid down a mechanism, but unfortunately the commandments of the Constitution are not obeyed and that PML (Nawaz Group), in its first term, after its coming into power, omitted sections 48, 49, 50 and 51 of the Representation of People Act, 1976 whereby the

restrictions regarding election expenses were removed and resultantly only moneyed persons in Pakistan could contest elections and it has been rendered impossible for an ordinary citizen to participate in the election. He next contended that political cell of ISI played a major role in election of the members of the Parliament by distributing huge sums of money among the candidates of IJI and, thus, paved the way for corrupt elements to come into power, who were not true representatives of the people of Pakistan. He submitted that no action was taken against corrupt members of parliament under Article 63 of the Constitution. Dilating further on those elections, Mr. Khairi referred to affidavits filed by General Asad Durrani, the then Chief of ISI and Gen. Naseerullah Babar wherein details of the amounts disbursed by the ISI among various politicians have been given. He emphasized that in presence of the political cell of the ISI, fair elections cannot be held and that it is the legal duty of the present regime to abolish this cell. He further contended that in 1997 Elections the so-called "heavy mandate" claimed by the former government was also the result of manipulation of the ISI and it was for this reason that Mr. Nawaz Sharif had refused to abolish this cell and that the mandate so obtained by Nawaz Sharif was a farce and had no lawful and moral authority. He submitted that democracy means 50% votes at least and that in fact the people of Pakistan had never voted to that extent and the governments had only technically won the elections. That is why when such governments were removed, there was none to express remorse for them. 86. Mr. Khairi next contended that every regime considers the Judiciary as a hurdle in its way and tries to eliminate or undermine it. 87. Mr. Khairi submitted that the Court should explore as to what laws should hold the field during the period the Constitution is held in abeyance In this behalf, he referred to the judgment reported as Federation of Pakistan v. N.-W.F.P. Government PLD 1990 SC 1172 wherein at page 1175 of the report it was observed: "In such state of vacuum, vis-a-vis, the statute law on the subject, the common Islamic law/the injunctions of Islam as contained in the Qur' an and Sunnah relating to the offence of Qatl and Jurh (hurt) shall be deemed to be the law on the subject." He also, referred to the case of Mian Aziz A. Sheikh v. The Commissioner of Income Tax, Investigation, Lahore PLD 1989 SC 613, wherein at page 626, it was observed: "But, this prohibition in clause (2) of Article 227 does not apply to decisions by functionaries of State of judgment, as distinguished from exercise of law-making or statutory rule-making authority, they take decisions. In other words whatever a decision is contained in any such judgment of any such. functionary which lays down a rule of law or declares so as a rule of law the superior Courts, shall be within their competence in a properly instituted proceedings to strike it down both under the general mandate contained in clause (1) of Article 227 as well as under Article 2A read with the Objectives Resolution." 88. He submitted that it has been laid down by this Court that in case of vacuum, the Islamic common law shall be applied by the Courts. In Hakim Ali's case, the Judiciary has been included in the `Oo lil amr'. He reiterated that no authority can violate the Islamic ideology. The supremacy of the injunctions of the Holy Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.) is an established phenomenon as held in the case of Mst Kaneez Fatima v. Wali Muhammad PLD 1993 SC 901 wherein it was observed: "8. In this context it may be observed that while interpreting Constitution, enactments, rules and regulations having the force of law and examining orders, acts and actions of Government functionaries/authorities the Court is competent to apply well-recognised principles of Islamic Common Law and such interpretation which is in conformity with the Injunctions of Islam. In the fields not occupied by statutory dispensation, principles of Islamic Common Lava or principles in conformity with Injunctions of Islam can be pressed into service. "9. Article 2A is one of the provisions of the Constitution which strives at bringing the existing law in conformity with the Injunctions of Islam and also gee to it that no law

in conflict with such Injunctions is legislated. The method for testing such legislation and enactments has been provided under the Constitution. One is provided in Article 227 in Part IX of the Constitution and the other and more effective method is provided by Chapter 3-A of Part VII of the Constitution; that is the Federal Shariat Court. Article 203-D vests powers and jurisdiction in the Federal Shariat Court to examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam. On coming to an affirmative answer it shall give its decision with reasoning for holding such an opinion and shall specify the day on which the decision shall take erect. However, if any party files an appeal before the Supreme Court, effect shall not be given till such time the appeal is disposed of. Consequences of declaring any law or provision of law to be repugnant to the Injunctions of Islam are contained in Article 203-D(3). The President and the Governor in cases of law within their. respective jurisdiction shall take steps to amend the law so as to bring such law or provision of law in conformity with the Injunction-s of Islam and such law or provision of law shall cease to have effect on the day on which the decision of the Court takes effect. Therefore. a proper scrutiny of the provisions of law by the . Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court with an interregnum period has been provided to enable the President and the Governor, as the case may be; to move the Legislature to bring the law in conformity with the Injunctions of Islam. The intervening period has been provided to enable the Legislature to legislate proper laws and there may not be a vacuum of lawlessness which may create complications and confusion. The process. of Islamisation of the laws is an important and difficult subject. The lead given by Pakistan in this regard is being watched with interest by all the Muslim countries who are anxious to bring their laws in conformity with the injunctions of Islam and by the non-Muslim countries as well. Any hasty action without the process of Ijma at Ummah level may lead to difficulties and confusion which may prove irreversible. Furthermore, due to sudden change, complex problems in economic, commercial and financial fields may arise creating difficulties. However, it does not mean that in the fear of such new controversies and problems the process of Islamisation may be retarded or stopped. It is an ongoing process. It has to take effect with utmost despatch, vision and regularity. . He also referred to the case of Fazle Ghafoor v. Chairman, Tribunal of Disputes, DIR, SWAT at Chitral at Mardan 1993 SCMR 1073 wherein at page 1077 Placitum-D, it was observed: "This mode of proof is adaptable in the Islamic dispensation also, even if not in any other. When there is such a vacuum on a question of law left by statutory silence, the prevailing mode having full Constitutional support, would be that of Islamic common law. See Muhammad Bashir v. The State PLD 1982 SC 139. He also referred to Ghulam Hamdani v. Muhammad Iqbal 1993 SCMR 1083, wherein at page 1089 Placitum-C, it was observed: "In the case of Federation of Pakistan v. N.-W.F.P. Government PLD 1990 SC 1172 the Shariat Appellate Bench of this Court, though in a criminal matter, expressed the view that in a state of vacuum like the one in question the injunction of Islam as contained in the Qur'an and Sunnah shall be deemed to be the law on the subject. The appellant has pleaded Talbs in the plaint and has based his right of pre-emption on contiguity and participation in immunities and appendages such as the right of way. This much was sufficient to complete the pleading." Case of M. Ismail Qureshi v. M. Awais Qasim 1993 SCMR 1781, was also pressed into service wherein it was observed: "It is not the students organization which is primarily responsible for the observance of the ideological basis of Pakistan in the educational institutions; rather the institution and its functionaries are not only responsible primarily but always responsible in this behalf. A functionary in a Pakistan institution who is against the ideological basis of Pakistan, as is enshrined in our Constitutional set-up; or is against the training of his wards entrusted by the institution to him in line with it; is against or neglects and does not propagate ideology of Pakistan, amongst the students community, has no right to remain in the institution. And if the institution itself commits such acts or omissions, it is better to

close, rather than to permit it, to contravene the Constitutional set-up of Pakistan. Therefore, it will be more advisable to re-entrust the education and training of the students on the lines of the ideology of Pakistan to the teachers and the institutions themselves under the pain of penalty. This of course is with a clarification that the groups under whatever name, through which the so-called Union activity will be revived in the educational institution, would not be debarred from the ideological path and educating and training themselves in that behalf; but only with the assistance, guidance and help from their parents, their teachers and institutions. No one student or group can be given an unbridled right to control and coerce another student or group. The parental atmosphere jurisdiction and philosophy has to be followed on this subject also. " "The argument advanced by the Jamiat; which has been dealt with above is not only relevant; but is also important in another context of practical application in Pakistan. It is also in line with the whole gamut of our statecraft. Its features are spread over several parts of our Constitution and the entire Constitutional set-up can be very useful for future ideological orientation in our polity. . Thus, the possibility of creating a mid-way, political party structure as some youth wings are, cannot be excluded altogether. But instead of riding the wings of educational institutions or flying under the wings of the student community; the politically oriented/minded youth after completing the education and/or training in the institutional atmosphere, may join those youth wings of the like minded political parties. Those who are imbued with national service and we do feel that entry in political life is also a national service, might be able to develop such a youth political set-up, which would obviate the "indulgence in politics" in the educational institutions." "Such experiment can be faithfully and honestly undertaken by educated young people, fresh from the Universities who are full of like and vigour with national spirit, might join the profession of politics in the form of apprentices or make junior political parties. If such intermediary system develops, the linkage with senior parties and senior politicians would automatically start developing. And without any "indulgence in politics" in the educational institutions, final stage students community also, might start looking towards the intermediary political organizations in the country. This possibility cannot and should not be treated as a verdict by this Curt. It is only a possibility which amongst many others can be visualised as to how those young people who have clearly and cleanly passed their allotted time in the educational institutions and want to improve the society through their participation in the political like of the country, might start a beginning with an organizational set-up like the one at the youth wing stage. But this set-up if develops will also have to be kept out of the educational institutions. They would not be provided facilities in these easy to reap, fields." Reference was also made to the case of Zaheeruddin v. The State 1993 SCMR 1718 wherein at page 1773 (citation-QQ), it was observed: "The contention, however, has not impressed us at all. The term `positive law', according to Black's Law Dictionary, is the law actually enacted or adopted by proper authority for the Government of an organised jural society. So; that term comprises not only enacted law but also adopted law. It is to be noted that all the above-noted cases were decided prior to the induction of Article 2A in the Constitution, which reads as under:"2A. Objectives Resolution to form part of substantive provisions.- The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly." "This was the stage, when the chosen representatives of people, for the first time accepted the sovereignty of Allah, as the operative part of the Constitution, to be binding on them and vowed that they will exercise only the delegated powers, within the limits fixed by Allah. The power of judicial review of the superior Courts also got enhanced." 89. Mr. Khairi further contended that Article 63(1)(g) of the Constitution does not permit anyone to ridicule the Judiciary and the Armed Forces. However, the said provision of the Constitution is not implemented by the Speaker of the National Assembly because he

fears vote of no confidence by the majority party in case proceedings for violation of this Article are initiated by him against any member of the Assembly. 90. He also contended that the Constitution did not provide a solution for the grave crisis created by the former Prime Minister, who not only created dissension in the ranks of the Army and thereby attempted to weaken the defence of the country but also endangered the territorial integrity and independence of the country. He submitted that the Court is under a constitutional duty to ensure that the integrity of the territories of the Federation, its independence and all its rights including its sovereign rights on land, sea and air are safeguarded by the Armed Forces of Pakistan, therefore, the steps taken by the Chiefs of Staff of the Armed Forces and Corps Commanders of Pakistan Army, after due deliberations and decisions, were imperative and should be validated in the interest of Pakistan. 91. He submitted that since under Article 243 only appointments of the Chairman of Joint Chiefs of Staff Committee, Chief of Army Staff, Chief of Naval Staff and Chief of Air Staff have been provided and nothing has been provided as to their removal from office, therefore, how the ex-Prime Minister could remove General Pervez Musharraf, the way it was done, in that he was both the Chairman, Joint Chiefs of Staff Committee as well as the Chief of the Army Staff at the time of his removal. 92. He next submitted that neither the Constitution visualized an unfettered right to rule the country to the ex Prime Minister nor the so-called heavy mandate had granted him the right to become an absolute ruler nor it can be said that success by securing 13 or 14 % votes by PML (N) was a heavy mandate in any sense of the term. ARGUMENTS OF MR. SHARIFFUDDIN PIRZADA 93. Syed Sharifuddin Pirzada, learned Senior ASC appearing on behalf of the Federation submitted that the main arguments on facts as well as on law will be advanced by the learned Attorney-General and that he will only be covering some of the legal points viz. judicial review and applicability of the doctrine of necessity to the facts and circumstances of the present case. He submitted that this Court is dealing with the situation, which arose on 12th October, 1999 in respect whereof two speeches/statements, dated 13th October, 1999 and 17th October, 1999, have to be read together to spell out the circumstances and reasons for the intervention of the Armed Forces: He further submitted that the above speeches/statements of the Chief Executive clearly make out that true democracy is to be restored as soon as possible and certain measures for the time being are to be taken to improve the conditions in the country. He next submitted that on 12th October, 1999 situation arose for which the Constitution provided no solution, therefore, the intervention by the Armed Forces became inevitable. He emphasised that the intervention by the Armed Forces has saved the country from disastrous consequences and accordingly it is valid and justified on the basis of the doctrine of necessity and the principle of salus popult supremo lex. Supporting the intervention by the Armed Forces, he further submitted that there was no political and economic stability in the country; corruption and bank loan defaults were rampant; there was no accountability or transparency; Mian Nawaz Sharif's constitutional and moral authority stood completely eroded and that the situation was somewhat similar and analogous to the situation that prevailed in July, 1977; the adoption of 13th Amendment had removed the checks and balances in the Constitution and the Senate, the National Assembly and Provincial Assemblies were closely associated with the former Prime Minister and there was no democracy but one man rule, which was rightly displaced. 94. On the question of judicial review he referred to the Objectives Resolution, which inter alia, envisages that independence of Judiciary is to be fully secured. He submitted that the Preamble to the Constitution takes notice of Quaid-e-Azam's declaration about democratic set-up and social justice which are the basis of Rule of Law. Syed Sharifuddin Pirzada, however, made the following statement at the Bar: "So, in consonance with those principles I have formulated the points which I will be placing before your lordships, but let' me make one thing clear. On this issue I am

expressing my views as a counsel, which I am entitled to. I have done so in earlier cases. Therefore, I am approaching this question from that angle." 95. Dilating further on the question of judicial review, Syed Sharifuddin Pirzada, relied on the inaugural address by one of us (Irshad Hasan Khan, CJ) in the Conference of Board of Directors, Asian Ombudsman Association held on 22nd February, 2000, wherein it was observed: "The requires that the judiciary shall decide matters before it in accordance with its impartial assessment of the facts and its understanding of the law without improper influences, direct or indirect, from any source. The Judiciary in Pakistan is independent. It claims and has always claimed that it has the right to interpret the Constitution and any legislative instrument and to say, as to what a particular provision of the Constitution or a legislative instrument means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of the Supreme Court." 96. He submitted that in his view a very comprehensive statement has been made about the judicial review in a concise manner and with permission of the Court, he adopted it in toto. He, however, said that power of judicial review should be exercised with caution. In this regard reference was made to the case of Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division 1994 SCMR 2142, wherein paragraph 12 placitum B, reads thus: "Judicial review, must, therefore, remain strictly judicial and in its exercise, Judges must take care not to intrude upon the domain of the other branches of Government." 97. Syed Sharifuddin Pirzada reiterated that the Court is dealing with a case, which is analogous and somewhat similar to Begum Nusrat Bhutto's case and in fact strong reliance was placed by him on that case, wherein at page 716, it was observed: "There is yet another, and a stronger reason for holding that the power of judicial review continues. The 1973 Constitution provides for a clear trichotomy of powers between the executive, legislative and judicial organs of the State. However, owing to reasons of necessity, the executive and the legislative power now stands combined in one authority, for the reason that these two organs of the State had lost their constitutional and moral authority in the circumstances arising since the 7th of March, 1977, but no such considerations arose in regard to the judicial organ of the State. Accordingly, on no principle of necessity could powers of judicial review vested in the superior Courts under the 1973 Constitution, be taken away." He also referred to Pir Sabir Shah's case (PLD 1994 SC 738), wherein at page 765, paragraph 17 placitum C, it was observed: "I am, therefore, of the view that clause (2) of Article 236 will not cover a proclamation which is without jurisdiction, coram non judice or mala fide and the Superior Courts will have jurisdiction to examine a proclamation from the above three jurisdictional legal aspects. " 98. 1. Syed Sharifuddin Pirzada formulated his points as under: The intervention by the Armed Forces of Pakistan on 12th October, 1999 is valid.

2. The Defence Forces are viable and vital institution of the country. Attempts were made to destabilise them and to create dissension within their ranks, which would have adversely affected the defence, security and territorial integrity of Pakistan. 3. The pernicious attempts were contrary to the Preamble of the Constitution and Objectives Resolution whereunder the integrity of the territory of the Federation, its independence and all its rights, including the sovereign rights on land, sea and air are to be safeguarded.

4. As it is, due to collusion between Lord Mountbatten and Sir Cyril Radcliff, Pakistan got truncated territory, the tragic circumstances in which it was dismembered in 1971 are well-known. The intervention by the Armed Forces has saved the country from disastrous consequences. 5. On 12th October, 1999 situation arose for which the Constitution provided no solution and the intervention became inevitable. 6. Mian Nawaz Sharif's conviction on serious offences is under appeal. However, prima facie, it confirms the stand and the steps taken by the Armed Forces. 7. The claim of heavy mandate by Mian Nawaz Sharif in election is belied by the facts and figures available on the record. 8. The adoption of the 13th Amendment removed the checks and balances in the Constitution. 9. The Senate, the National arid Provincial Assemblies were closely associated with the former Prime Minister. There was no democracy, but despotism, which was rightly displaced. 10. There were no political and economic stability in the country. Corruption, bank loan defaults were rampant. There was no accountability or transparency. Mian Nawaz Sharif's Constitutional and moral authority stood completely eroded. 11. The situation was somewhat similar and analogous to the situation that prevailed in July 1977. 12. In the exceptional circumstances Doctrine of State Necessity and the principle of Salus populi suprema lex are fully applicable. 13. The Doctrine of State Necessity is well-known and has been recognised by Islam and other religions and accepted by Hugo Grotius, Chitty, De Smith and other jurists and the superior Courts of various countries to fill the vacuum and to bridge the gap. Even the mother Parliament's existence is traceable to the Doctrine of Necessity. 14. The judgment in Nusrat Bhutto's case PLD 1977 SC 657 has been approved among others by the Court of Appeal of Grenada (1986 LRC (Constitution) 35 and reaffirmed in Achakzai's Case PLD 1997 SC 426. The caution mentioned in the last case that checks and balances are necessary for prevention of such situations was completely ignored. 15. The same caution is reflected in concrete terms in the drafts prepared by Justice A. R. Cornelius and Justice Hamud-urRahman, former Chief Justices of Pakistan. 16. The cases of Mehram Ali PLD 1998 SC 1443 and Liaqat Hussain PLD 1999 SC 504 do not deal with the situation that arose on 12-10-1999 and/or affect the principles laid down in Nusrat Bhutto's case. 17. It will be noticed that a) Martial Law was not imposed. b) The Constitution was not abrogated and remains in abeyance. c) The Courts continue to function. d) The Fundamental Rights, not in conflict with the Proclamation and the Orders continue to be in force.

18. The Proclamation of Emergency, PCO and other Orders are not sub-constitutional but of extra-constitutional nature. 19. The intervention is not of a permanent nature, but for a limited period and is of a temporary character to enable the country to return to a true democratic way of life as soon as possible. 20. The course embodied in Nusrat Bhutto's case is fully attracted.

Particular reference was also made to a passage from Nusrat Bhutto's case at pages 708-709, which reads thus: "Mr. Sharifuddin Pirzada has next drawn our attention to certain Articles in the Majelle in support of his proposition. Article 17 enjoins that "Hardship causes the giving of facility; that is to say, difficulty becomes a cause of facility, and in times of embarrassment it becomes necessary that latitude should , be shown." Article 21 says that "Necessities make forbidden things canonically harmless". Article 22 lays down that necessities are estimated according to their quantity, and Article 26 embodies the maxim salus populi suprema lex by saying that "To repel a public damage a private damage is preferred." He submits that although these maxims are directly relevant to cases of private necessity but the principle can certainly be extended to State necessity." 99. Elucidating the concept and meaning of democracy, Syed Sharifuddin Pirzada took us through some extracts from the book titled "Voyage through History" by Masarrat Husain Zuberi, which read thus: "Before I go further, one important episode is worth recalling. Lord Mountbatten returned to Delhi on 30th May; but two days earlier on 28th May Quaid-e-Azam expressed a wish to meet senior Muslim officers posted at Delhi and a meeting was arranged at the residence of Hasnie to maintain secrecy: Quaid also directed that no Press people should be present and not a word of what he was going to say there should appear in the Press. The meeting was held on 29th May and he came there accompanied by Liaquat Ali Khan, Nishtar and Chundrigar. On arrival he spotted one Muslim officer, who was in the Information and Broadcasting Department and so known to him personally. He asked him to leave as he came under the category of Press people. The meeting was arranged in the open on the spacious lawns of Hasnie's house and the Quaid feared that he might be overheard across the road. So, he asked everybody to get nearer and sit on the carpet. He also sat down leaving his sofa seat. Liaquat, because of his bulk, continued sitting on the sofa." "In clear measured tones, he spoke for nearly half an hour and then invited questions. Even in this hour of triumph he showed no sign of emotion nor did he indulge in hyperbole or_self-glorification except one sentence, and that too in matter of fact tone that "future generations would say that Muslim League won them Pakistan. What does Muslim League consist of: myself and my Stenographer?".The two questions that' stand out in my memory were which for their perspicuity still surprise me. They were asked by one not so senior an officer a Deputy Director in the inspection wing of the Supply Department, Iqbal by name. After Quaid replied to a few questions on the status of the Muslims outside Pakistan, which also stunned a few, Iqbal said: "Sir, I have two questions to ask: The first is what is the guarantee that on establishment of Pakistan a coterie of people would not take over the country and run it in their own particular interest" and waited for a reply Quaid only said, "And your second question?" "Sir, the second is what will happen if at any time later Bengal wishes to secede from Pakistan". The Quaid kept quiet for a few seconds-and then said: "The answer to both of your questions is not with me. It is with you. You, Muslims, will have to create conditions in which Bengal exists happily with you as they have helped you in the common struggle and create such forceful public opinion too that no coterie of people get control and run the country in its own interest. After all guardians of democracy are the people; not your Quaid or his successors." 100. In support of the formulations made by Syed Sharifuddin Pirzada, he relied upon exhaustive case law from Pakistani and foreign jurisdictions including the views

expressed by renowned international jurists as reflected in the various text books, law reports and research papers. ARGUMENTS OF MR. AZIZ A. MUNSHI, LEARNED ATTORNEY GENERAL FOR PAKISTAN 101. Mr. Aziz A. Munshi, the learned Attorney-General for Pakistan began his arguments with the submission that it is with a sense of responsibility that in making submissions before this Court, it was not his intention to cast aspersion on any one and that when he would speak in respect of the parliamentarians particularly the former Prime Minister, it should be clearly understood that this is not with a view to maligning any one. It is only intended to meet the case and put the facts before this Court. He further stated that in doing so, he would be only doing his duty as Attorney-General. 102. He submitted that the country is faced with a situation where the former Prime Minister stands convicted on 6th April, 2000 on charges of hijacking and terrorism and at the same time his associates are also accused of various offences. He stated that the leader of the opposition stands disqualified and it seems, she has chosen to abdicate responsibility of taking over or responding to the political challenge, which is facing the country and that the parliamentarians from both the major parties, viz. Pakistan Muslim League and Pakistan People's Party have leaders who are either disqualified or do not appear to be qualified, prima facie unde0judgments of various Courts in various proceedings and thus the present situation can be called one of political vacuum. He submitted that a democratic polity to which the people of Pakistan are committed requires responsible parliamentarians and not a vacuum in that behalf; it requires and presupposes that elected representatives are qualified, present and alive politically to steer the governance of the country and to take responsibility in terms of the sacred mandate given by the Constitution. He emphasized that the country needed a body of men, who were responsible, who were above board and who were accepted by the people as their elected representatives and who were not only responsible to the people themselves, but also to their own conscience and the conscience of those who had elected them. He contended that there was large scale accusation of corruption, allegations of disqualification in presence of convictions and judgments, a large scale plunder of national wealth, a breakdown of the economy and finally, worst of all, an attempt to create dissension and disunity in the only disciplined institution of the country besides the Judiciary, namely, Army, which almost subverted that institution and created a dangerous challenge to the very existence of Pakistan. 103. The learned Attorney-General submitted that keeping in mind the gravity of the events which occurred on the 12th of October, 1999, this Court would find that the Chief of Army Staff was sent abroad on official duty and was in the air at an altitude of 25000 ft, on the Indian ocean midway between Colombo and Karachi when the unfortunate events happened, which have landed the country today where it is. He submitted that had the incident succeeded, horrendous consequences resulting from this course would have rendered the country with an Army divided in its ranks and entangled in a civil war. He submitted that without mentioning the ugly facts and details of the incident, which happened at the Karachi Airport, the fact remains that a body of 300 policemen went to arrest the Chief of Army Staff and according to General Pervaiz. Musharrafs own speech delivered on 13th October, his life was put in danger and the plane carrying him was asked to land anywhere outside Pakistan and possibly in India. According to the learned Attorney-General, this kind of attitude and action by the head of the Government smacked of irresponsibility, an offensive attitude in breach of the constitutional authority of office and a grave danger to the solidarity, integrity and sovereignty of the State of Pakistan. 104. The learned Attorney-General submitted that the Army as an institution has refused to accept the illegal and unconstitutional orders, which were directed towards undermining the unity of the Army and the integrity of the country as such. Referring to the submission made by Mr. Khalid Anwar on behalf of the petitioners that no matter what happened on the 12th October, the elected representatives could not be displaced, the learned Attorney-General contended that the mandate given by the people is couched in sacred, but limited language, which does not extend to the annihilation of the Army

command and the action of the former Prime Minister, it is public perception, appeared to be an act of enemy because in a war, the first lesson of strategy for the enemy is to strike at the effectiveness of the command and disturb it. He submitted that there are certain norms of dealing with a friend, dealing with their own Commander-in-Chief and dealing with the enemy. According to him, the former Government headed by the former Prime Minister adopted a course as if the Chief of Army Staff, representing an Army of 600,000 men, who had taken oath to defend this country as a united force, was an enemy of Pakistan. The learned Attorney-General contended that such an assumption is not only preposterous, it needs to be disapproved in the strongest possible language by every Pakistani, particularly the apex Court. 105. At this stage he invited attention of this Court to the oath of office of the Prime Minister, given in Schedule IV to the Constitution, which reads thus: (In the name of Allah, the most Beneficent, the most Merciful) I,__________________, do solemnly swear that I am a Muslim and believe in the Unity and Oneness of Almighty Allah, the Books of Allah, the Holy Qur'an being the last of them, the Prophethood of Muhammad (peace be upon him) as the last of the Prophets and that there can be no Prophet after him, the Day of judgment, and all the requirements and teachings of the Holy Qur'an and Suntah. That I will bear true faith and allegiance to Pakistan: That, as the Prime Minister of Pakistan, I will discharge my duties, and perform my functions, honestly, to the best of my ability, faithfully in accordance with the Constitution of the Islamic Republic of Pakistan and the law, and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of Pakistan: That I will strive to preserve the Islamic Ideology which is the basis for the creation of Pakistan: That I will not allow my personal interest to influence my official conduct or my official decisions: That I will preserve, protect and defend the constitution of the Islamic Republic of Pakistan: That, in all circumstances, I will do right to all manner of people, according to law, without fear or favour, affection or ill-will: And that I will not directly or indirectly communicate or reveal to any person any matter which shall be brought under my consideration or shall become known to me as Prime Minister, except as may be required for the due discharge of my duties as prime Minister. [May Allah Almighty help and guide me (A'meen).]" According to the learned Attorney-General, the words, "sovereignty, integrity, solidarity, prosperity and well being", embody the essence of the Constitution and are the touchstone and the test before this Court for judging the actions of the former government, particularly the then Prime Minister. He contended that the actions of the former Government were not in conformity with the maintenance of sovereignty, integrity, well being and prosperity of Pakistan because when the Chief of Army Staff was attempted to be handed over to another country and he was exposed to physical elimination, it was not safeguarding the sovereignty of Pakistan. Further, when the former Prime Minister exposed the Armed Forces to dissension and disintegration, it was not maintenance of the sovereignty or safeguarding the sovereignty, rather the sovereignty and integrity of the country were seriously endangered because it is the only institution, which is capable of safeguarding the integrity of Pakistan. The learned Attorney-General stated that the well being of the people is a reflection of the combined

effect of sovereignty, integrity and solidarity and there can be no well being of the people without sovereignty, integrity, solidarity and prosperity. Likewise, prosperity again embodies all these ingredients and also extends to the economic prosperity of the people. According to him, all these tests when applied to the former Government and the former Prime Minister, turn out in the negative and to a long way in disqualifying him under Article 63 from being either a member of the Parliament or incharge of the affairs of the State. Reference was also made to Article 63 of the Constitution, which reads thus: 63. (1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if(a) (b) (c) or he is of unsound mind and has been so declared by a competent Court; or he is an undischarged insolvent; or he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State;

(d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or (e) he is in the service of any statutory body or anybody which is owned or controlled by the Government or in which the Government has a controlling share or interest; or (f) being a citizen of Pakistan by virtue of section 14-B of the Pakistan Citizenship Act, 1951 (II of 1951'), he is for the time being disqualified under any law in force in Azad Jammu and Kashmir from being elected as a member of the Legislative Assembly of Azad Jammu and Kashmir; or (g) he is propagating any opinion, or acting in any manner, prejudicial to the Ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan; or (h) he has been, on conviction for any offence which in the opinion of the Chief Election Commissioner involves moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his dismissal; or (i) he has been dismissed from the service of Pakistan on the ground of misconduct, unless a period of five years has elapsed since his dismissal; or (j) he has been removed or compulsorily retired from the services of Pakistan on the ground of misconduct unless a period of three years has elapsed since his removal or compulsory retirement; or (k) he has been in the service of Pakistan or of any statutory body or anybody which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or (1) he is found guilty of a corrupt or illegal practice under any law for the time being in force, unless a period of five years has elapsed from the date of such conviction; or (m) he has been convicted under section 7 of the Political Parties Act, 1952 (III of 1962), unless a period of five years has elapsed from the date of such conviction; or (n) he, whether by himself or by any person or body of persons in trust 'for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or for the performance of any service undertaken by, Government:

Provided that the disqualification under this paragraph shall not apply to a person(i) where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has no devolved on him; (ii) where the contract has been entered into by or on behalf of a public company as defined in the Companies Ordinance, 1984 (XLVII of 1984), of which he is a shareholder but is not a director holding an office of profit under the company; or (iii) Where he is a member of a Hindu undivided family and the contract has been entered into by any other member of that family in the course of carrying on a separate business in which he has .no share or interest; or Explanation.-In this Article "goods" does not include agricultural produce or commodity grown or produced by him or such goods as he is, under any directive of Government or any law for the time being in force, under a duty or obligation to supply (o) he holds any office of profit in the service of Pakistan other than the following offices, namely:(i) (ii) (iii) an office which is not whole time office remunerated either by salary or by fee; the office of Lumberdar, whether called by this or any other title; the Qaumi Razakars;

(iv) any office the holder whereof, by virtue of such office, is liable to be called up for military training or military service under any law providing for the Constitution or raising of a Force; or (p) he is for the time being disqualified from being elected or chosen as a member of the Majlis-e-Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force. (2) If any question arises whether a member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant." 106. The learned Attorney-General vehemently contended that according to the record almost 80% of the actions of the former Government were directed towards self-aggrandizement and furtherance of personal interest and were taken for the purpose of amassing wealth by unlawful means. Thus, the Constitution was violated in letter and spirit on a wide scale, almost rendering it illusory and inoperative; democracy was throttled out and instead dictatorship was sought to be established. 107. The, learned Attorney-General next argued that a reign of victimization of political opponents, whether they belonged to party A, B, or C, was let loose with a view to perpetuating power. He contended that the conduct of the petitioners in juxtaposition with the contents of the oath of office of the Speaker of the National Assembly, Federal Ministers and the members of the Senate, which are almost identical, does not entitle them to the reliefs claimed by them in these petitions, inasmuch as they had taken oath to act in the interest of sovereignty, integrity, solidarity, well being and prosperity of Pakistan, which they did not. Moreover, when they owe their existence and allegiance to a political party and when they even today say that Mian Nawaz Sharif whose conduct has been described above, is still their. leader and they have not publicly disowned him or disassociated from him, all of them have acted jointly and have, thus, disentitled themselves in law and under the Constitution to the reliefs they have prayed for in these petitions.

108. Commenting on the conduct of the former government, the learned Attorney-General further submitted that the 13th Amendment was got passed within 13 minutes. He submitted that the 8th Amendment including Article 58(2)(b) was passed by consensus by an elected body in 1985. A debate had taken place in the National Assembly and the Senate, which deliberated for 40 days. There were committees, sub-committees and experts and members elected from various parties and members forming independent groups of opposition led by Haji Saifullah Khan, who negotiated every word of it, who disputed every word of it and after having considered every word proposed by the Government party, they themselves agreed on the phraseology of Article 58(2)(b) having checks and balances, which was a product of divergent opinions ultimately resulting in a consensus and that was true spirit of democracy. Article 58(2)(b) stood the test of time for 10 years and there was no Martial Law. The only result of Article 58(2)(b) was repeated appeal to the political sovereign i.e. the electorates from holding general elections within 90 days. 109. The learned Attorney-General then formulated his submissions in writing which are as under:(1) That in the facts and circumstances prevailing on 12th October, 1999 and prior thereto the taking over of the governance by the Armed Forces was valid, legitimate, bona fide and unavoidable to save the State and its institutions and is justified by the Doctrine of State Necessity. (2) That the legitimacy of the Proclamation, dated 14th October, 1999, the various Provisional Constitutional Orders and all actions pursuant thereto derived their own legality from the Doctrine of State Necessity and State survival. Further, the fact that no remedy was available under the prevailing legal order including the Constitution, intervention was unavoidable and necessary for the preservation of the State. (3) Such course of action by the Armed Forces is approved in Begum Nusrat Bhutto's case, by a full Bench of this Hon'ble Court. The facts of the present case are far more serious .to justify the application of Doctrine of Necessity inasmuch as, the main protective institution of the State against external aggression and internal disturbances i.e. the Armed Forces of Pakistan was exposed to internal disunity, division and dislocation of military command by the former Government. The only point involved in Begum Nusrat Bhutto's case was rigging of elections and civil disobedience while in the present case, it is a matter of State survival. (4) That the deposed Prime Minister and his partymen, having grossly violated their Oath of office as is evident from the events of 12th October. 1999 and prior thereto, the Armed Forces of Pakistan under the provisions of the Constitution of Islamic Republic of Pakistan. 1973 and by virtue of their oath of office, were under a sacred duty and legal obligation to save the country from internal subversion which -is self-evident from the events of 12th October, 1999, as adjudged by the judgment, dated 6th April, 2000 pronounced by the Anti-Terrorist Court at Karachi and other facts on the record. In the face of these events intervention by the Armed Forces was necessary and natural. (5) Where there exists reasonable basis for concluding that existence of the State and its sovereignty is at stake, the Courts will not substitute their own judgment for that of the Armed Forces/Executive which acted under the compelling necessity of saving the State and its sovereignty. Thus, the Proclamation dated 14th October, 1999 was issued pursuant to deliberations and discussions of the Corps Commanders of the Armed Forces and the three Service Chiefs of the Army, the Air force and the Navy. All legal ,instruments, laws and orders issued thereunder such as the Provisional Constitutional Orders are valid, proper and bona fide. All actions taken thereunder are also legal and valid. Thus, the Proclamation and all other legal instruments were not the individual acts of one person having been issued in the best interest of saving the country. The bona fides of all its authors, i.e. the entire Armed Forces cannot be questioned. (6) The source of power and validity of the Proclamation of Emergency is to be determined by consideration of the total milieu in which the change is brought about, namely, the objective situation obtaining at the time in relation to the break down of

constitutional machinery for the change and the paramount Necessity for the preservation of the State and its organs. It is such destruction which justifies the taking over of the country by the Armed Forces in order to save total destruction and extinction of the State and the Executive, Legislative and Judicial institutions of the country including undermining the unity and discipline of Armed Forces all of which occurred on account of the action of the former Government. (7) That in the present case, after taking a comprehensive view of all the facts necessitating the Proclamation, it is submitted that the same is fully justified on the doctrine of Necessity and it is not amenable to judicial review. (8) That what is described and understood as State Necessity is nothing more than an extension of Doctrine of Necessity as recognised by jurisprudence. In the political sense, Doctrine of State Necessity has direct nexus with the situation necessitating such abrupt political change and has its validity/justification thereunder. It would, therefore, follow that the Doctrine of State Necessity justified the existence of the present legal order and the exercise of power thereunder which is for the preservation of the country. The reference to the so-called theory of Divine Right of Kings by the Petitioners who were privy to the former Government is wholly irrelevant and preposterous. In fact the petitioners. were active participants and supporters of the former Government in their illegal actions. They never objected to the same, including the events of 12th October. (9) The Doctrine of Necessity is embedded in ancient as well as contemporary Jurisprudence. According to this an act which would otherwise be illegal becomes legal under the stress of Necessity, and in the context of governance is referable to an intention to preserve the "State or Society, even by extra-Constitutional or meta-legal acts." (10) That the Doctrine of Necessity is a recognised principle of Islamic Jurisprudence and applies equally to individual and collective perception of social behaviour. (11) That the term "Necessity" does not have a fixed character. It is relative and elastic rather than absolute. It has various degrees and meanings and may connote different measures of Necessity and it should be construed with reference to existing conditions. Necessity has been held to be synonymous or equivalent to Emergency. (Corpus Juris Secundum Vol. 65, pp. 115, 116, 118) (12) That once the assumption of extra-Constitutional Power is held to be valid, the legality of actions taken by such authority is to be judged in the light of principles pertaining to the Law of Necessity. (Begum Nusrat Bhutto's case, p. 657). (13) That it is not correct to limit the doctrine of Necessity only as a defence to a criminal prosecution referable to self-defence or defence in Torts. (Corpus Juris Secundum, Vol. 65, p 387). (14) That once it is found that the prevailing situation did warrant an abrupt change and there was no remedy available under the prevailing Legal Order, the persons responsible for the change are fully competent to bring about such change in law, including the Constitution, which intends to correct the flawed Old Legal Order for preservation of the State as well as welfare of the people. (Begum Nusrat Bhutto's case, p.657). (15) That the revolutionary political change is not in derogation of the Objectives Resolution under Article 2A of the Constitution, as ultimately the method of governance shall be through chosen representatives of the people. The process. and mode of Devolution of Power has already been declared which shall guarantee true representation as against the hithertofore sham democracy. (Speech of the Chief Executive dated 17-10-1999). (16) That International Law recognises the right of the people to alter by any means, including force, the form of Government under which they live. Accordingly if the Government is in effective control and without any effective opposition particularly when the previous Government has ceased to exist, the efficacy or effectualness of the change has moral as well as legitimate justification. (Sorensen pp.271,272)

(17) That the principle of proportionality is not attracted in case an abrupt political change becomes absolutely necessary, as in this case, and displaces the Old Legal Order for valid reason and the previous Government ceases to exist. In fact the situation demands a complete change of the old, decadent and destructive structure. (18) That the circumstances necessitating the political change in Begum Nusrat Bhutto's case PLD 1977 SC 657 though similar for application of the Doctrine of Necessity the situation prevailing in the present case is far more serious and appropriate for application of the Doctrine of Necessity which rendered the political change inevitable inasmuch as: (i) Failure of Law and Order situation in 1977 was similar as described in PLD 1977 SC 657 at 693 to 703. Law and Order situation was worse in the present case as is in PLD 1997 SC 426 at 465 para.40 (pages 465 to 469, paras.40-42), and PLD 1999 SC 504 at 709-733, as well as the recent Judgment of the Anti-Terrorist Court, Karachi delivered on 6th April, 2000. (ii) That the General Elections of 1977 were found in Begum Nusrat Bhutto's case to be the result of massive and wholesale rigging and thus, the then Prime Minister was held to 'be a usurper. In the present case the former regime has committed such acts by virtue of which the powers of all the different organs of the State were usurped by the former regime with the intention of concentrating power in the single person of the ousted Prime Minster. (iii) The so-called heavy mandate was illusory and a farce and the Assemblies were rubber stamp of one man rule. The so-called heavy mandate consisted of votes not exceeding 12 to 13 % including bogus votes. (iv) By the 13th Amendment the former Prime Minister arbitrarily repealed Article 58(2)(b) which empowered the President to dissolve the Government for failure of Government machinery and by the same amendment repealed the power of the President to act in his discretion in the appointment of Chiefs of the Armed Forces. All this was done without discussion in the Parliament with the result that no check and balance was left on the action of the Prime Minister and his chosen few in the Parliament, while they plundered national wealth and amassed personal wealth by creating bank defaults of Rs. 1215 billion, indulged in acts of corruption and corrupt practices and destroyed national economy. Thus, he became a despot using State apparatus for personal gain. (v) By the 13th Amendment he managed to concentrate all power in his hands. The Anti-Defection Law passed without allowing a debate in the Parliament empowered him to expel any member of the Parliament who disagreed with him. Thus, the Government of the former Prime Minister throttled freedom of speech, freedom of action and freedom of vote of the legislators only for assuming dictatorial powers. All these measures resulted in negation of democracy as contemplated by the various provisions of the Constitution including Article 2A, the Preamble and Fundamental Rights and destruction of all democratic norms. All these actions are alien to the Parliamentary democracy which guaranteed freedom of expression and other Fundamental Rights of equality before law, protection of life, liberty and property etc. (vi) The cumulative effect of all these actions of the former Government was betrayal of oath of office of the Prime Minister, the various Ministers and the Parliamentarians, Members of the Provincial Assemblies, all of whom lost thereby the moral and legal authority to govern. (vii) That the judgment passed in Begum Nusrat Bhutto's case has been considered minutely in Mehmood Achakzai's case and it has been held (para.45-PLD 1997 SC 426) that no exception can be taken to `ratio decidendi' laid down in the judgment of Begum Nusrat Bhutto's case, whereunder the Full Court dismissed the petition as not maintainable. (19) The result of despotic rule was total destruction of economy, mass violation of fundamental rights, political victimization, tapping of several hundred telephones of

political rivals, ridiculing of superior judiciary, storming of the Supreme Court, appointment of political favourites as Judges and massive corruption in the various agencies of the Government. (see paper books attached and particularly the list of references filed by NAB and the bank statements issued by the State Bank of Pakistan etc. as stated therein Reference is also made to Vol. A, B and C filed by Mr. Syed Sharifuddin Pirzada, Sr. ASC for the Federation). (20) That the former Government arid their functionaries as well as Members of the Parliament scandalized, harassed and humiliated the Superior Judiciary in public which was reflected in (i) TV programmes against the verdict of Supreme Court in the case of Military Courts (ii) speeches of the former Prime Minister against the Judiciary. (P.B. Volume IX, at pages 135, 204-228, 227-243) (iii) speeches in the Senate and the National Assembly/Provincial Assembly. The storming of the Supreme Court by and at the instance of the former ruling party including elected representatives and judgment therein by the Hon'ble Supreme Court establishes gross Contempt of Court, which shows total ridiculing and undermining the apex Court. (21) Former Speaker of the National Assembly and the Chairman of the Senate of Pakistan were in League with the Government, as no reference was made to the Chief Election Commissioner for disqualification of any Member of the Government in terms of Article 63(2). (P.B. Volume-VII, pages 76-79 - Reference of Mr. Muhir Ahmad Khan (Volume-IX, pages 229, 230, 231. (22) Tapping of the telephones including those of the Judges and officials of the Supreme Court, despite judgment of the Benazir Bhutto's case holding it to be unconstitutional and illegal (VolumeVIII, page 59). (23) The former Prime Minister made active attempts to create ,dissension to divide the Army. Further, dangers of such dissension are apparent from the facts disclosed and judgment given by the Anti-Terrorist Court at Karachi. Further, facts as disclosed show unconstitutional attempt at removal of the Chief of the Army Staff at a time when he was away from Pakistan on official duty and in the air at the height of 25000 feet. The Court at Karachi has found the former Prime Minister guilty of the offences of hijacking and terrorism. The offences of which the former Prime Minister has been convicted include section 402(b) of the Penal Code and section 7 of the Anti-Terrorists Act. It is most significant and serious among other facts disclosed by the Chief of the Army Staff, his speech of October 17, 1999 (p.39 of Vo1.1 - Written Statement), when he stated that circumstances were created which would have forced his plane either to land in India or crash (p.79 of C.P. 63 of 1999). (24) The former Government actively tried to create a parallel command which the Army has refused to accept. Former Chief of the Army Staff, General Jehangir Karamat, a celebrated soldier was removed for making constructive suggestion for formulation of National Security Council and so was the removal of the Chief of the Air Staff, Air-Marshal Abbas Khattak for concentrating power in the hands of the former Prime Minister. (25) Hijacking was culmination of various incidents and in any case apart from any other factors, the Army takeover was justified on the following grounds:(a) Humiliation of the Judiciary.

(b) Dissension created in the Army and potentially rendering its command ineffective and forcing the COAS to be handed over to India and exposing him to certain death. (c) Destruction of the democratic set-up, Parliament and the Provincial Assemblies.

(d) The Parliament and the Provincial Assemblies cannot be restored on the following grounds:(i) Large scale corruption of the Parliamentarians, who have not even paid charges for boarding and *lodging besides being Bank defaulters.

(ii) References filed against Parliamentarians for misconduct and Bank defaults before Accountability Court. (iii) The abatement and ridicule of the Judiciary and storming of the Supreme Court and discrediting the Army by the former Parliamentarians. (e) No fresh elections can be held without updating the electoral rolls. As per report of the Chief Election Commissioner, this process will take two years. (f) The process of accountability will be carried out to combat corruption. Already 79 references are pending and more than 200 are on the way. (g) Reforms are needed to be carried out.

(h) The economy is to be revived and steps are to be taken for the purpose of welfare of the people. (i) Reforms are to be undertaken keeping in mind the state of resources, requirements of the people and defence of the country. (j) Government has already taken various steps for reform, including conservation of foreign exchange and recovery of Bank defaults. Already over Rs. 11 Billion have been recovered after 12th October from defaulters and the process of revival of economy continues." 110. The learned Attorney-General submitted that Proclamation of Emergency, dated 12th October, 1999 is of a different character from the one issued by General Yahya Khan, inasmuch as, this time it has been approved unanimously after due deliberations by all the Corps Commanders who represent the whole Army, and there was imminent danger to the very survival of the State, which perception they clearly realised and decided to confront it. 111. The learned Attorney-General, then presented a list giving the cases of corruption, loan defaulters etc., which reads thus: CORRUPTION Description Statement of Governor, State Bank that the defaulters owe 356 billions rupees. Two cases against former Prime Minister sent to NAB. 26 Top defaulters held. List of 39 references pending against Mian Nawaz Sharif. List of 40 references pending against Mian Nawaz Sharif. Transcript of BBC Television documentary on corruption in Pakistan. Summary of Reference filed against Mian Nawaz Sharif and others. Order dated 5-I1-1999 passed by High Court of Justice Queen's Bench Division England in Al-Towfeek Company v. Hudaibiya Paper Mills. Statement of Shezi Nackvi Director AI-Towfeek Company. Documents annexed to statement of Shezi Nackvi.

Judgement dated 16-3-1999 of Queen's Bench Division in AlTowfeek Company v. Hudaibiya Paper Mills. 11 Billion Dollars in Pakistan Banks were removed without consent of Accounts Holders FEBC accounts were frozen and foreign exchange misappropriated, huge sums removed by former Prime Minister even after the freeze. Former Prime Minister and family established Sugar Mills in Kenya purchased four flats in London. Building of vast Raiwind Estate - Misuse of Government money for construction of road to Raiwind and declaration of Raiwind House as official residence of P.M. - maintenance at the expense of Pak PWD. Contracts for transportation of wheat, yellow cab Scheme, construction of Motorway kick backs and commissions. Money Laundering through traveller cheques, dollar bearer certificates, overseas accounts and purchase of property in London. Copy of F.I.R. No.12 of 1994 against Directors of Hudaibiya Engineering regarding opening of fictitious accounts. Copy of F. I. R. No. 13 of 1994. Press Clippings of Foreign press. Internet reports of Daily Dawn. Brief of Finance Division.' Properties relating to District Lahore (Raiwind). Reference application by Munir Ahmad Khan, Allama Iqbal Town to Chief Ehtesab Commissioner Islamabad against former Prime Minister, Chief Minister and others regarding misusing the official resources and causing loss to the National Exchequer to the tune of Rs.620 million. List of properties in Lahore District. Raiwind. Sheikhupura District Kasur Rawalpindi District Murree Letter from D.C., Vehari to Deputy Secretary to Chief Secretary Punjab regarding ownership of 111 Kanals, 19 Marlas near Sahib Ali of Sharif's family. Land in the name of Industries owned by Mian Nawaz Sharif and family in District Lahore and Kasur. Grand total of land properties in the name of Nawaz Sharif and his relatives Land purchased by Mian Nawaz Sharif and family owner wise categorization in District Sheikhupura, Lahore, Kasur, Rawalpindi, Murree, Vehari. White paper on Mian Nawaz Sharif Family's corruption etc.

Extraction of. money from banks/DFIs by Mian Nawaz Sharif, Shehbaz Sharif and other members of Shehbaz Sharif family with Annexures A, B, C and D. Details of history of business of Sharif family viz. Ittefaq Foundry etc. Outstanding liabilities against Ittefaq Group - Annexure-"A". Properties owned by infamous Ittefaq Foundry as it stood on 20th March, 1990, Annexure "B". Ittefaq (Accounts Department) Annexure "E". Documents relating to bid price. Lahore and Islamabad Motorway, 27-11-1991. Income Tax Statement regarding Mian Nawaz Sharif released by the Interior Minister. Estimate of Lahore Islamabad Motorway given by National Highway Authority Project Management Cell, 18-11-1991 Office Note by Additional Director Industries, Directorate of Industries and Mineral Development Punjab, Lahore with regard to setting up of an Industrial Estate in 41 Villages Tehsil Chunian covering 60466 acres of Land, 6-3-2000. Punjab Gazette Notification issued by Collector Kasur with regard to acquisition of land for Industrial Estate in Tehsil Chunian with detail of Khasra Nos. in various villages, 25-3-1987. Notification from Ministry of Finance, Government of Pakistan regarding amendment in the Original Notification (25-3-1987) with map showing Tax Free Zone, 26-5-1987. Letter dated 7th January, 1998 from PM Secretariat declaring House at Raiwind Farm as official residence of the Prime Minister. CORRUPT PRACTICES IN RESPECT OF DEPOSIT OF HUGE SUMS OF MONEY TO SPEND UPON ELECTIONS Affidavit of (R) General Nasirullah Babar filed in this Court in HRC No. 19 of 1996 with index. List of amounts deposited in Accounts of various Banks of Pakistan by a representative of Mr. Younus Habib Detail of total amount of Rs.14 crore deposited by a Representative of Mr. Younus Habib (from 10-9-1990 to 22-10-1990). List of names of 14 politicians and the amounts deposited in their names with lit of amount transferred to HQ. 313 Survey and Constructions Rwp. Statement of Accounts No. 1726. Affidavit of Lt. Gen. (Retd.) M. Asad Durrani in HRC 19 of 1996 regarding providing logistic support to the disbursement of donations campaign of UI in the four provinces, 24-7-1994. Affidavit of Lt. Gen. (Retd.) M. Asad Durrani in HRC No. 19. of 1996 as to press release issued on behalf of Gen. (R) Mirza Aslam Baig that Mr. Younus Habib and his community had donated rupees one hundred forty million and deposited this amount in a Government Agency. FAILURE OF LAW AND ORDER SITUATION

Details of extra-judicial killings in Punjab. Details of extra-judicial killings, dacoities, high profile killings, loot and arson etc. in Sindh. Mehmood Achhakzai's case. FAILURE OF LEGISLATIVE ORGAN Promulgation/re-promulgation or ordinances by the previous Government. 13th Amendment in the Constitution of Pakistan, 1973 - powers of the President under Article 58(2)(b) withdrawn - similar powers of the Governor under Article 112(2) also taken away discretionary power of the President to appoint Governors made subject to advice of Prime Minister the discretion of the President to appoint Chairman, Joint Chiefs of Staff Committee has been taken away. 14th Amendment-provides for defection if MNA or MPA votes contrary to any direction issued by the Parliamentary Party to which he belongs. This amendment takes away the right of freedom of speech. The 15th Amendment bill published in Gazette of Pakistan Extraordinary on 1-9-1998 contemplates to give unbridled power to the executive as against the legislature. 16th Amendment bill published in the Gazette of Pakistan Extraordinary dated 17-11-1998 also proposed to confer unlimited power upon the Executive as against the legislature. FAILURE OF JUDICIAL ORGAN OF THE STATE Unwanted confrontation with the Judges of the Superior Courts, National Assembly Proceedings/debates ridiculing Judiciary. Senate proceedings/debates ridiculing Judiciary. The infamous storming of the Supreme Court to prevent the apex Court from proceeding in contempt petition against the former PM in Criminal Original No.29 of 1997. The President and the Chief Justice of Pakistan resigned on 2-12-1997 which was justified in the Assembly. Ridiculing of judiciary is a valid ground for dissolution of the Government as stated in PLD 1998 SC 388 (at page 431). Failure of the Executive/Bureaucracy PLOT TO DIVIDE ARMED FORCES Interview of the Chief Executive with APP throwing light on the 12th October drama at Karachi Airport. Article by Akhtar Isphahani published in Newsline of October, 1999, titled "What happened in Flight PK-805". Article by Kamran Khan of News Intelligence Unit, published in the daily News dated 14-10-1999, titled "Ambitious Ziauddin steered Nawaz to political disaster." Article by Kamran Khan of News Intelligence Unit, published in the Daily News dated 14-10-1999, titled "Ambitious Ziauddin steered Nawaz to political disaster." Statement of Allama Tahirul Qadri published in Asas Rawalpindi dated 13-10-1999 titled "On seeing dissension in Army, India was going to open attack on Pakistan".

News item published in daily Khabrain dated 13-10-1999, with the title "Plan of Rana Maqbool, I.-G. Sindh failed - Gen. Pervaiz Musharraf could not be arrested". OBJECTIVES OF MILITARY TAKE OVER. First speech of General Pervaiz Musharraf Statement of General Pervaiz Musharraf that restoration of democracy is the top priority. Statement of General Pervaiz Musharraf about setting up of National Security Council. Announcement of the Chief Executive about accountability welcomed by B.N.P Mengal, J.U.I. Fazalur Rehman and Awami National Party. Council of Islamic Ideology endorsed Chief Executive's agenda Chief Executive briefed Sheikh Zayed Bin Sultan Al-Nahyan of UAE. Chief Executive pledged civilian rule after reforms National Accountability Bureau set-up. Chief Executive promised maximum autonomy at district level Statement of the Chief Executive that improving economy and ruthless accountability are his two major objectives. Statement of the Chief Executive that improving economy and ruthless accountability are his two major objectives. Civil and Military combine to manage affairs Chief Executive emphasised formulation of policies to give relief to common man. Chief Executive emphasised formulation of policies !3 give relief to common man. Cover story by Zahid Hussain published in Newsline of October, 1999 titled "Day of the General" explaining circumstances under which the Army was, once again, compelled to intervene in the country's chequered democratic history. Press clipping from the daily "News" dated 31-10-1999 with the title "Gentlemen and Officers". Radio Monitoring Report of BBC dated 15-10-1999, interview with Ghulam Sarwar Cheema, former Defence Minister saying that Army has no intention to impose Martial Law. News item published in the daily Pakistan dated 20-10-1999, about the interview of Mr. Niaz A. Naik, former Foreign Secretary, with BBC. PUBLIC PERCEPTION/ WELCOME/ ACCEPTANCE Cartoon from A.K. Sajjad Painter "Donkeys pondering ways to plunder Pakistan" Mrs. Benazir Bhutto welcomed the bold Proclamation of the Chief Executive Leaders hail Chief Executive's address to the Nation. Statement of the President of Hyderabad Chamber of Commerce and Industry that the Military action saved country from destruction. Leaders demand change in system.

Statement of Mr. Ghulam Mustafa Jatoi, NPP Chief that Army action was inevitable. Chief Executive to visit and brief Saudi and UAE Rulers about Afghanistan. Statement of Rasool Bux Palijo, Awami Tehrik Chief that all Provinces should be treated as equal. King Fahad of Saudi Arabia hoped that the Armed Forces will preserve stability and strength of Pakistan. Chief Executive satisfied with Saudi support Chief Executive assured of Saudi Arabia's support. Muttahida Qaumi Movement assured the Chief Executive of its cooperation. Ijazul Haq declared that 7 point agenda of the Chief Executive is reflective of national aspirations. Sindh Taraqqi Pasand Party declared that military take-over is logical outcome of dictatorship. Chief Executive discussed relations with Amir of Qatar and addressed Pakistani community. Article by Nasim Zehra of Gulf News based in Islamabad, published in the Gulf News dated 14-10-1999, with the title "No time for rejoicing now". Also a picture showing people in Lahore city celebrating Nawaz Sharif's dismissal with fireworks. Article by Rehmat Shah Afridi, published in Frontier Post Peshawar on 17-10-1999, with the title "No coup d'etat, but coup de grace. Article by Shafqat Mahmood, published in daily News Islamabad dated 16-10-1999, titled "A bitter harvest and new beginning." News item published in daily Nation Islamabad dated 14-10-1999, regarding Army take-over, Mian Azhar backing Army action, Imran Khan's stinging attack on dictator Nawaz, and Benazir urging military to set-up care-taker Government. News item published in daily News Islamabad and Frontier Post Peshawar, dated 14-10-1999, titled "Qazi Hussain Ahmed welcomes Nawaz's ouster, demands elections' and "salute to army" Article by Miangul Naeem of Peshawar, published in daily Nation dated 14-10-1999, titled "Dismissal of Nawaz Government welcomed". Statement of Imran Khan issued from London, published in the daily Dawn Karachi dated 14-10-1999, with the title "Army stops Nawaz from becoming dictator". Statement of the Deputy Secretary General of Sipah-e-Sihaba published in the daily Nawa-e-Waqt to the effect that the Army Chief has saved the country from internal civil war by taking action at right time. Statement of Ijazul Haq, Senior Vice-President of PML(N) published in daily Nation dated 15-10-1999, to the effect that Army was left with no other option. Statement of the President of Pakistan Tehrik-e-Insaf Peshawar District, published in the daily Frontier Post terming military action as timely. News item published in the daily News, Islamabad, dated 15-10-1999, with the title "75% people back army action: Gallup Poll".

News item published in the daily News. Islamabad dated ' 15-10-1999, with the title "Peshawar, Lahore Bars back Nawaz removal". Radio Monitoring Report of BBC dated 15-10-1999 - Maleeha Lodhi on Army Coup, News item published in the daily Nation Islamabad dated 15-10-1999, titled "Chishti [General (Retd.) Faiz Ali] endorses army action." News item published in daily Pak. Observer Islamabad dated 15-10-1999, containing statement of Gen. (Retd.) Hamid Gul, lauding Army action. News item published in daily Jang Rawalpindi dated 15-10-1999, about supporting of Army action by the Peshawar and Lahore High Court, Bar Associations. Statement of Ijazul Haq published in daily Jang Rawalpindi dated 15-10-1999, with the title "Removal of Nawaz Government was necessary - Nation is with the Army". News item published in daily News Islamabad dated 16-10-1999, with the title "Politicians continue to hail Nawaz's ouster". Radio Monitoring Report of BBC dated 17-10-1999, titled "Ordinary people accept coup in Pakistan." News item published in daily Nation Islamabad dated 16-10-1999, with the title "Army action welcomed." News item published in daily Frontier Post Peshawar dated 16-10-1999, with the title "Full support to Army". Statement of Habib Wahabul Khairi published in daily Din Rawalpindi dated 16-10-1999, to the effect that Nawaz Sharit committed the offence of high treason and Proclamation of Emergency is a democratic action. News item published in daily Pak. Observer Islamabad dated 19-10-1999, with the title "PPP to extend silent support to Musharraf." Statement of Ghulam Sarwar Cheema, former Defence Minister and MNA of PML(N) published in daily Nation Islamabad, dated 19-10-1999, with the title "Army action was inevitable". Statement of Ijazul Haq published in daily Khabrain Islamabad dated 18-10-1999, to the effect that if Nawaz Government had continued, the country would have faced grave crisis. News item published in daily Nation, Islamabad dated 18-10-1999 with the title "seven political parties, groups support military action". Radio Monitoring Report of BBC dated 18-10-1999 titled "Proclamation of Emergency welcomed". Decision of Grand Democratic Alliance that "people are not with us but are with the Chief Executive - No party included in GDA will issue any statement against the present set-up". Statement of Ghulam Mustafa Jatoi; Chief of the National People's Party that Army action was inevitable. Statement' of Prof. Abdul Ghafoor of Jamat-e-Islami published in the Dawn Karachi, dated 21-10-1999, that Military take-over saved institutions. Article by Nazar Ali Suhail published in daily News Islamabad dated 21-10-199, with the title "Public welcomes Musharaf's agenda."

News item published in daily news Islamabad dated 21-10-1999, with the title "G.D.A. supports Musharraf's agenda - Demands restoration of true democracy." Publication of the United Farmers Association Pakistan published in daily Nawa-e-Waqt, Islamabad dated 25-10-1999, with the title "Army and Peasants are one." Picture published in daily News dated 30-10-1999 showing the people dancing- in front of a huge hoarding of Gen. Pervaiz Musharraf. Statement of Kabir Wasti of Muslim League (Qasim) published in Jang Rawalpindi dated 13-12-1999 to the effect that Army has taken-over to defend-Federation. Statement of Hamid Nasir Chatha published in News Islamabad. dated 1-11-1999 that 90% people support Musharraf. Statement of Aftab Ahmed Khan Sherpao of PPP published in News Islamabad dated 2911-1999 that Army enjoys popular support. News item published in Pak. Observer Islamabad dated 5-12-1999 with the title "ANP declares full support to C.E. News item published in Pak. Observer Islamabad dated 13-I0-1999 to the effect that Allama Tahirul Qadri backs Army take-over. News item published in Pak. Observer dated 13-10-1999 with the title "People welcome take-over, demand accountability". News item published in News Islamabad dated 13-10-1999, with the title "People shout Army Zindabad outside T. V. Station". Statement of Allama Tahirul Qadri published in daily Nawa-e-Waqt dated 13-10-1998, titled "Army has taken over to defend the country". News item published in News Islamabad dated 13-10-1999 with the .title. "Political, religious leaders hail change". News item published in Nawa-e-Waqt dated 14-10-1999 titled "Teachers will offer prayer of thanks in Liaqat Bagh". News item published in daily Khabrain dated 14-10-1999, comprising statements of the constitutional experts that Army did well - high treason case can proceed against former rulers. Radio Monitoring Report . dated 14-10-1999 of BBC that Peshawarites welcome Nawaz Government's dismissal. Radio Monitoring Report of BBC dated 14-10-1999 that JWP welcomes military action. Radio Monitoring Report of BBC dated 14-10-1999 titled "Calm prevails in Pakistan after Military take-over". Radio Monitoring Report of BBC dated 14-10-1999 "Life normal in Islamabad despite Military coup". Radio Monitoring Report of BBC dated 14-10-1999 titled "Pak Army supports Gen. Musharraf's action". Picture published in Pakistan Times 'Rawalpindi showing the jubilant people dancing in front of a banner reading "Long Live Pakistan Army".

News item published in News Islamabad dated 14-10-1999, with the title "Leaders continue to welcome Nawaz's ouster". Statement of Mian Azhar Ex-Governor, Punjab, published in Khabrain dated 3-12-1999, titled "Army action is justified under the doctrine of necessity." MAL-GOVERNANCE/CORRUPTION/ ACCOUNTABILITY Legislators Pervaiz Ali Shah and others welcomed dismissal of Nawaz_Sharif and demanded across the board accountability. Statement of Lt. Gen. ` Moinuddin Haider Ex-Governor that "Nawaz was urged not to appoint Advisers". Statement of Governor State Bank that the defaulters owe 356 billion rupees. Article of Prof. Dr. Shahida Wizarat titled "Crisis management of the economy". Prof. Dr. Tahirul Qadri demanded accountability. Two more cases against former Prime Minister sent to NAB. Banks and financial institutions recovered Rs.5.6 billion out of their struck up loans. 26 top defaulters held , List of 31 references pending against the former Prime Minister Nawaz Sharif. Transcript of BBC Television's documentary on corruption in Pakistan. Summary of References filed against Nawaz Sharif and others for corruption and abuse of office. A report to the people of Pakistan presented by the Pakistan People's Party about systemic corruption, money laundering and abuse of office by Nawaz Sharif. Order dated 5-11-1999 passed by the High Court of Justice Queen's Bench Division, England, in Al-Towfeek Co. v. Hudaibiya Paper Mills Ltd. etc. about execution of decree against Sharif family. Statement of Shezi Nackvi, Director of Al-Towfeek Co. Exhibits "S N I" to the statement Shezi Nackvi, Director of Plaintiff Co. Judgment dated 16-3-1999 of the Queens Bench Division in case titled Al-Towfeek Co. v. Hudaibiya Paper Mills etc. Pedigree-table of Nawaz Sharif List of Directors of Hudaibiya Paper Mills Ltd. Sharif family's money laundering through travelling cheques, dollar bearer certificates and overseas accounts and purchase of property in London. Letter/complaint of Mian Khalid Siraj (brother of Mian Sharif) addressed to Benazir Bhutto the then Prime Minister for inquiry into plundering and looting by Nawaz Sharif. Statement of Saifur Rehman, Manager, Habib Bank A.G. Zurich, Lahore, about opening of accounts in the names of Muhammad Ramzan, Asghar Ali and Suleman Zia by Javed Kiani.

Statement of Syed Wajahat Hussain, Foreign Exchange Manager, Habib Bank AG Zarich, Lahore, about operating of 3 accounts of Muhammad Ramzan, Asghar Ali and Salman Zia. Statement of Zaka. A. Malik, Handwriting Expert about comparison of writings/figures on transactions of foreign exchange. Copy of F.I.R. No.12 of 1994 under sections 419, 420, 468, 471 and 109, P.P.C. and section 5 of the Prevention of Corruption Act, 1947, against Directors of Hudaibiya Engineering (Ptv.) Ltd. Regarding opening of fictitious Accounts in Habib Bank AG Zurich, Lahore. Copy of F.I.R. No. 13 of 1994 under sections 419, 420, 468, 471 and 109, P.P.C. read with section 5 of the Prevention of Corruption Act, 1947 and Article 3 of Holders of Representative Office (Punishment for Misconduct) Order, 1977, against Directors of Hudaibiya Paper Mills. ' Bank record about the Account of Salman Zia. Bank record about the Account of Asghar Ali. Bank record about the Account of Muhammad Ramzan. Extracts from the British Virgin Island Corporate Register about payment for purchase of property in London. Payments to Shamrock Consulting Corporation through Salman Zia. Photographs of Land Registry Records about property purchased by Sharif 'family in London. Illustrative Charts about flood of funds from Salman Zia Account and money laundering by Sharif family. Press clippings of foreign press about amassing of wealth by Sharif family. Statement of Shezi Nackvi, Director of Al-Towfeek Co. as witness in the High Court of Justice Queens Bench Division. Press clippings from News International titled "Living like a king Sharif's litany of abuses" Internet Report of Daily Dawn dated 22-10-1999 with the title "Sharifs business Partners deprived country of 110 Million Dollars. Internet Report of Daily Dawn titled "four cases against Nawaz being sent to F.I.A.". Internet Report of Daily Dawn titled "Banks challenge Ittefaq claims of engineered loan default". Internet Report of Daily Dawn titled "Sharif family liable for all Ittefaq Group loans". Where do we stand today? Economic Crisis. Police encounters during the period from 1-7-1997 to 30-6-1999 Death in Police custody during the period from 1-7-1997 to 30-6-1999. Reasons of pendency of judicial inquiries in police encounters. Details of murders/crime against women and motive behind murder.

Punishments awarded to police officials accused during the period from 1-7-1997 to 30-6-1999. Article by Amir Nawaz published in Friday Times of 22/ 28-10-1999, titled "Treason case against Nawaz;" Statement of Imran Khan, published in Pak. Observer, Islamabad dated 20-10-1999, to the effect that Army interference had become compulsory and the elections before accountability will be meaningless. Statement of retired Generals published in daily Jang Rawalpindi dated 27-10-1999, demanding impartial accountability of those who plundered the national exchequer. Statement of retired Generals published in daily Jang Rawalpindi dated 27-10-1999, demanding impartial accountability of those who plundered the national exchequer. Statement of Mr. Farooq Ahmed Khan Leghari, former President published in Khabrain dated 14-10-1999 demanding severe accountability. Review of economic performance 1990-99. Brief of Finance Division, Government of Pakistan (E.F. Wing) on Lahore-Islamabad Motorway Project (M-2) Brief of Finance Division (E.F. Wing) on Islamabad-Peshawar Motorway Project (M-I) Brief of Finance Division (E.F. Wing) on Lahore International Airport. New passenger terminal complex. Brief of Finance Division (E.F. Wing) on exact nature and scope of cooperative scandal to the Members of the National Assembly. List of cooperative societies, their directors doing banking business illegally. Package announced by Prime Minister on 7-12-1993 to compensate affectees of Cooperative Societies. Report of Finance Division (Budget Wing), Government of Pakistan in respect of "Mera Ghar Scheme". List of defaulters of Rs.100 Million and above, as on 31-10-1999. List of Telephone Numbers of Politicians tapped during previous regime without permission of D-.G., I.B. List bf Telephone Numbers of Politicians monitored without approval of D.G., I. B. . List of telephone numbers of Judiciary tapped without written approval of D.G., I.B. CONDEMNATION OF DEPOSED REGIME Press release .of Benazir Bhutto urging World condemnation of Nawaz reign of terror on Press in Pakistan. Protest of the Committee to protect journalists against Government sponsored attacks on independent journalists, addressed to Nawaz Sharif. BBC report about protest of journalists regarding arrest of Mr Najam Sethi, Editor Friday Times. Article by Nadeem Shahid published in daily Nation Islamabad on 25-10-1999 titled "He wanted to be the King."

Article -by M.S. Qazi, published in Frontier Post Peshawar on 18-10-1999, titled "Nawaz's fall from grace". Statement of Lt. General Sardar F.S. Lodi published in Nation Islamabad dated 21-10-1999, with the title "Losing heavy mandate. " Article by Aslam Effendi published in the daily Nation, Islamabad, dated 16-10=1999 titled "Operation retribution or coup de grace". Statement of Malik Meraj Khalid published in the daily Frontier Post dated 15-10-1999, hailing Army action with title "Nawaz's misdeeds paved way for army." Statement of Altaf Hussain, MQM Chief published in daily news Islamabad with the title "Nawaz responsible for army action. Radio Monitoring Report of BBC dated 14-10-1999, titled "Army coup outcome of Nawaz Sharif's mistake". Statement of Gen.(Retd.) Mirza Aslam Beg, published in News Islamabad dated 6-12-1999, with the heading "politicians responsible for army take-over. Interview of Aftab Ahmed Sheikh of MQM published in Takbeer Weekly dated 8-12-1999 titled "Nawaz Sharif. himself invited Army". Statement of Qazi Hussain, Ahmed published in News Islamabad dated 12-12-1999, with the title "only-Nawaz Sharif responsible for military coup." Statement of M. Azam Khan Hoti of ANP published in daily Frontier Post dated 27-12-1999, titled "Nawaz still conspiring against army". NECESSITY FOR TAKE OVER Article by Amir Mir published .in daily news Islamabad, dated 13-10-1999 titled "Military Take-over legal under law of necessity according to Supreme Court ruling." Radio Monitoring Report of BBC dated 14-10-1999, titled "Musharraf terms military intervention as last resort". 112. The learned Attorney-General submitted that the Proclamation of Emergency and the PCO are legislative instruments of extra-constitutional character, which fall within the ambit of doctrine of necessity, particularly in view of the question of State survival being involved in the present case, and as such the same are not open to judicial review. However, the status of all other acts and actions of the Chief Executive may stand on different footing in terms of the law laid down by this Court in Nusrat Bhutto's case (supra), in particular the observations at pages 715, 720 and 721 of the report. He reiterated that prime object of the Chief Executive is to hold fresh elections after cleansing the system as soon as practicable and possible. 113. At the conclusion of his arguments, while making certain clarifications, the learned Attorney-General filed written submissions for the sake of precision and clarity so as to avoid misunderstanding and misgivings. His submissions were: SUBMISSIONS ON BEHALF OF THE FEDERATION 1. In deference to observations of the Hon'ble Court on 5-5-2000, regarding the dates of transfer of properties at Raiwind, the Respondent Federation submits herewith the authenticated Revenue Extracts showing the dates of mutation/purchase of properties at Raiwind (8 pages) from 31-1-1984 to 24-9-1999 alongwith the letter dated 6-5-2000 of the Deputy Commissioner, Lahore.

2. It is submitted on behalf of Respondent Federation before this Honourable Court that the contents of the documents produced at pp.13 to 135 in Volume-X of Respondent along with the Written Statement in compliance with observations and directions of the Hon'ble Court were verified by NAB from the Election Commission and Central Board of Revenue and concerned authorities before being supplied by the Government of Pakistan through NAB and each page bears the signature of an authorised officer of NAB. The documents are filed on behalf of and under instructions of the Federation and the - said documents contain information and declarations of the former Parliamentarians and Members of the Provincial Assemblies themselves before the Chief, Election Commissioner and Income Tax Authorities. NAB has prepared the documents on the basis of the declarations made before the said authorities. The said documents are produced for the purpose of showing discrepancies in the respective declarations for the same period, before the Election Commission arid the Wealth and Income Tax Authorities. 3. The Attorney-General is appearing, before the Hon'ble Court as a part of his duty on behalf of the Federation and in response to notice from the Hon'ble Court, and not in his personal capacity. The Federation has filed separate lists of (a) loan defaulters (b) for misdeclaration of assets before the Election Commissioner and Tax authorities and (c) persons whose telephones were taped. Certain press reports appearing on 6-5-2000 have mixed up the names of one list with the other resulting in misunderstanding. The statements of some politicians on the basis of such reports as appearing in the press on 7-5-2000 imputing allegations against the Attorney-General are misleading, unjustified, motivated and denied as all facts and documents produced before the Hon'ble Court as per lists were based on instructions, verified record provided by NAB and the Federation. The above is respectfully brought to the notice of the Hon'ble Court so that there is no further interference with the course of justice. 4. Volume-X similarly contains among others at pages 1 to 7 statement of expenditure in connection with expenses in the General Elections of 1985, 1988, 1990, 1993 and 1997, the last of which caused to the national exchequer a sum of Rs.1,054,495,101 as certified on 2-3-2000 by the Election Commission, Pages 1 to 7 disclose such expenditure as well as the total expenditure incurred by the MNAs in the General Elections of 1997 as well as the outstanding dues against the Members of the Parliament on account of room rent, utility bills etc. outstanding against former Parliamentarians as on 1-3-2000 (pages 8 to 14) as supplied by C.D.A. 5. Volume-II page 14 contains the statement of the Governor of State Bank of Pakistan that Rs.356 billion are payable as on 12-10-1999 by the Bank Defaulters to the various Banks. Some of the prominent names of Bank defaulters who are liable to pay Rs.100 Millions and above as on 31-10-1999, are mentioned at pages 167 to 182 of. Volume-IV and p. 111 and p.140 of Volume-VIII. 6. Volume-III contains the order of the High Court of Justice Queen's Bench Division, London dated 5-11-1999 at page 1 and Judgment, dated 16th March, 1999 disclosing the Suit filed by Al-Towfeek Company against (1) Hudaibiya Paper Mills, (2) Mian Muhammad Shehbaz Sharif, (3) Mian Muhammad Sharif, and (4) Mian Muhammad Abbas Sharif ordering the said defendants therein to pay a total sum of over US$ 32 Million to the Plaintiff Bank Al Towfeek Company for -loan advanced by the said Company to Hudaibiya Paper Mills owned by the Sharif family. At page 3, four flats at Park Lane are mentioned as belonging to Sharif family which were ordered to be attached in the said suit. At page 5, the Written Statement of Mr. Shezi Nackvi of the Plaintiff company before the Hon'ble Court of Justice at London sets out the details and the amounts payable by the Sharif family. The properties of the family are mentioned at page 7. At page 20, is the Judgment delivered on 16th of March, 1999 for payment of over US$ 14 millions as the first instalment. At page 23 a list of Directors of Hudaibiya as filed in the Court at London has been filed which shows the names of Members of the Sharif family as Directors. Pages 24 and 26 contain the signatures of Hussain Nawaz. Volume III contains those documents which were actually produced in the High Court of London including Bank Statements/cheques of foreign accounts held by the family of the former Prime Minister. The cheques are mentioned at page 106 onwards. All this

information has been suppressed and not disclosed to concerned authorities in Pakistan, nor to this Hon'ble Court. 7. On the basis of this, the High Court of London passed a Decree/Order, dated 5-11-1999 for execution of the Decree, of nearly US $ 32 Million as stated above out of which the Sharif family has paid to the plaintiffs a sum of approximately US$ 9 Million on March, 2000 as first instalment in part payment. This fact has also been suppressed and on the other hand shows the assets of the family abroad which, remain undisclosed to a substantial extent. 8. Volume-VII of the respondent contains the affidavits of Lt. Gen. (Retd.) Nasirullah Babar and Lt. Gen. Asad Durrani in H.R.C. No. 19 of 1996 filed by Air Marshal (Retd.) Asghar Khan pending in this Hon'ble Court setting out therein the fact of payment of a sum of Rs. 140 million to the various politicians including IJI. This shown that the electoral mandate was obtained by corrupt practices. 9. Volume-VIII at pages 140 to 155 shows a sum of Rs. 6,146 Million borrowed by Mian Nawaz Sharif Family and business concerns from 31-Banks/DFIs (p.141) which remain to be cleared. Volume VIII at p.69 to 106 and p.156 to p.I90 contains detailed list of properties including those held in Chunian which after purchase was declared as Tax Free Zone and Industrial Area for illegal gain. At pA66 of Volume-VIII the names of 5 Industrial Units of the Sharif Family are mentioned as located in Tax Free Zone. The' map showing the zone is at p.190. 10. At pages 136 and 137 of Volume-X is the tabulation of the statements of 37 Banks/DFIs in respect of withdrawal of Foreign Exchange of over 171 Million US Dollars, from 11-5-1998 to 28-5-1998 showing mismanagement and misgovernance. 11. House at Raiwind Farm was declared as official residence of the former Prime Minister and Pak PWD was assigned responsibility of its maintenance (P.152 of Volume-X) 12. The Respondent Federation submits that the Proclamation dated 14-10--1999, the Provisional Constitution Order of the same date and any other Order made by the Chief Executive pursuant to the said proclamation are valid and cannot be called, its question on the basis of the Judgment delivered in Begum Nusrat Bhutto's case reported in PLD 1977 SC 657 at pages 721-722 and further reaffirmed by this Hon'ble Court in the case of Mehmood Khan Achakzai reported as PLD 1997 SC 426 at page 472, para. 45 on the ground of State necessity and State survival. "It is further submitted, however, that the Proclamation dated 14-10-1999 cannot form the subject-matter of judicial review based as it is upon the doctrine of necessity and State survival and accordingly the Chief Executive is fully competent to perform all such acts and promulgate and take all legislative measures which have been recognized by judicial authorities as falling within the scope of the doctrine of necessity as held and declared at pages 715 and 716 inter alia in paragraphs (iii) (a) (b) (c) (d), (iv) and (v) thereof, and paragraphs (i) to (vii) at pages 721 and 722 in the judgment of Begum Nusrat Bhutto's case and reaffirmed in the case of Mehmood Khan Achakzai by this Hon'ble Court on the grounds of State Necessity and State survival, and-for orderly running of the State. "Without prejudice to the contents of the Statement of the Federation and documents already on record, it is submitted, that the petitions are accordingly liable to be dismissed by this Hon'ble Court."

ARGUMENTS OF MR. KHALID ANWAR IN REBUTTAL 114. Rebutting the arguments advanced by Syed Sharifuddin Pirzada, learned Senior ASC and Mr. Aziz A. Munshi, learned Attorney-General for Pakistan, Mr Khalid Anwar submitted that in the opening session, Syed Sharifuddin Pirzada admitted the fact that the Supreme Court has full power of judicial review and notwithstanding the Proclamation of

Emergency and the PCO, this Court retained its jurisdiction and power of judicial review and further that the new oath under the Oath of Office (Judges) Order No. 1 of 2000, has in no way affected the ability of the Judges of this Court to decide the validity, legal effectiveness and operation of the above instruments. He added that there is a consensus statement of the lawyers of the petitioners and the respondents on this point. He further clarified that though the Constitution in a technical sense has been suspended but it still rules indirectly because jurisdiction is conferred upon this Court by the Constitution and not the Proclamation of Emergency or the PCO, therefore, the power of judicial review of this Court is still intact. He argued that in the present scenario it is only the Supreme Court and no other institution or authority, which can validate the Proclamation of Emergency and the PCO and thereby grant legitimacy to the present Government, which is the relief they are seeking from this Court. He drew attention of the Court to the concise statement of Syed Sharifuddin Pirzada whereby he has only sought validation of the action of 12th October, 1999 by this Court and made no prayer seeking powers to amend the Constitution or carrying out economic, political or social reforms in the society. He then read out a part of the speech delivered by the Chief Executive on 13th October, 1999 to contend that the sole purpose of the Army take-over on 12-10-1999 was to prevent any further destabilization of the country and that the situation was perfectly calm and under control. . He contended that the Chief Executive in his above speech further appealed to the people to remain calm and support the Army in the re-establishment of order, which meant that he did not seek to create a new order through changes in the Constitution or laws. 115. Mr Khalid Anwar submitted that he would rely on material cited on behalf of the respondents because their own material supported his view. He thereafter dealt with each item of the case law relied upon by Syed Sharifuddin Pirzada. He argued that "65-Corpus Juris Secundum" (page 389), sub-heading "Public Necessity", relied upon by Syed Sharifuddin Pirzada, makes it clear that the existence of public necessity would be decided by the legislature and no one else. Relevant portion reads thus:' "Public necessity. A relative term meaning urgent public convenience; in this connection inconvenience may be so great as to amount to necessity." "With reference to legislative action, that, urgent, immediate public need arising from existing conditions which, in the judgment of the legislature, justifies a disturbance of private rights which otherwise might be legally exempt from such interference. It does not necessarily mean public benefit. The term is employed to designate the requirement of what is needed for reasonable convenience, facility, and completeness in accomplishing a public purpose." He referred to "Judicial Review on Administration Action" by De Smith, wherein it was observed at page 544 as under: "A person who is subject to disqualification at common law may be required to decide the matter if there is no other competent tribunal or if a quorum cannot be formed without him. Here the doctrine of necessity is applied to prevent a failure of justice. So, if proceedings were brought against all the superior Judges, they would have to sit as Judges in their own cause..." 116. His precise plea was that the respondents had mixed up the "doctrine of necessity" and "doctrine of State necessity", in that a wide range of case law referred to by Syed Sharifuddin Pirzada deals with application of "doctrine of necessity" in criminal law, in order to save life and not "doctrine of State necessity" with which we are concerned in the present case. . While dealing with the "doctrine of proportionality" he referred to page 595 of the report, wherein three tests are laid down by the European Courts of Justice in relation to the context of "doctrine of proportionality" viz. (i) The balancing test requires a balancing of the ends which an official decision attempts to achieve against the means applied `to achieve them. .

(ii) The necessity test requires that, where a particular objective can be achieved by more than one available means, the least harmful of these means should be adopted to achieve a particular objective. (iii) The suitability test requires authorities to employ means which are .appropriate to the accomplishment of a given law, and which are not in themselves incapable of implementation or unlawful. " and contended that the remedy should be proportional to the disease. He asserted that both America and Europe are one on the selection of least harmful means in order to achieve the objective, which, according to the Chief Executive, is re-establishment of order in the country on 12th October, 2000. 117. He then reverted to Farzand Ali's case,(supra) and contended that no reliance can be placed on the de facto doctrine by the Government on the basis of this case, inasmuch as, the finding in the above case was that if a person is holding an office illegally, no one can challenge the validity of his acts in a collateral proceedings for the sake of order and regularity except by direct proceedings instituted by the State or by someone claiming the office de jure. He argued that since the present proceedings were resorted to by the parliamentarians directly claiming to hold the office of members of National Assembly, Senate and Provincial Assemblies, they are entitled to challenge the same. 118. As to the case titled "Mokotso v. H.M. King Moshoehoe II (1989 LRC (Const.) 24), referred to by Mr Pirzada, Mr Khalid Anwar submitted that this was a case of coup d'etat and could not be a model for Pakistan. Then he proceeded to deal with the case of Mitchell v. Director of Public Prosecutions (1986 LRC (Const.) 35). and contended that the said case is similar to that of Mahmood Khan Achakzai in which the 8th Amendment was ultimately approved and upheld by the Supreme Court, in that, in the former case, the Grenada Courts held that because Constitutional Government has been restored, it is the action of the Constitutional Government, which has conferred validity and legitimacy on the Martial Law. Mr Khalid Anwar argued that this case goes against the arguments of Mr Pirzada because principles of International Law have nothing to do with it. 119. Adverting to the case of The Attorney General of Republic v. Mustafa Ibrahim, Mr. Khalid Anwar contended that an impression was sought to be created that in France, Germany, Italy, etc. there have been martial laws or military coups d'etat and surely this Court can take judicial notice of all these things but it was all about "doctrine of necessity" and not of "doctrine of State necessity", therefore, it does not advance the case of the respondents. He contended that it was common ground in Begum Nusrat Bhutto's case that Martial Law had been imposed in the country whereas in the present case it has been argued by Syed Shariffuddin Pirzada that this is not Martial Law, therefore, the ratio decidendi of Nusrat Bhutto's case is not applicable to this case. 120. Mr. Khalid Anwar then took up Volume "B" filed by Mr. Pirzada and referring to the case of Fred Toyosaburo Korematsu v. United States of America at page 132 thereof, contended that it again relates to "public necessity" and not "State necessity" and that this judgment was criticized in volume `G' filed by him, page 77, footnote 5 and also page 83. He next referred to a report namely "States of Emergency" - A study prepared by the International Commission of Jurists, which was read out by Syed Sharifuddin Pirzada at some length from page 14 onwards. Mr. Khalid Anwar referred to its criticism at pages 17,18,21-23. 121. Mr. Khalid Anwar submitted that if reliance can be placed on the Commonwealth Finance Ministers Meeting about corruption, then surely, reliance can be placed on the Commonwealth Prime Ministers Conference in which Pakistan was suspended from the Commonwealth for having an undemocratic Government. 122. According to Mr. Khalid Anwar, the only question before the Court today is as to which of Mr. Pirzada's view in his capacity as (i) Counsel; and (ii) Legal Scholar has to be referred as the views expressed by him as a writer are his true views, therefore, he accepts them in toto in so far as they relate to the present controversy.

123. He referred to Article 260 of the proposed Constitution of Pakistan, which, according to Mr Pirzada was drafted by Justice A.R. Cornelius, who was then Law Minister and contended that firstly, this Constitution never came into force and secondly, the responsibility rested on General Yahya Khan and that surely this was the action of General Yahya Khan, the then Chief Martial Law Administrator, who is not considered as a model today. Instead, he was the man who was responsible for the dismemberment of Pakistan. 124. Mr. Khalid Anwar argued that there is a saying, "Power corrupts and absolute power corrupts absolutely" and if that be true then the Supreme Court should not confer absolute power on the Chief Executive to get rid of the legislature and authorise him to exercise all powers by validating the impugned action of 12th October, 1999. , 125. Mr Khalid Anwar further contended "Constitutional and Administrative Law" by Hilaire Barnett and "Constitutional and Administrative Law" by Stanley De Smith and Rodney Brazier relied upon , by Mr. Pirzada talked about the doctrine of necessity and not state necessity. 126. As regards the arguments, of Mr. Aziz A. Munshi, the learned, Attorney-General for Pakistan, Mr Khalid Anwar submitted that in regard to facts and figures about turnover in the last four general elections, held in 1988, 1990, 1993 and 1997, it is interesting to observe that in 1997 general election, no party in the history of Pakistan got more seats than the Pakistan Muslim League. He further submitted that in 1993, the PPP got 7.8 million votes while in 1997 it came down 4.2 Million. In 1993 Muslim League got a major chunk of 8.2 million votes. He argued that what had happened was that people who were loyal to the PPP by and large did not vote for the Muslim League and stayed away. Regarding Al-Towfeeq & Co., it was argued that Nawaz Sharif was not a party to this case and a wrong impression was sought to be created that the same proved default against Nawaz Sharif. 127. Mr Khalid Anwar referred to the submission of the learned Attorney-General relating to fake foreign currency accounts of one Salman Zia allegedly sponsored by Mian Nawaz Sharif's family and submitted that this entire transaction forms subject-matter of a Full Bench judgment and Division Bench judgment of the Lahore High Court respectively reported as Hamza Shehbaz Sharif v. Federation of Pakistan (NLR 1998 (Crl.) 103) and Huddaibia Engineering v. Pakistan (PLD 1998 Lahore 90). He referred to paragraphs 5 and 6 of the latter report to contend that these . cases were quashed: "5. On 8-11-1994 the appellant filed the Constitutional Petition (W. P. No. 14532/94) seeking a direction ~ to the Federal Investigation Agency to refrain from taking any proceedings under the F.I.R. This petition was dismissed by the learned single Judge on 19-12-1994 who was of the view that immunity and protection granted by section 5 of the Protection of Economic Reforms Act, 1992 only extended to those transactions in foreign currency accounts which were bona fide. It was observed that sections 5 and 9 of the Act have to be read together and as section 9 protects only bona fide banking transactions the immunity granted by section 5 of the Act was not pervasive but limited to transactions which are bona fide and not otherwise." "6. During the pendency of this appeal, certain developments took place of which notice must be taken. After investigation of the case, Federal Investigation Agency had submitted challan to the Special Court constituted under the Offences in respect of Banks (Special Courts) Ordinance, 1984 under section 419/420/468/471 read with section 109, P.P.C. The other offences mentioned in the F.I.R. namely section 5 of the Prevention of Corruption Act, 1947 and Article 3 of the Presidential Order 16 of 1997 seeking quashment of the challans submitted to the Special Court were filed by Mukhtar Hussain and.Hamza Shehbaz. A Full Bench of this Court has since allowed these two petitions holding that the case had been registered by the F.I.A. without any lawful authority and even on merits no case was made out on the face of record and the continuous prosecution would be an abuse of the process of the Court. However, while disposing of those Constitutional petitions, the question as to the effect and scope of Protection of

Economic Reforms Act, 1992 was not gone into by that Bench and was left to be determined in this appeal by observing that:"As regards the Intra-Court Appeal presently pending, his submission is that it would be pressed only to the extent of the decision of the learned single Judge with regard to the interpretation placed by him on the relevant law, regarding the immunity available to the foreign exchange accounts under Economic Reforms Act XII of 1992." 128. He next submitted that the only reference actually filed against Mian Nawaz Sharif is the helicopter case in which it was alleged that though he used the helicopter during his election campaign but did not declare it as a part of his asset. 129. Mr. Khalid Anwar argued that since Mian Nawaz Sharif is neither a petitioner nor a respondent, no observation should be made by this Court regarding his conduct. He added that this is especially true when criminal cases are pending -against him which will ultimately come in appeal before this Court, therefore, it would be most improper for the Government to bring his conduct under the subject-matter of the present litigation. To support this point, he referred to the case of Mushtaq Ahmed Gormani v. State (PLD 1958 SC 333), wherein certain observations were made against the then Prime Minister, Malik Feroz Khan Noon, which were ultimately expunged by the Supreme Court because he was not a party to the proceedings. Reliance was also placed on Amanullah Khan v. Federal Government of Pakistan (PLD 1990 SC 1092) for the same proposition. 130. Referring to the allegation made by the learned Attorney-General that Chunian Estate in Kasur was purchased just before the issuance of Notification in 1987 creating an Industrial Estate there by the CBR and, thus, derived benefits, Mr Khalid Anwar contended that the alleged estate was purchased by Nawaz Sharif family in 1984, much prior to the issuance of the above notification and that in 1987 Military Government was in power, therefore, if any corruption was committed, the blame would rest on the then Military Government. 131. Regarding allegation of misdeclaration of assets before the Election Commission and the Wealth Tax Authorities, Mr Khalid Anwar contended that there was no real misdeclaration of assets, in that, under the Wealth Tax, one declares the cost of property or market price and under the Election laws one declares the value which is artificially calculated to represent 10 years' annual letting value. Referring to the alleged misdeclaration of pension of $ 20,000 per annum received by Mr. Sartaj Aziz from United Nations, he contended that pension is like salary and not an asset. He also pointed out that under the Wealth Tax Act, dollars are not taxable. 132. Further dealing with the argument advanced by the learned Attorney-General that the references filed in the Accountability Courts under the NAB Ordinance have established corruption of the politicians, Mr Khalid Anwar contended that the list of References included names of Air Vice Marshal Waqar Azim, several businessmen and some politicians, who are not party to the present proceedings and, therefore, no comments could be made about them. 133. He submitted that in the budget for the years 1997, 1998 and 1999, civil departments of the Government were allocated Rs. 69 billion only, whereas defence department of Pakistan was allocated Rs. 145 billion i.e. just one department of the Government incurs double expenditure. The argument was that military officers are outside the ambit of accountability and they have been excluded from accountability despite the fact that there is a serving General, who is head of the NAB, which fact negates the plea of across the board accountability. 134. He further contended that in 1977 according to Begum Nusrat. Bhutto's cast, the military government wanted time to carry out accountability before elections. He argued that ninety days became ninety months but no accountability was carried out and that corruption at the end of the latter period had in fact multiplied. 135. Mr Khalid Anwar also referred to the submission regarding Mehran Bank Scandal on which the learned Attorney-General had laid great emphasis to show corruption of

politicians and contended that Mirza Aslam Baig former Chief of Army Staff obtained Rs. 14 crores from Younis Habib. Chairman of Mehran Bank for disbursement to various politicians and all those payments were made by Lt. Col. Mir Akbar Ali Khan, Rawalpindi Headquarters. 136. Regarding telephone tapping by the former Government of Mian Nawaz Sharif, Mr. Khalid Anwar condemned tapping of the telephones of Chief Justice of Pakistan and other Judges of the superior Judiciary and called it a shameful act. 137. As to the judgment of Anti-Terrorist Court in the plane hijacking case against Mian Nawaz Sharif, Mr. Khalid Anwar submitted that reference to the case in these proceedings is not appropriate in that an appeal is pending in the High Court and the matter is likely to come before this Court. 138. Mr. Khalid Anwar denied the allegation that 15th Constitutional Amendment bill was intended to be introduced with a view to grabbing more powers by the Prime Minister. 139. Mr. Khalid Anwar further argued that the reaction of the people in welcoming the Military take-over is of no consequence in that the political parties which earlier welcomed the impugned action of the Chief Executive are now stressing for early restoration of democratic rule. He also referred to a book titled ""Public Opinion" and Political Developments in Pakistan by Inamur Rehman to contend that public opinion is transient in nature. He further argued that charges of corruption and corrupt practices against the previous Government are of no consequence in that there is corruption in many other countries of the world including Germany, England, Italy, Japan, etc. 140. Mr. Khalid Anwar further submitted that the mere fact that the decision of Army take-over was allegedly made by the Corps Commanders and the Principal Staff Officers as contended by the learned Attorney-General is of no legal consequence in that none of the above officers has any constitutional role to do so. He reiterated his submission that Begum Nusrat Bhutto's case warranted revisiting. He vehemently contended that- the Elections of 1997 were fair and transparent. ARGUMENTS OF S. M. ZAFAR, LEARNED AMICUS CURIAE 141. Mr. S.M. Zafar, learned amicus curiae submitted that whenever there is a constitutional breakdown, coup detat or otherwise, Judges are invariably confronted with an ethical dilemma on each occasion for which law prescribed no solution. He submitted that every Judge makes up his own mind either to resign or to continue as a Judge under the new dispensation. Those who opt to continue in office, as the Judges of this Court have done, they take upon themselves a very important historical burden of maintaining national legal order in the face of unconstitutional or extra-constitutional takeovers. 142. Mr. S.M. Zafar next submitted that since its inception, Pakistan has actually struggled with various Constitutions as well as couple of forms of Government i.e. Presidential, Parliamentary or abrupt political changes not contemplated by the Constitution. He submitted that in this milieu of changes, it is significant to note that whatever the nature or magnitude of a change, the Judiciary has continued to survive, inasmuch as, there has been no institutional interruption or discontinuity of Judiciary as such. He then proceeded to narrate a brief history of Judiciary to show as to why there has been no institutional interruption. , 143. He submitted that on independence, Pakistan inherited a reconstituted faction or part of Federal Court of India as the Federal Court of Pakistan by virtue of the Government of India Act, 1935 and more importantly by virtue of PCO 1947. On 24th of October, the then Governor-General Malik Ghulam Muhammad dissolved the Constituent Assembly, but Judiciary continued and it not only continued, but it was finally able to decide the issue of dissolution of the Constituent Assembly. That was the first interruption that took place. On .23-3-1956 the first Constitution was passed. It did change the nomenclature of the Court from Federal Court to Supreme Court of Pakistan under Articles 148 and 227(3) of 1956 Constitution:

" 148. There shall be a Supreme Court of Pakistan consisting of a Chief Justice, to be known as the Chief Justice of Pakistan, and not more than six other Judges: Provided that Parliament may by Act increase the number of other Judges beyond six." "227(3).- All legal proceedings pending in the Federal Court, immediately before the Constitution Day, shall, on such day, stand transferred to, and be deemed to be pending before, the Supreme Court for determination; and any judgment or order of the Federal Court delivered or made before the Constitution Day shall have the same force and effect as if it had been delivered or made by the Supreme Court. 144. He next submitted that first Martial Law was imposed in October 1958 abrogating the Contitution of 1956, but paragraph (ii) of the Laws (Continuance in Force) Order, 1958 maintained and continued the Supreme court and all other Courts in existence before the promulgation of Martial Law. On 8-6-1962 the Constitution of 1962 was enforced. It changed the form of Government from parliamentary to presidential, but under Article 49 read with Articles 227 and 234 of the 1962 Constitution the Courts continued to exisat to exercise theire jurisdiction as before. The 1962 Constitution was abrogated on 25-3-1969 but, under paragraph 6 (ii) of the PCO, 1969, the Supreme Court and all other Courts continued to function as before as also to exercise their jurisdiction as before. On 24-4-1972, Interim Constitution of 1972 was enforced. Article 171 read with Articles 285 and 295 maintained the continuity of the judiciary as an institution without any interruption. On 14-8-1973 the Constitution of 1973 was promulgated. Article 175 read with Article 275(2)(4) ensured the continuity, of the Judiciary. He submitted that on 5-7-1977, General Ziaul Haq held the Constitution in abeyance and proclaimed Martial Law but by paragraph 2 of the Laws (Continuance in Force) Order, 1977, the Judiciary as such was continued and finally on 31-12-1985 the Constitution was revived again. Lastly, on 12-10-1999 through Proclamation of Emergency, the Constitution of 1973 has been kept in abeyance for the second time, but under the PCO 1 of 1999 paragraph (ii), Judiciary as an institution has been preserved and continued. His formulation was that the Superior Judiciary, as history indicates, structured since 1947 and established as Supreme Court and High Courts of various Provinces under the Constitution of 1956 have been jealously maintained intact in spite of successive constitutional changes. He referred to the case of M. Inayat Khan v. M. Anwar and 2 others (PLD 1976 SC 354), wherein at pages 369, 371, 372, 374 and 375, it was observed: "Now, in the present case, Mr. M. Anwar had himself filed an appeal in the Supreme Court in Asma Jillani's case against the original judgment of the Lahore High Court. The hearing of the appeal was scheduled to commence on the 16th of March, 1972, whereas Mr. Anwar's interview was published in the weekly 'Kahani' bearing the date 10th March, 1972. In this interview he had expressed himself strongly against the decision of the Supreme Court in Dosso's case, and this was also his main stand in the appeal filed by him. We have already seen that in his interview Mr. Anwar had not only questioned the correctness of the judgment in that case but had also attributed motives to the. learned Chief Justice who delivered the leading judgment and had also indicated in no mild terms, the other judges of the Supreme Court who had concurred with the learned Chief Justice. Even if we may not go along all the way with the learned Attorney-General in thinking that the publication of the interview, a few days before the commencement of the hearing of the appeal in Asma Jillani's case, was intended to "brow-beat and blackmail" the Judges of this Court, it is clear that the publication was indeed calculated to influencing the mind of the Judges against endorsing the view taken in Dosso's case. It is irrelevant whether this was the intention of the respondents in publishing the interview or whether it has to be seen is whether the publication had the tendency to prejudice their minds in the matter. We consider, therefore, that the publication in question also amounts to contempt of Court as it had the tendency to prejudice the determination of a matter pending before this Court. "The fact that, while deciding Asma Jillani's case, the Supreme Court did ultimately accept the position canvassed by Mr. Anwar against the doctrine expounded in Dosso's case, and expressed itself rather strongly in this behalf, has, however, no bearing on the

nature of the publication we are considering here. It is axiomatic that the Court is bound to decide a pending cause in the view expressed in the offending publication, cannot in any manner detract from its pernicious tendency to prejudice the determination of the cause when it was still pending. At best such judicial endorsement might be urged was a mitigating circumstance in the matter of punishment for the contemner. "A reference to the terms of this Article does indeed show that it is not in the nature of a provision for the continued existence and functioning of the President or the Chief Justices, and Judges holding office under the previous Constitutional Order; but it does, nevertheless, indicate a sense of continuity by providing that, for the purposes of this Constitution, in relation to a period prior to the commencing day, any reference to the holders of these offices shall be construed as a reference to the incumbents in office immediately before the commencing. day. "However, it is difficult to place this meaning on this clause for the reason that the Supreme Court has generally not been regarded as falling in the category of a civil, criminal or revenue Court, nor have the Chief Justice and Judges been described as judicial officers. The Court as well as the Chief Justice and the Judges fall in a distinct category created by the Constitution, and different from civil, criminal and revenue Courts and the Presiding Officers thereof. We consider, therefore, that irrespective of the entry appearing in the index to the 1962 Constitution, clause (5) of Article 234 has no application to the Supreme Court and the Chief Justice and Judges thereof. "The combined effect of these provision was that all pending proceedings in the Supreme Court as well as the other Courts in the country were to continue in accordance with the law under which they were commenced or instituted. It also followed that such proceedings would be continued in the same forum in which they were commenced, unless the Constitution expressly provided to the contrary. As a result, the Supreme Court established under the 1962 Constitution automatically assumed jurisdiction in all matter which were pending before the Supreme Court immediately before the commencing day. This position was not altered in any manner by the fact that the 1962 Constitution may have varied the jurisdiction of the Supreme Court as compared to the one available under the 1956 Constitution. "For all these reasons, we have no doubt in our mind that the Supreme Court as established under the 1956 Constitution itself was abrogated in 1958 on the proclamation of Martial Law, and the Laws (Continuance in Force) Order, 1958, was in turn repealed by Article 225 of the 1962 Constitution, which provided for the establishment of a Supreme Court, and at the same time contemplated that the Chief Justice and the Judges in office immediately before the commencing day shall continue to hold their respective offices, but take a new oath of office and allegiance to. the new Constitution as soon as practicable after the commencing day. Such being the case, the Supreme Court functioning under the 1962 Constitution would by fully competent to punish any contempt relating to the Supreme Court of Pakistan or any of its Judges as constituted in 1958. "The present proceedings before us were instituted on 17-3-1972 under Article 123 of the 1962 Constitution. As is well-known, the 1962 Constitution was abrogated on the 25th of March, 1969 on the proclamation of the second Martial Law, but under paragraph 6(2) of the Provisional Constitution Order, 1969, the Supreme Court, the High Courts and all other Courts and tribunals were enabled to exercise the same powers and jurisdiction as they had immediately before the issuance of the proclamation. Accordingly, the Supreme Court had the Jurisdiction to deal with this matter under Article 123 of the 1962 Constitution at the time it was initiated. "The provisions contained in the Interim Constitution of 1972 as well as in the Permanent Constitution of 1973 follow the same pattern as was adopted in the 1962 Constitution to ensure the continuity of the legal order, the functioning of institutions like the Supreme Court, the High Courts and other civil, revenue and criminal Courts, and the continuance in office of the Chief Justice and Judges of the Supreme Court and the High Courts, as well as of all other persons in the service of Pakistan. It follows, therefore, that it is a misconception to think that the present Supreme Court, or the Supreme Court constituted

under the 1962 Constitution, was, in any manner, a new or a different institution. The correct position appears to be that the Supreme Court and the High Courts established under the 1956 Constitution have been assiduously maintained intact in spite of successive constitutional changes; and their continuity is reflected .not only by the fact that their Chief Justices and the Judges have been continued in office, but also by the fact that all pending proceedings have been continued by the respective Courts under the laws under which they were initiated or continue to be competent to punish any acts amounting to contempt even though they relate to the functioning of these Courts or these Judges as constituted under earlier constitutional instruments. It will be seen from the authorities, to which we have already referred in an earlier part of-this judgment, while considering the question whether the offending Article constitutes contempt or not, as well as from the terms of clause (2) of Article 123 of the 1962 Constitution, that the offence of contempt of Court is committed if there is interference with or obstruction of the process of the Court; or scandalisation of the Court or nay Judge of the Court such as is calculated to diminish the dignity or authority of the Court and to impair public confidence in its independence, impartiality, and integrity. As observed in the cage of Fakhre Alam v. State (1), the object of contempt proceedings is not the vindication of the character or conduct of an individual Judge, but to protect the Court from attack and calumny, so as to keep the fount of justice pure and unsullied and to maintain public confidence in the ability and power of the Courts to administer justice. Reference was also made to a passage from Nusrat Bhutto's case at ?age 717: "Next, even if for any reason the principle or power of judicial review embodied in the relevant provisions of the 1973 Constitution be held not to be available under the new dispensation the fact remains that the ideology of Pakistan embodying the doctrine that sovereignty belongs to Allah and is to be exercised on his behalf as a sacred trust by the chosen representatives of the people, strongly militates against placing the ruler for the time being above the law, and not accountable to any one in the realm. Muslim rulers have always regarded themselves as being accountable to the Courts of the land for all their actions and have never claimed exemption even from personal appearance in the Courts. The Courts of Justice are an embodiment and a symbol of the conscience of the Millat (Muslim community), and provided an effective safeguard for the rights of the subjects. On this principle as well, the power of judicial review for judging the validity of the actions of the Martial Law Authorities must continue to remain in the superior Courts." "Lastly, the Court is bound to take note of the fact that already several instances have been brought to its notice where the ordinary civil rights of the people are being interfered with by the subordinate Martial Law Authorities even though the laws of the land, which have been kept alive under the Laws (Continuance in Force) Order, 1977, m;kke full provision for their adjudication. In some cases, interference has occurred even when the contending parties had already been litigating in the civil Courts regarding the same disputes. The necessity which justified the Proclamation of Martial Law did not arise owing to the failure of the Courts to adjudicate on these matters. Such matters must, therefore, continue to fall outside the purview of the Martial Law Authorities, and the only remedy to the citizens against any such encroachment can be by way of judicial review in the superior Courts. " 145. The learned amicus curiae referred to certain passages from the book titled "Pakistan in the 80s law and Constitution" Edited by Wolfgang Peter Zingel Stephanie Zingel Ave Lalemant: "IN DEFENCE OF THE CONTINUITY OF LAW PAKISTAN'S COURTS IN CRISES OF STATE by Dieter Conrad which say:1. An uphill task

"Repeatedly, the Courts have been involved in the paradoxical task of delineating, from first principles, some constitutional contours of extra-constitutional action. They have,

thus, produced a whole series of judicial pronouncements dealing at explicit length with the validity of extra-constitutional emergency measures and of revolutionary changes." 2. Two prototypes of constitutional crisis

"The pivotal practical question in this context, as to how the law Courts should re-act to suspension of, and revolutionary changes in, the Constitution, has been discussed more than once. It is the underlying question in the recent study on the `doctrine of necessity'. "It appears from this analysis, with convincing clarity, that there are two basic types of Court responses to constitutional break-down classed by him as `necessity' cases and `Kelsen" cases respectively." "It seems to me that the two types of judgments should be viewed in relation to two different types of political situation, and that a Court's re-action might reasonably differ in the two." "These two types of extra-constitutional action may conveniently be characterized by drawing on a distinction from German doctrinal discussion, namely of commissarial and sovereign dictatorship." ".The difference is that the commissarial dictator is ultimately bound to, though not presently restricted by, the existing Constitution, while the sovereign dictator justifying his actions from the future order is not measured by any precise constitutional yardstick. " 5. Alternatives of judicial policy "The upshot of this brief recapitulation is that the Pakistan Court has resorted to the doctrine of necessity in situations offering a reasonable prospect that extra-constitutional action might be kept within the bounds of commissarial dictatorship;" "A change of the Constitution, revolutionary or otherwise, need not imply a-change of the total legal order; the fiction of a total change is inappropriate to describe what actually is nothing but a change of the power to effect changes in the legal order. If all existing law becomes subordinate to a new law creating authority, it does not follow that its continued validity derives from it: valid law simply remains valid unless or until altered by the law creating organ. Constitutional provisions expressly keeping in force the bulk of existing law (Laws Continuance in Force Orders) have primarily a declaratory, or perhaps clarificatory, effect." "It is plain to see that a principle of minimal recognition with respect to illegal constitutional change, or, the endeavour to limit legal effects of political changes to the narrow political sphere under the doctrine of implied mandate, would easily fit into this general conception. " "the difference between a legal system's apex norm, and the Constitution, stands out more clearly. We have to perceive the Constitution not as the foundation of a legal system, but as itself founded in it." "The significance of Pakistan's great constitutional cases lies in the fact that the Courts have constantly assumed the power `to say whether what had happened, was legal or illegal' i.e. to Judge the validity of constitutional enactments." "There are no convincing reasons, why Courts should be any less entitled than the executive to claim extraordinary powers under State Necessity in order to overcome legal chaos and effect an ordered transition to legality. Thus, necessity can be invoked as an independent basis of jurisdiction, if no other remedy is left; this has been held in the Cyprus case of A.G. v. Mustafa Ibrahim." "for an oath to administer law in accordance with such a Constitution could be legally imposed on a Judge only in so far as that constitution is `law' itself, i.e. legally valid. A

political oath could, therefore, not restrain a Court of law from exercising its inherent judicial power to inquire into the legal validity of a Constitution, even if its own jurisdiction is conferred by it." 146. He submitted that the survival and continuation of the Judiciary is relatable to the fact that in each constitutional interruption, there was no allegation of malfunctioning of the Judiciary, rather it was the failure of the political organ of the State which was made the cause of constitutional interruption. Thus, Judiciary stands acquitted in history, but this is not a free acquittal. It is burdened simultaneously with the responsibility to adjudicate and pronounce upon the nature and merits of the change and more importantly the quantum of its legislative capacity. He submitted that the Judiciary must adjudicate all the controversial/thorny issues and the reason is that if the Judiciary were to decline to adjudicate, it may open itself to the charge that although the coup makers did not interfere with the Judiciary, yet it renounced its powers and became dis functional, therefore, judicial abdication will be self-condemnatory and destructive. He submitted that the Judiciary survived in history and must continue to exercise its judicial powers and thereby control, in a significant way, the possible recklessness of the use of the legislative power that has come to vest in the new regime on account of the attending circumstances leading to the change in question. He submitted that since the respondents are claiming legislative power, it is the duty of this Court to place checks on it, inasmuch as,, in the absence of appropriate representative institutions, such power shall remain uncontrolled, unaccountable and, thus, may become arbitrary. 147. He submitted that another somewhat similar but a priori reason why Judiciary must tie or untie the Gordian knot is that in most societies and particularly. in Pakistan, it is the only forum recognized by both the rulers and the ruled where questions of validity and legitimacy are capable of being resolved finally, controlling the recklessness of the new regime and declining to resolve it would be self-condemnation, self-destructive and betrayal of the trust of the people of Pakistan. 148. He submitted that any form of oath taken by or administered to the post-coup d'etat Judges can neither restrict the judicial power nor derogate from the legal position that the Courts, as final arbiters in any constitutional controversy, retain their right and jurisdiction to say as to what a particular provision of the Constitution means or does not mean even if that particular provision is one seeking to oust the jurisdiction of the Court itself. He submitted that any attempt to control or circumscribe the judicial power of the Superior Courts with a view to denying them the right to decide the validity and the quantum of legislative power of the new regime, would be an exercise in futility and that let it be known that changing the form of oath will not take away the inherent jurisdiction of this Court to say what a particular provision of the Constitution means or does not mean. He emphasised that notwithstanding the new oath or its language the Courts shall continue to have jurisdiction to decide the question whether the new oath and the "new constitutional document" under which the oath is administered, have any effect on the jurisdiction and power of the Court. 149. Mr. S.M. Zafar further submitted that learning from the previous change overs, although the draftsman has, in the new prescription of oath, substituted "upholding the 1973 Constitution" with "upholding the PCO" with a view to barring and restricting the Court's jurisdiction yet there is nothing in the oath or inherent in the conditions prevalent today to derogate from the legal position that the validity of the provisions pertaining to the jurisdiction of the Court can be and shall be finally adjudicated upon by the Court. The changes in the language of the oath are merely declaratory and mere recognition of the fact that on October 12, 1999 some transformation did take place. Thus, if the Judges are continuing in office all the time, then any form of oath, any device, any language, any new or different situation will make no difference. It will be an exercise in futility and the final question would be whether the one who prescribed the oath, had the jurisdiction to prescribe it? 150. He submitted that the Judges of the Superior Courts follow the Code of Conduct for the Judges and inherently owe allegiance to the State of Pakistan, which requires this Court to decide the issue of validity of the new regime under which the Judges are being asked to take new oath, inasmuch as, such allegiance cannot be undone. However, oath

administered under the Constitution is something different. According to him, such oath has to be respected because it draws its authority from the people of Pakistan. 151. He drew a distinction between `revolution' and `coup d'etat'. He referred to the definition of the term `coup d'etat' given in Black's Law Dictionary, which is as under: "Coup d'etat.---Political move to overthrow existing Government by force. "Revolution.-A complete overthrow of the established Government in any country or State by those who were previously subject to it. The word in its broadest significance is generally used to designate a sweeping change as applied to political change, it denotes a change in a method or system of Government, or of the power which controls the Government. It is frequently accomplished by or accompanied by violent acts, but it need not be violent in its methods and it does not necessarily denote force or violence. He also referred to certain passages from the book titled "A HISTORY OF MILITARISM" CIVILIAN AND MILITARY by Alfred Vagts, to explain the meaning of the term `revolution'. He submitted that coup d'etat and revolution may be distinguished and differentiated as under: (i) "A coup d'etat is a sudden seizure of state power by a small segment of the people. Whereas a revolution is preceded by a long gestation/preparation and a sizeable portion of the people participates in the struggle. (ii) A revolution is aimed at and proclaimed to cause far reaching changes both in the social system and the national legal order. The coup d'etat is respectful and conservative towards the existing national order and seeks to remove certain deficiencies to improve its working. (iii) A revolution creates new structure out of the ashes of the old one; a coup d'etat subverts that .part of the Constitution which relates to the formation of the political organ with a view to reform it. (iv) A revolutionary asserts the right to stay, the coup d'etat leadership promises to return the trust to the political sovereign, the people, as soon as possible, and retains the functional framework of the State as well as the judicial branch. (v) In case of coup d'etat the legitimacy of the new regime is not completely autonomous/independent of pre-existing processes and institutions. The revolution is autonomous and disrespectful towards existing national order and attempts to transform the society altogether. (vi) Only one common thing which happens historically in the case of both is that an unsuccessful coup as well as unsuccessful revolution is treated as treason." 152. The learned amicus curiae referred to the cases of Ex-Major General Akbar Khan v. The Crown (PLD 1954 FC 87), F. B. Ali v. The State (PLD 1975 SC 506) and Shahida Zahir Abbasi v. President of Pakistan (PLD 1996 SC 632), to contend that in all these cases the Supreme Court merely examined the trial procedure to ensure due process. He stated that the greatest mistake in Dosso's case was that no distinction was made between revolution and coup d'etat and further that Kelsen's theory of revolutionary legality was misunderstood/misapplied. He also referred to para. 19 of the statement dated 2-5-2000 of Syed Sharifuddin Pirzada, learned Senior ASC, which reads thus " 19. The intervention is not of a permanent nature, but for a limited period and is of a temporary character to enable the country to return to a true democratic way of life as soon as possible."

Mr. S.M. Zafar, the learned amicus curiae concluded that what happened on 12th October, 1999 was a coup d'etat and not a revolution. 153. He submitted that the issue of recognition or otherwise cannot be resolved on the basis of recognition accorded by the International community but is to be determined under the Municipal Law. In support of his contention; reliance was placed on Asma Jillani's case (supra). 154. Reference was also made to the book titled "Recognition of Governments in International Law"-With Particular Reference to governments in Exile by Stefan Talmon wherein it was observed that recognition of governments denotes the act through which it becomes apparent that a State is willing to enter into certain relations with an authority as the Government of a State and/or that, in the opinion of the State, the authority qualifies as a Government in international law. 155. He submitted that the change on 12th October, 1999, does not claim to be based on the principle of revolutionary legality, hence the principle of Dosso's case is not relevant and Kelsen's theory is not applicable to the facts and circumstances of the present case. The logical conclusion is that the new regime, if it is not a revolutionary regime, cannot claim to be the law giving source and its legislative powers are to be spelt out by the Courts. 156. He submitted a brief account of the chequered political history of the nation by stating that the country had its legal birth and freedom with the adoption of Government of India Act, 1935 as the Interim Constitution along with the Indian Independence Act, 1947. After nine years, the 1956 Constitution was drafted and promulgated but it was a short lived document as it was abrogated on 7-10-1958. This was followed by the promulgation of the 1962 Constitution on 1-3-1962 which provided for Presidential form of Government. Seven years later, however, this Constitution was also abrogated and was followed by the Laws (Continuance in Force) Order, 1969 as well as the Legal Framework Order, 1970. Later, Interim Constitution of 1972 came into force which was succeeded by a permanent Constitution i.e. the Constitution of 1973 which came into force on 14-8-1973. This was a consensus document and, therefore, the Laws (Continuance in Force) Order, 1977 as well as Proclamation of Emergency and PCO 1 of 1999 merely held it in abeyance. He stated that every time there was a constitutional debacle, the Courts provided an appropriate solution through the application of doctrine of necessity or other formula in order to ensure continuity of the legal system. In doing so, the judgments of the Court may be divided into two categories, (i) cases in which necessity was pleaded within the framework of an existing Constitution, and (ii) cases in which necessity was pleaded by an intervenor who acted extra-constitutionally. In the first category, the relevant case is that of Muhammad Umar Khan v. The Crown (PLD 1953 Lah. 528) in which military necessity was recognized, while in the second category the Reference by His Excellency the Governor-General (PLD 1955 FC 435) may be referred where civil necessity was spelt out as part of every written Constitution of a civilised people. He also referred to the Reference. by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan (PLD 1957 SC [Pak] 219), which was rejected by the Court. He also referred to the case of Darwesh M.Arbey v. Federation of Pakistan (PLD 1980 Lahore 206) wherein the military necessity was rejected on the touchstone of 1973 Constitution. He referred to the case of Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504) in which both the civil and military necessity were not allowed to be pleaded in violation of the Constitution. 157. He submitted that notwithstanding the negative comments, received by the Reference by His Excellency the Governor-General (PLD 1955 FC 435), this Court, inter alia, decided that the doctrine of necessity can be validly used only in defence of and for preservation of the Constitution and that only if a Constitutional authority i.e. Governor-General in that case, did something for preservation of the Constitution could plead for its validation under the doctrine of necessity. Quoting the history of constitutional developments in 50s he clarified that on 21-3-1955 in the case of

Federation of Pakistan v. Moulvi Tamizuddin Khan (PLD 1955 FC 240) the Federal Court held that a law not assented to by the Governor-General was invalid. This ruling resulted in the invalidation of several Acts of the Legislature. So, the Governor-General on 27-3-1955 issued Emergency Powers Ordinance (IX of 1955) to retrospectively validate all those laws. But the Federal Court, in Usif Patel v. The Crown (PLD 1955 FC 387) decided on 12-4-1955, held the said Ordinance void on the ground tat the GovernorGeneral could not exercise legislative powers nor could he delegate such powers in the absence: of Constituent Assembly. Subsequently, the Governor-General on 15-4-1955 called a meeting of the Constituent Assembly on 10-5-1955. It was only after the meeting of the Constituent Assembly had been called that on 16-4-1955 the Governor-General issued the Emergency Powers Ordinance (IX of 1955) again and also sent a Reference to this effect to the Federal Court. Thereafter, the Federal Court, on the doctrine of necessity, permitted validation for a limited period i.e. till the time the Constituent Assembly examines such laws. He submitted that following conclusions can be drawn from the dicta in Reference by His Excellency the Governor-General (supra): (i) One man cannot act legitimately to amend the Constitution or the law in the absence of Legislature; (ii) The doctrine of necessity may be applied only to preserve the Constitution;

(iii) There should be a manifest assurance that the Legislative body will soon come into existence; (iv) That ultimate validation could be conferred by the Legislature and not the Court.

He also referred to the following observations made in the Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan (PLD 1957 SC 3 [Pak] 219 at 239): "And then there is the point, and it is an important point, that if the power to dissolve an interim Provincial Assembly vests in the Governor, a similar power must be conceded to the President in respect of the National Assembly functioning under Article 223. For, a dictatorially minded President, there could be nothing easier than to dissolve the present National Assembly and constitute a new ad hoc Assembly consisting of members of his own way of thinking who by a two-third majority could repeal the whole Constitution and frame a new Constitution to serve their own ends. A legislature returned after an ordinary general election often has a different outlook and legislative bias and a gerrymandered election can certainly produce a completely subservient body. We are not suggesting that any President will act in that manner, but there can be no doubt that on Mr.Manzur Qadir's interpretation of the Constitution such possibility would undoubtedly exist in law." '158. He further submitted that in the case of Darwesh M. Arbey v. Federation of Pakistan (PLD 1980 Lahore 206) the Lahore High Court rejected the plea of necessity, the same being contrary to the constitutional provisions. 159. He stated that the case of The Attorney General of the Republic v. Mustafa Ibrahim and others (1964 Cyprus law Reports 195) brought about a distinction between necessity in the case of constitutional breakdown and necessity in the case of overthrow of a constitutional Government. He clarified that in case of breakdown the purpose is to fill in the vacuum arising within the constitutional parameters whereas in the case of overthrow the purpose is to have the Constitution functioning within the national legal order. He added that in case of constitutional breakdown the use of doctrine of necessity within the framework of the Constitution is minimal and. temporary and the Courts in Pakistan have not permitted its use to undermine any provision of the Constitution. 160. Coming to the constitutional overthrow, he submitted that there is only one case of Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan (PLD 1977 SC 657), wherein the doctrine of necessity was pleaded and this Court accepted the same by holding that the extra-constitutional action was a deviation dictated by the highest consideration of the State necessity and the welfare of the people. Then the learned

Judges proceeded to determine the quantum of the legislative power of the Military regime and while delegating power, they included the power to amend the Constitution. Having done that, this Court further decided to have a supervisory jurisdiction over every action including legislative measures on the premises that the Court would test all of them on the basis of the doctrine of necessity, meaning thereby that the doctrine of necessity would not apply at the initial stage alone, but it will continue to apply as 'long as the necessity persists. Thus, this Court broadened the 1955 ruling in the Governor-General's Reference relating to the State necessity and extended it to an extra-constitutional measure and permitted amendment in the Constitution, which could be interpreted. as a licence to change the Constitution according to the whims of the new regime. 161. He submitted that the case of Nusrat Bhutto (supra) came up for discussion and was approved in the case of Mahmood Khan Achakzia v. Federation of Pakistan (PLD 1997 SC 426) by majority. The learned amicus curiae argued that Mahmood Khan Achakzai's case highlighted two aspects: (i) that the power of amendment was not extensive and it was deviated from by the then regime, and (ii) that the issue of time-frame was reviewable. He submitted that the above two flaws pinpointed in Mahmood Khan Achakzai's case need to be rectified by this Court. 162. He submitted that the doctrine of necessity applied in Governor-General's Reference (supra) insisted on a call to the electorate and that too in a very limited time-frame' i.e. one and a half month whereas in Nusrat Bhutto's case it was left to expectations, therefore, in case validation is granted in this case, a realistic time-schedule may be obtained from .the Government through the Attorney-General and determined and/or finalised by the Court itself. He emphasised that in the light of the past experience, particularly in the aftermath of Begum Nusrat Bhutto's case when the time frame was stretched to unusual limits, the issue should not be left to mere commitments. He added that in case a time-frame is not determined, injustice will be done to national legal order, therefore, in view of the law laid down in the cases of Fauji Foundation, Asma Jilani, Begum Nusrat Bhutto and Mehmood Khan Achakzai (supra), it is the duty of this Court to see that national legal order is disturbed the least. 163. Regarding causes of military intervention in a country, the learned amicus curiae referred to the following passages of the book titled `The Man on Horseback' The Role of the Military in Politics by S.E. Finer wherein it has been said: "The causes which produce military intervention in politics ....lie not in the nature of the group but in the structure of society. In particular, they lie in the absence or weakness of effective political institutions in the society."

THE PERFORMANCE FAILURES OF CIVILIAN GOVERNMENTS "Praetorians invariably charge the civilian Governments whom they have overthrown with serious performance failures. Unconstitutional and illegal behaviour (especially widespread political corruption), responsibility for economic downturns or inflationary spirals, and an inability to handle political opposition and discontent without their erupting into disorderly and violent actions-these are the three most frequent performance failures used to justify the overthrow of civilian Governments. These charges commonly correspond to the reality of the situation, thereby making it all the easier for the praetorians to rationalise and justify their actions on behalf of Constitution and nation." "With regard to the first type of performance failure, the praetorians charge the civilian incumbents with various unconstitutional and illegal acts. These include the arbitrary application of the laws, the extension of their powers into areas that are prohibited by the .Constitution, the retention of their offices beyond the constitutionally prescribed limits, and by far the most frequent accusation, the flouting of legality in permitting or engaging in widespread corruption. Higher and lower governmental officials are charged with the outright pilfering of public funds, the granting of benefits and exemptions to political supporters, the sale of favours, and the acceptance-of kickbacks from contractors. The illegally acquired funds are used not only to enrich those who already have official

positions but also to help ensure their continuation in office by financing party activities, patronage networks, and electoral campaigns. Since accusations of corruption are made far more often than other charges of unconstitutional and illegal behaviour, we shall concentrate on the connections between these and military intervention." "According to the praetorians themselves, their coups are inspired by the goal of political regeneration, eliminating venal practices and guaranteeing adherence to high standards of public honesty. Several; writers on the non-Western military have referred to its "puritanical" outlook and ascetic standards. "The military demands these qualities not only for itself, but for society as a whole, and it sets itself up as a standard-bearer of hard work and unflinching dedication" (Janowitz, 1964, p.64; Shils, p.24; Shils, p.24; Pauker, p.339). Luckham agrees with this generalization and suggests that the puritan ethic was of some importance in motivating the majors to carry out the first Nigerian coup (Luckham, pp.230, 282-83). Under civilian rule Nigeria certainly exhibited an inordinate amount of political corruption, whether gauged in terms of the diversity of corrupt practices, the number of politicians who engaged them, or the high offices that they occupied. The politicians regarded the illegal translation of authority into profit, power, and party advantage as acceptable perquisites of public office." "Although soldiers are occasionally motivated to overthrow civilian governments because their poor economic performance has adverse consequences for the middle class, there are two other connections between this kind of performance failure and intervention that have a more frequent and greater impact upon the decision to intervene. Economic performance failures can only solidify and intensify the military's disrespect for the incumbents, heightened further by the belief that as highly competent professional officers, they could turn in a far better performance as economic decision makers. And the notable impact of economic performance failures upon the loss of governmental legitimacy goes a long way in facilitating the ' translation of motives into coup attempts." 164. The learned amicus curiae submitted that in the case of Mian Nawaz Sharif (supra), corruption was not held to be a good ground for dissolution of the Assemblies and dismissal of the Government but, in Benazir Bhutto's case (supra), it was accepted as a good ground. He submitted that corruption is of different kinds and, in this country, it has pervaded the society from generation to generation. He then referred to the following passages from Machiavelli On Modern Leadership by Michael A. Ledeen, wherein the author under the heading "corruption" lays the blame on corrupt leaders and then ultimately on the people themselves: "CORRUPTION" "If the spirit of liberty is so strong, why do free nations and enterprises fall, and dictators arise from their ruin? Machiavelli lays the blame on corrupt leaders, and then the corruption of the people themselves. "To usurp supreme and absolute authority ....in a free state, and subject it to tyranny, the people must have already become corrupt by gradual steps from generation to generation." Once that has happened, the enterprise is probably doomed. Free societies depend upon the virtue of the people; there is a symbiotic relationship between the good laws and institutions upon which the enterprise rests, and the virtuous behavior of the citizens. Just as "good laws are necessary to maintain good customs, so good customs are necessary for good laws to be observed." "Weaken the one, and the other slides down into corruption, with terrible consequences: the indolence and selfishness that destroys even the greatest human achievements. Once the rot sets in even the finest institutions are useless. "Neither laws nor constitutional systems are sufficient to rein in a general corruption." The learned amicus curiae also referred to the following passages of his own book titled "THROUGH THE CRISIS": "MAN ON HORSEBACK" "The Military in a country only intervenes in political crisis according to the occasion and its disposition. Its dispostion is inhibited by many factors, the foremost factor being the

explicit and well accepted principle that the supremacy of the civil aspect of the government should be always observed. In fact many times that the Army had interfered in civil affairs, they had found that they were inadequately equipped for running a civil Government and this experience has been accepted over a long period as the reason for not taking over the civil Government by the Military." "Secondly, the professionalism of the Army is a vitally inhibiting factor." "Reverting to the disposition and the occasion for interference, the situation in the country as a whole at any particular time may determine the disposition. The lowering of international prestige of a nation or the fear that the country would face serious law and order problem have been the causes of moving the Army towards internal action: the power vacuum in the country, like the absence of political organizations have also been a cause of providing opportunity to interfere, particularly when the intervention is provided by the civilians." "Let me make it very clear that so long as there is a political vacuum in the country and institutions do not start functioning, in spite of the .natural inhibition of Armed Forces to interfere in the affairs of the country, the occasions for it to interfere in civil Government may arise again and again." 165. Mr. S. M. Zafar, learned amicus curiae submitted that in case validation is given to October 12, 1999 action, then except for the Proclamation all other subsequent instruments including the PCO should be made subject to judicial review. ' 166. Finally, he summed up his arguments as follows: (i)The doctrine of necessity was earlier allowed only for the purpose of preservation of the Constitution for a very limited time and only on being assured that there will be representative assembly. If it is to be extended, it should be on positive assurance, programme, formula for the earliest possible. (ii) The Proclamation of Emergency alone can be justified under the doctrine of necessity, but not the subsequent PCOs. (iii) The new oath of the Judges under the PCO does not curtail jurisdiction of this Court to determine the validity of the PCO. (iv) Whatever be the social causes for the military to come, the Armed Forces should go back to their professionalism and defend the borders of the country. The loopholes in Begum Nusrat Bhutto's case as have been pointed out in Mahmood Khan Achakzai's case should be plugged. SUBMISSIONS OF THE ADVOCATES GENERAL OF THE PROVINCES 167. The learned Advocate-General Punjab adopted the arguments addressed by the learned Attorney-General and further submitted that appropriate changes in the Constitution/laws should be brought about so as to avoid frequent recurrence of Military intervention and that the present ,Government should be facilitated to achieve its declared objectives. 168. The learned Advocates-General of N.-W.F.P., Sindh and Balochistan also adopted the arguments of the learned Attorney-General. SUBMISSIONS OF MR. KADIR BAKHSH BHUTTO, VICE-CHAIRMAN, PAKISTAN BAR COUNCIL 169. Mr. Kadir Bakhsh Bhutto, Vice-Chairman, Pakistan Bar Council submitted that this Court has got the power of judicial review and the new oath cannot debar it from exercising that power. He further submitted that this Court should give a direction to the Government to hold elections at the earliest.

SUBMISSIONS OF MR. ABDUL HALEEM PIRZADA, PRESIDENT, SUPREME. COURT BAR ASSOCIATION. 170. Mr. Abdul Haleem Pirzada, President, Supreme Court Bar Association submitted that this country is facing this dilemma for the fourth time. Judiciary-has always been put to test in these cases, the reason being that this is the only institution which has not been affected by all adventures. The Federation has been justifying the action from the facts that on that particular date, i.e. 12th of October, 1999 the Chief of Army Staff was coming back from Sri Lanka; his plane was directed to land either in India or get crashed. It was contended that the above assertion is incorrect. lie argued that the impugned action was resorted to only when the Chief of the Army Staff was removed but this is not a valid ground for the take-over. 171. He submitted that the nation has already suffered a lot on account of Military adventurism and it is for this Court to guard the country against it. He pleaded that the people have confidence in this Court and they hope that it will save them from this malady. He submitted that the charge of corruption against few people cannot deprive the people of Pakistan from their legitimate right to rule themselves through their elected representatives. He submitted that the people do make mistakes but, for-the mistake of few, the entire nation should not be punished. He submitted that though it may not be wholly possible to find 'out any formula against Army intervention in a situation like the present one but an endeavour must be made by taking a step with a view, to forestalling its recurrence. 172. He submitted that corruption is rampant but such situation hardly constitutes a valid ground for intervention. 173. He further, submitted that it is a sad commentary that previous Governments, both Civil and Military, had taken the apex Court as a parallel government and hoped that the present regime does not commit such a mistake. He submitted that democracy must be restored at the earliest and the Armed Forces-should be made to go to the Barracks within a year from now. He further argued that the case of Moulvi Tamizuddin was not decided by the Federal Court on correct premises. 174. Mr. Haleem Pirzada submitted that the Judges of this Court who have taken oath have a greater responsibility. Those who did not take the responsibility, have nothing to worry and the entire burden is on this Court to discharge its duties and perform its functions in accordance with the Constitution and the law. He argued that the Constitution is not a limb of the body but a soul which must survive. 175. Mr. Haleem Pirzada strenuously criticised the submission made on behalf of the Federation that if the Army thought that there were reasonable basis for concluding that the existence of the State and its sovereignty were at stake, the Court would not substitute their judgment for that of the Army. He argued 'that this Court, saddled with the power of judicial review, is the only and proper forum where such questions can be raised and adjudicated upon. He submitted that Mr. Sharifuddin Pirzada was clear on this aspect of the case and, was right in saying that this Court has the power of judicial review. 176. On the doctrine of State necessity, Mr. Haleem Pirzada argued that if it is not dead, it should be made to die and buried so deep that it should not come up again because the country has suffered a lot on that account. He submitted that State necessities are always there; but to justify Army take over under this doctrine will not be justifiable and this should be stopped for all times to come. 177. He submitted that there are two groups of Judges; (i) who have not taken oath and (ii) who have taken oath. Those who have not taken the oath, they are sitting in their homes. Now it is for the Judges of this Court to lay down and make the common man understand that it was in the larger. interest of the country that they took oath according to their conscience to save the country from further collapse and to save its political structure. He argued that 'Adl' is the corner stone in Islam and the hallmark of Islamic society is fiercely independent Judiciary.

178. Before concluding his arguments, he reiterated that the Court may consider to allow twelve months' time to the Armed Forces from now so that they can do the cleansing and go back to their Barracks. DR. FAROOQ HASAN, BAR-AT-LAW, LAHORE HIGH COURT BAR ASSOCIATION 179. Dr. Farooq Hassan, learned Senior ASC outlined his submissions by stating that the case of both the parties could be summarized as below:Petitioner had contended that (a) 12th October, 1999, Army takeover had destroyed the democratic system in the country, and (b) that the Proclamation of Emergency and the Provisional Constitutional Order of 14-10-1999 were ultra vires of the Constitution. On the other hand the' Respondent Federation had responded by asserting that (a) there was no genuine democracy in the country prior to 12-10-1999, (b) the Armed Forces had acted to save the people and the country from further damage of great proportions of immense damage as the major-institutions of the Republic had been systematically destroyed by the former Prime Minister by altering the Constitution, and (c) in the circumstances the Court may adopt the 1971 ratio of the Nusrat Bhutto's case and validate the said army action of 12-10-1999. 180. He has articulated four main formulations as under:1. There was increasing disillusionment with the feigned democracy that was established after 1985. Hence, there was genuine public acceptance of the change that emerged on 12-10-1999. Neither there was any public mourning nor protests at the ouster of the previous regime to manifest substantial opposition from the people of the country. 2. Clearly the Proclamation of Emergency was in violation of the Constitution of 1973. The question is, therefore, can it be conditionally validated as was done by this Court in 1977, or is it that such validation must be further subjected to the criteria laid down by this Court in later decision in 1997 and 1999 ? 3. Whether apart from the perspective of established precedents in this field by our Courts, there are well recognized realities and guidelines from similar situations which have undergone coups d'etat? 4. Given the current state of realities, what. is the "best" possible solution with which the Court can provide the country with much needed guidance for future in its judgment? 181. There have been 5 general elections in 12 years. In 1985 merely 54 % of the country's population participated in the general elections and by 1997 the figure had fallen to 35 % . This would mean that the people have lost faith in elections, they are not interested because as has been held in Nawaz Khokhar's case, the four Governments were accused of corruption and that without accountability of public office holders, there is no question of responsibility. 182. It was argued on behalf of the petitioners that for the fault of Nawaz Sharif, the Senate and the Assemblies should not be punished. The argument is totally misplaced because in parliamentary democracy the leader of the House, the Prime Minister, commands the majority of the National Assembly, therefore, if the Prime Minister is corrupt, it cannot be said that his colleagues are divorced from it. 183. In relation to the question, why do Martial Laws come, the following factors have a direct bearing on the issue: i) ii) Political instability; Economic factor;

iii) iv) v) vi)

Lack of education; Absence of means of redress; Lack of general confidence in the welfare of the country; Absence of sense of belonging.

184. He submitted that what we have in Pakistan, is not democracy, it is only oligarchy. There are 787 members in the elected chambers. If a list of their assets were to be published, they will probably control the whole of Pakistan. This is the perpetuation of oligarchy. If elections are held, the same gentlemen will walk in. Therefore, there should be first cleansing of these 787 plus 2000 sitting under their wings. 185. He disagreed with the distinction made by Mr. S.M. Zafar between `coup d'etat' and `revolution' and argued that 'coup d'etat' is a French term, which means, cutting of the State. It is a change over from one legal order to another. He referred to an Article titled, "Juridical critique of successful treason" published in the "Stanford Journal of International Law", . relevant passages whereof are given below:"Coup d'etat: Definition and Concept "Illegal leadership change may or may not be accompanied by, or be the result of, a use of force by the new leaders against the incumbents they replaced. When governmental change through the use of force takes place a "revolution" or "coup d'etat" is said to occur. However, for the purpose of this paper, coups d'etat are to be distinguished from revolutions. The distinction will be observed because the cases to be analyzed hereinafter involved a change of governmental authority without bloodshed. The phrase "coup d'etat" better describes such occurrences. 'Revolution ...involves the rapid, tearing down of existing political institutions and building them anew on different foundations." This definition clearly implies that existing institutions are rapidly and forcibly substituted one for another. Thus, upheaval in the social order of that particular state is quick and violent, much like a civil war. The bloodshed and violence envisaged in such a metamorphosis and transformation is broad and affects the entire state. "Our attention, on the other hand, is on the political change which is narrowly confined, and ususally very swift. One social scientist, Hannah Arendt, underscored this distinction when she said: "Coups d'etat and palace revolutions, where power changes from one man to another, from one clique to another, depending upon on the form of government in which the coup d'etat occurs have been less feared because of the change they bring about is circumcised to the sphere of Government itself and carries a minimum of unquiet to the people at large" "By defining coup d'etat in this manner, Arendt points out that the change is not to the society as a whole, but merely a change in the leadership of the Central Government. Implicit in this definition is the notion that violence and bloodshed are absent or miniscule when power is exchanged by the mechanism of a coup d'etat. Therefore, coups d'etat do not usually bring about the broad changes associated with revolutions, and the existing institutions of the Government and of that society in general normally are left untouched." He concluded that the two terms, `coup d'etat' and `revolution' are interchangeable. 186. As to the action of the respondents on 12th October, he argued that there is no ouster of jurisdiction and this Court has the power of judicial review to determine the validity/scope thereof. He submitted that there is not a single case in which the Court sent the regime back and that some of the Latin American systems even do not allow the Courts to adjudicate upon

such controversies. He concluded that the action of 12th October is covered by the pronouncement of 1977 plus other cases decided by this Court. ARGUMENTS OF MR. SHAHID ORAKZAI 187. Mr. Shahid Orakzai submitted that the action of removal of General Pervez Musharraf, Chief of the Army Staff and the Chairman, Joint Chiefs of Staff Committee, was whimsical and it was not within the contemplation of .the Constitution. inasmuch as; the order of removal was made by the former Prime Minister alone and not the Cabinet and that the President should have referred the case back for reconsideration by the Cabinet. He emphasised that before considering the reaction, the Court should also go into the causes and legality of the action of 12th October, 1999, namely the illegal removal of the Chief. of the Army Staff. He stated that a combined reading of Article 90 (both old and its amended form) and Article 46, does not empower the Prime Minister to substitute the Cabinet and, therefore, his decision of removal of the Chief of Army Staff was unconstitutional. lie also referred to those Articles of the Constitution which deal with the removal of the President, Prime Minister, Speaker, Deputy Speaker, National Assembly, Federal Ministers, Governors, Chief Ministers, Provincial Ministers, Judges of the Superior Courts, etc. He submitted that since the Constitution contains a provision for the appointment of the Chiefs of Armed Forces as stipulated under Article 243 of the Constitution, therefore, the power of removal may also be inferred through interpretation of the Constitution. He concluded that removal of the Chief of Army Staff was violative of the Constitution and the law. At the end of his arguments, Mr. Shahid Orakzai gave his formulations, which are as under:FORMULATIONS OF SHAHID ORAKZAI 1. A dispute between any two persons professedly acting under their Constitutional oaths cannot be resolved without a ruling first as to which one of them acted in accordance with or otherwise of the Constitution. 2. Anyone guilty of violating the Constitution/Oath is not entitled to any relief before being penalized for the same. In principle, relief is always due to the one who has suffered. 3. Though the derailment of the Constitution was caused by a conflict, apparently, within the Federal Executive, the National Assembly, being the mother House of the Federal Executive, is very much a party to the dispute. Therefore, the collective conduct of the National Assembly ought to be examined by this Court before granting any relief to any of its members. 4. Any interpretation of Article 63(1)(a) of the Constitution that gives total control to the leadership of a party, ruling the Federation, over a Provincial Executive of the same party, would contravene the federal structure of the Islamic Republic of Pakistan. In view of the above, any Provincial Assembly that failed to check the unconstitutional Federal interference/negative influence over the Provincial Executive, too, is not entitled to any relief. By the Constitution, any legislature to which a cabinet is collectively responsible is legally inseparable from a dispute involving the conduct/misconduct of the cabinet. A mother willfully ignoring the constant misbehavior of her child must ultimately face the music. 5. The Constitution of Pakistan is flexible enough to contain the prevalent crisis and, therefore, the Provisional Constitution Order, a bypass opted in rush by the Chairman Joint Chiefs of Staff Committee just after the mishap, is unnecessary. 6. The plan for the restoration of the Constitution, to be evolved in these proceedings should involve the suspension of minimum provisions of the document, preserve/maintain Constitutional contingencies, stand as close as possible to the Emergency Provisions spelt out- in Part X and adhere to the fundamental principles of the Constitution in the transitional period than attempting to restore the full document by a

single stroke of pen in the shortest possible time. A correct diagnosis and a gradual recovery, through a time consuming therapy that uproots a disease, is better than the fastest painkiller. CONSTITUTION PETITION NO. 3 OF 2000 188. Mr. Fazal Elahi Siddiqui, learned ASC, petitioner argued with vehemence that Army had no locus to dislodge Civil Rule thrice, including the present take-over. He sought to draw a distinction between the role of the Armed Forces of Pakistan and those of India, who have much in common. In this connection, he placed reliance on 2-Books titled 'The Indian Army' and `The Pakistan Army' written by Stephen P. Kohento contend that eversince partition of the sub-continent, the Indian Army has remained within its bounds and has not interfered with the affairs of the Government. According to him, this comparative situation is in itself sufficient for withholding validation of Army take-over on 12-10-1999. 189. He contended that the doctrine of necessity is not applicable to the facts and circumstances of this case and the new oath impinges on the independence of Judiciary. SPED ZAFAR ALI SHAH. ASC PETITIONER IN CONSTITUTIONAL PETITION N0.62 OF 1999 190. Syed Zafar Ali Shah, petitioner submitted in rebuttal that the Court is dealing with two philosophies, two different thoughts and two old litigants namely political democracy and Military authoritarianism. According to him, during arguments much has been said against the democracy, particularly against politicians as also the Parliament. Being a sitting Member of Parliament he had the privilege to move the motion against Article 58(2)(b) of the Constitution. It has been argued by the learned Attorney-General that 13th Amendment was passed in 13-minutes. This assertion is not correct. In fact it took more than 13 years to get rid of 8th Amendment which was passed in 1985. 191. He further submitted that same is the position with regard to 14th Amendment which was brought about with a view to putting an end to floor crossing/Lota'ism. Further, there is no substance in the allegation that the former Prime Minister stood to gain from it in that the power conferred by the amendment vests in the leader of the political party concerned. MR. IOBAL HAIDER, PETITIONER 192. Syed Iqbal Haider, petitioner in Constitution Petition No. 57 of 1999, submitted that the Proclamation of Emergency and PCO 1. of 1999 are not extra-constitutional steps, in that, they are in accordance with the Constitution in the light of Article 2-A thereof. Reliance is placed on Ziaur Rehman's case (PLD 1973 SC 49 at 71). He further submitted that this Court has inherent powers of judicial review under the Islamic Injunctions as laid down in the case of Mrs. Benazir Bhutto (PLD 1988 SC 416 at 522-UU). 193. On the question of applicability or otherwise of the doctrine of necessity he referred to the cases of Asma Jillani, Nusrat Bhutto and Liaqat Hussain (supra) wherein the parameters of this doctrine have been laid down. 194. He submitted that the parliamentarians who made contemptuous speeches in the National Assembly against the Judges of the Superior Courts violated the provisions of the Constitution specifically prohibiting discussion with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties and that they ignored the decisions of the Supreme Court in this regard despite the fact that certain members pointed out those decisions at the floor of the House. He referred to PLD 1989 SC 166 at 184, wherein this Court considered the debate of Parliament while interpreting the Constitution.

195. Mr. Iqbal Haider contended that new oath under Oath of Office (Judges) Order No. 1 of 2000 has not been taken by the Judges to accept the change of Government, rather it relates to the change of legal order. 196. He submitted that the deletion of Article 58(2)(b) is against the spirit of the Constitution, which should be revived so that checks and balances are provided in the Constitution for its successful working. In this behalf he placed reliance on PLD 1998 SC 1263 at 1310 H, 1356. 197. He submitted that the quota system is against the Injunctions of Islam and with the passing of the 16th Amendment, the members have become disqualified for violating the Injunctions of Islam under Article 63(1)(g). Reliance is placed on 1997 SCMR 1043 at 1057 and 1059: 198. He submitted that the allegation' that all the Elected Members had been reduced to rubber stamps by the former Prime Minister is against the Parliament and not against the Provincial Assemblies and in particular the Provincial Assembly of Sindh, which had been allowed to perform to its legislative functions in -the case reported as Jalal Mahmood Shah (supra). He therefore,, prayed that the Provincial Assembly of Sindh merits restoration. MR. IMTIAZ HUSSAIN BOKHARI 199: Mr. Imtiaz Hussain Bokhari, petitioner in 66 of 1999, submitted that the impugned action of 12th October, 1999 is the result of tussel between two individuals viz. General Pervez Musharraf and Mian Nawaz Sharif and does not relate to the whole of the Armed Forces of Pakistan, inasmuch as, the former was retired by the latter. 200. He submitted that all the four military leaders, Ayub Khan, Yahya Khan, Ziaul Haq and Pervaiz Musharraf used the same pretext for usurping power as is obvious from the terminology employed in their respective first addresses to the nation., 201. On the question of power of the Prime Minister to order retirement of the Chief of Army Staff, he relied on the instances of removal of Khalid Bin Walid and Muhammad Bin Qasim to contend that the order retiring Gen. Pervaiz Musharraf is not open to exception on the touchstone of the Constitution as well as the above historical instances. 202. He pleaded that Gen. Pervaiz Musharraf has committed high treason and is liable to be proceeded against in the light of provisions of Article 6 of the Constitution. INDEPENDENCE OF JUDICIARY AND POWER OF JUDICIAL REVIEW 203. Before we embark upon the task of dealing with the merits of the case in the light of the arguments advanced on behalf of the parties, it would be appropriate to dilate on the question of jurisdiction of this Court especially in view of the fact that the Judges of the Superior Courts have taken new oath of their offices under the Order No. 1 of 2000 promulgated by the Chief Executive under the PCO 1 of 1999. The basic question, which needs to be resolved is whether the restriction imposed by the PCO 1 of 1999 on the jurisdiction of this Court does in any way restrict the power of judicial review of this Court whereunder it has an inherent power to A interpret any provision of the Constitution or any other legislative instrument or law, even if that particular provision' is a provision which seeks to oust the jurisdiction of this Court. 204. M/s. Khalid Anwar and Ch. Muhammad Farooq, learned counsel for the petitioners in C. Ps. Nos. 63 and 62 of 1999 respectively addressed exhaustive arguments on the power of judicial review as well as on the question of maintainability of the petitions. Mr. Habib-ul-Wahab-ul-Khairi's arguments mainly related to the maintenance and upholding of independence of Judiciary. Syed Sharifuddin Pirzada, learned Senior ASC for the

Federation candidly conceded that the power of judicial review is intact notwithstanding the ouster clauses in the impugned instruments. Mr. S.M. Zafar, learned amicus curiae also contended that all the legislative instruments promulgated by the Chief Executive are subject to scrutiny by this Court for determination of the present controversy. Likewise, Mr. Haleem Pirzada, President, Supreme Court Bar Association advocated the independence of Judiciary and the power of judicial review. On this aspect of the case similar stance was presented by Dr. Farooq Hasan, representing the Lahore High Court Bar Association. However, Mr. Aziz A. Munshi, learned Attorney-General for Pakistan, expressed his reservations about the maintainability of the petitions and pleaded ouster of jurisdiction of this Court by means of the Proclamation of Emergency as also the PCO 1 of 1999. 205. We have examined the scope of the power of judicial review and the question of maintainability of the petitions in the light of the arguments addressed by the petitioners themselves, the learned counsel for the parties and the other learned counsel appearing in the case. Judiciary is the only forum recognized by both the rulers and the ruled where: (1) questions of validity and legitimacy are capable of being resolved finally with a view to controlling the recklessness of the Government in power and where (2) declining to resolve it would tantamount to self-condemnation, self destruction and betrayal of the trust of the people of Pakistan. It is the unanimous stand of the learned counsel for the parties and we also endorse it that no form of oath taken by or administered to the Judges of the Superior Courts can restrict the judicial power and derogate from the legal position that the Courts, as final arbiters in any constitutional controversy, retain their power and jurisdiction to say as to what a particular provision of the Constitution or the law means or does not mean even if that particular provision is one seeking to oust such jurisdiction of the Court. An analysis of the case law relating to ouster of jurisdiction of this Court shows that any attempt to control or circumscribe the judicial power of the superior Courts with a view to denying them the right to decide the validity and the quantum of legislative power of the new regime, would be an exercise in futility. We are of the considered view that changing the form of oath will neither take away power of judicial review nor the jurisdiction of this Court. Notwithstanding the new oath or its language, the Courts shall continue to have jurisdiction to decide the controversy involved as if the new oath and the "new constitutional documents" under which the oath is administered, do not adversely affect the jurisdiction and power of the Court. It is pertinent to note that the Superior Courts follow the Code of Conduct prescribed for the Judges and inherently owe allegiance to the State of Pakistan, which requires this Court to decide the issue of validity of the new regime under which the Judges are being asked to take new oath inasmuch as such allegiance cannot be taken away. Mr S.M. Zafar rightly pointed out that the oath administered under the Constitution has to be respected because that draws its authority from the people of Pakistan whereas the oath under the Constitution to defend the same has a different meaning than an oath administered under a document, validity whereof is yet to be determined and thus the two are incomparable. 206. The Objectives Resolution contained in the Preamble to the Constitution, which now. forms substantive part thereof by virtue of Article 2A as well as declaration of Quaid-e-Azam about democratic set-up and social justice, envisage independence of Judiciary. 207. First of all, reference may be made to Sura Al-Nisa, Verses 135136 English rendering whereof by Allama Abdullah Yousaf Ali reads thus:"O Ye who believe! Stand out firmly For justice, as witnesses To Allah, even as against Yourselves, or your parents, Or your kin, and whether

It be (against) rich or poor; For Allah can best protect both Follow not the lusts (Of your hearts), lest ye Swerve, and if ye Distort (justice) or decline To do justice, verily Allah is well-acquainted With all that ye do." The footnote to the above translation is as under: "Justice is God's attribute, and to stand firth for justice is to be a witness to God, even if it is detrimental. to our own interests (as we conceive them) or the interests of those who are near and dear to us. According to the Latin saying, "Let justice be done though heaven should fall." "But Islamic justice is something higher than the formal justice of Roman Law or any other human law. It is even more penetrative than the subtler justice in the speculations of the Greek philosophers. It searches out the innermost motives, because we are to act as in the presence of God to Whom all things, acts, and motives are known." 208. On the question of jurisdiction and power of this Court, we would like to observe that we have to decide the present controversy according to our conscience and the law. It would be pertinent to quote the following extracts from a letter sent by Hazrat Umar to Abu Musa AI-ash'ari, Governor Basra/Chief Qazi:"Administration of Justice is a decisive ordinance of God and (of the Prophet (p.b.u.h.) which must be followed." "Decide after careful consideration (and execute it), if a suit is filed before you; for the announcement of a rightful judgment without its execution is useless." "Use your brain about matters that perplex you and to which neither the Qur'an nor the Sunnah of the Holy Prophet (p.b.u.h.) seem to apply. Study similar and analogous cases and evaluate the situation through analogy and adopt the judgment which is most pleasant to God and most in conformity with justice so far as you can see." 209. The basic functions of the Judiciary are to promote the administration of justice, to protect Human Rights and to maintain Rule of D Law in the country. The 6th Conference of Chief Justices of Asia and the Pacific held at Beijing on 19th August, 1995 adopted the `Beijing Statement of Principles of the Independence of Judiciary in the LAWASIA Region' as follows: "1. The Judiciary is an institution of the highest value in every society.

2. The Universal Declaration of Human Rights (Art. 10) and the International Covenant on Civil and Political Rights (Art. 14(1) proclaim that every one should be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. An independent Judiciary is indispensable to the implementation of this right. 3. Independence of the Judiciary requires that;

(a) the Judiciary shall decide matters before it in accordance with its impartial assessment of the facts and its understanding of the law without improper influences, direct or indirect, from any source; and (b) the Judiciary has jurisdiction,, directly or by way of review, overall issues of a justiciable nature. "33. The Judiciary must have jurisdiction overall issues of a justiciable nature and exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law. 34. The jurisdiction of the highest Court in a society should not be limited or restricted without the consent of the members of the court." (The underlining is by way of emphasis) 210. The independence of Judiciary is a basic principle of the constitutional system of governance in Pakistan. The Constitution of Pakistan contains specific and categorical provisions for the independence of Judiciary. The Preamble and Article 2A state that "the independence of Judiciary shall be fully secured"; and with a view to achieve .this objective. Article 175 provides that "the Judiciary shall be separated progressively from the executive". The rulings of the Supreme Court in the cases of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105, Al-Jehad Trust (supra) and Malik Asad Ali v. Federation of Pakistan (PLD 1998 SC 161), indeed, clarified the constitutional provisions and thereby further strengthened the principle of the independence of Judiciary, by providing for the separation of Judiciary from the executive, clarifying the qualifications for appointment of Judges of the High Courts, prescribing the procedure and the time frame for appointment of Judges, appointment of Chief Justices and the transfer of a Judge from a High Court to the Federal Shariat Court. Furthermore, the Supreme Court judgments in the cases of Mehram Ali and Liaquat Hussain (supra) are also in line with the above rulings, in as much as, they elaborated and reiterated the principle of judicial independence and the separation of Judiciary from the executive. 211. In a system of constitutional governance, guaranteeing Fundamental Rights, and based on principle of trichotomy of powers, such as ours, the Judiciary plays a crucial role of interpreting and applying the law and adjudicating upon disputes arising among governments or between State and citizens or citizens' inter se. The Judiciary is entrusted with the responsibility for enforcement of Fundamental Rights. This calls for an independent and vigilant system of judicial administration so that all acts and actions leading to infringement of Fundamental Rights are nullified and the rule of law upheld in the society. 212. The Constitution makes it the exclusive power/responsibility of the Judiciary to ensure the sustenance of system of "separation of powers" based on checks and balances. This is a legal obligation assigned to the Judiciary. It is called upon to enforce the Constitution and safeguard the Fundamental Rights and freedom of individuals, To do so, the Judiciary has to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances; and also has to be strong and independent enough to dispense justice fairly and impartially. It is such an efficient and independent Judiciary which can foster an appropriate legal and judicial environment where there is peace and security in the society, safety of life, protection of property and guarantee of essential human rights and fundamental freedoms for all individuals and groups, irrespective of any distinction or discrimination on the basis of cast; creed, colour, culture, gender or place of origin, etc. It is indeed such a legal and judicial environment, which is conducive to economic growth and social development. 213. During the course of arguments on the question of judicial review, Syed Sharifuddin Pirzada. respectfully adopted the observations made by one of us (Irshad Hasan Khan, CJ) while delivering the inaugural address to the Conference of Board of Directors, Asian Ombudsmen Association held at Islamabad on 22nd February, 2000, which reads thus:

"The independence of Judiciary requires that the Judiciary shall decide matters before it in accordance with its impartial assessment of the facts and its understanding of the law without improper influences, direct or indirect, from any source. The Judiciary in Pakistan is independent. It claims and has always claimed that it has the right to interpret the Constitution and any legislative instrument and to say as to what a particular provision of the Constitution or a legislative instrument means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of the Supreme Court.". 214. At this juncture, it would be advantageous to refer to the following passages from the book titled "The Federalist Papers" by Alexander Hamilton-James Madison-John Jay: "The complete independence of the Courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of Courts of justice, whose duty must be to declare all acts contrary to the manifesto tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing." "This independence of the Judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arks of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have tendency, in the meantime, to occasion dangerous innovations in the government; and serious. oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies in questioning that fundamental principle of republican government which admits the right of the people to alter or abolish the established Constitution whenever they' find it inconsistent with their happiness; yet it is not to be inferred from this principle that the representatives of the people; whenever a momentary inclination happens to lay hold of a majority of their constituents incompatible with the provisions in the existing Constitution would, on that account, be justifiable in a violation of those provisions; or that the Courts would be under a greater obligation to connive at infractions in this shape than when they had' proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it prior to such an act. But it is easy to see that it would require an uncommon portion of fortitude in the Judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community." 215. As rightly pointed out by Syed Sharifuddin Pirzada, the power of judicial. review should be exercised with caution. In this regard reference may be made to the case of Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division (1994 SCMR 2142), paragraph 12 placitum-B whereof reads thus:"Judicial review, must, therefore, remain strictly judicial and in its exercise, Judges must take care not to intrude upon the domain of the other branches of Government. " 216. Judicial power means that the Superior Courts can strike down a law on the touchstone of the Constitution, as this Court did in Mehram Ali's and Sh. Liaquat Hussain's cases. The nature of judicial power and its relationship to jurisdiction are all allied concepts and the same cannot be taken away. The concept of judicial review was laid down in the United States by Chief Justice John Marshal in the case William Marbury v. James Medison (2 Law Ed. 60), ruling that it was inherent in the nature of judicial power that the Constitution is regarded as the supreme law and any law or act contrary to it or infringing its provisions is to be struck down by the Court in that the duty and function of the Court is to enforce the Constitution. The concept of judicial review did not exist in England because the supreme law in England was that the

Queen-in-Parliament can do anything and that once an Act of Parliament has been passed, the Courts were to follow it. The Founding Fathers of the United States Constitution, however, deviated from it and in doing so followed the view expounded by Montesquieu in his treatise "Spirit of Law", which enumerates the concept of Separation of Powers: the judicial, the legislative and the executive powers. Montesquieu based his opinion on the practice but not the law of England, in that, in practice there was Separation of Powers in England but not in theory. Unlike the Constitution of Pakistan, the Constitution of United States does not confer any power on the Supreme Court to strike down laws but the Supreme Court , of United States ruled so in the case of William Marbury v. James Medison (supra). 217. We have examined the contention of the learned Attorney-General that after having taken oaths of their offices under the PCO as amended, the Judges of the Superior Courts are bound to defend the Proclamation of Emergency and the PCO as amended, in that, the old Constitution has been replaced by a new revolutionary order on the basis of the verdict earlier given by this Court in the case of Begum Nusrat Bhutto (supra). We are afraid the contention is totally misconceived in that it was clearly stated in the above judgment that on no principle of necessity could powers of the judicial review vested in the Superior Courts under 1973 Constitution be taken away. It was further observed that the old order has not been replaced k by a new order but it was merely a case of constitutional deviation for a temporary period to enable the Chief Martial Law Administrator to restore democratic institutions and hold elections at the earliest. 218, Reference may also be made to the book titled "Principles of Revolutionary Legality" by J.M. Eekelaar wherein the author observed that the Court must take into account before determining the legitimacy of a revolutionary regime, the two oblique arguments, which would attempt to undermine it: one relating to collapse of its jurisdiction with the disappearance of the old Constitution; and the other relating to subservience of the Judiciary to the new regime. It would be advantageous to quote the relevant passages from the aforesaid book, which read thus: Authority of the Court "In concluding the defence of the proposition that principles of the kind enumerated above may properly be taken into account by a Court in order to determine whether or not to uphold the legitimacy of a revolutionary regime, it is necessary to consider two oblique arguments which would attempt to undermine it. One is to take theoretical objection to the jurisdiction of a Court which indulges in the exercise. The claim is that, as the Court acquired its authority to determine disputes by virtue of jurisdiction conferred on it by the old Constitution, the disappearance of that Constitution implies the collapse of the Court's own authority. The other argument is the severely practical one that, whatever the legal theorist or the Judges may say, any court making a finding adverse to a revolutionary regime is certain to be disbanded so that in reality a judiciary will be allowed to function only if it is subservient to the new regime. "The second questionable premises is that by suffering the Court to continue to function, the new executive thereby assimilates the court into its own revolutionary order and that this compels the de jure recognition of the Government. But against this it might be urged that the very submission by the revolutionaries to litigation before the Court concerning their own legitimacy suggests that the Court may have an inherent authority arising from the submission of both parties, rulers and ruled, to its jurisdiction. "The dismissal of Judges is an extreme step which might have dangerous domestic and international consequences for a revolutionary executive. Nor should it be too readily assumed that a regime which takes this step will easily find a replacement judiciary without leaving itself open to ridiculeHad the Rhodesian Court, for example, held, that the revolutionary regime could be considered lawful only if confirmed in office by the electorate which had elected them under the old Constitution and if some satisfactory evidence was produced that the new Constitution was broadly acceptable to the majority of the population (in accordance with principles 7 and 8 listed above) is it inconceivable that the regime might have preferred to attempt to comply with that finding rather than to dismiss the Judges? The opportunities open to the judiciary to

influence the course of events should not be dismissed out of hand. It may be that this is unaccustomed territory for the judiciary to enter. But this is true for many areas of law in modern times, especially with respect to the interaction between the executive and the citizen. It is hard to believe that our legal and cultural tradition is too weak to develop sound and acceptable principles in this new context: But in order that they may take root, it is necessary to rid ourselves of the conceptual block which would forever bar the entry of juristic thought into this domain. " 219. While going through the case-law of Great Britain, we came across the view expounded by Chief Justice Coke, whose writings are regarded as an important source of Common Law, to the effect that the Bench should be independent of the Crown and arbiter of the Constitution to decide all disputed questions whereas Bacon took the view that the Court is under the King but then following the Plato's theory he (Bacon) wanted the King to be a philosopher. The evolution of judicial power is coterminus with the evolution of civilization and this is so because judicial power has to check the arbitrary exercise of powers by any organ or authority. On examination of the PCO, we find that it purports to suspend the Constitution on the one hand and, on the other, it says that .the country will be governed in accordance with the provisions of the Constitution as nearly as possible. What emerges from this is that the Fundamental Rights are left intact except those which had been suspended by the earlier Proclamation of Emergency dated 28-5-1999 i.e. Articles 15 to 19 and 24 of the Constitution. The Objectives Resolution recognises the `Islamic doctrine of sovereignty' as expounded in the Holy Book, that sovereignty belongs neither to the ruler nor the ruled but Almighty Allah alone which is to be exercised by the people of Pakistan through their chosen representatives. The Objectives Resolution also envisages that the independence of Judiciary is to be fully secured. It is a fundamental principle of jurisprudence that Courts must always endeavour to expand their jurisdiction so that the rights of the people are guarded against arbitrary violations by the executive. It was rightly contended by Mr. Khalid Anwar that the orders of the Chief Executive are subject to the jurisdiction of the Constitutional Courts of the land. By including paragraphs 2(b) and 7 in the PCO, it has been recognized that the Superior Courts, which are respected by the people being an embodiment of the ideals of justice and guardian of the rights of the people are not merely entitled to continue but have, in fact, done so in the past as well. The Oath of Office (Judges) Order, 2000 (Order 1 of 2000), dated 25th January, 2000 allows all the Courts to continue to function and exercise powers, which is a reiteration of what was earlier stated by the Oath of Office (Judges) Order, 1999 (Order 10 of 1999), paragraph 3 whereof states that Order I of 2000 shall apply to: (1) newly appointed Judges; (2) that Oath shall be made before the Constitutional authority; and (3) that it would be in accordance with the appropriate form set out in the third schedule to the Constitution. This required the newly appointed Judges to take oath before the constitutionally designated authority and as per the procedure prescribed by the Constitution and not by the Order 1 of 2000. Mr. Khairi was right in contending that any provision purporting to restrain the power of judicial review of the Superior Courts is to be ignored altogether. Mr. Khalid Anwar was also right in contending that a Judge acting in his conscience and in good faith may decide to resign or he may decide that in the higher public interest he would retain office as has been done by the Judges of this Court and other Judges of the Superior Judiciary. We may refer to the book titled I "Constitutional Legitimacy" `A Study of the Doctrine of Necessity' authored by Leslie Wolf-Phillips, wherein the following passage occurs: "A former member of the Argentine Supreme Court has justified the role of the Court as `the beneficial expression of a laudable political realism'. He saw choices before the Court in a revolutionary situation as irresponsible resignation, acceptance of the situation; an attempt to save what 'institutional values' remained to be saved: It has exercised a function of institutional salvation by guarding human rights and the independence of the judiciary. It has been as if they said to the military men... we recognise the practical power that you exercise, because otherwise there would be chaos instead of order and authority in the country..." Reference may be made to a famous statement of Thomas Jefferson who while asserting that the Courts always possessed judicial power since that alone assured the retention and exercise of the fundamental rights of the citizens:

"In the arguments in favour of a declaration of rights, you omit one which has great weight with me, the legal check which it puts in the hands of the judiciary. This is a body, which if rendered independent, and kept to its department, merits great confidence for their learning and integrity (cited by Professor John Agresto in his book "The Supreme Court and Constitutional Democracy, p 19). The same author, Professor Agresto further says: "On one side there is the venerable argument that looks on the Court as the Founders' protective barrier against unconstitutional acts, our security against political usurpation. The Justices in this account, stand as defensores fidei, as the watchmen in the constitutional edifice. ( id. p 21 ) Still further the same author says: "On that level Judges become officials of goodwill who can read well. At this extreme it is their judicial dispassion that makes us rest easy in their guardianship.John, Marshall began more convincingly: it was. in fact the very passion for the judicial branch, its passion for rule of law, that made the Court the proper Guardian of the Constitution. ( id. p. 21 ) 220. It seems quite clear that the Army takeover of 12th October, 1999 was extra-constitutional. The Superior Courts of Pakistan have laid down that they retain the power of judicial review despite the ouster of jurisdiction which came either from within the Constitution, or by virtue of Martial Law Orders or by legislation. Even non obstante clauses in these cases had failed I O to prevent such objectives of the incumbent administrations. Thus visualised, the purported ouster in the Proclamation and the PCO 1 of 1999 of the jurisdiction of the Superior Courts is an exercise in futility and the power of judicial review remains intact. Both under Islamic doctrines as well as under its constitutional/juridical personality, the Superior Courts would continue to exercise this power. INTERVENTION BY THE ARMED FORCES 221: Let us now examine the circumstances which paved the way for the impugned action of the Armed Forces, the issuance of the Proclamation of Emergency and promulgation of PCO 1 of 1999 in the country. It is alleged that on 12th October, 1999, the former Prime Minister Mian Nawaz Sharif retired General Pervez Musharraf, Chief of Army Staff/Chairman, Joint Chiefs of Staff Committee from his office, when the latter was out of Pakistan on official visit to Colombo, Sri Lanka and appointed Lt. General Ziauddin, the then Director-General, ISI, as the Chief of Army Staff. Announcement to this effect was relayed on the electronic media. It is further alleged that since an illegal order had been passed by the Prime Minister whereby an' attempt was made to create dissension among the Armed Forces and integrity and sovereignty of the country was threatened, the Armed Forces proceeded to take over the affairs of the country as a last resort in order to avoid further disintegration. . It is also alleged that a criminal conspiracy was hatched by the former Prime Minister and his associates and co-conspirators both at Islamabad and at Karachi to commit serious offences of hijacking of Flight PK-805 carrying on board the Chief of the Army Staff, General Pervaiz Musharraf and 197 persons. 222. In support of its case the Federation has relied upon, in particular, the following portions of the speech of 13th October, 1999, delivered by the Chief Executive: "You are all aware of the kind of turmoil and uncertainty that our country has gone through in recent times. Not only have all the institutions been played around with, and systematically destroyed, the economy too is in a state of collapse. We are also aware of the self-serving policies being followed, which have rocked the very foundation of the Federation of Pakistan."

"Our concerns again were conveyed in no uncertain terms but the Government of Mr Nawaz Sharif chose to ignore all these and tried to politicize the army, destabilize it and tried to create dissension within its tanks." "I was in Sri Lanka on an official visit. On my way back the PIA commercial flight was not allowed to land at Karachi but was ordered to be diverted to any where outside Pakistan. despite acute shortage of fuel, imperilling the life of all the passengers. Thanks to Allah, this evil design was thwarted through speedy army action " The learned Attorney-General has placed on record an article by Kamran Khan of News Intelligence Unit, published in the daily "The News" dated 14-10-1999, titled "Ambitious Ziauddin Butt steered Nawaz to political disaster" , relevant portion of which reads as under: "Within half an hour of his surreptitious climb to the post of the Chief of Army Staff on Tuesday afternoon, the former Inter Services Intelligence Chief, General Khawaja Ziauddin knew that the Army he was supposed to lead was not prepared to accept his command." "The News Intelligence Unit (NIU), has gathered, that all of Ziauddin's phone calls to the Corps Commanders and the Chief of General Staff that placed from the Prime Minister's House in Islamabad on Tuesday-drew a blank, a reaction that almost instantly drew down the curtains on former Prime Minister Nawaz Sharif's second term in office." "Debriefing sessions with detained aides of the Nawaz administration by security officials here have disclosed that the former ISI Chief -led operation to stage an in-house coup in the Army was driven by his personal ambitions ignoring the actual situation on the ground." "Even a layman in Pakistan is aware that any operation of this sort can never be completed without the active support of the troops and commanders posted in the cities of Islamabad and Rawalpindi," an army official commented." "It has now become clear that Lt. General. Ziauddin was the architect of the secret operation that envisioned the official announcement of his promotion to the post of COAS once General Pervez Musharraf boarded PIA Flight PK 805 in Colombo for a journey that severed his contact with the GHQ for a good 200 minutes." "It was also Lt. Gen. Ziauddain who, alongwith the former Principal Secretary Saeed Mehdi, had suggested to Nawaz Sharif that General Pervez Musharraf's plane must not be allowed to land at Karachi so that he could be arrested at any other less busy airports in Sindh." Clearly, in view of the reasons given in the Short Order coupled with the circumstances and observations stated in this judgment, intervention by the Armed Forces warrants validation on the basis of the doctrine of `State necessity' and the principle of salus populi supremo lex. CORRUPTION 223. It has been alleged that the former Prime Minister and his chosen few in the Parliament plundered the national wealth and amassed personal wealth by engineering bank defaults of Rs. 356 billion and thereby indulged in acts of corruption and corrupt practices, which destroyed the national economy. On account of such massive corruption and corrupt practices in the administration of the affairs of the Government and its various bodies, authorities and corporations, the orderly functioning of the Government in accordance with the provisions of the Constitution and the law had lost its meaning. It is alleged that public faith in the integrity and honesty of the government had disappeared, in that, the members of the Government were either directly or indirectly involved in such corruption and corrupt practices. It is alleged that Mian Nawaz Sharif's

constitutional and moral authority stood completely eroded and that the situation was somewhat similar to the situation that was prevalent in July, 1977. 224. Regarding petitioners' plea that the politicians/parliamentarians have been condemned as a class for indulging in corruption and corrupt practices, it has been averred in the written statement that the charges are neither vague nor general nor undefined. It is pleaded that the systematic manner in which the entire governmental process was undermined and subverted and the way self-serving policies were followed by the previous government, do provide sufficient proof of the above allegations. It is further pleaded that since the government was being run contrary to the provisions of the Constitution and since there were massive and widespread violations of the Constitution and the law, the Armed Forces were compelled to move in as a last resort to prevent any further destabilization, to cleanse the system and ultimately restore true democracy. On behalf of the Federation, voluminous record spreading over dozens of paper books has been filed in support of the allegations of corruption and corrupt practices by the former Prime Minister as well as other members of his government. We would suffice by giving few instances in that behalf. Reference may first be made to a press clipping published in Daily 'Dawn' dated 24th October, 1999 under the Heading "Rs 211 billion non performing, Rs 145 billion defaulted. Defaulters owe total of Rs. 356 billion", says Yaqub:"Speaking in a television programme he said that non-performing loans amounted to Rs. 211 billion and defaulted loans stood at Rs.145 billion." "Dr Yaqub added that a major chunk of Rs 100 billion of the defaulted loans was owed by 322 families or groups. he said in all 100 groups or families owed Rs 64 billion. A sum of Rs. 30 billion was due from only 25 groups or families. "The SBP Chief clarified that a loan was categorized as non performing when repayment of its instalments got stopped due to one reason or the other, If instalments are not paid for one year, the loan becomes defaulted." "The SBP Governor said the new government was determined to pursue loan defaulters and unlike past the defaulters should take the deadline seriously." "He said cases of all loan defaulters, including bankers, businessmen, politicians, agriculturists would be pursued without any discrimination." "Dr. Yaqub said 322 families and conglomerates owed Rs.100 billion of the national wealth out of which only 25 families owed Rs. 30 billion." "The defaulters owe Rs 145 billion to the financial institutions while Rs.211 billion are payable in the category of non-performing loans. " Reference may also be made to Daily Dawn, dated 15th November, 1999, publishing a news item under the Heading "Two more cases against Sharifs sent to NAB, relevant portion whereof reads thus: "Two more cases have been sent against the deposed prime minister, Nawaz Sharif, and his brother and former Punjab Chief Minister Shehbaz Sharif to the National Accountability Bureau (NAB) for investigations." "One case is that they exported huge quantities of sugar to India and received heavy amounts in rebates." "The other case is based on a complaint filed by PPP Chairperson Benazir Bhutto alleging that the Sharifs owned Cayman Island, an offshore company, through Al-Towfeek Company." 225. Reference may be made to a summary of Legal References filed against Muhammad Nawaz Sharif and others for corruption and abuse of office by the Pakistan People's Party

before the Chief Ehtesab Commissioner, Islamabad, on November 30, 1998, containing the following contents:1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. "Hotel Holiday Inn Scandal Loan Scandal Helicopter Scandal Wheat Scandal BMW Cars Scandal Murree Land Scandal BOI State Land Scandal Redco Loans Scandal Illegal Appointments Tax Evasion Reference Muhammad Sharif's Promotion Reference Kohinoor Energy Scandal Raiwind Mahal Scandal Black Money Scandal Luxury Cars Scandal Dollars Scandal

17. Illegal Appointments in PIA" 226. Certain documents relating to the land owned by Sharif Family measuring 20,856 Kanals, 1 Marla and 224 Sq. feet in the Districts of Lahore, Sheikhupura and Rawalpindi valuing Rs. 34,16,38,851/- were also referred, a chart whereof is reproduced below: GRAND TOTALS OF LAND/PROPERTIES IN THE NAME OF NAWAZ SHARIF AND HIS RELATIVES S.No NAME OF LAND COST (IN OWNER K. M. SFT. RUPEES) 1 Total Property 5684 12 75 16,08,75,338 in the Name of Nawaz sharif Father, Mother, Wife and Brothers. 2 Total Property 12705 13 13 8,58,73,078 in the Name of Uncles Cousins and In-laws. Total: 18390 6 88 24,67,48,416 3 Total Land in 2465 15 136 9,48,90,435 the Name of Industries. GRAND 20856 1 224 34,16,38,851 TOTAL:

A Reference had also been filed under Ehtesab Act, 1997 against former Prime Minister Muhammad Nawaz Sharif, Chief Minister Punjab Mr. Shehbaz Sharif and others for misusing the official resources and causing loss to the National Exchequer to the tune of Rs. 620 million, on 17-6-1998 which is still pending. Detail of which is as follows:"1.After assuming the power as Prime Minister, the private residence at Raiwind of Muhammad Nawaz Sharif was declared as Prime Minister's Camp Office and its entire maintenance was executed by the Federal Government Department, PWD. PWD not only maintained the P.M. Camp Office but also the residential portions of other Sharif family members. So, a huge amount of Rs.80 million was approved by the concerned quarters and was spent on the residence of Sharif Family. 2. A sum of Rs. 70 million was spent by the Sui Northern Gas Pipelines for providing the Gas facility to the Raiwind Farm owned by the Sharif Family. 3. Rs. 320 million was spent by the District Council Lahore to build a new carpeted 20-feet wide road on both sides of the canal from Adda plot to the Sharif Farm and connecting the Sharif Farm with the Main Raiwind Road. 4. Rs. 80 million cost for lining up the part of Bucher Khana canal which passes through the Sharif Farm. 5. WAPDA also spent an amount of Rs. 50 million for laying special line for the Sharif Farm house on the direction of the former Prime Minister. 6. P.M. Nawaz Sharif also directed the Tele Communication Corporation to set up a 200-Lines Telephone Exchange near the farm for the exclusive use of the Sharif family, thus, a sum of Rs. 20 million was spent for the purpose." ILLEGAL EXTRACTION OF HEAVY AMOUNT BY MIANNAWAZ SHARIF, SHEHBAZ SHARIF AND HIS FAMILY MEMBERS FOR THE FOLLOWING UNITS OWNED BY THEM.

Sr. NO.

NAME OF UNIT

1. 2. 3. 4. 5. 6. 7. 8.

Ittefaq Foundries Ltd. Ramzan Sugar Mills Ltd. Haseeb Waqas Sugar Mill Ltd. Mehran Ramzan Textile Mill Ramzan Bukhsh Textile Mill Brothers Sugar Mills Ltd. Ch. Sugar Mills Ltd. Ittefaq Sugar Mills Ltd. Ittefaq Brother Ltd. Sandalbar Textile Mills Ltd. Khalid Siraj Textile Mills Ltd Hudabiya Engineering Co Ltd. Brothers Textile Mills

OUTSTANDING LIABILITY (In Millions) 1,556 623 543 455 373 351 339 313 226 205 191 182 174

9. 10. 11. 12. 13.

14. 15. 16. 17. 18. 19.

Ltd. Ittefaq Textile Mills Ltd. Brothers Steel Ltd. Hamza Board Mulls Ltd. Hudbiya Paper Mills Ltd Ilyas Enterprised Ltd Ittefaq Hospital Trust Total:

164 159 153 134 3 2 6,146

TRANSCRIPT OF BBC TELEVISION'S DOCUMENTARY ON CORRUPTION IN PAKISTAN "Najam Sethi's interview.---I will just give you a short story. (As advisor on accountability in interim government of Meraj Khalid) I asked the Chairman of the Central Board of Revenue to give me a brief about who is corrupt and who is not in terms of who has paid income tax and who has not. He brought a truck load of files. I was struck. He said where you want to start because everybody is corrupt from the top to the bottom. Background commentary.---They say there is corruption everywhere in Pakistan. People may trust the traders in the Sunday market but when they deal with government officials people expect of Pakistan (Irshad Hasan Khan, C J) to be ripped of. And politicians talk politics, they say and you are talking cheating big time. Interview of Sajjad Ali Shah.---Corruption is now not considered as a bad thing and it has become a norm of life. People have started expecting it. Now it has become part of the system, as if it is accepted and nobody considers it a bad thing so I think it is eroding the fabric of the society. Background commentary.---In every original affidavit submitted to the Court, the intelligence officer who allegedly acted as go between, listed Nawaz Sharif as having received Rs. 3.5 million. Nawaz Sharif shown addressing a public rally. Background commentary.---What Mr. Nawaz Sharif is selling is a vision. Vision of an impoverished country to transform into a world power. His monument is likely to be the 170-mile motorway from Lahore to Islamabad along cherished ambition, which almost cost a billion dollars. His critics though say that the country cannot simply afford such grandeur projects. The motorway is not so much used by traffic, is haunted. Mr Najam Sethi interviewed on Nawaz Sharif's grandeur projects. Najam Sethi.---Nawaz Sharif has always fancied himself as a Mughal Emperor. And the Mughal Emperors were great builders. They are remembered for having built great monuments. And story goes that the Finance Minister once said to the Prime Minister that we can't build this motorway because we will run into awful fiscal deficit problem as we don't have that much money. And the (Nawaz Sharif) said to him "forget the fiscal deficit. Sher Shah Suri, who built the Great Grand Trunk Road, is remembered not for the fiscal deficit that he ran into but for the great motorway that he built". This is Nawaz Sharif's case --- elemental Mughal splendour. The programme shows Rehman Malik as telling reporters in Islamabad during his tenure as additional DG FIA, that the focus of the investigations were accounts of Salman Zia and Qazi family. Background commentary.---What Malik investigated and put before the Court were allegations that the family having moved money out of Pakistan during good times were

now bringing it back. His case began with the bank account of Mr. Salman Zia, a name that became central to his investigations down town in Lahore where Mr Zia's accounts was opened in Habib Bank A.G. Zprich, in 1992. Malik's inquiries showed mysterious deposits of hundreds of thousands dollars paid into this account in traveller's cheques. Rehman Malik.---During investigations we found that heavy transactions from abroad have come to Salman Zia's account. When further details were examined, we found that travellers cheques amounting to 700,000 dollars came in. That made us suspicious that it is money-laundering. Background Commentary.---Bank records obtained by Mr Malik show that during short period, Salman Zia had traveller's cheques worth 1.5 million dollars paid into his account. It seemed that mysterious millionaire Mr Zia was getting richer by the day. Malik also discovered that hundreds of thousands of dollars have been paid into his accounts from American and Swiss Banks. General Babar.---The bank account application was astounding. It just said Salman Zia son of Muhammad Zia, agriculturist, Main Bazar, Sahiwal, which is a minimum of address and to cap it all it is a "no correspondence" and the fact that millions of dollars have been transacted through this account. Rehman Malik.---Salman Zia? He is a fake man. He does not exist. The focus of the investigation is that Salman Zia doesn't exist. He is shown as an agriculturist. He is a poor man, having transactions of millions of dollars. Background commentary.---From Salman Zia's accounts, Malik then told the Court that the trail led to London. Malik claims that millions of dollars issued from Zia and other fake accounts were being paid into the accounts opened back in Pakistan in the names of a London family --- the family known as Qazis. Unlike the mysterious Salman Zia, Malik believed that Qazis really existed. They had passports. But the passports were British. Malik says that he found that not only the family had been in Pakistan when the accounts were opened there in their names. Background Commentary.---So, where were the mysterious Qazi family, Malik discovered they live in the east side of London. May be the Qazis were city brokers. After all their accounts said there were millions of pounds in them. But the fact is that the trial of the Qazis led past the city, well past it. It led to Ilford in Essex, The town not associated with huge bank deposits. The trail led on to the Pioneer Market in Ilford area to a fashion boutique shop there. It is called "Utter Nutter". It is a modest business run by Kashif Qazi (youngest son of Masood Qazi). Mr Qazi sells jeans, designer clothes, and fashion accessories. The Qazis home is off the Ilford Lane. To the family's amusement, letters started dropping through their letter box from banks in Pakistan. The good news for the Qazi family was that accounts opened in their. names had millions of dollars in them. The bad news, that it were being used as guaranteeing loans to Pakistani companies --- companies connected to the family of the Prime Minister of Pakistan. One day Kashif Qazi opened a letter that said he had over 2.0 million dollars but it had been used for loan to Hudabiya engineering, the Sharif family company which had not paid any of its dues. Kashif Qazi was now being asked to "please arrange the payment". His brother Talat found, he also had 2.0 million dollars. This money was too used to help guarantee loans but the interest on the loans was not being paid so the bank threatened to sell his US dollar deposit in the event of any breach of financial agreement. Another worrying letter said that in spite of the bank's repeated reminders and constant follow up, they did not receive any payment from the Sharif Company, to which the money had been lent to. Background commentary. ---The Qazis deny any involvement up of Lahore accounts. It was a puzzle why their names should appear in the name trail. So, was there any connection between them and the Sharifs? Speculation -in Pakistan has centred around a mutual friend. He is a man, who in the 70s, was a paying guest of the Qazis when he was studying in London --- Mr.Ishaq Dar. Today Mr. Dar is Nawaz Sharif's Finance Minister. He categorically denies any involvement. Mr Dar was unavailable for interview but he did write to us. He said the Qazis are the friend for himself and the Sharifs. But he

blamed press speculations on Rehman Malik for floating all sorts of stories. The Qazis were furious, when on a visit to Pakistan in last October, they were photographed a; the airport and local newspapers seized the chance to stir the controversy. The Qazis were treated not just like friends, it was suggested, but like official state guests. In fact we have seen a state official, in-charge of Protocol, referred to the Qazis as the Prime Minister's guests and requested them appropriate reception at the airport, accommodation in state guest house and chauffeur driven vehicle in good condition. We had arranged an interview with Kashif Qazi, but when we arrived at his home, we were told he had - gone to a Paris fashion show. When we went to film his shop, (close to the house), we found Kashif Qazi behind the counter. Background commentary. ---But Mr. Sharif's critics say that he has tried to interfere with the Court's independence. (Scenes of Muslim League workers attacking the Supreme Court are shown). For example they say take the dispute he had with the Supreme Court Chief Justice soon after he was re-elected. Interview of Former Chief Justice Sajjad Ali Shah.---It (relationship) was not very cordial, of course. There were several complaints and several cases (against the prime minister) which were being heard and the prime minister did not want me to hear those cases. He was under the impression that as prime minister he was exempted from the proceedings in the court and the court should not hear cases. So, this was the point of difference. I told him that this was not the correct view because there is no discrimination in the eyes of law. Background commentary.---The Chief Justice's felt his fears were justified when pro-Sharif demonstrators stormed the Supreme Court and the police stood aside. Sajjad Ali Shah.---They were raising slogans against me, and accusing me. They had burnt my effigy outside and holding banners against me. I think they were saying that I am the enemy of the prime minister. Background commentary.---A case that could have led to the Prime Minister's dismissal was abandoned. The Chief Justice claimed that the mob, which included members of the parliament, was politically organised. Interview, of Solicitor Robert Kearns.---My clients provided security of that investment through personal guarantees which were offered by three members of the Sharif Family in Pakistan. We obtained a judgment in respect of those guarantees. It is against the Prime Minister's brother, which is in excess of $ 17.0 million and Prime Minister's father which is in excess of $ 14.0 million. We would like the judgment to be implemented... they should come to this country and explain what assets they have here and abroad which could set aside that debt. My clients are interested in any assets. It's -a substantial amount of money and quite understandably they want the payment. Background commentary.---Now the vendettas are becoming more personalised and claiming more victims, including those who really report those accusation. (Pictures of Lahore journalists protesting against the arrest of Friday Times Editor Najam Sethi, are shown) Sethi, was arrested soon after our interview. He was held in solitary confinement for 27 days, till his release without any charge a few days ago. His detention was widely condemned as an attempt to intimidate those who ask awkward questions about Pakistan's rulers, including Nawaz Sharif." 227. Reference in particular was made'to a recent debate in the House of Lords on Military Intervention *in Pakistan, wherein both the major parties i.e. Pakistan Muslim League and Pakistan People's Party have been termed corrupt, incompetent, unpopular and highly damaging to the welfare of the people in Pakistan". Daily "The News" in its publication dated 21st March, 2000 has reported the above debate, which reads thus:"The House of Lords described the two major political parties of Pakistan as "corrupt, incompetent, unpopular and highly damaging to the welfare of the people in Pakistan" and observed that it was "kleptocracy which was ripping millions of rupees away from the public exchequer."

"The British House of Lords in its recent two hours and 48 minutes long exclusive debate on Pakistan pledged that "we want the best for Pakistan and its, people, a strong and resilient democracy that can guarantee political and economic security for its citizens, and work for peace in the region." Eighteen peers who spoke, in the House, agreed on the motion on Pakistan. It is reported that Lord Paul said "Corruption was the downfall of previous Pakistan governments. We must, of course, strongly condemn corruption wherever it exists, in Pakistan or elsewhere. It eats into the heart of any society, particularly a society that has few resources and great developmental demands. Let us make sure that economically developed countries do not, inadvertently or otherwise, facilitate corruption in other regions..." "Baroness Strange, briefly expressing her point of view regarding the situation in Pakistan said: "General Musharraf has arrived there in rather an undemocratic way. The regime that he replaced, although democratically elected in the first place, had turned out to be not very democratic in practice, difficult to dislodge and gradually becoming more and more corrupt. General Musharraf has said that as soon as the country resettles itself, he will re-initiate democracy. Naturally, we are very anxious to see this happen. We are also anxious to see the lessening of tension towards Kashmir and other neighbours and a cessation of nuclear testing. I should like to emphasise our close ties with Pakistan, both now and historically. We wish her and her new government well. "The Government of General Musharraf evidently has the support of the vast majority of the people of Pakistan for the first item of his agenda to punish those who had stolen the country's money. Under Nawaz Sharif, Pakistan was sliding into bankruptcy, but his predecessor (Benazir Bhutto) had also allowed her cronies, and especially her husband, to profit from their hold on the reins of government," Lord Allon said." "Lord Sandberg taking floor said, "We were only aware of the deep corruption of successive governments over too many years." He said that the low turnout was influenced by the fear that both parties were almost equally corrupt. "That fear turned out to be only too true. Almost immediately, Sharif and his colleagues started to feed at the same trough as their predecessors. The reaction in the streets in Pakistan to the army's action told its own story. There were almost universal relief and rejoicing and the grassroots support has continued. Since. then the stock exchange index in Karachi has risen from about 1, 130 to 1,700 points, an indication of the greater confidence investors have in the new administration. " "Lord Sandberg said that he made these points because those with perhaps little understanding of Pakistan were quick to criticise the move by General Musharraf. "Perhaps with more thoughts it might have been seen as an almost inevitable event when one takes into account the fact that the political and economic situations were at such a low ebb." He said: "General Musharraf has refrained from martial law or any of the other extremes that we have come to fear after a military coup. Indeed, we understand that the Courts and judiciary are functioning normally. There appears to be a free press." He questioned the suspension of Pakistan from the Commonwealth and said, it was somewhat premature and a little hasty decision." "Lord Ahmed while speaking on the motion said that in recent years Pakistan had become a dysfunctional and sham democracy, had in fact become a kleptocracy as described by Lord Weatherill, earlier. " "He said that General Musharraf had announced that there would be local and district elections this year. "That will pave way for true, genuine and lasting democracy in Pakistan. General Musharraf's action was clearly in Pakistan's national interest. The people of Pakistan have accepted and welcomed the removal of the previous Government arid that is perhaps why there was no violence or bloodshed and 80 per cent of the public supported the change." While concluding his submissions as to the allegation of corruption and corrupt practices, the learned Attorney-General made a statement in Court by way of clarification that some of the politicians/parliamentarians are not included in the list of persons accused of

corruption and corrupt practices, namely, Raja Zafarul Haq, Mr. Wasim Sajjad and Ch. Shujaat Hussain. He also stated that allegation of misdeclaration of assets against Mr. Elahi Bakhsh Soomro is incorrect. 228. Syed Sharifuddin Pirzada, learned Senior ASC was right in contending that there were serious allegations of corruption, nepotism, lack of transparency and no accountability and that where there is corruption, there is no good Government, which fact has been recognised by this Court by observing that corruption by. itself is a ground for imposition of Martial Law or Proclamation of Emergencies. 229. Reference may be made to a study on "Corruption and Government, Causes, Consequences, and Reform" by Susan Rose Ackerman from Cambridge University, wherein the modes of corruption resorted to by various rulers have been explained and examples of certain countries such as Paraguay, Zimbabwe, etc. have been given, in which corrupt means were adopted. It is also stated that the process of privatization can reduce corruption by removing certain assets from State control to the private sector, though the process of transferring assets to private ownership is fraught with corrupt opportunities. The writer further states that corruption involves top-level- officials which can produce serious distortions in the way Government and society operate and that these corrupt officials distort public sector choices to generate large rents for themselves and to produce inefficient and inequitable public policies with the result that many wrong kinds of projects are initiated. The author, therefore, suggests that the Government should consider promulgating statutes that protect and reward those who report wrong doings. It would be advantageous to reproduce the relevant portion of the above study, which reads thus: "Grand corruption" occurs at the highest levels of Government and involves major Government projects and programs (Moody-Stewart 1997). Governments frequently transfer large financial benefits to private firms through procurement contracts and the award of concessions. Bribes transfer monopoly rents to private investors with a share to the corrupted officials. Privatization processes are vulnerable to corrupt insider deals". "In Paraguay corruption in the award of international construction contracts during the regime of President . Alfredo Storeowner (1954-1989) typically ranged from 10 to 20 percent. Corruption helped inflate the cost of the Utopia dam on the Brazilian border and led to the construction of projects that exceeded domestic needs (Nicks 1996: 244-245). In Indonesia in the 1970s two German companies reportedly paid bribes to 20 per cent. of the state-owned oil company (Schwarz 1994: 138)". "In Zimbabwe collusion between senior ministers in Posts and Telecommunications and a Swedish telecommunications company may have circumvented local tender board procedures. Kickbacks were reported to be as high as $ 7.1 million. In an airplane deal in South Korea several United States companies allegedly paid bribes to President Oh Tae Woo. Multinational suppliers were questioned, but denied involvement. In another arms deal Oh Tae Woo's national security advisor acknowledged receiving payments that may have been as high as $ 300,000. A major scandal in Singapore involved several multinational firms and a senior official of the Public Utility Board. The official was paid to reveal confidential information about tenders. The case led to the blacklisting of five major multinationals implicated in the scandal. The official received a fourteen-year jail term". "Corrupt rulers favour capital-intensive public projects over other types of public expenditures and favour public investment over private investment. They will frequently support "white elephant" projects with little value in promoting economic development." "Privatization can reduce corruption by removing certain assets from state control and converting discretionary official actions into private, market-driven choices. However, the process of transferring assets to private ownership is fraught with corrupt opportunities. Many corrupt incentives are comparable to those that arise in the award of contracts and concessions".

"Corruption that involves top-level officials can produce serious distortions in the way Government and society operate. The State pays too much for large-scale procurements and receives too little from privatizations and the award of concessions. Corrupt officials distort public sector choices to generate large rents for themselves and to produce inefficient and inequitable public policies Government produces too many of the wrong kind of projects and overspends even on projects that are fundamentally sound. Corruption reduces the revenue-raising benefits of privatization and the award of concessions." "Thus Governments should' consider promulgating statutes that project and reward those who report malfeasance (Pope 1996: 59-61). The United States, for example, has two statutes. The False Claims Act rewards those who report irregularities in Government contracts 'and protects private sector whistleblowers from reprisals (31 U.S.C. ss 13729-3731; Howse and Daniels 1995; Kovacic 1996). The second protects whistleblowers inside Government Agencies from retaliation (Whistleblower Protection Act, Pub. L.No. 101-12,5 U.S.C. s 2302 (b) (8)." "In a system where government is publicly accountable, favoritism would not be possible if the specifications were made public. Too great an intertwining of contractors and public officials invites corruption. Systems that are more transparent and accountable can afford to give procurement officers more discretion than others with less accountability. "The criminal law is the second basic part of a comprehensive strategy." 230. Our attention was also drawn to stance taken in "Commonwealth Finance Ministers Meeting" held on 21-23rd September, 1999 at Grand Cayman, Cayman Islands, which reads thus: "Good governance is not a luxury but a basic requirement for development. Corruption, which undermines development, is generally an outcome and a symptom of poor governance. It has reached global proportions and needs to be attacked directly and explicitly. "2. Corruption is always a two-way transaction with a supply and a demand side. It occurs in poor, emerging, and developed nations, regardless of the level of social and economic development and in countries with varying forms of Government ranging from dictatorships to established democracies. "3. Corruption, which is multi-dimensional, generally occurs at the nexus between the public and private sectors, with actors in the private sector interacting with holders of offices of trust in the public sector. Some aspects of corruption such as fraud and the misappropriation of assets or funds can occur entirely within the private or public sectors. However, with increasing privatisation of public utilities and service, the distinction between the public and private sectors is becoming less relevant in some areas. "4. Corruption is generally defined as the abuse of public office for private gain. As the scope of corruption has widened, this definition has been enlarged to cover the abuse of all offices of trust for private gain. There are many types and levels of corruption including "grand corruption", which involves huge sums paid by major businesses to high-level politicians and/or Government officials, widespread systemic corruption which may take the form of substantial bribes to public officials to obtain. for example licences/permits or to by-pass regulations; and petty corruption ''which involves modest but recurring payments to avoid delays. jump queues or to obtain goods in controlled markets. All forms of corruption entail high economic and social costs; transaction costs are increased; public revenues are reduced; resource allocation is distorted; investment and economic growth is retarded; and the rule of law is weakened. "5. The. Commonwealth should firmly commit itself to the policy of "zero tolerance" of all types of corruption. This policy must permeate national political cultures, governance, legal systems and administration. Where corruption is ingrained and pervasive, especially at the highest political levels, its eradication may require a sustained effort over a protracted period of time. However, the policy of "zero tolerance" should be

adopted from the outset, demonstrating a serious commitment to pursue the fight against corruption. The Commonwealth should remain firm in its determination that the high standards and goals enunciated in the 1991 Harare Declaration are upheld and enhanced. Creating an environment which is corruption-free will require vigorous actions at the national and international levels, and within the Commonwealth itself. These actions should encompass the prevention of corruption, the enforcement of laws against it and the mobilization of public support for anti-corruption strategies.".

Reference was also made to Federation of Pakistan v. M. Nawaz Khokhar (PLD 2000 SC 26), wherein at page 35 of the report it was observed: "At this stage, we may also mention that at least on two previous occasions, the justification for imposition of Martial Law and deviation from the Constitutional Rule in the country was sought to be justified on the plane of rampant corruption of the politicians. It is also not without significance that four previous elected Civilian Governments were also dismissed before completion of their tenure under the Constitution on allegations of corruption besides other allegations. In this backdrop, when the second Benazir Bhutto's elected Government was dismissed under Article 58(2)(b) of the Constitution in November, '1996, there was a public outcry for a severe accountability of the holders of public offices. The caretaker set-up which came into existence as a result of dismissal of elected Government of Benazir Bhutto, therefore, promulgated- Ehtesab Ordinance CXI of 1996, which was later amended through Ordinance CXXIII, Ordinance VII and Ordinance XI; before it was repealed and replaced by Ordinance XX of 1997. Nawaz Sharif's Government which came into power as a result of general elections in the country held in February, 1997, promulgated the Act which repealed Ordinance XX of 1997. In the light of the preceding discussion, we now proceed to consider the above contentions of the parties." 231. It will be instructive to refer to the concern of the international community on money laundering as- expressed in the book titled `Money Laundering' A Practical Guide to New Legislation by Rowan Bosworth Davies and Graham Saltmarsh, 1994 Edition. Relevant portion reads thus:. "We are beginning to see a far greater degree of willingness exhibited by all civilized Governments to share criminal information and assist and facilitate enquiries undertaken by other countries into the activities of criminals who commit offences within their own boundaries, but whose egregious behaviour affects persons or institutions in foreign jurisdictions. Concerted action against transnational criminality is now a well-established principle in international law and one method of ensuring that those activities are coordinated is by the drafting of legislation which is acceptable to those countries who have agreed to provide mutual assistance to each other to combat specific criminal phenomena, money laundering being one such example All parties are obliged to provide the widest degree of investigative cooperation and to facilitate all proceedings aimed. at confiscation. Each party is required to assist in the confiscation of specific items of property representing the proceeds of criminality as well as such sums of money which correspond to the value of proceeds. Upon request from any other signatory, each country is bound to provide all investigative assistance and to take provisional measures, such as, the freezing of a bank account or the seizure of property, and upon request, execute a foreign confiscation order or institute its own proceedings leading to confiscation as requested. Bank secrecy may not be invoked as a ground for refusal of cooperation, although all signatories are bound to respect the rights of bona fide third parties and to provide then with legal remedies. As 'Levi identifies: In short, a substantial amount of legal movement is taking place in Europe and elsewhere in the field of international mutual assistance in relation to money laundering and the freezing and seizing of assets. The moral and political pressure is so great that it is hard for countries to resist agreement. How the format rules work out in practice is another question (Levi, 1992)."

232. Now we come to the question whether corruption can be made a ground for justifying intervention by the Armed Forces. We would be examining this question in a slightly different perspective, inasmuch as, the world community is committed to the policy of showing "zero tolerance" to all types of corruption. It is a sad state of affairs that no conceivable steps were initiated to curb the systematic corruption because of lack of transparent accountability during the tenure of the previous Government. The material placed before us indicates that the former government had shown little interest in eradicating corruption from the society. 233. `Corruption' is generally defined as the abuse of public office for private gain. In view of the fact that scope of corruption has widened, this definition would include the abuse of all offices of trust. It has diverse meanings and far-reaching effects on society, government and the people. Of late, the culture of corruption and bribe has embedded in. our society to the extent that even routine works which should be done without any approach or influence are commonly known to be done only on some such consideration. This bribe culture has plagued the society to the extent that it has become a way of life. In Anatulay VIII (1988) 2 SCC 602 where Abdul IP Rahman Anatulay, Chief Minister of Maharashtra was prosecuted for, corruption Sabyasachi Mukharji, J. lamented as follows-."Values in public life and perspective of values in public life, have undergone serious changes and erosion during the last few decades. What was unheard before is commonplace today. A new value orientation is being undergone in our life and culture. We are at the threshold of the cross-roads of values. It is for the sovereign people of this country to settle these conflicts yet the Courts have a vital role to play in these matters." 234. Although we are dealing with a case of intervention by the Armed Forces, yet it would be advantageous to allude to the ground of corruption, which came up for consideration in the cases of Kh. Ahmed Tariq Rahim (PLD 1992 SC 646), Mian Muhammad Nawaz Sharif (PLD 1993 SC 473) and Benazir Bhutto (PLD 1998 SC 388) (supra). In the first case, it was observed by Shafiur Rehman, J. that corruption may not have been independently sufficient to warrant such an action, but it can be invoked, referred to and made use of alongwith other more relevant grounds, which are by themselves sufficient to justify the action taken. In Mian Muhammad Nawaz Sharif's case (supra), it was observed that "if the corruption, nepotism and favouritism are of such a large scale that they have resulted in the breakdown of the constitutional machinery completely, it may have nexus with the above provision". In the third case of Benazir Bhutto, this . Court took notice of enormous corruption and treated it as an independent round on the basis of which an Assembly could be dissolved (Underlining is by way of emphasis). Once corruption pervades in the body politic and official circles, then the entire Government/administration becomes completely crippled and paralyzed. Recounting the instances of alleged corruption the Federation has pointed out Sharifs' ownership of Cayman Island, an offshore company through Al-Towfeek Co.. and the case of. huge quantity sugar export to India receiving heavy amounts in rebate. When corruption permeates in the social, political and financial transactions to such an extent that even proper and honest orders and transactions are suspected to the point of belief being a result of corruption, one is compelled to infer all is not well and corruption has gone deep in the roots. No doubt, this is an age of "corruption eruption", but during the last few years there have been large scale prosecutions of former world leaders .in various countries on the charges of corruption and corrupt practices, in some cases leading to convictions, which phenomenon must not be taken lightly and the issue must be addressed adequately and effectively through transparent institutionalized processes. 235. The observations made herein and in the Short Order are not intended to condemn en bloc the politicians and parliamentarians as a class. Undoubtedly, there are good, honest and upright as well as corrupt people in every group; of persons. These observations are confined only to the situation which is being attended to in these cases. Any proceedings commenced against any person including the parliamentarians or politicians or members from the general public under the laws of the country will, no doubt, be decided on their own merits in accordance with law and on the basis of the legally admissible material brought before the concerned fora in those proceedings without being influenced by any observations made in this T judgment. Put differently, it

will be only after the finalisation of the proceedings as. above that the country will be geared up for resort to democratic principles and corruption-free society which are prerequisite for good governance. This situation has also been recognized by the Commonwealth Finance Ministers Meeting held on 21-23rd September, 1999 at Grand Cayman, Cayman Islands. 236. The Federation has also alleged that most of the politicians/parliamentarians have misdeclared their assets both before the Wealth Tax Authorities as well as the Election Commission including the former Prime Minister, who. admittedly despite owning a helicopter, did not declare the same in his declaration of assets. It has been pleaded on behalf of the Federation that although misdelcaration of assets was a matter of record, yet the Constitutional authorities failed to file references against them before the concerned fora. Thus, all such politicians/parliamentarians through their acts of commission and omission have rendered themselves ineligible for being members of the representative bodies. In order to substantiate the above allegations, the learned Attorney-General has filed voluminous record wherein specific instances of misdelcaration of assets have been given. We have- examined the relevant record only for the purposes of the present controversy and find that sufficient material exists showing, prima facie, that a large 'number of politicians indulged in misdeclaration of assets, which factor has a bearing on the issue in hand.. We may clarify that misdeclaration of assets , or" any discrepancy as to declaration of assets before the Wealth Tax Authorities qua the Election Commission may not by itself be a ground for intervention of the Armed Forces on 12th October,, 1999 but this aspect of the matter when viewed in the overall context and with particular reference to the alleged massive corruption and corrupt practices becomes a relevant factor. COLLAPSE OF ECONOMY' 237. We now take up another allied issue relating to economic condition of the country. It was alleged on behalf of the Federation that the former Prime Minister and his business associates exported sugar produced in their sugar trills to India by rail and earned millions of rupees as profit. It was pointed out that several, SROs were promulgated by the then Government to claim export rebate on sugar and thereby the former Prime Minister and his predecessor committed breach of faith with Pakistani banks/overseas and resident Pakistanis by removing 11 billion dollars lying in their accounts in the banks in Pakistan without their consent and utilized the same for unauthorized purposes, which remain unexplained till today. It was further stated that the former government froze the FEBC accounts and misappropriated the foreign exchange belonging to resident and non-resident Pakistanis, which not only brought bad name to the Pakistani banks but also to Pakistan as a country and the responsibility of this huge fraud lies heavily on the former Prime Minister. It was pleaded that this misconduct was further compounded by unlawful transfer of a huge sum of, nearly 500 million dollars by the former Prime Minister and his associates between 6-5-1998 to 28-5-1998, to the detriment of the country. Even after the decision to freeze the foreign currency accounts the former Prime Minister and his associates removed huge amounts. of foreign currency after banking hours. In this process the then Director-General, F-LA. stopped Mr Mujeeb-ur-Rehman, the brother of Senator Saifur Rehman from removing large amount of foreign exchange in cash at the Islamabad Airport. as a result of which Major General (Retd.) Inayatullah Niazi, the Director General, F.I.A. was illegally removed by the former Prime Minister. Our attention was also drawn to the "Qarz Utaro Mulk Sanwaro" Scheme to demonstrate that it was designed to deprive the Overseas Pakistanis of their hard earned money in the name of debt retirement.. It was pleaded that the former Prime Minister and his family established a Sugar Mill in Kenya which caused great ,public discontent. It was also pleaded that the former Prime Minister and his associates did inuldge in money laundering at a large scale and acquired four flats in Park Lane, London as also an area of about 400-Acres in Raiwind etc. The learned Attorney-General also contended that the former Prime Minister installed party MNAs and Senators and favourites as heads of statutory bodies like Ehtesab Bureau, Privatization Commission, Board of Investment, PTV, banks, financial institutions, etc. for wrongful gains, which went a long way in further deteriorating the Economic Position.

238- We have gone through the material placed by the Federation on the above issue. While this Court has already lamented over the decision of the former Prime Minister freezing foreign currency accounts in the case reported as Federation of Pakistan v. Shaukat Ali Mian (PLD 1999 SC 1026), the fact remains that this step of the deposed Prime Minister shattered the confidence of the overseas Pakistanis, who had deposited their savings in Pakistan in preference to banks abroad for the benefit of the nation. After hearing the learned counsel for the parties and going through the record, we have gathered that the combined effect of the overall policies and methodology adopted by the former Government was the total collapse of the country's economy inasmuch as GDP growth during the past three years had hardly kept pace with the growth of population and Pakistan has a debt burden which equals the country's entire. national income. We also take judicial notice of the fact that the trade imbalance was persistent and due to defective economic policies and lack of economic discipline .by the previous regime, the industrial sector had suffered a great setback. ROLE OF PUBLIC REPRESENTATIVES 239. We now advert to the plea raised by Mr. Khalid Anwar on behalf of the petitioners that various allegations of mismanagement, corruption and even hijacking (though sub judice), levelled against Mian Nawaz Sharif, the former Prime Minister, who is not even a petitioner herein do not justify that the Constitution should be condemned and the popularly elected bodies should be disbanded. The learned Attorney-General submitted that the petitioners were not entitled to seek relief of restoration of the former government, the Parliament and the Provincial Assemblies because such reliefs were being sought to perpetuate dictatorship and misgovernance in the country by the former Prime Minister and his associates in that there were no checks and balances on the exercise of power by them. He further submitted that the Parliament had been reduced to a mere rubber-stamp, inasmuch as, whenever it assembled it had hardly the requisite quorum and thus, failed to function and discharge its constitutional duties of legislation and were being used as instruments to establish despotism at the whims and caprices of the former Prime Minister. He submitted that the Government was being run through Ordinances though some of which had lapsed. Even When some Bills were moved before the National Assembly or the Senate, they were hurriedly passed without proper debate about its pros and cons. The learned Attorney-General submitted that the Provincial Assemblies equally failed to discharge their constitutional duties and obligations. He submitted that in reality all the parliamentarians, the Chief Ministers of the Provinces and the Members of the Provincial Assemblies were either associates and cronies of the. former Prime Minister or had become too helpless and ineffective to perform their functions in accordance with the dictates of the Constitution, the law and their conscience and were not in a position to object to any action, which had the blessings of the former Prime Minister. He submitted that democratic norms and polity require that government should be run by responsible and honest representatives of the people, who should be able to steer the governance of the country whereby the mandate of the people within the limits of the Constitution could be accomplished. The learned Attorney-General further submitted that the representatives of the people plundered the public wealth, acted irresponsibly and were nothing but privy to the one man rule in the country. The learned Attorney-General relied on an interview of Mr. Khalid Anwar, former law minister, given to the media, published in Daily Khabrain dated 25-3-2000 wherein he observed: He also referred to an interview of Mr. Majeed Nizami, Chief Editor of the Daily `Nawa-e-Waqt' and `The. Nation' given to Pakistan Digest, published in the. Daily Nawa-e-Waqt, Rawalpindi, dated 30-4-2000 wherein he stated: While substantiating the above allegations against the members of the former Government, the learned Attorney General contended that the. actions of the former Government were not in conformity with the maintenance of sovereignty, integrity, well being and prosperity of Pakistan because when the Chief of Army Staff -was attempted to be handed over to an enemy country and he was exposed to physical annihilation and further fen it tried to create dissension in the ranks of the Armed Forces, it was not safeguarding or maintaining the sovereignty of Pakistan, rather the sovereignty and integrity of the country were seriously endangered because it is the only institution, which is capable of safeguarding the integrity of Pakistan. On the question of well-being,

the learned Attorney-General stated that the well being of the. people is a reflection of the combined effect-of sovereignty, integrity and solidarity and there can be no well being without either of sovereignty, integrity, solidarity and prosperity. Likewise, prosperity again embodies all these ingredients and also extends to the economic prosperity of the people of Pakistan. 240. We have examined this aspect of the case with greater caution as we are. not dealing with a case of dissolution of Assembly, but here the Court is faced with a situation not visualized by the Constitution. On an objective assessment of the material placed on record and in view of the arguments advanced by the parties, we find that the very purposes for which the representative institutions were established under the Constitution stand defeated either directly or indirectly. No one could disagree that we must have democracy and any obstacles in respect of achieving that goal must be overcome. But the real question is whether there was "democracy" in its generally accepted' sense on 12th October, 1999 when the Army takeover occurred? What regretfully existed in Pakistan on that day and for years prior to that time was merely a feigned appearance of what we can call a form of "oligarchy" as submitted by Dr. Farooq Hasan. 241. Democracy can be defined in a variety of ways. But its most fundamental and cherished ingredient is the notion of "responsibility" of the rulers to the ruled. The meanings of this concept are given in the New Dictionary of American Politics, by Smith & Zucher (First edition) wherein at page 114 it is defined: "Rule by the people. In practice this means that power to determine the major, issues of public policy must reside in the majority of the community and that in making such decisions, the vote and voice of each individual should count. Hence democracy can be defined as government by consent. The people may exercise such power to enforce responsibility upon those to whom authority is entrusted." In another leading work, "The Politics of American Democracy", by M. Irish, (Third Edition) at pages 52 to 81, the following main ingredients of this method of governance are summed up as follows: (1) "Just what do we mean by democracy" There is no simple answer. However, there must be present notions of "equality", "humanitarianism" and notions of "individualism and progress" for those who are ruled by those who are entrusted with the task of governance (pages 52-53). (2) "Democracy requires that those vested with power be responsible to the people" (Page 72). (3) That under the guise of democracy we must be watchful of "champions of Oligarchy". For besides the government of selected powerful groups we also have similar notions advocated for both "fascism" and "communism" which superficially may look like democracies but are in fact the very antithesis of it (pages 72-73). (4) The learned author sums up the essential ingredients of democracy stating that : "certain conditions seem to be necessary before democracy arises. : (1) a relatively high level of literacy, (2) some f minimum measure of economic security, and (3) an acceptance of the dignity of human life." It is, thus, to be seen that simply by casting periodic ballots, people do not get a democratic society. Instead they may well-create, what is the case in Pakistan, particularly since 1985, a terrible form of fascism of a group of powerful people. This form of Government, although superficially, elected; actually creates an "oligarchy". In the work already cited above by Smith & Zucher, oligarchy had come to exist in Pakistan prior to 12th October, 1999. . The above- form of Government has been defined in the above cited books as follows: ' "A Government in which the authority constitutionally reposes in a few individuals and families. ' A small coterie of individuals who, because of economic and other power, can influence measurably the policy of the Government. " ( page 272 ).

242. We have gone through the figures of the past five general elections released by the Election Commission of Pakistan in the publication titled Elections, 1997 which show the percentage of turn out of the voters,, as under: Election 1985 1988 1990 1993 1997 National Assembly 53.69% 43.69% 45.07% 40.32% 35.90% Provincial Assembly 57.37% 43.20% 46.10% 42.76% 35.69%

On the basis of these figures it was argued that there had been an alarming loss of interest by the people of Pakistan in the electoral process. We are not inclined to the view that anything will turn on the alleged turn out of voters during the past elections in so far as these cases are concerned. However, the general apathy and indifference is discernible and has a direct nexus with the unenviable performance of the former governments. Had appropriate steps been taken by the governments in the past to undo the damage done to the general thinking of the people as above, the things would have been totally different. Viewed in this perspective it cannot be lost sight of that the proportions which the misrule had taken beginning before the 12th of October. 1999 were to the discredit of all concerned. 243. In Parliamentary System there is the principle of joint and ministerial responsibility. Many leading authorities on the British Constitutional Law support this position and it finds express mention in Article 91 (4) and (5) of the Constitution. As such, under this principle of great authority the rest of the Members cannot be .absolved of their responsibility if despite wrong doings by the Cabinet, they remain silent spectators. Thus, visualized, the suspension of the Assemblies and the Senate through extra-constitutional measure taken by the Chief of Army Staff, warrants validation on the ground of State necessity and State survival. CHECKS AND BALANCES/ARTICLE 58(2)(b) 244. It was contended that the 8th Amendment including power of the -President under Article 58 (2)(b) of the Constitution provided sufficient checks and balances in the exercise of executive authority of the Federation by the President and the Prime Minister but with the deletion; of Article 58(2)(b) through the 13th Amendment the balance of power was disturbed and resultantly all the powers stood concentrated in the hands of the Prime Minister. Repelling the above plea M/s Khalid Anwar and Ch. Muhammad Farooq contended that the 13th Amendment was passed by the Parliament unanimously because it was in the exercise of this arbitrary power by the President that all the four elected governments were sacked and in fact none of them was allowed to complete its tenure. Since for the successful working of a parliamentary form of Government the system of checks and balances has great importance, we would like to examine this aspect of the case in some detail in the light of case law and excerpts from various treatises. 245. To begin with, reference may be made to the suggestion given by Justice Hamoodur Rehman regarding amendment of the Constitution in respect of powers of the President, who had expressed the following views: "In the light of our discussions on the 18th instant I have examined the provisions of the 1973 Constitution and have made a number of suggestions for your consideration. They are enclosed herewith (five sheets)." "No suggestions with regard to the Judiciary have been made as you have already done what I was proposing to suggest. I compliment you for the same."

"My introductory note prefacing the suggestions is self-explanatory but if any further elucidation is necessary I shall be happy to furnish the same." "May Allah crown your efforts with success and guide you on the right path is my earnest prayer." Yours sincerely (Sd.) (Hamoodur Rehman)" "My examination of the said Constitution reveals that although it is substantially a copy of the 1956 Constitution a deliberate departure has been made therefrom in order to render the President ineffective and vest the Prime Minister with absolute powers. This was ostensibly done to prevent a recurrence of the events, which took place during the Governor-General ship of Mr. Ghulam Muhammad and Lt.-Gen. Iskander Mirza but the teal purpose, as it now appears, was otherwise." "Be that as it may the result achieved is that the President has been reduced to the position of a mere rubber-stamp while the Prime Minister has become all powerful with no one to check his whims and caprices. Recent events do also disclose that a Prime Minister with such vast powers can be more dangerous and far more ruthless, particularly, where there is no effective opposition in the legislature and the Civil Servants, without any Constitutional protection or security of service, are mere tools in the hands of the Prime Minister. If on top of this the Judiciary is also made ineffective as has been done by the 4th, 5th and 6th Amendments made in the Constitution, then the Prime Minister is nothing short of an absolute dictator." "This is by no means a satisfactory situation. I am, Therefore, of the opinion that constitutional checks and balances are essential for the functioning of any Democratic system under a written Constitution, as under such a system there is no Crown with Prerogative powers to intervene." "Power", it is said, "corrupts and absolute power corrupts absolutely", as has now been amply demonstrated by the revelations now being made of the misdeeds of the previous Government. Some changes are in my view, necessary to remove the imbalance between the powers of the President and Governor and the Prime Minister and Chief Minister in order to make the Heads of the Executive effective and to restore to them the prestige and dignity that should normally attach to such high offices without providing them with any incentive for aspiring to become dictators or to act in violation of the Constitution." "I am also of the opinion that some provisions should be incorporated in the Constitution to ensure fair elections and to prevent the possibility of any large scale rigging of elections, as was witnessed in the recent past. The security of service of Public Servants should also be restored and the independence of the judiciary re-established." "No suggestion with regard to Martial Law has been made but if so desired a new Article 258-A can be added on the lines of the Turkish pattern giving the President powers to impose Martial Law for a limited period which can only be extended by the National Assembly for a maximum period of say Six months." Thus, Justice Hamoodur Rehman made suggestion for promulgation of Martial Law by the President for a limited period which could only be extended by the National Assembly for a maximum period of say six months and had also opined that such amendment was necessary so that Prime Minister does not become dictator, which ultimately led to the insertion of Article ~58(2)(b) in the Constitution by means of the 8th Amendment. However, 13th Amendment was adopted and all the powers vesting in the President by virtue of the 8th Amendment were deleted and the President was reduced to a mere cipher. The circumstances leading to 12th October, 1999 action prove that if that power continued to remain with the President, possibly the situation could have been averted.

246. We may also refer to Article 260 of the Draft Constitution of 1971, proposed to be promulgated by President Yahya Khan, wherein he had kept the power of imposing Martial Law and abrogating the Constitution, which reads thus:260.-(1) Martial Law shall be declared in the whole or any part of Pakistan only in the most compelling circumstances, namely, when(a) the country is under attack or invasion by a foreign power, or is faced with imminent danger thereof; or (b) through serious and active uprising or otherwise the maintenance of law and order is placed in grave jeopardy, which the ordinary agencies are unable to deal with; or (c) a serious general problem affecting the whole, or any substantial part of the population, of the country or any Province, including a problem in relation to this Constitution, has arisen, which has proved incapable of resolution through constitutional, political or administrative agencies. (2) Where any of the circumstances enumerated in clause (1) of this Article are seen to exist, the Commander-in-Chief of the Pakistan Army, may at the request of the President, or of his own motion, but only after consultation with the President, declare, by order, that the whole or any part of Pakistan specified in the order shall be placed under Martial Law. (3) A declaration of Martial Law, whether made before or after the coming into force of this Constitution, shall be revoked only by the Commander-in-Chief of the Pakistan Army, who shall, before making the order of revocation, consult the President in that behalf. (4) It shall be within the power of the Commander-in-Chief of the Pakistan Army, who shall be the Chief Martial Law Administrator, to suspend for the duration of the Martial Law, or any shorter period as may be specified, the operation of specified provisions of this Constitution, but he shall not have power to abrogate this Constitution. (5) Subject to the provisions of clause (4) of this Article, the Chief Martial Law Administrator shall have power to promulgate necessary Martial Law Regulations and Orders during the period of continuance of Martial Law, and any Martial Law regulation may provide for the delegation by the Chief Martial Law Administrator of the power of making Martial Law Orders thereunder, to a subordinate Martial Law Authority. (6) Upon the revocation of a declaration of Martial Law, all Martial Law Regulations and Orders made during the continuance of such Martial Law shall cease to have effect, but the Chief Martial Law Administrator, after consultation with the President, may before such revocation declare that any specified Martial Law Regulation or Martial Law Order shall continue to have effect, notwithstanding the revocation of Martial Law, as a law of the appropriate Legislature, and such Martial Law Regulation or Martial Law Order shall continue to have effect accordingly. 247. This question was discussed in great detail in the case of Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426 at 469). It would be illuminating to refer to the relevant observations which are as under: "43. It is noteworthy that when in 1977 this Court was hearing the case of Begum Nusrat Bhutto Constitution of 1973 was in the field in which Article 58 was there in its original form without addition of sub-Article (2)(a)(b). Under Article 58 at that time President could dissolve National Assembly only when he was so advised by the Prime Minister. In such circumstances, the Court had to keep the factual background in view in connection with position enunciated in the Constitution particularly when there was no remedy provided to meet such an unforeseen situation with which the country and the Court were confronted. After a very careful and long hearing and examination of case-law on the subject and consideration of arguments advanced by both sides, this Court came to the

conclusion which is succinctly summarised in the leading judgment of the learned Chief Justice at page 721 of the report which is reproduced as under:-"The final position as emerging from this somewhat lengthy discussion of the various questions arising in this case may briefly be summed up as follows: (i) That the legal character and validity, of any abrupt political change, brought about in a manner not contemplated by the pre-existing Constitution or Legal Order, cannot be judged by the sole criterion, of its success or effectiveness, as contemplated by Kelsen's pure theory of law. Not only has this theory not been universally accepted, or applied, it is also open to serious criticism on the ground that, by making effectiveness of the political change as the sole condition or criterion of its legality, it excludes from consideration sociological factors or morality and justice which contribute to the acceptance or effectiveness of the new Legal Order. The legal consequences of such a change must, therefore, be determined by a consideration of the total, milieu in which the change is brought about, including the motivation of those responsible for the change, and the extent to which the old Legal Order is sought to be preserved or suppressed. (ii) That in any case the theory of revolutionary legality can have no application or relevance to a situation where the breach of legal continuity is a purely temporary nature and for a specified limited purpose. Such a phenomenon can more appropriately be described as one of Constitutional deviation rather than of revolution. (iii) That examined in this light, the Proclamation of Martial Law on the 5th of July, 1977, appears to be an extra-Constitutional step necessitated by the complete break-down and erosion of the Constitutional and moral authority of the Government of Mr. Z.A. Bhutto, as a result of the unprecedented protest movement launched by the Pakistan National Alliance against the alleged massive rigging of elections to the National Assembly, held on the 7th of March, 1977. It was a situation for which the Constitution provided no solution, and the Armed Forces had, therefore, to intervene to save the country from further chaos and bloodshed to safeguard its integrity and sovereignty, and to separate the warring factions which had brought the country to the brink of disaster. (iv) That the imposition of Martial Law, therefore, stands validated on the doctrine of necessity, and the Chief Martial Law Administrator is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognised by judicial authorities as falling within the scope of the law of necessity. (v) That it has also become clear from a review of the events resulting in the culmination of Martial Law, and the declaration of intent made by the Chief Martial Law Administrator, that the 1973 Constitution still remains the supreme law, subject to the condition that certain parts thereof have been held in abeyance on account of State necessity; and the President of Pakistan as well as the Superior Courts continue to function under this Constitution. In other words, this is not a case where the old Legal Order has been completely suppressed or destroyed, but merely a case of Constitutional deviation for a temporary period and for a specified and limited objective, namely, the restoration of law and order and normalcy in the country, and the earliest possible holding of free and fair elections for the purpose of the restoration of democratic institutions under the 1973 Constitution. (vi) That, accordingly the superior courts continue to have the power of judicial review to judge the validity of any act or action of the Martial Law Authorities if challenged in the light of the principles underlying the law of necessity as set out in this judgment. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance; and (vii) That the provisions contained in clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977, suspending the right to enforce Fundamental Rights are valid for the reason that the situation prevailing in the country was obviously of such a nature as to amount to an emergency contemplated by clause (1) of Article 232 of the Constitution,

and the right to enforce Fundamental Rights could, therefore, be legitimately suspended by an order of the kind which could have been made under clause (2) of Article 233 of the Constitution." "44. It, therefore, follows from what is stated above that this Court in Begum Nusrat Bhutto's case held that imposition of Martial Law and promulgation of the Laws (Continuance in Force) Order were extra-Constitutional steps validated on the basis of doctrine of necessity in light of the fact that 1973 Constitution still remained the supreme law which was held in abeyance and not abrogated on account of State necessity. This arrangement was to last for a short time to enable the Government to hold elections as soon as possible. Superior Courts continued to have power of judicial review to judge the validity of any act or action of Martial Law Authorities if challenged in the light of principles underlying the law of necessity The question of oath also came up for consideration in the case of Begum Nusrat Bhutto and it was held with the consent of all the counsel appearing in the case that oath was not an obstacle in the way of Judges who were hearing that case. Discussion on this point is in the judgment of this case at page 674 of the report, which shows that both Mr. A.K. Brohi and Mr. Sharifuddin Pirzada were of the view that the new oath had not in any manner restricted the independence of the superior judiciary nor affected their obligation to perform their judicial functions according to law and it only indicated that superior judiciary, like rest of the country, had accepted the fact, which was even otherwise also evident that on 5th of July, 1977 a radical transformation took place in the pre-existing legal order. Mr. Yahya Bakhtiar, learned counsel for the petitioner in that case also joined the other two counsel and submitted that the oath did not in any way precluded the Judges from examining the question of the validity of the new legal order which could be decided in accordance with their conscience and the law." "46. In the case of Begum Nusrat Bhutto Martial Law has been justified arid validated on the basis of doctrine of State necessity and actions taken by C.M.L.A. have been declared to be extra-Constitutional steps which have been given validation. Since there was deadlock between the Government and the Opposition parties and a situation had arisen in which no solution was in sight and the Constitution was also silent not providing for any remedy, in such circumstances there was no other way out except what was done by the Chief of the Army Staff who took over as C.M.L.A. and imposed Martial Law. This third Martial Law in the case of Begum Nusrat Bhutto was different from the two other Martial Laws as has been very ably pointed out by Mr. Justice Dr. Nasim Hasan Shah (as he then was) in his judgment in Begum Nusrat Bhutto's case that in the previous two Martial Laws the intervention was not only to suppress the exiting Constitutions which were abrogated but to replace them by .new Constitutions. Hence old legal order was replaced by new legal order but Martial Law in the case of Begum Nusrat Bhutto was intervention specifically providing that Constitution was not abrogated but held in abeyance and further expressing intention that elections would be held and Constitution would be revived. Relevant portion from his judgment at page 753 of the report is reproduced as under: "In view of the break-down of the normal Constitutional machinery and to fill the vacuum, the Armed Forces were obliged to take an extra-Constitutional step. Martial Law was imposed, in the picturesque words used in the written statement filed by Mr. Brohi, not in order to disable the Constitutional authority but .in order to provide bridge to enable the country to return to the path of Constitutional rule. In the felicitous phrase of my Lord the Chief Justice, the act was more in the nature of a `Constitutional deviation' rather than an overthrow of the - Constitution. the Constitution of 1973 is not buried but merely suspended. It however, continues to be the governing instrument subject to the provisions of the Laws (Continuance in Force) Order, 1977. In these circumstances, neither the ratio decidendi of Dosso v. State nor that of Asma Jillani v. Punjab Government is strictly applicable to the present case." "47. With regard to the objection that in the case, of Begum Nusrat Bhutto power was given to C.M.L.A. as one man to amend the Constitution which should not have been done. It appears that Chief of the Army Staff had taken over the governance. in his own hands as one man and imposed Martial Law. He could have abrogated the Constitution but he did not do so and instead held in abeyance and provided in the Laws (Continuance

in Force) Order, 1977 that country would be governed as nearly as may be in accordance with the Constitution. His de facto status as such was later recognized by the Supreme Court ,in the judgment in the case of Begum Nusrat Bhutto as de jure and his actions were justified on the doctrine of State necessity and were treated as extra-Constitutional measures or Constitutional deviations. In fact he had amended the Constitution before final adjudication could be given by the Supreme Court in respect of validity of Martial Law. The situation was such that there was no Parliament and reins of the governance were in the hands of C.M.L.A. as one man. In such circumstances at the time of validation this Court allowed him the power to amend the Constitution on the basis of doctrine of State necessity as in any case Constitutional amendments, if any, made by him Would have to be approved and validated by the Legislature. This was done more or less on the same lines as allowed by the Federal Court of Pakistan in Reference No. l of 1955 (PLD 1955 FC 435). In that case it was held that issue raised referred to extraordinary powers of the Governor-General during normal times when the vital organ of the Constitution, namely, the Legislature was functioning and the question that had to be considered was whether there was any provision in the Constitution governing such a situation or any other legal principle within outside or above the Constitution Act which entitled the Governor-General to act in case of necessity of such a nature. "48. Objection was also raised that in the case of Begum Nusrat Bhutto time-frame was not provided for holding the elections as promised by C.M.L.A. to the nation on the basis of which his take-over and Martial Law were justified as extra-Constitutional steps. This issue is adverted to by this Court in that judgment at pages 722 and 723 of the report. Mr. Yahya Bakhtiar, learned counsel for the petitioner, had expressed apprehension on the postponement of election schedule to be held on 18th October, 1977. Mr. A.K. Brohi, learned counsel for the respondent, Federal Government, while responding informed the Court that C:M.L.A. intended to hold election as soon as process of accountability of the holders of the public offices was completed and the time factor depended upon the speed with which those cases were disposed of by the Civil Courts. Mr. Sharifuddin Pirzada, the learned Attorney-General stated at the Bar that in his opinion a period of about six months was needed for the purpose and thereafter it would be possible to hold elections within two months. It was held by the Court that it did not consider appropriate to issue any directions as to a definite time-table for holding of elections but made observation that the Court had found possible to validate the extra-Constitutional actions of C.M.L.A not only for the reason that he stepped in to save the country at. the time of grave national crisis and Constitutional breakdown but also because of the solemn pledge given by him that the period of Constitutional deviation shall be of as a short duration possible and during that period all his energies shall be directed towards creating conditions conducive to the holding of free and fair elections leading to the restoration of democratic rule in accordance with the dictates of the Constitution. The Court therefore expected the Chief Martial Law Administrator to redeem his pledge which had to be construed in the nature of mandate from the people of Pakistan, he had by and large willingly accepted his administration as the interim Government of Pakistan. This judgment was announced on 10-11-1977 after which many developments took place and if there .was any grievance on account of this fact that elections were not held within a reasonable time as observed by this Court then the record shows that no review was filed agitating that judgment. "49. During the hearing of cases under consideration question was raised that there is no discussion in the judgment with regard to the power of amendment of Constitution conferred on C.M.L.A. and in that connection it has been pointed out that in the leading judgment in the findings summarised at page 721 of the report under the heading of "final position" under 'sub-heading (iv) it is mentioned that Chief Martial Law Administrator is entitled to perform all such acts and promulgate all legislative measures which have been consistently 'recognized by judicial authorities as fallen within the scope of law of necessity. In this sub heading (iv) words "to amend the Constitution" are not mentioned which are mentioned specifically at page 716 of the report under the sub-heading (iii) (a) which are also findings mentioned at page 715 of the report under the heading of "the true legal position which, therefore, emerges". In this connection, it was further stated before us that the original record shows that colour of typed pages 94 to 100 is different from the remaining pages. We have checked the original record which shows that pages 94 to 100 are of brighter white colour than remaining pages which are off white. Then again pages 102 and 103 are also of brighter white colour and likewise page 108 is also

of brighter white colour. Now, this change in the colour of few pages in the original judgment does not show that these pages were replaced as it can so happen in the ordinary course as well. We have seen judgments of other learned Judges in the main original file which show that both kinds of paper, as mentioned above, have been used. Each page of leading judgment is, initialed by the late Chief Justice. Mr. Sharifuddin Pirzada, who was Attorney-General at the-relevant time and appeared before the Court, on our query stated that question with regard to the power of C.M.L.A. to amend the constitution was raised and discussed before the Court. We are also of the' view that it must have been discussed because during the pendency of Constitutional petition before this Court amendment was made, in the Constitution -by the C.M.L.A. in consequence whereof Chief Justice Muhammad Yaqub Ali had to retire. Out of nine learned Judges who heard that case five learned Judges had contributed long judgments and the remaining Judges as well have appended short notes agreeing with the judgment of the Chief Justice or other Judges. No other Judge had said that this question with regard to the power to C.M.L.A. to amend the Constitution was not agitated and discussed before the Bench in the Court. We are completely satisfied that this question was raised and answered in an appropriate manner and change in the colour of papers in the judgment does not indicate anything which is unusual and not proper. "50. Now we come to post judgment developments which took place after the announcement of judgment in the case of Begum Nusrat Bhutto leading to the Eighth Amendment which has been called in question before us. Judgment in the case was announced on 10-11-1977 after which Provisional Constitution .Order was promulgated on 24-3-1981. his is also called PCO in short form. This Order on perusal shows that at the beginning it has explanatory statement manifesting intention behind asking such Order. It mentions that 1973 Constitution was in force and on 5th July, 1977, Martial Law was imposed and that Constitution was held in abeyance. It also says that C.M.L.A. has announced that democracy and representative institutions shall be restored as soon as possible and until then interim measures were being adopted. It also speaks about the fact that the Laws (Continuance in Force) Order, 1977 was made by C.M.L.A. on the same day when Martial Law was proclaimed but some doubts had arisen as to the effect of the said Order as regards the power and jurisdiction of the Superior Courts hence for that reason and also for the reason that integrity and sovereignty of Pakistan and its Islamic Ideology were threatened hence need was felt to promulgate this PCO. "51. It. is already held in the judgment in the case of Begum Nusrat Bhutto that taking of oath does not detract Judge from performing his duties and functions as a Judge. Contents of PCO does not show that Constitution of 1973 is buried or forgotten for ever and a new grund norm had started. "58. We are, therefore, of considered view that Eighth Amendment including Article 58(2)(b) has come to stay in the Constitution as permanent feature. It is open to the Parliament to make amendment to the Constitution of any provision of the Eighth Amendment as contemplated under Article 239 as long as basic characteristics of federalism, parliamentary democracy and Islamic provisions as envisaged in the Objectives Resolution/Preamble to the Constitution of 1973 which now stands as substantive part of the Constitution in the shape of Article 2A are not touched. At page 499 of the report, it was observed: "Mr. Syed SharifuddinPirzada has referred to the. book `Politics in Pakistan The nature and Direction of Change' by Khalid B. Sayeed in which the following comment on the basic aspect of the Constitution of 1973 has been made: "All this clearly indicated that the Prime Minister could neither be controlled. by the President nor challenged by the Assembly. The latter feature was extraordinary because the essence of Parliamentary Government was that a Prime Minister was both accountable to arid removable by the Assembly. As suggested in Chapter 3, and as it has often been remarked the Government of Pakistan under Ayub was that of the President, by the President and for the President. Could it be said that in the Bhutto regime the Prime Minister's position was equally dominant?

"It. seemed that Bhutto was not satisfied even with the power of the Prime Minister that was available to him through the Constitution. During 1975-76, he had started thinking of bringing the Parliamentary system under still greater control of the Prime Minister so that he could push certain pieces of legislation through the Parliament with practically no delay or obstruction. This was disclosed to the author by Leslie Wolf Phillips of the Department of Government, London School of Economics and Political Science, who had been invited by the Prime Minister to advise him on how to change the Constitution along these lines. In January 1976, the Prime Minister told Wolf-Phillips that he had made up his, mind about converting the .present system into a Presidential system. However, he expected that this would be brought about after the election. It may be noted that there was some speculation in Pakistan during the National Assembly Elections of 1977 that Bhutto was eager to win these elections by a landslide because he wanted a two-third majority in the Assembly for the purpose of amending the Constitution along Presidential lines. One of the provisions discussed and explored by Wolf-Phillips related to a clause being inserted in the Constitution under which a candidate standing for. National Assembly Election would have to announce his intention of supporting a particular candidate for the presidency. According to Wolf-Phillips, the report that he submitted to the Prime Minister was interpreted by the Prime Minister as one not very helpful to his contemplated efforts to convert the Constitution into a Presidential form.' Similar view has been expressed by Stanely Wolpert in his book `Zulfi Bhutto of Pakistan - His Life and Times' and Mr. Altaf Gauhar in his Article 'Bhutto and Parliamentary Democracy-' published in. the `Nation' dated 6.12.1996. 28. The Constitution as framed in 1973 was Parliamentary in form but it was Prime Ministerial in character. The turbulent Constitutional history of Pakistan has not built any basic structure. The principles of democracy, rule of law, equality and justice as- propounded in Objectives Resolution have been advocated, propagated and, utilized for achieving political power equally by the politicians, Army rulers and even representatives of the people as well." At page 518 of the above report, it was observed: "51. Mr. Syed Sharifuddin Pirzada has contended that the Eighth Amendment has introduced checks and balances between the power of the President and the Prime Minister. As discussed above, the Constitution of 1973 had vested- supreme power to the Prime Minister and though democratic in form it was Prime Minister in character. Amendments made in Articles 48, 58, 91 and 92 have curtailed the power of the Prime Minister and have strengthened the hand of the President. In a democratic system check and balance is provided to avoid autocratic rule and to provide balance of power for a proper functioning of the Government according to the Constitution. No doubt the amendments particularly Article 58(2)(b) have titled the balance in favour of the President, yet this Court has structured and circumscribed the discretionary power of dissolution. One reason given in favour of Article 58(2)(b) is that it prevents Constitutional deviation. This seems to be plausible because when Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary, the President may exercise his power before any person, agency or authority taking advantage of such situation strikes not at the Assembly but at the Constitution. One may comment `that to save the Constitution, Assembly is dissolved. The exercise of power under Article 58(2)(b) or Constitutional deviation can be avoided not by the letters of the Constitution but by political ethic, morality and maturity. Unless a responsible Government exists which has respect for law, opportunity shall continue to be provided for Constitutional strike." 53. It has also been pointed out that the controversy involves political question which the Courts should avoid to decide. The contention is more relevant with reference to the balance of power between the President and the Prime Minister. Such question is a political question to be decided by the Constituent Power. It therefore, requires

determination of what is a political question. A political question is one which because of its political sensitivity is not fit for adjudication by the Court or the Constitution requires it to be determined finally by any other organ of the State. This `political question doctrine' is based on the respect for the Constitutional provisions relating to separation of power among the organs of the State. But where. in a case the Court has jurisdiction to exercise power of judicial review, the fact that it involves political question, cannot compel the Court to refuse its determination." "54. For the foregoing reasons, the appeals and petitions were dismissed by the following short order, which forms part of this Judgment :For reasons to be recorded later, we pass following short order; (2) What is the basic structure of the Constitution is a question of academic nature which cannot be answered authoritatively with a touch of finality but it can be said that the prominent characteristics of the Constitution are amply. reflected in the Objectives Resolution which is now substantive part of the Constitution as Article 2A inserted by the Eighth Amendment. (3) The Objective Resolution was Preamble of the Constitutions made and promulgated in our country in 1956, 1962 and 1973. Perusal of the Objectives Resolution shows that for scheme of governance the main features envisaged are Federalism and Parliamentary Form of Government blended with Islamic provisions. The Eighth Amendment was inserted in the Constitution in 1985, after which three elections were held on party-basis and the resultant Parliaments did not touch this Amendment, which demonstrates amply that this Amendment is ratified by implications and has come to stay in the Constitution unless amended in the manner prescribed in the Constitution as contemplated under Article 239. Article 58(2)(b) brought in the Constitution by the Eighth Amendment,. which maintains Parliamentary Form of Government has provided checks and balances between the powers of the President and the Prime Minister to let the system work without let or hindrance to forestall a situation in which martial law could be imposed. " 248. It was submitted on behalf of the Federation that in Britain there is no written Constitution and though Prime Minister appears to be powerful but the Queen discreetly controls and that is how the system works. He submitted that in such a situation confidence is a crucial ingredient and the key pint, which holds the entire structure together. Reference may be made to the Code of Conduct for the Ministers framed by Britain, which reads thus: "Ministers of the Crown are expected to behave according to the highest standards of constitutional and personal conduct. In particular they must observe the following principles of ministerial conduct: (i) Ministers must ensure that no conflict arises, or appears to arise, between their public duties and their private interests; (ii) Ministers must not mislead Parliament.. They must be as open as possible with Parliament and the public; (iii) Ministers are accountable to Parliament for the policies and operations of their departments and agencies; (iv) Ministers should avoid accepting any gift. or hospitality- which might, or might appear to compromise their judgment or place them under an improper obligation; (v) Ministers in the House of Commons trust keep separate their rules as Minister and constituency Member; ' (vi) Ministers must keep their party and ministerial rules separate. They must not ask civil servants to carry out party political duties or to act in any other way that would conflict with the Civil Service Code.

Reference may also be made to the book titled "The Hidden Wiring" Unearthing the British Constitution by Peter Hennessy, wherein at pages 35 and 37 of the book, it is observed:"This paragraph is by any standards more than `tips for beginners' or `etiquette'. Accountability plus responsibility plus openness is-or should be-an absolutely fundamental constitutional requirement, especially as under British arrangements the executive and the legislature are fused in such a fashion that the balance of power is heavily tilted in favour of the executive, not least in the interpretation of the rules of the game (i.e. the constitution)." "Indeed,, procedure is all the Constitution the poor Briton has, now that any Government which command [sic] 51 per cent of the House can at any moment do anything they like, with retrospective or prospective intention. This in itself was an intriguing pre-echo of Lord Hailsham's `elective dictatorship' theory some sixteen years ahead of its actual expression.". "In a nation without a written constitution and bereft of formal checks and .balances, confidence is a crucial ingredient, one of the key bonding agents that holds (or should hold) the entire stricture together. Another, as we have seen, is the notion of the Crown. Though monarchy outstrips all the other sides to our golden pentagon, it is only in terms of a relative back of tarnish, not an abundance of sheen. And it is to this, the most ancient institution of state, that I shall turn first." Also refer to the following passages from the book "Arthur Berriedale Keith" The Chief - Ornament Of Scottish Learning" by Ridgway F. Shinn Jr. :"The Constitution under Strain" "In 1942, Keith brought-out a pamphlet in which he stated his views about why and how the constitution was threatened. Iii this, The Constitution under Strain: Its Working from the Crisis of 1938 down to the Present Time, he built upon and expanded, the final chapter which he had written in 1939 for his book on the British cabinet. Certainly, the title he chose reflected one theme which he saw as of primary concern in these years, that is, the ways in which, under successive leaders, the constitution had been twisted and turned in what he thought were- dangerous new ways. "A Government with so much power in its hands and led, in his view, by a discredited Prime Minister, was likely to order the business of the day in a manner which precluded careful consideration of various aspects of legislation. Why should such a ministry bother to take time for debate? Keith felt that, in softie senses, such unrestrained power in the hands of the National Government was almost as dangerous to Constitutional Government in Britain as Hitler's absolute control of the machinery of the Weimar Republic was to German democracy. "If there had' been, effective Opposition, Keith felt that some egregious blunders must certainly have been avoided; in the absence of such constitutional balance, the Government could make serious mistakes and survive, and it did." Reference be also made to the following passages from the book titled "The English Constitution" by Walter Bagehot : "With the coming of Prime-Ministerial Government, the Cabinet, in obedience to the law that Bagehot discovered, joins the other dignified elements in the Constitution. Of course, like the Monarchy, the House of Lords and the Commons, it retains very real reserve powers which can on occasion be suddenly and dramatically used for good or for ill. A Prime Minister, for instance, can be unseated by his colleagues; and it this fact with which the constitutional purists seek to justify the distinction they still make between Presidential and Prime Ministerial Government. A President, we are told, cannot be removed before the end of his term of office; a Prime Minister can be.

"The distinction is valid, provided we observe that a British party leader exerts such power and patronage within the machine that he can never be removed in real life by public, constitutional procedure. The method employed must. always be that of undercover intrigue and sudden unpredicted coup d'etat. The intra-party struggle for power that is fought in the secret committees, and in the lobbies, may suddenly flare up round the Cabinet table. But if it does, the proceedings there will only be a ritual, and the real fight will have finished before they begin." 249. After careful analysis of the above material, we are of the view that it is never safe to confer unfettered powers on a person who is holding the reins of the affairs of the country as is embedded in the saying, `power corrupts and absolute power corrupts absolutely'., Accordingly, while upholding the judgment in Mehmood Achakzai's case (supra) we would like A to observe that probably the situation could have been avoided if checks and balances governing the powers of the President and the Prime Minister had been in the field by means of Article 58(2)(b). RIDICULING THE JUDICIARY 250. The debates of the Parliament for the relevant period clearly demonstrate that the integrity and independence of the Judiciary of. Pakistan were. challenged which had the effect of defaming and bringing the Judges into ridicule. The observations made in the Short Order to the effect that "where the Judiciary was ridiculed, leaving no stone unturned to disparage and malign it by making derogatory and contemptuous speeches by some of B the members of the previous ruling party inside and outside the Parliament B and no Reference was made to the" Chief Election Commissioner for their disqualification as` members of the Parliament under Article 63 (2) of the Constitution; where the disparaging remarks against the Judiciary crossed all limits with the rendering of judgment by this Court in the case of Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504, declaring the establishment of Military Courts as ultra vires the Constitution, which resulted into a slanderous campaign against the Judiciary launched by the former Prime Minister registering his helplessness in the face of the Judiciary not allowing him the establishment of Military Courts as a mode of speedy justice; where the image of the Judiciary was tarnished under a well-conceived design" are fully supported by the material on record which we have carefully scanned. 251. We also take judicial notice of the fact that I the decision of this Court in Liaqat Hussain's case was. treated by the former Prime Minister, his government and supporters as a stumbling block in their way and consequently the Judiciary was maligned all over again through electronic media under the control of the Prime Minister. The Pakistan Television often showed bereaved old women pleading delay in justice and discontentment with the judicial system of the country whereby the image of the Judiciary was attempted to be tarnished under a well-conceived design. The statements made by the former Prime Minister and the members of his Government in and outside the Parliament hardly support the plea of Mr. Khalid Anwar that the former Government had great regard for the Judiciary. We have also seen the material placed on record relating to tapping of telephones and eavesdropping which clearly establishes that the telephones of the Judges of the Superior Courts and other personalities were tapped. It is indeed very shocking particularly, because this Court in the case of Mohtarma Benazir Bhutto (supra) declared such acts as most detestable, immoral, illegal and unconstitutional. DOCTRINE OF NECESSITY 252. After perusing the voluminous record and after considering the submissions made by the parties, we are of the view that the machinery of the Government at the Centre and the Provinces had completely broken down and the Constitution had been rendered unworkable. A situation arose for which the Constitution provided no solution and the Armed Forces had to intervene to save the State from further chaos, for maintenance of peace and order, economic stability, justice and good governance and to safeguard integrity and sovereignty of the country dictated by highest considerations of State

necessity and welfare of the people. The impugned action was spontaneously welcomed by all sections of the society. 253. We see no force in the submission of Mr. Khalid Anwar that the `doctrine of necessity' has since been buried long ago by the British Courts, there was no justification for its resurrection as done in Special Reference No. 1 of 195> (supra) and m the case of Begum Nusrat Bhutto (supra). Suffice it to say that the precedents from foreign jurisdiction. though entitled to reverence and respect but are not ipso facto applicable to the facts and circumstances prevailing on 12th October, 1999. In such matters of extra constitutional nature, in order to save and maintain the integrity, sovereignty and stability of the country and having regard to the welfare of the people which is of paramount consideration for the Judiciary, while interpreting the impugned legislative instruments we have to make every attempt to save "what institutional values remained to be saved" with a view to maintaining and upholding the independence of Judiciary which in turn would protect the State fabric and guarantee Human/Fundamental Rights. We are also not inclined to agree with M/s. Anwar and Farooq that the `doctrine of necessity' was rejected in the case of Liaquat Hussain (supra). As a matter of fact this question was not directly in issue. It was only obliquely referred to in the context of establishment of Military Courts in terms of Article 245(1) of the Constitution. It was not a case where the vires of any extra constitutional measure resulting in the change of the government's structure were involved. Be that as it may, one of us (Irshad Hasan Khan, J. as he then was) (now the Chief Justice), specifically took the view that the prerequisites for the application of `doctrine of necessity' were not satisfied in upholding the establishment of Military Courts in the purported exercise of power under Article 245 (1) of the Constitution even for a limited period. it was also observed that the prerequisites of the `doctrine of necessity' have been laid down in the cases of Mustafa Ibrahim as well as Begum Nusrat Bhutto (supra). For facility of reference the following passages from the case of Liaquat Hussain (supra) may be reproduced as under: "58. The plea raised on behalf of the learned Attorney-General that the Doctrine of Necessity is not outdated and can be invoked in the present case for a `limited purpose' cannot be countenanced, for, if .it is approved of, it may, very frequently be resorted to at the incidence of a situation presently prevailing in the country, by the Executive. In tact, such approval whereby the Executive is allowed to cross the barriers of Constitutional provisions at its whim, would turn a democratic rule into a despotic one. Clearly, any deviation from the Constitution may lead to anarchy. It is true that the take over by the Chief of the Army Staff as Martial Law Administrator was validated by this Court in Begum Nusrat Bhutto's case PLD 1977 SC 657 wherein it was inter alia observed:`On no principles of necessity could power of judicial review vested in the Superior Courts under the 1973 Constitution, be taken away' (p.716 last para. extending to page 717). "However, in the case of Asma Jilani (supra), this Court took the view that the acts of usurper may be condoned and/or validated by the application of the law of necessity. Viewed from this angle, the impugned Ordinance being ultra vires the Constitution cannot be validated even on the touchstone of State necessity. Additionally, in view of the plea raised by the learned Attorney-General that the establishment of Military Courts is spelt out from the power vesting in the Federal Government under Article 245 is contradictory with the theory of State necessity, inasmuch as, the concept of law of necessity, would arise only if an act which would otherwise be illegal becomes legal if it is done bona fide, in view of State necessity, with a view to preserving the State or the society from destruction ..In the instant case, we have no doubt that the impugned Ordinance was issued bona fide with a view to suppress the menace of terrorism. Nevertheless, the constitutionality of the Ordinance is not to be judged on the question of bona fides of the Federal Government simpliciter but on the touchstone of the Constitutional provisions. Here, impugned legislation is ultra vires the Constitution in so far as it takes away the functions of the Courts in determining the guilt or innocence of an accused. Be that as it may, the prerequisites for the application of Doctrine of Necessity are not satisfied in the instant case for upholding the impugned legislation, even for a limited period. The prerequisites, as laid down in the case of Attorney-General of

Republic v. Mustafa Ibrahim 1964 CLR 195, which was also referred in the Begum Nusrat Bhutto's case (supra), are:(a) (b) (c) An imperative and inevitable necessity or exceptional circumstances; no other remedy to apply; the measure taken must be proportionate to the necessity; and

(d) it must be of a temporary character limited to the duration of the exceptional circumstance- ' "In the instant case, the Courts are functioning and the question of backlog and expeditious disposal of terrorists' case can be remedied by taking effective measures, in the light of the guidelines provided by this Court in the short order as well as the recommendations in the concluding paragraphs of this note. The Courts are functioning properly and administering justice according to the Constitution and the law.' A perusal of the above quoted passages shows that in the circumstances of the case and having regard to the provisions of the Constitution and in view of the situation then prevailing, doctrine of necessity was not. attracted and that in this view of the matter Ordinance under. which the Military Courts were set up, being a sub-constitutional legislation could not be saved and was, therefore, declared ultra vires the Constitution. Contrary to the above case, the Court is here faced with an extra-constitutional situation and all the elements described by this Court in the aforesaid case viz., inevitable necessity, exceptional circumstances, no other remedy to apply, measure taken must be proportionate to the necessity and it must be of temporary character, limited to the duration of exceptional circumstances, are present, inasmuch as, the Constitution provided no F solution to meet the extraordinary situation prevailing on 12th October, F 1999. As such, the above case is no hurdle. 254. As to the plea raised by Mr. Khalid Anwar that the `doctrine of necessity' is accepted as a defence in criminal prosecution and tortuous acts which concept is different from that of `State necessity', suffice it to say that this Court in the case of Begum Nusrat Bhutto (supra) approved the `doctrine of State necessity' and laid down the conditions precedent for invoking the same. Therefore, the distinction pointed out by Mr. Khalid Anwar regarding the concept of `doctrine of necessity' and that of `State necessity' is immaterial. The fact remains that this Court is of the considered view that intervention by the Armed Forces on 12th October, 1999 was an imperative and inevitable necessity in view of the exceptional G circumstances prevailing at that- time and, therefore, there is no valid G justification for not validating the extra constitutional measure of the Armed Forces on the technical distinction between `doctrine of necessity' and the `doctrine of State necessity'. 255. It would be instructive to refer to the following passages from the book titled The Classics Of International Law, by Hugo Grotius: "What view is to be taken in case of extreme and in other respects unavoidable necessity. 1. "More serious is the question whether the law of non-resistance should bind us in case of extreme and imminent peril. Even some laws of God, although stated in general terms, carry a tacit exception in case of extreme necessity. Such a limitation was put upon the law of the Sabbath by learned men in the time of the Maccabees; hence the well- known saying: `Danger to life breaks the Sabbath. In Synesius, again, a Jew presents this excuse for having violated the law of the' Sabbath: `We were exposed to imminent danger of death.' "This exception was approved by Christ, as also an exception in the case of another law, which forbade the eating of shewbread. The Jewish rabbis, in accordance with an ancient tradition, admit a similar exception in the case of the law forbidding the use of certain articles of food, and in some other cases; and rightly so. This does not mean that God has

not the right to oblige us to submit ourselves to certain death; it does mean that since these are some laws of such a nature, we are not to believe that they were given with so inflexible an intent. The same principle holds even more manifestly in the case of human laws. "2. I do not deny that even according to human law certain acts of a moral nature can be ordered which expose one to a sure danger of death; an example is the order not to leave one's post. We are not, however, rashly to 'assume that such was the purpose of him who laid down the law; and it is apparent that men would not have received so drastic a law applying to themselves and others except as constrained by extreme necessity. For laws are formulated by men and ought to be formulated with an- appreciation of human frailty." "Now this law which we are discussing-the law of nonresistance-seems to draw its validity from the will of those who associate themselves together in the first place to form a civil society; from the same source, furthermore, derives the right which passes into the hands of those who govern. If these men could be asked whether they purposed to impose upon all persons the obligation to prefer death rather than under any circumstances to take up arms in order to ward off the violence of those having superior authority, I do not know whether they would answer in the affirmative, unless, perhaps, with this qualification, in case resistance could not be made without a very great disturbance in the state, and without the destruction of a great many innocent people. I do not doubt that to human law also there can be applied what love under such circumstances would commend." "3. Some one may say that this strict obligation, to suffer death rather than at any time to ward off any kind of wrong-doing on he part of those possessing superior authority, has its origin not in human but in divine law. It must be noted, however, that in the first instance men joined themselves together to form a civil society not by command of God, but of their own free-will, being influenced by their experience of the weakness of isolated households against attack. From this origin the civil power is derived, and so Peter calls this an ordinance of man. Elsewhere, however, it is also called a divine ordinance, because God approved an institution which was beneficial to mankind. God is to be thought of as approving a human law, however, only as human and imposed after the manner of men." "4. Barclay, though a very' staunch Advocate of kingly authority, nevertheless comes down to this point, that he concedes to the people, and to a notable portion of the people, the right of self-defence against atrocious cruelty, despite the fact that he admits that the entire people is subject to the king. I readily understand that in proportion as that which is preserved is of greater importance, the equity of admitting an exception to the letter of a law is increased. But on the other hand I should hardly dare indiscriminately to condemn either individuals, or a minority which at length availed itself of the last resource of necessity in such a way as meanwhile not to abandon consideration of the common good. " "That the right to make war may be conceded against him who has the chief authority among a free people. "First, then, if rulers responsible to the people, whether such power was conferred at the beginning or under a later arrangement as at Sparta-if such rulers transgress against the laws and the state, not only can they be resisted by force, but, in case of necessity, they can be punished with death. An example is the case of Pausanias, king of the Lacedaemonians. And since the earliest kingships of Italy were of this character, it. is surprising that, after narrating the exceedingly dreadful crimes of Mezentius, Virgil adds: Then all Etruria in just anger rose; 'The punishment of death forthwith demand They for their king."

"That in case of necessity men have the right to use things which have become the property of another, and whence this right comes "1. Now let us see whether men in general possess any right over things which have already become the property of another. Some perchance may think it strange that this question should be raised, since the right of private ownership seems completely to have absorbed the right which had its origin in a state of community of property. Such, however, is not the case. We must, in fact, consider what the intention was of those who first introduced individual ownership; and we are forced to believe that it was their intention to depart as little as possible from natural equity For as in this sense even written laws are to be interpreted, much more should such a -point of view prevail in the interpretation of usages which are not held to exact statement by the limitations of a written form. " "2. Hence it follows, first, that in direst need the primitive right of user revives, as if community of ownership had remained, since in respect to all human laws-the law of ownership included-supreme necessity seems to have been excepted. "3. Hence it follows, again, that on a voyage, if provisions fail, whatever each person has ought to be contributed to the common stock. Thus, again, if fire has broken out, in order - to protect a building belonging to me I can destroy a building of my neighbour. I can, furthermore, cut the ropes or nets in which my ship has been caught, if it cannot otherwise be freed. None of these rules was introduced by the civil law, but they have all come into existence through interpretations of it." "4. Even among the theologians the principles has been accepted that, if a man under stress of such necessity takes from the property of another what is necessary to preserve his own life, he does not commit a theft." "The reason which lies back of this principle is not, as some allege, that the owner of a thing is bound by the rule of love to give to him who lacks; it is, rather, that all things seem to have been distributed to individual owners with a benign reservation in favour of the primitive right. For it those who made the original distribution had been asked what they thought about this matter they would have given the same answer that we do. `Necessity,' says Seneca the father, `the great resource of human weakness, breaks every law. meaning, of course, human law, or law constituted after the fashion of human law. Cicero in his eleventh Philippic averred: `Cassius has set out for Syria, a province belonging to another, if men observed written laws; but since these have been suppressed, it becomes his province by the law of nature.' In Curtius we read: `In a common disaster each man has whatever falls to his lot.' "That the right, in case of necessity, to use things belonging to others, holds when the necessity is in no way avoidable. "Administrations, however, must be kept in mind, that this permission to use property belonging to another may not be carried beyond proper limits." "The first is, that every effort should be made to see whether the necessity can be avoided in any other way, as. for example, by appealing to a Magistrate, or even by trying through entreaties to obtain the use of the thing from the owner. Plato authorizes the taking of water from a neighbour's well only in case one in search of water has dug on his own land clear to the underlying stratum of chalk. Solon gives such authorization only in case one has dug on his own land to a depth of forty cubits; in regard to Solon's rule Plutarch adds: `He thought to minister to need, not to show indulgence to laziness.' In his answer to the people of Sinope Xenophon said: `Wherever the right to purchase is not granted to us, whether on Greek or on barbarian soil, we take what we have need of, not from lawlessness but from necessity.' "That the right, in case of necessity, to use things belonging to another, holds except when the possessor has equal need.

"In the second place, this right cannot be conceded if the owner himself is under an equal necessity; for in like circumstances the position of the owner gives him the preference. `He is not foolish', says Lactantius, `who has not, even for his own safety, pushed a shipwrecked man from his plank, or a wounded man from his horse; for he has kept himself from the inflicting of an injury, which would be a sin and to avoid such a sin is wisdom.' Cicero had said in his third book On Duties: `should not the wise .man, therefore, if he is exhausted with hunger, take food away from another man who is of no account? By no means. For my life is no more precious to me than the possession of such a spirit that I would not harm any one for the sake of my own advantage? In Curtius we read: `The man who will not part with his own has a better case than the man who demands what belongs to another.' "That there is, further, an obligation to restore the things of another used in case of necessity, whenever restoration shall be possible "In the third place, restitution of another's property which has been used in case of necessity must be made whenever this can be done." "There are some who hold a different opinion. Their plea is, that the man who has availed himself of his own right is not bound to make restitution. But it is nearer the truth to say, that the right here was not absolute, but was- restricted by the burden of making restitution, where necessity allowed. Such a right is adequate to maintain natural. equity against any hardship occasioned by private ownership. " "Application of this right in the case of wars. "From what has been said we can understand how it is permissible for one who is waging a just war to take possession of a place situated in a country free from hostilities. Such procedure, of course, implies these conditions, that there is not an imaginary but a real danger that the enemy will seize the place and cause irreparable damage; further, that nothing be taken except what is necessary for protection, such as the mere guarding of the place, the legal jurisdiction and revenues being left to the rightful owner; and, finally, that possession be had with the intention of restoring the place as soon as the necessity has ceased." `Henna was retained by an act either culpable, or justified by necessity,' says Livy; for whatever departs in the least degree from necessity is culpable. When the Greeks who were with Xenophon were in pressing need of ships, on the advice of Xenophon himself they seized the vessels that were passing by, yet took possession in such a way that they kept the cargoes unharmed for the owners, furnished provisions also to the sailors, and paid passage money." "The first right then that, since the establishment of private ownership, still remains over from the old community of property, that which we have called the right of necessity." "That men possess the right to use things which have become the property of another, for a purpose which involves no detriment to the owner. "A second right is that of innocent use. `Why,' says Cicero, `when a man can do so without loss to himself, should he not share with another things that are useful to the recipient and can be spared without annoyance to the give?' Thus Seneca declares that opportunity to get a light for a fire is not to be considered a favour. In Plutarch we read the following, in the seventh book of his symposiacs: `It is not right for us to destroy food, when we ourselves have more than enough; or to stop up or conceal, a spring, when we have drunk all we wanted; or to obliterate the signs which mark the route for ships, or signs on land which have been useful to us.' "Hence the right to the use of running water.

"Thus, a river, viewed as a stream, is the property of the people through whose territory if flows, or of the ruler under whose sway that people is. It is permissible for the people or king to run a pier out into it, and to them all things produced in the river belong. But the same river, viewed as running water, has remained common property, so that any one may drink or draw water from it." Who would forbid from lighted torch alight To take, and guarded hold in hollow sea The waters vast? Says Ovid. In the same author Latona, thus, addresses the Lycians: Why water, me deny? Common to all. The use of water is. "There also he calls the waves a public blessing, that is a blessing common to mankind, using a less appropriate meaning of the word `public'. In that sense certain things are said to be public by the law of nations; and with this meaning Virgil referred to the wave as open to all men." 256. In the book titled A Treatise On The Law Of The Prerogative Of The Crown and the Relative Duties and Rights of the Subject by Joseph Chitty, it was observed: "There are indeed two memorable instances on record, in which Parliament have assembled without the authority of the King; and have, when so assembled, effected most momentous revolutions in the Government. I allude to the Parliament which restored Charles 2; and the Parliament of 1688 which .disposed of the British Crown to William III. But in both these instances the necessity. of the case rendered it necessary for the Parliament to meet as they did, there being no King to call them together, and necessity supersedes all law. Nor is it an exception to this rule, that by some modern statutes (b) on the demise of the King or Queen (which at common law dissolved the Parliament, because it could no longer consult with him who called it) (c), the Parliament then in being or otherwise the last Parliament shall revive or sit, and continue for six months after such demise, unless sooner prorogued or dissolved by the successor; that is, if the Parliament be at the time of the King's death separated by adjournment or prorogation, it shall notwithstanding assemble immediately; or, if no parliament be then in being, the members of the last Parliament shall assemble and be again a Parliament. For in such case, the revived Parliament must have been originally summoned by the Crown." 257. In a case concerning "The Gabcikovo-Nagymaros Project", decided by International Court of -Justice and heavily relied upon by Syed Sharifuddin Pirzada, it was held: "49. The Court will now consider the question of whether there was, in 1989, a state of necessity which would have permitted. Hungary, without incurring international responsibility, to suspend and abandon works that it was committed to perform in accordance -with the 1977 Treaty and related instruments. "50. In the present case, the Parties are in agreement in considering that the existence of a state of necessity must be evaluated in the light of the criteria laid down by the International Law Commission in Article 33 of the Draft Articles on the International Responsibility of States that it adopted on first reading. That provision is worded as follows : . Article 33. State of Necessity 1. A state of necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act of that ' State not in conformity with an international obligation of the State unless:

(a) the act was the only means of safeguarding an essential interest of the State against a grave and imminent peril; and (b) the act did not seriously impair an essential interest of the State towards which the obligation existed. . 2. In any case, a state of necessity may not be invoked by a State as a ground for precluding wrongfulness: (a) if the international obligation with which the art of the State is not in conformity arises out of a peremptory norm of general international law; or (b) if the international obligation with which the act of the State is not in. conformity is laid down by a treaty which, explicitly or implicitly, excludes the possibility of invoking the state of necessity with respect to that obligation; or (c) if the State in question has contributed to the occurrence of the state of necessity." (Yearbook of the International Law Commission, 1980, Vo1.lI, Part 2, p.34) In its Commentary, the Commission defined the `state of necessity' as being `that situation of a State whose means of safeguarding an essential interest threatened by a grave and imminent peril is to adopt conduct not in conformity with what is required of it by an international obligation to another State" (ibid, para. l). It concluded that `the notion of state of -necessity is. . . deeply rooted in general legal thinking' (ibid, p. 49, para. 31). 51. The Court considers, first of all, that the state of necessity is a ground recognized by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation. It observes moreover that such ground for precluding wrongfulness can only be accepted on an exceptional basis. The International Law Commission was of the same opinion when it explained that it had opted for a negative form of words in Article 33 of its Draft. `in order to show, by this formal means also, that the case of invocation of a state of necessity as a justification must be considered as really constituting an exception-and one even more rarely admissible than is the case with the other circumstances precluding wrongfulness..."(ibid.; p.5l para. 40) Thus, according to the Commission, the state of necessity can only be invoked under certain strictly, defined conditions which must be cumulatively satisfied; and the State concerned is not the sole Judge of whether those conditions have been met." "52. In the present case, the following basic conditions set forth in draft Article 33 are relevant: It must have been occasioned' by an "essential interest" of the State which is the author of the act conflicting with one of its international obligations; that interest must have been threatened by a "grave and imminent peril"; the act being challenged must have been the "only means" of safeguarding that interest; that act must not have "seriously impaired an essential interest" of the State towards which the obligation existed; and the State which is author of that act must not have "contributed to the occurrence of the State of necessity". Those conditions reflect customary international law:" 54. The verification of the existence, 1989, of the `peril' invoked by Hungary, of its `grave and imminent' nature, as well as of the absence of any `means' to respond to it, other than the measures taken by Hungary to suspend and abandon the works, are all complex processes." 258. In Corpus Juris Secundum. Volume-65 (page 387) word "Necessity" has been defined as under:--

"Necessity.---The word "necessity" does not have a fixed character. It is relative and elastic, rather than absolute, and it is without any distinct or definite signification. "It has varying degrees of meaning which the Courts recognized, and may connote different degrees on necessity. Thus, it may mean a necessity which is unavoidable, and it may mean a necessity which is merely a matter of convenience, the word being frequently used in connection with other words which increase or diminish. the urgency implied: It should be construed with reference to existing conditions. "The word "necessity" is not always used in its lexicographical sense of indispensably or essentially requisite, or as meaning an absolute or indispensable need or the imaginary need of whimsy, caprice, or mere convenience. Sometimes it does mean .indispensable, but not always, and it may not mean that which is ,indispensable or requisite, for it is not restricted in law to that which is absolutely essential to existence." "It does not mean an absolute, unavoidable, physical necessity; but it may mean a practical, or reasonable, or an economic and moral, necessity, and it may be used as meaning appropriate or fitting to the particular instance; a substantial or obvious need in view of the disclosed relevant circumstances." "While the term "necessity" is elastic, as stated ante, -the elasticity should not be extended to cover that which is merely, desirable arid I not reasonably essential.. A necessity is a requirement, and necessity is something quite different from mere. convenience. A thing which is expedient is a necessity, and a strong or urgent reason why a thing should be done creates a necessity for doing it. Necessity usually imports negation of freedom." `The term is variously defined as meaning the quality or state of being necessity; needful; conducive; requisite; indispensably requisite; urgent need, unavoidable; a state or condition imperatively demanding relief or assistance; inevitableness; indispensableness; inevitable consequence; irresistible force. "In its primary sense it signifies that which is unavoidable; inevitable, or indispensable; that which makes an act or event unavoidable; offering no other course; that which is needed; that which is essentially requisite; something that is necessary; something which must be accomplished to attain a desired result; the occasion, or that which gives rise to something else. "With reference to public-matters and legislative usage in general, necessity means great or urgent public convenience." "Necessity" has been held to be synonymous with, or equivalent to, "emergency" see, the C.J.S. definition Emergency, and "requirement." , "The power of condemnation may in some instances be exercised only where it is established that there is a necessity for the taking of the particular property, and in this connection the meaning of the word "necessity" has frequently been adjudicated..." "Public necessity.---A relative term meaning urgent public convenience; in-this connection inconvenience tray be so great as to amount to necessity." 259. In, "Constitutional and Administrative Law" by Stanley De Smith and Rodney Brazier, 8th Edition, 1998, under the sub-heading, `Ultimate Authority in Constitutional Law', it was observed: "The Convention of Lords and `Commons' met in January, 1689, and next month offered the Crown to William and Mary jointly, subject to conditions set out in a Declaration of Right. The offer having been accepted,- the Convention passed an Act asserting that it Was Parliament, and then enacted the Bill of Rights, incorporating the Declaration of Right. Clearly, the Convention, `Parliament' had been irregularly summoned; its affirmation of its own legal authority carried the matter no farther; there had been no King from December, 1688 (assuming that James II was deemed to have abdicated or to

have forfeited the Crown) till February,. 1689; William III had no hereditary legal title to the throne and, therefore, had no authority to assent to Bills. Has every purported Act .of Parliament since 1688 been a nullity? Is a .Stuart still the rightful King? Once questions such as these are asked, one must acknowledge that in certain circumstances a breach of legal continuity, be it peaceful or accompanied by coercion and violence, may have to be treated as superseding the constitutional and legal order and replacing it by a new one. Legal theorists have no option but to accommodate their concepts to the facts of political life. Successful revolution sooner or, later begets its own legality. If, as Hans Kelsen has postulated, the basic norm or ultimate principle underlying a constitutional order 'is that the constitution ought to be obeyed, then the disappearance of that order, followed by acquiescence on the part of officials, judges and the general public in law, rules and orders issued by the new holders of power, will displace the old basic norm or ultimate principle and give rise to a new one. Thus, might becomes right in the eye of the law." "The argument can be summarized in this way: sooner or later a breach of legal continuity will be treated as laying down legitimate foundations for a new constitutional order, provided that the `revolution' is successful; there is, however, no neat rule of thumb available to' judges during or immediately after the `revolution' for the purpose of determining whether the old order survives wholly, in part or not at all. It so happened that the Revolution of 1688 gave a clear pointer to the Judiciary. There was a suspension of business in the Courts, and after the throne had become vacant new judges had to be appointed because of a `demise of the Crown'. These appointees were not at all likely to call the validity of the regime in question. After a while (at the latest, after the failure of the Jacobite revolt in 1715] it would have been merely silly for a judge or commentator to deny that the Bill of Rights, 1689 and other legislation passed after the Revolution were valid.. Efficacy and acquiescence had established a new basis for legality. The particular circumstances in which the Revolution of 1688 took place, and its immediate practical consequences, laid a secure foundation, moreover, for judicial acceptance of the doctrine of absolute parliamentary sovereignty. The doctrine grew out of a particular state of affairs. A fundamental change of .a political nature may bring about a fundamental change in legal doctrine. " Under the sub-heading `The Concept of Necessity', in the same book, it was observed:"One other comment must be made. In some situations where unconstitutional action has been taken by persons wielding effective political power, it-is open to 'a judge to steer a middle course. He may find it possible task that the framework of the pre-existing order survives but the deviation from these norms can be justified on the grounds of necessity. The principle of necessity, rendering lawful what would otherwise-be unlawful is not unknown to English Law; there is a defence of necessity, (albeit of uncertain scope), in criminal law and in Constitutional law, the application of martial law is but an extended application of this concept. But the necessity -must be proportionate to the evil to be averted, and acceptance of the principle does not normally imply total abdication from judicial review or acquiescence in the suppression of the Legal order; it is essentially a transient phenomenon. State necessity has been judicially accepted as a legal justification for ostensibly unconstitutional, action to fill a vacuum arising within the constitutional order in Pakistan.." 260. In the case from Lesotho reported as Makenete v. Lekhanya and others [1993] 3 LRC, the Lesotho Court dealt with the law laid down on the touchstone of necessity in the case of Nusrat Bhutto PLD 1977 SC 657 in the following terms: "Anxious consideration must of course be given to deciding whether events constitute a coup d'etat or merely a `constitutional deviation'. It is in this context that the following observations of Haq, C J in Bhutto PLD 1977 SC 657 at 721-722 (relied upon in appellant's heads of argument) are appropriate: `That in any case the theory of revolutionary legality can have no application or relevance to a situation where the breach of legal continuity is of a purely temporary nature and for

a specified limited purpose. Such a phenomenon can more appropriately be described as one of constitutional deviation rather, than of revolution.' "I have earlier adverted to aspects of the appellant's argument that what occurred in the present case was merely such a `constitutional deviation'. It was further argued that the High Court erred in concluding that the events in the present case constituted a coup d'etat because this was not a case of competing governments, nor one dealing with the status of a new regime, nor an issue of whether the government was lawful. The issue rather was whether what was done by the first respondent was within his powers or not. I am unable to agree. The absence of competing governments by no means indicates that a coup d'etat has not taken place. If other conditions are satisfied (including for example) the requirement that the old legal order is replaced by a new legal order in a way not provided for or contemplated in the old order) then it is irrelevant that there are not (or have not been) competing governments. It is quite possible for a person or group of persons who were in power and constituted the Government to effect a revolution if it replaces one legal order by another in a manner not provided for by the old order. It is the fundamental unlawfulness of the change and substantial nature of the change which is relevant, not the precise mechanisms bringing it about. In fact the absence of `competing' governments may be an indication that the revolution has been successful..." "In the result, and bearing in mind the necessity for considering the `total milieu in which the change is brought about', one cannot escape the conclusion that at some point a new order, brought about by revolution and in particular is capable of achieving legitimacy and I would, subject to the same qualification accept the test as formulated by the Chief Justice in Mokotso (1989) LRC (Const.) 24 at 133 (and by implication applied by him in the present case), namely: "A Court may hold a revolutionary Government to be lawful, and its legislation to have been legitimated ab initio, where it is satisfied that (a) the Government is firmly established, there being no other government in opposition thereto; and (b) the government's administration is effective, in that the majority of the people. are behaving, by and large, in conformity therewith. "On this part of the case I am well-satisfied that the events of 20 February 1990 and thereafter, did in fact constitute a coup d'etat and not merely a constitutional deviation from the previous dispensation. Unless there are good reasons for not doing so it is my considered view that the learned Chief Justice cannot be faulted for holding that `the present Government is the lawful Government of the Kingdom of Lesotho and that its legislation has been legitimated ab initio, that is, with effect from 19th February, 1990; particularly in the light of his unchallenged findings regarding the high degree to which the new Government is established, effective and finds popular support amongst the people as a whole." "There is ample authority for the submission on the appellant's behalf that the constitutional role of the courts of law, even in times of crises, is to administer justice 'to those who seek it, to serve as a buttress between the executive and the subject, to protect the citizen when the legislature exceeds its Constitutional powers and to do so without fear, favour or prejudice, and independently of the' consequences which ensue. "I would suggest that this is the construction to be placed on those judgments criticising `effectiveness' as the sole criterion for the .. legality of the revolutionary Government. "In Bhutto's case for example, Anwarul Haq, CJ observed: . `by making effectiveness of the political as the sole condition of criterion of its legality it excludes from consideration sociological factors of morality and justice which contribute to the acceptance or if effectiveness of the new legal order.'." 261. Reference be also made to the case of The Attorney-General of the Republic v. Mustafa Ibrahim (Criminal Appeals Nos.2729, 2734, 2735) (Cypress Law Reports 105). The background of this case is that the Court could not function because Muslim Judges

of the Turkish part refused to come and assemble in the Court and for that reason two from this side and two from the Greek side were divided and even the President, who was a German, also resigned. So, justice was suffering and access to justice being essential, they had to pass certain laws, which were justified on the ground of necessity. The following passages of the report are instructive, wherein it was observed: "The Attorney-General, on the other hand, blamed the insurgents, and the conditions created by their prolonged activity; and submitted upon a well-supported argument, that the new Law was enacted on sound legal foundation; the generally accepted principle of the law. of necessity for the preservation of fundamental services in the State. The preservation of the administration of Justice itself, in this case." "The existence, the validity, and the force of the Constitution, are not in question. That the new law has not been promulgated, or published according to the written text of the relative part of the Constitution, has not been contested. That it is not in accordance with certain constitutional provisions, especially Articles 133.1 and 153.1; in material particulars, there can be no doubt. And the fact that the Attorney-General of the Republic defends this new Law, by the defence of necessity, points, I think, in the direction that its validity cannot otherwise be defended. The reasonable inference is that had it not been for "the necessity" which caused its enactment, the new Law, probably, would not have been enacted; and if enacted, it might well be challenged as unconstitutional. This is the position in which I see the question for consideration in the light of the submissions before us. And it seems to me that the onus of establishing this "defence of necessity", lies upon the side which invokes it. " "Opening his article on the subject, in the sixth volume of the publications of the Faculty of Laws, of the University College, London, Current Legal Problems, (1953), at page 216-(referred to by the learned Attorney-General)-Professor Glanville Williams says: . "The defence of necessity is not so much a current as a perennial legal problem" "When I started to prepare this lecture-he writes at p.217 I thought of necessity as .a definite kind of defence, occupying its own niche in the law. But the authorities led me, into unexpected paths." "The learned Attorney-General, in his able and most helpful address, referred us to reports of superior judicial authorities, and to writings of eminent jurists showing how this doctrine of necessity has long been accepted and applied in France, Germany, Italy, Greece, and how it is also found in that treasure of practical legal wisdom, the Mejelle, (Articles 17, 18, 21 and 22) which the elder of us, still remember with profound respect. I would have to go into great lengths in this judgment, if I were to cite the guidance and assistance which I found in all those sources of legal knowledge, in considering the problem in hand." "It has been argued by counsel for respondents that the Court cannot take official cognizance of the existing emergency because the Council of Ministers has not issued a Proclamation of Emergency under Article 183 of the Constitution. In my opinion, the Court cannot close its eyes to notorious relevant facts in deciding these cases. Article 183 is a provision enabling an emergency to be declared for certain limited purposes and through a specified procedure. The fact that in spite of what has been going on in Cyprus since December, '1963, no proclamation of Emergency has been issued under Article 183, ' rather than indicating, contrary to glaring fact, that no such emergency exists, strongly indicates that the present emergency is one which could not be met within the express provisions of the Constitution. At a time when by a resolution, dated 4th March, 1964, of the Security Council of the United Nations an International Force has been dispatched to Cyprus to assist in the return to normality and a U.N. Mediator has been assigned to try and work out a solution of the Cyprus Problem, it would be an. abdication of responsibility on the part of this court to close its eyes to the realities of the situation, because, for any reason, no Proclamation of Emergency has been made under Article 183, and to hold that everything is normal in Cyprus. To pretend that the administration of justice could have functioned unhindered as envisaged under the Constitution, because a measure that could have been taken under a provision of limited application, such as Article 183, has not in fact been taken, would be unreasonable. I pass no censure on

counsel for respondents who has raised the point; he has done so in the discharge of his duties to his clients, as, on its own part, the Court has also to discharge its duty to all persons in Cyprus for the sake of all of them." "Granted that an emergency, as already described, exists the next thing to be examined is its relation to the basic theme of the constitutional structure. "It cannot, of course, be argued that, because of such an emergency, constitutional deadlock or other internal difficulties, it is possible to question the existence of Cyprus as an independent State. The existence of a State cannot be deemed to be dependant on the fate or operation of its Constitution; otherwise, every time that any Constitution were upset in a country then such State would have ceased to exist, and this is not so. The existence of a State is a matter governed by accepted criteria of international law and in particular it is related to the application of the principle of recognition by other States." "Organs of Government set up under a Constitution are vested expressly with the competence granted to them by such Constitution, but they have always an implied duty to govern too. It would be absurd to accept that if, for one reason or other, an emergency arises, Which cannot be met within the express letter of the Constitution, then such organs need not take the necessary measures in the matter, and that they would be entitled to abdicate their responsibilities and watch helplessly the disintegration of the country or an essential function of the State, such as the administration of justice.As it has been accepted by the Council of State in Greece, in time of emergency it ' is the, responsibility of the Government to ensure the proper functioning of public services and of generally the machinery of the State (Decision 566/1936)" "Having considered the jurisprudence and authoritative writings of other countries to which this Court has been referred, as well as some others, I am of the opinion that the doctrine of necessity in public law is in reality the acceptance of necessity as a source of authority for acting in a manner not regulated by-law but required, in prevailing circumstances, by supreme public interest, for the salvation of the State and its people." (ii) that a Court in interpreting and applying a Constitution has to adopt, as much as possible, an experiential approach." "I am. of the opinion that Article 179 is to be applied subject to the proposition .that where it is not possible for a basic function of the State to be discharged properly, as provided for in the Constitution, or where a situation has arisen which cannot be adequately met under the provisions of the Constitution then the appropriate organ may take such steps within the nature of its competence as are required to meet the necessity." "Even though the Constitution is deemed to be a supreme law limiting the sovereignty of the legislature, nevertheless, where the Constitution itself cannot measure up to a situation which has arisen, especially where such situation is contrary to its fundamental theme, or where an organ set up under the Constitution cannot function and where, furthermore, in view of the nature of the Constitution it is not possible for the sovereign will of the people to manifest itself, through an amendment of the Constitution, in redressing the position, then, in my opinion according to the doctrine of necessity the legislative power, under Article 61, remains unhindered by Article 179, and not only it can, but it must, be exercised for the benefit of the people." "Then it cannot be said to be a case of legislation repugnant to, or inconsistent with, the provisions of the supreme law, in contravention of Article 179, because it is legislation to meet a situation to which the supreme law itself is not, in view of its nature and provisions, applicable, and it cannot be made applicable to meet it; there can, thus, be no question of the legislature exercising sovereignty in a field where the sovereignty of fundamental law is already established, by means of the Constitution. And with the Cyprus Constitution, in view of its origins and nature, it is all the more proper and necessary for the legislature to exercise its own powers, on behalf of the people, in matters of necessity."

"I am of the opinion that because of the "recent events" mentioned in the preamble to Law 33/64, and described already in an earlier part of this Judgment, a public necessity of the first magnitude had arisen for the judiciary to be enabled to function urgently, properly and adequately." "That the proper discharge of the administration of justice constitutes a necessity, especially in times of upheaval, such as the present,, cannot be reasonably disputed. It has been so aptly put in Decision 1601 of 1945 of the Greek Council of State where it was held that the situation under consideration (" ....constituted an obvious, imperative and unavoidable necessity, making it necessary that, in priority to all else, order had to be restored from both the moral and service aspects in the functioning of judicial services, which contribute fundamentally to the restoration of order and security and to the strengthening of the confidence of the citizens in the rule of law, and, therefore, the creation of the indispensable conditions for a return of the country to normal political life through. free elections .... ") And this proposition was re-affirmed in Decision. 624 of 1945 of the Greek Council of State, in identical terms. " "Law of Necessity. ---I shall now deal with the "law of necessity" as understood and applied in other countries. The classical writers abound in maxims upholding the concept of necessity. This is mainly based on the maxim "salus populi est supremo lex ". Judicial decisions in various countries have acknowledged that in abnormal conditions exceptional circumstances impose on those exercising the power of the State the duty to take exceptional measures for the salvation of the country on the strength of the above-maxim." "In -Italy the law of necessity has been accepted long ago as forming part of the law of the country. Eminent writers on Public Law adopt the principle that necessity constitutes an original source of law independently of the case where it is a prerequisite for the application of certain constitutional provisions for a state of emergency: See e.g. C. Mortati, Professor in the University of Rome: "Diritto Pubblico" 1(1962), 6th edition, page 174; and R. Alessi, Professor of Administrative Law in the University of Bologna: "Diritto Amministrativo Italiano" (1960), 3rd edition, page 218." "This is what Professor Mortati has to say on this point (ubi supra, at page 174)": "While necessity, in a third meaning, which is that considered here, presents itself as a fact of autonomous juridical product, when it operates outside or even contrary to law, appearing by itself capable of legalising the act, otherwise illegal. Naturally for the production of that effect, necessity must have an institutional character, that is to say it must be deduced from the exigencies of life, from the purpose the political institution of the state is aiming at,. that is to. say of the juridical order to which appertains the organ operating on the basis of such source ("fonte") "In Germany the law of necessity has been accepted by famous writers on Public law like Laband and W.Jellines and was embodied in Article 48 of the Weimar Constitution (see Jellinck, "Gesetz and Verordung", 1887, page 376." "In the light of the principles of the law of necessity as applied in other countries and having regard to, the provisions of the constitution of the Republic of Cyprus (including the provisions of Articles 179, 182 and 183), 1 interpret our Constitution to include the doctrine of necessity in exceptional circumstances, which is an implied exception to particular provisions of the Constitution; and this in order to ensure the very existence of the State. The following prerequisites must be satisfied before the doctrine may become applicable: (a) an imperative and inevitable necessity or exceptional circumstances; (b) no other remedy to apply; (c) the measure taken must be proportionate to the necessity; and

(d) it must be of a temporary character limited to the duration of the exceptional circumstances. "A law, thus, enacted is subject to the control of this Court to decide whether the aforesaid prerequisites are satisfied, i.e. whether there exists such a necessity and whether the measures taken were necessary to meet it." 262. Reference may also be made to the following passages from the case of Mitchell and others v. Director of Public Prosecutions and another 1986 LRC (Grenada): "The Chief Justice, Muhammad Munir, opened his judgment with a discussion of the theoretical assumptions to be adopted in the case: "As we will have to interpret some of the provisions of this Order, it is necessary to appraise the existing constitutional position in the light of the juristic principles which, determine the validity or otherwise of law creating organs in modern States which being members of the comity of nations are governed by international Law. In judging the validity of laws at a given time, one of the basic doctrines of legal positivism, on which the whole science of modern jurisprudence rests, requires a jurist to presuppose the validity of historically the first Constitution whether it was given by an internal usurper, an external invader or a national hero or by a popular or other assembly of persons. Subsequent alterations in the Constitution and the validity of all laws made thereunder is determined by the first Constitution. Where a Constitution presents such continuity, a law once made continues in force until it is repealed, altered or amended in accordance with the Constitution. It sometimes happens, however, that a Constitution and the national legal order under it is disrupted by an abrupt political change not within the contemplation of the Constitution. Any such change is called a revolution, and its legal effect is not only the destruction of the existing Constitution but also the validity of the national legal order. A revolution is generally associated with public tumult, mutiny, violence and bloodshed but from a juristic point of view the method by which and the persons by whom a revolution is brought about is wholly immaterial. The change may be attended by violence or it may be perfectly peaceful. It may take the form of a coup d'etat by a political adventurer or it may be effected by persons already in public positions. Equally irrelevant in law is the motive for a revolution, inasmuch as a destruction of the constitutional structure may be prompted by a highly patriotic impulse or by the most sordid of ends. For the purposes of the doctrine here explained a change is, in law, a revolution if it annuls the Constitution and the annulment is effective. If the attempt to break the Constitution fails those who sponsor or organize it are judged by the existing Constitution as guilty of the crime of treason. But if the revolution is victorious in the sense that the persons assuming power under the change can successfully require the inhabitants of the country to conform to the new regime, then the revolution itself becomes a law-creating fact because thereafter its own legality is judged not by reference to the annulled Constitution but by reference to its own success. On the same principle the validity of the laws to be made thereafter is judged by reference to the new and not the annulled Constitution. Thus, the essential condition to determine whether a Constitution has been annulled is the efficacy of the change. In the circumstances supposed no new State is brought into existence though Aristotle thought otherwise. If the territory and the people remain substantially the same, there is, under the modern juristic doctrine, no change in the corpus- or international entity of the State and the revolutionary Government and the new Constitution are according to International Law, the legitimate Government and the valid constitution of the State. Thus, a victorious revolution or a successful coup d'etat is an internationally recognized legal method of changing a Constitution. " (Italics added)" "His Lordship then proceeded to cite with obvious approval from Salmond on Jurisprudence (11th ed. by Glanville Williams), at p.101 a passage which reads thus: "Every constitution has an extra legal origin, the best illustration being the United States of America which in open and forcible defiance of English Law broke away from England and set up new states and a Constitution the origin of which was hot merely extra legal but was illegal."

"Yet, so soon as those constitutions succeeded in obtaining de facto establishment in the rebellious colonies they received recognition as legally valid from the Courts of the colonies. Constitutional law followed hard upon the heels of constitutional facts." "Then His Lordship went on to say ([1968] 3 All ER 561 at p.574): "It is a historical fact that in many countries - and. indeed in many countries which are or have been under British sovereignty there are now regimes which are universally recognized as lawful but which derive their origins from revolutions or coups d'etat. The law must take account of that fact. ' So, there may be a question how or at what stage the new regime became lawful." "Assuming for the moment that is so, we have reached the position where The State v Dosso has received support from the highest judicial pinnacle. And 'so we cannot just brush it aside because the same Court decided differently thirteen years later. But I doubt that this is so. I am inclined to .the view that His Lordship was there and then just noting the tests of revolutionary legality applied in these two cases by the Courts." "S.K. Date-Bah in an article "Jurisprudence's Day in Court in Ghana" (1971) 20 ICLQ 315 suggested that the Court of Appeal should not have dismissed - Kelsen so casually without a more serious and analytical consideration of his work. This was perhaps the first reported positive Commonwealth judicial rejection. of a basic Kelsenite principle outside of Pakistan. And I agree with. their conclusion and its ratio decidendi. Doubts had been raised in a few cases in Pakistan itself by both Bench and Bar about the correctness of the actual decision in The State v Dosso, Jilani v The Government of the Punjab involved full judicial scrutiny of alleged fallacies inherent in the application of Kelsen's theory of revolution and legal discontinuity which had become somewhat popular in Commonwealth Courts since The State v Dosso. A full bench of 5 judges decided on 20th April, 1972 that Dosso was wrong and it was overruled. Dosso's case was to be rejected, not only because the Supreme Court there had been wholly premature in finding that President ' Iskander Mirza had effectively abrogated the 1956 Constitution, but also because Kelsen's doctrine of the law annulling effect of revolutions and coups d'etat is not a rule or principle of law to be applied by Courts and Judges, but merely a theory about law and a controverted one at that PLD 1972 SC, 139. "The Chief Justice referred extensively to Kelsen in an endeavour to show that the jurist had been misunderstood in Dosso. He said (pp.179,180): "Kelsen... continues to be grievously misunderstood. He was only trying to lay down a pure theory of law as a rule of normative science consisting of `an aggregate or system of norms.' He was propounding a theory of law as a `mere jurist's proposition about law.' He was not attempting to lay down any legal norm or norms which are the daily concern of Judges, legal practitioners and administrator. His purpose was to recognize that such things as revolutions do also happen but even when they are successful they do not acquire any authority to (revoke) or annul the previous `general norm' until they have themselves become a legal order by habitual obedience by the citizens of the country. It is not the success of the revolution, therefore, that gives it legal validity but the effectiveness it acquires by habitual submission to it from the citizens. " (Italics added) And Yaqoob Ali, J., stressed (at p.220) that: "It must be remembered in this connection that, however, effective the Government or usurper may be, it does not within the national legal order lacquer legitimacy unless the Courts recognize the Government as de jure. " "Unless and until this takes place, the status of the Government remains undetermined. The criticisms of Kelsen are too lengthy to discuss. It must suffice to state that, mostly, I agree with them. And I too think The State v Dosso was wrongly decided." "In Bhutto v The Chief of Staff, Pakistan Army and the Federation of Pakistan PLD 1977 SC 670 Dosso's case came up again. On 17th March 1977 general elections were held ' in Pakistan. The Pakistan People's Party, led by Prime Minister Zulfikar Ali Bhutto, was

credited with 155 of the 200 elected seats in the National Assembly. The extent o: the victory was much more than was generally expected. The Opposition immediately denounced the elections as "rigged". Protest demonstrations and strikes gradually built up to widespread rioting in which the deaths of over 300 people were reported." "So, the Supreme Court, on this point, expressed the view that the validity or legality of a new revolutionary regime cannot be judged by the sole criterion of its success or effectiveness, as contemplated by Kelsen's pure theory of law "because by making effectiveness of the political change the sole condition or criterion of its legality, it excludes from consideration sociological factors of morality and justice which contribute to the acceptance or effectiveness of the new legal order," Their Honours concluded that "The legal consequences of such a change must, therefore, be determined by a consideration of the total milieu in which the change is brought about, including the motivation of those responsible for the change and the extent to which the old legal order is sought to be preserved or suppressed." "I read this to mean that, in such cases, the Court called upon to decide the question should take into consideration both the reason why the old constitutional Government was overthrown and the nature and character of the new legal order. Was the motivation mere power grabbing or was it a rebellion or example against oppression or corruption or ineptitude? And is the new legal order a just one? It does not appear that this case was cited in Controller of Taxes v. Valabhaji, Civil Appeal No. 111 of 1981 was judgment of the Court of Appeal of the Seychelles, delivered on 11th August 1981. The appeal was against the dismissal of an application to set aside a judgment for the payment of arrears of income tax." "Hogan P., in a careful judgment, considered helpfully the question Lord Reid referred to in Madzimbamuto v Lardner-Burke, how or at what stage a (revolutionary) unconstitutional regime becomes lawful? Be it noted, I digress to remark, that the question was and is not "if" this can happen, but "how" and "when" does it happen?" "The learned President considered a passage in a citation from Professor S.A. de Smith's Constitutional and Administrative Law, 3rd edn., where, at p.66 the author having said "to assert that all Constitutions or Constitutional amendments procured in a manner inconsistent with, pre-existing legal order are legally invalid will land one in a morass of absurd and insoluble difficulties," continued""...One must acknowledge that in certain circumstances a breach of legal continuity, be it peaceful or accompanied by a coercion and violence, may have to be treated as superseding the constitutional and- legal order and replacing it by a new one. Legal theorists have no option but to accommodate their concepts to the facts of political life. Successful revolution sooner or later begets its own legality..." "and to Artistides M. Liasi v The Attorney-General (1975) 3 Cyprus LIZ 568 where Loizou, J., had carried his researches back to the Roman Lex Barbarius Philippus, said, when dealing with the aftermath of the short-lived elevation of Nicolaos Sampson (p.573):"According to the case law and legal theories, two are the basic tests whereby a coup d'etat is legalized. .The first, the substantial test, is popular acceptance, even if a tacit one, of the change and legal, values thereby invoked, and the second, the formal test, is the legalization of the `coup d'etat Government' through the recognition of its actions by the next lawful Government." (Italics added) And then His Lordship went on to deal with the aspect of the timing of such legitimacy or validity. The Court asked: "But what about the interval if any, before it is firmly established and is merely en route to that position", and in answer said: "Roscoe Pound in his work on Jurisprudence (Vol.1I, Pt.3, p.30) refers to the important decision of the United States Supreme Court in Williams v Bruffy 96 US 176, 186-191 for the proposition:-

`in the case of an ultimately successful insurrection the Courts deriving from it would uphold acts of insurgents from the beginning and courts of other countries would do the same.'" a conclusion which appeared to be amply justified by, inter alia, the passage in the judgment where the Court, having referred to a rebellion in part of a State, continued:"The validity of its acts, both against the parent State and its citizens or subjects, depends entirely on its ultimate success ...such was the case of the State Governments under the old confederation on their separation from the British Crown. Having made good their declaration of independence everything they did from that date was as valid as if their independence had been at once acknowledged. " "May be so, but study of these cases from 1958 to 1981 mentioned above can and should be able to guide Caribbean judges in the formation of principles of revolutionary legality judicially sound and at the same time consistent with our political democratic ideology. And we must bear in mind what Triantaphyllides, J., said in Attorney-General of the Republic v. Ibrahim (1964) Cyprus LR 195, 231, that "the mission of the supreme judicial organ in any State is to lay down authoritatively its own law and not (automatically) to apply the law of any other state, though past precedents anywhere are always of great help." "The respondents do not deny its 'unconstitutionality vis-a-vis the Constitution of 1973. But, they contended, when the new High Court was constituted; it had validity on the legal foundation of the law of necessity, and much reliance was placed on Attorney-General of the Republic of Cyprus v Ibrahim (1964) Cyprus LR 195." "Salmond on Jurisprudence, 12th eel. (1966) para. 94 reads:- "We shall conclude our examination of the theory of wilful wrongdoing by considering a special case in which motive operates as a ground of excuse. This is the case of the jus necessitatus. So far as the abstract theory of responsibility is concerned, and act- which is necessary is not wrongful, even though done with full and deliberate intention." It is a familiar proverb that necessity knows no law -Necessitatus no habet legem is obviously too wide a proposition to be acceptable today. And S.A. de Smith's Constitutional and Administrative Law, 4th ed. (1973), pp. 78-9 has this statement:-"The principle of necessity, rendering lawful what would otherwise be unlawful, is not unknown to English law; there is a defence of necessity (albeit of uncertain scope) in criminal law, and in Constitutional law the application of martial law is but an extended application of this concept. But the necessity must be proportionate to the evil to. be averted, arid acceptance of the. principle does not normally imply total abdication from judicial review or acquiescence in the supersession of the legal order; it is essentially a transient phenomenon. State necessity has been judicially accepted in recent years as a legal justification for ostensibly unconstitutional action to fill a vacuum arising within the constitutional order in Pakistan, Cyprus, Rhodesia and Nigeria. To this extent it has been recognised as an implied exception to the letter of the Constitution. And perhaps -it can be stretched far enough to bridge the gap between the old legal order and its successor." "Then there was the summation of Lord Mansfield in R v. Stratton and others (1779) 21 St Tr 1046, an information for a misdemeanour in arresting, imprisoning. and deposing Lord Pigot, Commander-in-Chief of the Forces in Fort St. George and President and Governor of the Settlement of Madras in the East Indies. The defence was that Lord Pigot had violated the Constitution of the Government of 'Madras with regard to the Governor and council in whom the whole power was vested by the East India Company and that the defendants had acted under necessity in order to preserve the Constitution. "I turn to the "law of necessity" as understood and applied in other countries. Judicial decisions in several European countries have acknowledged that in abnormal conditions exceptional circumstances impose on those exercising the powers of the State the duty to take exceptional measures for the salvation of the country on the strength of the maxim salus populi suprema lex.

"In my view all this learning justifies this Court in adopting and adapting the law or ,doctrine of necessity for use in public law as a principle of revolutionary legality in fit cases. It was so used by the Federal Court of Pakistan in Reference by H E The Governor General No. l of 1955 PLD 1955 FC 435: by the Supreme Court of Pakistan in Jilani v. The Government of the Punjab (Supra) and in Bhutto v The Chief of Staff, Pakistan Army and Federatiori of Pakistan (supra); by the General and- Appellate Divisions of the High Court of Rhodesia and by Lord Pearce (in dissent) in the Privy Council; and very recently by the Constitutional Court of Malta in Archbishop Joseph v The Prime Minister, 22nd October 1984. "On this basis the Court applied the law of necessity to found their conclusions that: , "this was not a case where the old legal order had been completely suppressed or destroyed, but merely a case of a constitutional deviation for a temporary period and for a specified and limited objective namely, the restoration of law and order and normalcy in the country, and the earliest possible holding of free and fair elections for the purpose of .restoration of democratic institutions under the 1973 Constitution"; "It was a situation for which the Constitution provided no solution and the Armed Forces had, therefore, to intervene to save the country from further chaos and bloodshed, to safeguard its integrity and sovereignty, and to separate the warring factions which had brought the country to the brink of disaster"; and that, in the circumstances, "the imposition of Martial Law, therefore, stood validated on the doctrine of necessity, and the Chief Martial Law Administrator was entitled to perform all such acts and promulgated all legislative measures which have been consistently recognised by judicial, authorities as falling within the scope of the law of necessity. "The Attorney-General of the Republic of Cyprus v Ibrahim-et al must be dealt with in more detail. It is the nearest case to this one. The Cyprus Constitution of 1960 gave to the 18 per cent Turkish community the right to participate in all important matters of State, executive, legislative and judicial. "In this judgment Triantafyllides, J., held that "the legal doctrine of necessity . . . should be read into the provisions of the written Constitution . . . and must be deemed to be part of the scheme of the constitutional order in Cyprus so as to enable the interests of the country to be met where the Constitution . . . does not contain adequate express provision for the purpose." "I am of the opinion that the doctrine of necessity in public law is in reality the acceptance of necessity as a source of authority for acting in a manner not regulated by law but required, in prevailing circumstances, by supreme public interest,, for the salvation of the State' land its people. In such cases salus populi becomes suprema lex. That being so, the doctrine of necessity has developed in accordance with, the situations which have given rise to its being propounded or resorted to"; and later: "I interpret our Constitution to include the doctrine of necessity in exceptional circumstances, which is an implied exception to particular provisions of the Constitution; and this in order to ensure the very existence of the State." "Archbishop Joseph v The Prime Minister (Commonwealth Law Bulletin, Vol. l1, No. 1, January 1985 p.44) is a case from Malta. "These instances cannot be taken to comprise an exhaustive list of the extra constitutional situations to which the doctrine may be applied. If so, then a fortiori it should be capable of application to validate unconstitutional legislation by a constitutional representative Government in Parliament if the requisite conditions are satisfied." (3) "I would lay down the requisite conditions to be that:

(i) an imperative necessity must arise because of the existence of exceptional circumstances not provided for in the Constitution, -for immediate action to be taken to protect or preserve some vital function to the State; (ii) there must be no other course of action reasonable available;

(iii) any such action must be reasonable necessary in the interest of peace, order, and good Government; but it must not do more than is necessary or legislate beyond that; (iv) it must not impair the just rights of citizens under the Constitution,

(v) It must not one the sole effect and intention of which is to consolidate or strengthen the revolution as such. (4) It is for this Court to pronounce on the validity (if so) of any unconstitutional action on the basis of necessity, after determining as question of fact, whether or not the above conditions exist. But it is for the party requiring. the Court to do so to ensure that proof of this is on the record. (5) Such validation will not be a once-for-all validation, so to speak, it will be a temporary cue, being effective only during the existence of the necessity. If and when this ends, the right constitutional steps must be taken forthwith, that is, within a reasonable time." "The Chief Justice justified the validation on the basis that it was not the act of the revolutionary Government that caused it. But even if it was, the stark situation was not unlike that in Rhodesia (if not less undeserving), in relation to which Lord Pearce held that "the principle of necessity or implied mandate applied to the present circumstances in Rhodesia." "It is my intention to do so . . In arriving at a decision I am conscious of the exhortation of Vassiliades, J., in The Attorney-General of the Republic v Ibrahim (1964) Cyprus LR 195 in which he states that a Court, in arriving a decision in those circumstances, must not only apply the law in well-balanced form and in accordance with the conditions prevailing at the time but must also be conscious of its important and, responsible function of transforming legal theory. into living law as applied to the facts of daily life." "In my view when a Government in power has effective control with the support of a majority of the people and is able to govern efficiently, that Government should be recognised as legal. This approach seems to be recognised in S.A. de Smith's Constitutional and Administrative Law (3rd ed.), p.66, where he states:"Legal theorists have no option but to accommodate their concepts to the facts of political life. Sooner or later a breach of legal continuity will be treated as laying down legitimate foundations for a new constitutional order, provided that the revolution is successful. " "And J. Bryce in his book Studies in History and Jurisprudence (1901),Vol.2, p.64 states that:"Sovereignty de facto, when it has lasted for a certain time and shown itself stable, ripens into sovereignty de jure". "I am of the view that sovereignty, or revolutionary legality, or de jure status, by whatever name it is called, ultimately depends on consent or acceptance by the people in the particular country under consideration .which is manifested by the obedience to the precepts of those claiming to exercise authority over them. Once this is firmly established, it is trite law that in the case of a successful revolution. The validity of the new Government's laws date back to the day when the revolution first broke out."

263. We are also in agreement with the submission of Syed Sharifuddin Pirzada that in international system. of emergencies the Governments take steps to ensure that the Fundamental Rights of citizens are not affected and that the derogation must be proportionate to the emergency, while adopting constitutional as well as extra-constitutional means. It is also correct that emergencies are promulgated all over the world, especially in Asia, Africa and Latin America but their efforts have been to minimize them and to induce the authorities concerned to respect the Fundamental Rights. . In numerous books of distinguished jurists, the term "state of emergency" was interpreted widely to include "regimes of exception", i.e. regimes that had overthrown and not merely suspended the previous constitutional order and had assumed. legislative and executive powers analogous to those under a formal state of emergency. Reference may be made to the book titled "States of Emergency" Their impact on Human Rights. A brief background which resulted into creation of this book is that the International Commission of Jurists undertook a study of states of emergency. Over 15 countries were selected which had experienced states of emergency in the 1960's and 1970's. The selection covers different kinds of emergency under different regimes and in different regions. It was found that States of emergency are encountered with surprising frequency throughout the world. The chapters on states of emergency in India, Malaysia and Thailand might have been followed by chapters on states of emergency in Bangladesh, Pakistan, Philippines, Singapore, South Korea, Sri Lanka and Taiwan. In Africa, states of emergency have been reported recently in Kenya, Liberia, Madagascar, Namibia, Sierra Leone, Somalia, Sudan, Zambia, Zimbabwe and parts of South Africa, in addition to Ghana and Zaire; in the Middle East in Egypt, Israel, Iran Jordan, Oman and North Yemen, as well as Syria. The frequent recourse to states of emergency in Latin America is well-known to the point where it is sometimes mistakenly thought of as a peculiarly Latin American problem. The chapter on Eastern Europe-makes a special contribution to the literature on this subject, being the first published summary of contemporary law and experience and historical roots of emergency powers in this region, which until recently had often been thought of as somehow exempt from this phenomenon. It would be advantageous to reproduce the following passages from the above book from pages 413-416, which read thus: "States of exception are defined as `extraordinary modes of governing provided for by the laws of the country and subject to such laws. for their declaration and implementation', while regimes of exception are defined as `de facto situations of a purely political nature', that is, declarations of a state of exception accompanying `interventions (in Government) which cannot be justified in terms of the constitution or previously established laws." "On the other hand, a state of emergency need .not entail gross or excessive violations of human rights. The state of emergency is the counterpart in international law of self-defence in penal law. That it may be necessary to suspend respect for certain human rights in order to prevent the nation from falling into chaos is universally admitted. However, the very concept of necessity, when respected, prevents excessive infringements of rights, just as the codification, in accordance with the principle of necessity and proportionality, of a list of non-derogable rights serves to prevent gross violations of human rights. The problem; then, is to prevent abuse of states of emergency, and the formal declaration of ail emergency is a step in this direction." "Several authors have also noted that, where the state of emergency was imposed during social unrest resulting from grave deterioration of the economic situation, the governments decision to treat the symptoms without treating the disease tends to perpetuate the crisis. " "'In some cases, as in Thailand, excessive use of emergency powers may be explained in part by the persistence of ancient absolutist moral values and political habits. In others, as several authors have indicated, it is due to the emergence of a modern authoritarian political doctrine, the doctrine of national security. This doctrine, whose effects can be seen in the. chapters on Greece, Turkey and the four Latin American countries, can be summarised in the following terms:

" 1. The. world is divided into two blocs, the East and West, whose values and interests are irreconcilably opposed. . 2. The conflict between them- is not only military, but also `a struggle against the ideology, culture and traditions of the adversary' . 3. The conflict occurs not only internationally but also intra-nationally.

4. The duty of the military authorities to defend the nation, therefore, extends to the combat against any quasi-military, ideological, cultural or other manifestations of this enemy within the country, making whatever sacrifices in the rights of citizens or alterations in the structure of Government this may require.It would, therefore, be seen that recurrence of phenomena of imposition of emergencies in extreme situations whether through constitutional or extra-constitutional means, has not been in Pakistan alone but in several other countries all over the world, which has been validated by the Courts depending upon the peculiar circumstances in each case. 264. In the book titled "From Military to Civilian Rule" edited by Constantine P. Danopoulos, the writer has dealt with the history, of many countries including three European countries namely France, Greece and Spain. A large number of countries have been surveyed, with particular reference to the role of military in establishing and sustaining long-term military disengagement from politics; the role of forces lying outside national boundaries on military intervention; establishing and maintaining civilian control of the military. After such survey, the view expressed was that dictatorships (military or otherwise) may be strategically beneficial in the short term but run the risk of damaging the long-term interests of influential nations. 265. Refer Democracy, the Rule of Law and Islam, edited by Eugene Cotran and Adel Omar Sherif , wherein the author extensively dealt with Human Rights abuses and the protection of democracy during states of emergency; states. of emergency in civil and common law. jurisdictions; the current regime in International Human Rights law; the procedural principles of declaration and notification; the substantive principles of exceptional threat, proportionality, non-derogability, non-discrimination and compatibility; deficiencies in international monitoring and control; expanded standards and a new approach to the assessment of states of emergency and came to the conclusion that the framework of the type permits a huge range of variation in the assessment of the situation in individual states" or countries and, thus, of the legitimacy of the emergency powers which have been adopted. In assessing the legitimacy of state action under international human rights law, an understanding of the complexity of the interrelationship between facts on the ground and the relevant human rights norms may be snore valuable. So, too may an understanding of the relationship, the control and eventual elimination of human rights violations, finding a satisfactory political solution to the underlying problem and achieving a full restoration of democracy. The overall objective should be to link the assessment of the legitimacy of national emergency regimes under international human rights law with the kinds of international action for the prevention and resolution of internal conflicts which have been proposed within the United Nations by .Dr. Boutros Ghali and by others involved in the work of conflict resolution. It would be advantageous to reproduce the following passages at pages 113-1,14 of the above book, under sub-heading "States of Emergency in Civil and Common Law Jurisdiction" which read thus: "A further important feature of national regimes in respect of emergency powers in both civil and common law is the absence of any effective internal legislative or judicial, control. Though in many states there is a constitutional provision requiring immediate confirmation by the legislature of any declaration of a state of emergency, in practice this gives little protection. States of emergency often arise out of unrest or terrorism on the part of members of a disadvantaged or oppressed minority and in such cases the Government will rarely have any difficulty in securing majority approval for the most repressive measures. And where the executive Government does not control a majority in the legislature, as in the aftermath of most military coups, it is usual for the legislature to be dissolved and for new elections to be promised. Any such elections, however, are

likely to be repeatedly delayed and if they do eventually take place the military rulers will often have imposed a new constitutional order under which they hope to secure the support of any newly elected legislature." 266. It will be seen that the `doctrine of necessity' is not restricted to criminal prosecution alone. However, the invocation of the doctrine of State necessity depends upon the peculiar and extraordinary facts and circumstances of a particular situation. ' It is for the Superior Courts alone to decide whether any given peculiar and extraordinary. circumstances warrant the application of the above doctrine or not. This dependence has a direct nexus with what preceded the action itself. The material available on record generally will be treated at par with the "necessity/State necessity/continuity of State" for the purposes of attaining the proportions justifying its own scope as also the future and expected course of action leading to restoration of democracy. It was in this context that the arguments were addressed on behalf of the petitioners, except Mr. Shahid Orakzai, Syed Iqbal Haider and Mr. Habib-ul-Wahab-ul-Khairi to the effect that only the ex-Prime Minister was responsible for the present situation. However that meets the eye is that all the Parliamentarians, the chief Ministers of the Provinces and the Members of the Provincial Assemblies were not in a position to object to any action, which had the blessings of the former Prime Minister DE FACTO DOCTRINE 267. Mr. Khalid Anwar contended that status of the present Government is not and cannot be that of a de jure government and at best it is that of a de facto government. The validity of the acts done by officers acting de facto as also de facto regimes has been the subject-matter of various decisions both from Pakistani as well as foreign jurisdictions. It would be advantageous to survey the relevant case law on the subject in order to arrive at proper conclusion. In the case of Edwin Ward Scadding vm Louis Lorant (10 ER 164), dilating on the scope of de facto and de jure authority, the House of Lords, after consulting all the Judges came to the conclusion that a rate for the relief of the poor, which was lawfully made in other respects, could not be rendered invalid by the circumstance that some of the vestrymen, who concurred in making it, were vestrymen only de facto, and not de jure. Lord Chancellor St. Leonards enunciated the principle thus: "With regard to the competence of the vestrymen, who were vestrymen de facto but not vestrymen de jure, to make the rate, your lordships will see at once the importance of that objection, when you consider how many public offices and persons there are who are charged with very important duties, and whose title to the office on the part of the public cannot be ascertained at the time. You will at once see to what it would lead if the validity of their acts, when in such office, depended upon the propriety of their election. It might tend, if doubts were cast upon them, to consequences of the most destructive kind. It would create' uncertainty with, respect to the obedience to public officers, and it might also lead to persons, instead of resorting to the ordinary legal remedies to set right anything done by the officers, taking the law into their own hands. I think, therefore, that the principle laid down by the learned Judges, as the principle of law, is one that is in conformity with public convenience, with reference to the discharge of the duties connected with the office." In the case of Toronto R. Co. and City of Toronto (46 DLR 547), the Ontario Supreme Court, after reviewing a' large number of decisions both American and English, came to the conclusion: "That it is not open to attack, in a collateral proceeding, the status of a de facto Judge, having at least a colourable title to the office, and that his acts are valid, is clear, I think, on principle and on authority, and it is also clear that the proper proceeding to question his right to the office is by quo warranto information." Colley in his book on `Constitutional Limitations', Eighth Edition, Volume 2, page 1357, dealing with the subject, says as follows:

"No one is under obligation to recognize or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, and to prevent confusion in the conduct of public business and insecurity and private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by someone claiming the office de jure, or except when the person himself attempts to build up some 'right, or claim some privilege or emolument by reason of being the officer which he claims t0 be. In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. This is an important principle which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally." An officer de facto is defined by Colley in his above book at page 1353 as: "One who by some colour of right is in possession of an office and for the time being performs its duties with public acquiescence though having no right in fact." 'In the case of Farzand Ali v. Province of West Pakistan PLD 1970 SC 98, this Court after considering the above cases came to the following conclusion: "This de facto ,doctrine is a doctrine of necessity, to bring about regularity and prevent confusion in. the conduct of public business and promote security of private rights." In the book titled "Oxford Essays in Jurisprudence", compiled by J.M. Eekelaar, the Principles of Revolutionary Legality have-been given in Chapter II thereof. The relevant extracts from pages 29 and 39 to 43 have been reproduced in paragraph 40 ante. After going through the record, we are inclined to hold that though initially the status of the present Government was de facto, but in view of J the validation accorded through the Short Order, it has attained the status of a, de jure Government. VALIDATION OF THE PROCLAMATION, THE PCO 1 OF 1999 AND ORDER 1 OF 2000 268. The validity of the Proclamation, dated 14th October, 1999 and other succeeding documents falling in the same category depends upon a tentative assessment of the situation to be made with a view to giving effect to the attending circumstances. It is common ground between the petitioners, who have appeared in person, the learned counsel appearing on behalf of some of the petitioners, Syed Sharifuddin Pirzada, learned Sr. ASC, -as well as. the learned Attorney-General for Pakistan appearing on behalf of the - Federation, Dr. Farooq Hasan, appearing on behalf of the Lahore High Court Bar Association as also Mr. S.M. Zafar, learned Sr.ASC appearing as amicus cunae, that the situation created and/or which preceded the Proclamation dated 12th October, 1999 is the basis for the extra constitutional measure. However, M/s. Shahid Orakzai and Syed Iqbal Haider were of the view that the Proclamation and the other instruments issued by the Chief Executive are in accordance with the Constitution. It is not necessary to deal with the latter contention of M/s. Orakzai and Syed Iqbal Haider, which is ex facie untenable. Mr. Khairi's contention was that the Proclamation to the extent it impinges on the independence of Judiciary is not valid. We are also inclined to the same view. 269. The main thrust of the arguments of Ch. Muhammad Farooq, learned Sr. ASC, appearing on behalf of the petitioner in Constitutional Petition No.62 of 1999 was that the jurisdiction of the Courts cannot be ousted, civil liberties cannot be curtailed, principle of trichotomy of powers cannot be disturbed, the doctrine of State. necessity is outdated and even if it is allowed to be invoked, it should be for a limited period as contemplated in Sh. Liaqat Hussain's case (supra), emergency having already been proclaimed under Article 232 of the Constitution, there was no warrant for Proclamation all over again, the Armed Forces under Article 245 of the Constitution are required to work under the control and command of the Federal Government as mandated by the Constitution and not by superseding them, the Prime Minister and his cabinet colleagues were responsible

only to the National Assembly under Article 91(4) of the Constitution and not to the Armed Forces, therefore, it was argued that the Proclamation of Emergency/PCO and the entire superstructure thereon is outside the contemplation of the Constitution. 270. There is no cavil with the proposition advanced by Ch. Muhammad Farooq regarding the constitutional position as also the role of the Army and the functions which the Armed Forces, the Prime Minister and Parliament/Assemblies perform under the Constitution. Be that as it may, admittedly the impugned action has not been taken under any constitutional provision, but is the result of an extra-constitutional measure and, therefore, reference to the above constitutional provisions is of no consequence. The sole question for consideration is whether the extra-constitutional measure taken by the Armed Forces could be validated on any ground or not. Recognition of a situation of whatever magnitude does call for remedial measures to be considered/contemplated with a view to purging the situation on the ground. All that is required to be considered is that the action should have a nexus with the facts on the ground. Such consideration can be undertaken only by the Superior Courts in the exercise of their powers under Articles 199 and 184 of the Constitution. It is the duty of the Superior Courts that they recognize the evil, suggest remedial measures therefor and lay down infrastructure for a journey leading to the restoration of the democratic processes/institutions as expeditiously as possible. If those responsible for achieving these objectives fall short of the measure within the contemplation of the law during their tenures respectively, then the remedy lies in identifying the facts on the ground and taking remedial measures 'to suppress the evil. The action of 12th October, 1999 being what it is, qualifies for validation on the ground of State necessity/survival. It is for the representatives of the people to see to it that everything is in order and nobody can raise his little finger when their actions are in line with the fundamentals of the Constitution. No rule except that by the representatives of the people within the contemplation of the Constitution and the law has the support of the Superior Judiciary. We are firmly committed to the governance of the country by the people's representatives and we reiterate the definition of the term `democracy' to the effect that "it is Government of the people, by the people and for the people" and not by the Army rule for- an indefinite period. It has already been emphasized in the Short Order that prolonged .involvement of the Army in civil affairs runs a g-rive risk of politicizing- it, which would not be in national interest and that civilian rule in the country must be restored within the K shortest possible time after achieving the declared objectives as reflected in the speeches of the Chief Executive, dated 13th and 17th October, 1999, which necessitated the military takeover. (Underlining is by way of emphasis) 271. An overall view of the whole spectrum of circumstances prevalent on or before 12th October, 1999 reveals that the representatives of the people who were responsible for running the affairs of the State were accused of corruption and corrupt practices and failed to establish good governance in the country as a result whereof a large number of references have been filed against the former Prime Minister, Ministers. Parliamentarians and members of the Provincial Assemblies for their disqualification on account thereof. The process of accountability carried out by the former Government was shady, inasmuch as, either it was directed against the political rivals or it was not being pursued with due diligence. We have also noted with concern that all institutions of the State including L Judiciary were being systematically-destroyed in the pursuit of self-serving policies. We uphold the plea raised on behalf of the Federation that the democratic institutions were not functioning in accordance with the Constitution, they had become privy to the one man rule and the very purposes for which they were established stood defeated by their passive conduct. 272. We see no ground to disbelieve the statement made by the Chief of Army Staff/Chief Executive that attempts were made to politicise the army, destabilise it and create dissension within its ranks. Had the former Prime Minister been successful in his designs, there would have been chaos and anarchy rather a situation of civil war where some factions of Armed Forces were fighting against others. 273. There is no force in the submission of Mr. Shahid Orakzai that the impugned action of the Armed Forces was within the contemplation of the Constitution as envisaged by Articles 46, 48., 90 and 99 of the Constitution. Suffice it to say that extra constitutional

nature of the situation did not have any nexus/connection with the provisions of the Constitution relating to the working of the Federal Government in line with the provisions for its continuation in office in the event of its dismissal "within the contemplation of the Constitution". Put differently, the action dated 12-10-1999 is in itself sufficient to be equated with something beyond the contemplation of the Constitution and, therefore, no question regarding the same being attended to by the Courts for resolution by treating it as having been taken under the Constitution arises. Viewed in this context, the reference to Articles 46, 48, 90 and 99 of the Constitution by Mr. Shahid Orakzai is wholly irrelevant. The above Articles do not provide a solution regarding the circumstances prevalent on 12th October, 1999. IMPORT OF THE TERM `CHIEF EXECUTIVE' 274. In the course of hearing of these petitions, some criticism was made in respect of expression "Chief Executive". It may be observed that this expression is well-recognised in Constitutional law, inasmuch as, the term "Chief Executive" means President where there is a Presidential form of Government and Prime Minister in a Parliamentary form of Government. In "Indian Constitutional Law" 4th Edition, at page 20 thereof, H.M. Seervai, treats the President of India as the `Chief Executive'. In the case of Fazalul Qadir Chaudhry PLD 1963 SC 486 this Court treated the President as Chief Executive. Similarly, in American Constitutional Law, 1995 Edition, at M page 204, President of America is described as `Chief Executive'. The Constitution of 1973 envisages parliamentary form of Government where the Prime Minister acts as the Chief Executive of the country. By means of the Proclamation of Emergency as also the PCO 1 of 1999, the Constitution has only been held, in abeyance and the country is to be run as nearly as may be in accordance with the Constitution, therefore, General Pervez Musharraf while taking over the affairs of the country assumed to himself the title of "Chief Executive". Since practically, he is performing the functions of the Prime Minister, he holds the position of Chief Executive in the scheme of the-Constitution and the criticism on this aspect is uncalled for. AMENDMENT OF THE CONSTITUTION 275. After having validated the ,action of l2th October, 1999 on the touchstone of the doctrine of State Necessity, it is necessary to consider the next very important and allied question as to whether the Chief Executive should be given the power to amend the Constitution and if so, to what extent? We have taken pains to examine the pros and cons of this issue, which is definitely ,of far reaching consequences. Mr. Khalid Anwar vehemently opposed the conferment of such a power on the Chief Executive on the ground that it is opposed to the doctrine of separation of powers, which has evolved. through the history of civilization. He submitted that all men, be they wise such as Socrates, the most knowledgeable such as Aristotle and the most virtuous such as Imam Abu Hanifa, need be subject to the limits of checks and balances to prevent tyranny. He submitted that the Chief Executive himself has pledged to preserve the Constitution, inasmuch as it -is the case of the Government itself that they. have not proclaimed Martial Law and only Emergency has been proclaimed for a transitional period to save the system and, thus, the Court should restrict him within the legal/constitutional limits. 276. Mr. S.M. Zafar, after drawing a distinction between a coup d'etat and a revolution submitted that the change on 12th October, 1999, does not claim to be based on the principle of revolutionary legality, hence the principle of Dosso's case is not relevant and Kelsen's theory is not applicable to the facts and circumstances of the present case. The logical conclusion in view thereof is that the new regime, if it is not a revolutionary regime, cannot claim to be the law giving source and its legislative powers are to be spelt out by the Courts. The case of the Government on the other hand is that once it is found that the prevailing situation did warrant an abrupt change and there was no remedy available under the prevailing Legal Order, the persons responsible for the change are fully competent to bring about such change in law, including the Constitution, which intends to correct the flawed Old Legal Order for preservation of the State as well as welfare of the people as held in Begum Nusrat Bhutto's case (supra). The learned Attorney-General further submitted that revolutionary political change is not in derogation of the Objectives Resolution under Article 2A of the Constitution, as

ultimately the method of Governance shall be through chosen representatives of the people. 277. Lord Pearce in the Privy Council decision of Madzimbuto v. Lardner Burke (1968) 3 AER 561, on the question of change of basic Order of State held as under:"It required the recognition of some acts of the illegal revolutionary Government. If one disregards all illegal provisions for the needs of the country, there is a vacuum in the law and chaos" (at p. 736) In the leading American case, Texas v. White, 74 US ( 7 Wall ) 700 (at p.733), 1868, the Court allowed recognition and allowance for "all acts to be validly performed which are necessary to peace and good order among citizens." Thus, all actions and acts necessary for the running of the State are naturally to be performed. In Madzimbuto v. Lardner Burke, 1966 Rhodesian L.Rep. 228 (General Division) Justice Lewis said: "In circumstances wherein a Unilateral Declaration of Independence has taken place, there are measures by the Government which is in effective control which must of necessity receive recognition from the Courts on the simple basis that one cannot have a complete vacuum in the Law, and all such measures as are necessary for the purposes of ordinary good Government, and maintenance of law and order should receive recognition from Courts. (at p. 233 ). 278. Mr.S.M.Zafar has tried to distinguish between coup d'etat and revolution with reference to the nature of powers that may be conferred on the incumbent in presenti. He was of the view that the present change of government in the country was in the nature of coup d'etat and not revolution and, therefore, minimum and limited powers to run the affairs of the state should be conceded to the Chief Executive for the transitional period to enable him to restore the democratic process in the country at the earliest. In the context of the submission made by Mr.S.M.Zafar reference .may be made to a leading work on Revolution and Political Change. by C. Welch & Bunker Taintor, who say : "Revolution involves the rapid tearing down of existing .political institutions and building them anew on different foundations. On Revolutions, by H. Arendt it is said: "Coups d'etat and palace revolutions, where power changes from one man to another, from one clique to another, depending upon on the form of Government in which the coup d'etat occurs have been less feared because of the change they bring about is circumcised to the sphere of Government itself and carries a minimum of unquiet to the people at large. " 279. Professor de Smith while discussing the Cyprus case of Attorney General v. Mustafa Ibrahim, 1964 Cyprus L.R. 195 Sup Ct. observed that four concrete requisite elements of practical realism greatly influence a Court in such a situation. These are:(1) The existence of imperative inevitability or exceptional circumstances when the coup occurred. (2) No other remedy was available in that system to meet the exceptional emergency. (3) The measures taken by the taking over military authority or group is both proportionate and necessary. (4) The alteration by the usurper must be of admittedly a temporary nature. (See de Smith, Constitutional Lawyers in Revolutionary Situations, 7 W. Ont. L.R., 1968, 24 at 100). 280. We are of the view that the above question is hyper-technical in nature and no tangible consequences will result by particularly using one or the other term. In coup d'etat as well in revolution, power changes from one man to another from one clique to another depending upon the facts and circumstances of each case. Coup d'etat is generally

undertaken to achieve a particular objective motivated by various considerations. Leading Oxford Professor A.Honore, in his work while discussing the cases of Pakistan, Uganda and Rhodesia under the caption "Revolutions" published in the Irish Jurist, 1977 also took the same view. We are, therefore, of the view that in the context of the present case the terms. coup d'etat and revolution are interchangeable and, nothing substantial would, turn on considering it from one angel and another. 281. The question arises whether the Chief Executive can be granted unfettered powers to amend the Constitution. Mr. Khalid Anwar emphasised that in case the Army action is condoned/validated this Court must succinctly state whether the Chief Executive has power to amend the Constitution and if so, subject to what limitations. He emphasised that in the first instance power to amend the Constitution should not be conceded to the Chief Executive and Begum Nusrat Bhutto's case (supra) should be revisited. In case this Court follows the dictum of Begum Bhutto's case (supra), the power to amend the Constitution by the Chief Executive must be stated with particularity and the fields which are not to be touched should be specifically stated. Mr. -S. Sharifuddin Pirzada argued that once the Army action through extra-constitutional measure is validated, the Chief Executive should be given the power to amend the Constitution. Same view was expressed by the learned Attorney-General and Dr. Farooq Hassan. We are y of the -considered view that if the Parliament cannot alter the basic features of the Constitution, as held by this Court in Achakzai's case (supra), power to amend the Constitution cannot be conferred on the Chief Executive of the measure larger than that which could be exercised by the Parliament. Clearly, unbridled powers to amend the Constitution cannot be given to he Chief Executive even during the transitional period even on the touchstone of `State necessity'. We have stated in unambiguous terms in the Short Order that the Constitution of Pakistan is the supreme law of the land and its basic features i.e independence of Judiciary, .federalism and parliamentary form of government blended with Islamic Provision cannot be altered even by the Parliament. Resultantly, the power of the Chief Executive to amend the Constitution is strictly circumscribed by the limitations laid down in the Short Order vide sub-paragraphs (i) to (vii) of paragraph 6. 282. We have held in the Short Order that the cases of learned former I Chief Justice and Judges of the Supreme Court, who had not taken oath under the Oath of Office (Judges) Order, 2000 (Order 1 of 2000), and those Judges of the Lahore High Court, High Court of Sindh and Peshawar High Court, who were not given oath, cannot be reopened, being hit by the doctrine of past and closed transaction. 283. The practical effect of the above observation is that the action of the Chief Executive in this behalf has been validated. It is a well-settled principle that in such situations the Court may, refuse relief in respect of a particular decision, but go on to determine the general question of law or interpretation that the case raises. Clearly, the Judges of the Superior Judiciary enjoy constitutional guarantee against arbitrary removal. They can be removed only by following the procedure laid down in Article 209 of the Constitution by filing an appropriate reference before the Supreme .Judicial Council and not otherwise. The validity of the action of the Chief Executive was open to question on the touchstone of Article 209 of the Constitution. But none of the Judges took any remedial steps and accepted pension as also the right-to practice law and thereby acquiesced in the action. Furthermore, the appropriate course of action for this Court in these proceedings would be to declare the law to avoid the recurrence in future, but not to upset earlier actions or decisions taken in this behalf by the Chief Executive, these being past and closed transactions. The principle is well-settled that the Courts can refuse relief in individual cases even though the action is flawed, depending upon the facts and circumstances of each case. The action of Chief Executive in the context given above has not encroached on the judicial power or impaired it in the process. However, the observations made herein as to the declaration of law under Article 209 of the Constitution would not entitle the relevant authorities or this Court to reopen the cases of the above Judges which have become final. On the question of legislative power in relation to Court's declaration of law, the matter stands concluded by the judgment of this Court in Muhammad Yusuf v. The Chief Settlement and Rehabilitation Commissioner Pakistan, Lahore and another PLD 1968 SC 101 in the following terms:

"This judgment was delivered on the 2nd November, 1964, and its consequence was that as from that date all Courts subordinate to the Supreme Court and all executive and quasi-judicial authorities were obliged by virtue of the Constitution to apply the rule as laid down by the Supreme Court in cases coming up before them for decision. It did not have, and it cannot be contended that it had, the effect of altering the law as from the commencement of the Act so as to render void of its own force all relevant orders of the Settlement Authorities or of the High Court made in the light of the earlier interpretation which was that the exercise of the delegated power was subject to the provisions in Chapter VI of the Act." 284. We; therefore, declare that the Judges of the Supreme Court and High Courts cannot be removed without resorting to the procedure prescribed in Article 209 of the Constitution, but the cases of Judges who S ceased to be Judges of the Supreme Court and High Courts by virtue of Oath S of Office (Judges) Order, 2000 (Order 1 of 2000) is hit by the doctrine of past and closed transaction and cannot be reopened. 285. Towards the close of his arguments, Mr. Khalid Anwar submitted that this Court should lay down a roadmap with a timetable for the return of Constitutional governance. Mr. Haleem Pirzada, President, Supreme Court Bar Association submitted that 12 months' time from now may be provided to the Armed Forces so that they do the cleansing and go back. During the course of his arguments, Mr. S.M. Zafar, amicus curiae stated that prolonged stay of the Armed Forces in the political arena would damage its professionalism, hence they should retreat to their Barracks as early as possible. On this issue, the learned Attorney-General made the following statement: "That the Federation -intends to restore true representative democracy in the country as early as possible. It is, however, not possible to give specific timeframe for the above among others for the reasons that the authorities/Government require time for: (a) Revival of country's economy, which stands ruined, as submitted before this Court; (b) For completion of the process of accountability;

(c) Recovery of huge plundered national wealth including bank loans running into billions of rupees and foreign exchange abroad worth billions of US dollars; (d) The task of unavoidable electoral reforms including preparation of fresh electoral rolls; (e) To ensure harmonious and efficient working of the important organs of the State, stable and good governance including maintenance of law and order, to prevent abuse of power, and to ensure and safeguard smooth functioning and enjoyment of democracy by the people." 286. We are not in favour of an Army rule in preference to a democratic rule. There were, however, evils of grave magnitude with the effect that the civilian governments could not continue to run the affairs of the country in the face of complete breakdown. The remedy to the said evil was the holding of fair and impartial elections by the Chief Election Commissioner at the earliest possible time, but the same could not be achieved till the electoral rolls are updated. Ordinarily, we would have allowed minimum time for holding of fresh elections as contemplated under the Constitution, but the learned Attorney-General made a statement at the Bar that as per report of the Chief Election Commissioner, updating of the electoral rolls could not be done before two years and thereafter objections and delimitation process etc. were to be attended to. Mr.Sartaj Aziz, Senator, and the M:Q.M. in their respective Petitions Nos.i5 and 53 of 1996 had also taken the stand that in the absence of proper and authentic electoral rolls, millions of people will be disenfranchised. This statement of the learned Attorney-General was not rebutted. This being so, there is no choice but to grant reasonable time to enable the Chief Executive to restore the democratic institutions to the rightful holders of the Office of public representatives under the Constitution.

287. The above are the reasons in support of the Short Order, dated 12th May. 2000, whereby the above Constitution Petitions were disposed of in the terms mentioned in it. The Short Order reads thus: SHORT ORDER For detailed reasons to be recorded later, we intend to dispose of the above petitions under Article 184(3) of the Constitution, directed against the Army take-over of 12th October, 1999, the Proclamation of Emergency dated 14th October, 1999, the Provisional Constitution Order No. 1 of 1999 and the Oath Of Office (Judges) Order No. 1 of 2000, in the. following terms:INDEPENDENCE OF JUDICIARY Stability in the system, success of the Government, democracy, good governance, economic stability, prosperity of the people, tranquillity, peace and maintenance of law and order depend to a considerable degree on the interpretation of Constitution and legislative instruments by the Superior Courts. ' It is, therefore, of utmost importance that the Judiciary is independent and no restraints are placed on its performance and operation. It claims and has always claimed that it has the right to interpret the Constitution or any legislative .instrument and to say as to what a particular provision of the Constitution or a legislative instrument means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court. Under the mandate of the Constitution, the Courts exercise their jurisdiction as conferred upon them by the Constitution or the law. Therefore, so long as the Superior Courts exist, they shall continue to exercise powers and functions within the domain of their jurisdiction and shall also continue to exercise power of judicial review in respect of any law or provision of law, which comes for examination before the Superior Courts to ensure that all persons are able to live securely under the rule of law; to, promote, within the proper limits of judicial functions, the observance and the attainment of human and Fundamental Rights; and to administer justice. impartially among persons and between the persons and the State, which is a sine qua non for the maintenance of independence of Judiciary and encouragement of public confidence, in the judicial system. TAKING OF OATH UNDER PCO NO. 1 OF 1999 Fresh oath under Oath of Office (Judges) Order No. 1 of 2000, does not in any way preclude the Judges of this Court from examining the questions raised in the above petitions, which have to be decided in accordance with their conscience and law so as to resolve the grave crises and avoid disaster by preventing imposition of Martial Law for which the Constitution does not provide any remedy. New oath of office 'was taken by the Judges of this Court under PCO No. 1 of 1999 read with Oath of Office (Judges) Order No. 1 of 2000 with a view to reiterating the well-established principle that the first and the foremost duty of the Judges of the Superior Courts is to save the judicial organ of the State. This was exactly what was done. By Virtue of PCO No. 1 of 1999, the Constitution has not lost its effect in its entirety although its observance as a whole has been interrupted for a transitional period. The activity launched by the Armed Forces through an extra .constitutional measure, involves the violation of "some of the rights" protected by the Constitution, which still. holds the field but some of its provisions have been held in abeyance. A duty is cast upon the Superior Judiciary to offer some recompense for those rights which were purportedly violated in view of the promulgation of PCO No. 1 of 1999. This could be achieved only by taking ' the Oath and not by declining to do so and thereby becoming a party to the closure of the Courts, which would not have solved any problem whatsoever but would have resulted in chaos, anarchy and disruption of peaceful life. Independence of Judiciary does not mean that Judges should quit their jobs and become instrumental in the closure of the Courts. Indeed, the latter course would have been the most detestable thing to happen. Independence of Judiciary means that the contentious matters, of whatever magnitude they may be, should be decided/resolved by the Judges of the Superior Courts according to their conscience. This Court, while performing its role as "the beneficial expression of a laudable political realism", had three options open to it in relation to the

situation arising out of the military take-over on Twelfth day of October, 1999: firstly, it could tender resignation en bloc, which most certainly could be equated with sanctifying (a) chaos/anarchy and (b) denial of access to justice to every citizen of Pakistan wherever he may be; secondly, a complete surrender to the present regime by dismissing these petitions for lack of jurisdiction in view of the purported ouster of its jurisdiction under PCO No. 1 of 1999 and thirdly, acceptance of the situation as it is, in an attempt to save what "institutional values remained to be saved". This Court, after conscious deliberations and in an endeavour to defend and preserve the national independence, the security and stability of Pakistan, sovereignty and honour of the country and to safeguard the interest of the community as a whole, decided to maintain and uphold the independence of Judiciary, which, in its turn, would protect the State fabric and guarantee human rights/Fundamental Rights. It took the Oath under PCO . No. 1 of 1999 so as to secure the enforcement of law, extend help to the law enforcing agencies for maintenance of public order and with `a view to restoring democratic institutions, achieving their stability and guaranteeing constitutional rights to the people of Pakistan. Oath of Office prescribed under Articles 178 and 194 of the Constitution for the Judges of the Superior Courts contains a specific provision that a Judge shall abide by the Code of Conduct issued by the Supreme Judicial Council. Same is the position with regard to the provisions regarding Oath of Office (Judges) Order No. 1 of 2000. The precise provisions in the Oath of Office (Judges) Order, 2000 are that a Judge, to whom oath is administered, shall abide by the provisions of Proclamation of Emergency of Fourteenth day of October, 1999, PCO No. 1 of 1999, as amended, and the Code of Conduct issued by the Supreme Judicial Council. But there is specific omission of words, "to preserve and defend the Constitution". Adherence to the Code of Conduct has not been subjected to any pre-conditions and there can be no deviation from it by a Judge who takes oath either under the Constitution or PCO No. 1 of 1999 or Oath of Office (Judges) Order No. 1 of 2000. One of the requirements of the Code of Conduct is that the oath of a Judge implies complete submission to the Constitution, -and under the Constitution to the law. Subject to these governing obligations, his function of interpretation and application of the Constitution and the law is to be discharged for the maintenance of the Rule of Law over the whole range of human activities within the nation. Thus, the new Oath merely indicates that the Superior Judiciary, like the rest of the country had accepted the fact that on 12th October, 1999, a radical transformation took place. MAINTAINABILITY OF PETITIONS Notwithstanding anything contained in the Proclamation of Emergency of the Fourteenth day of October, 1999, the Provisional Constitution Order No. 1 of 1999, as amended and the Oath of Office (Judges) Order No. 1 of 2000, all of which purportedly restrained this Court from calling in question or permitting to call in question the validity of any of the provisions thereof, this Court, in the exercise of its inherent powers of judicial review has the right to examine the validity of the aforesaid instruments. Additionally, submission of the Federation in response to the Court's notice concerning its own legitimacy also suggests that this Court has an inherent authority, arising from the submission of both the parties to its jurisdiction, notwithstanding. the preliminary objection raised in the written statement as to the maintainability of the above petitions. In the exercise of its right to interpret the law, this Court has to decide the precise nature of the ouster clause in the above instruments and the extent to which the jurisdiction of the Courts has been ousted, in conformity with the well-established principles. that the provisions seeking to oust the jurisdiction of the Superior Courts are to be construed strictly with a pronounced leaning against ouster. The Constitution Petitions filed by the petitioners under Article 184(3) of the Constitution are, therefore, maintainable. INTERVENTION BY ARMED FORCES National Assembly is the highest representative body, which reflects the will and aspirations of the people of Pakistan. Similar is the status of a Provincial Assembly in a Province. Senate, being a symbol of unity of the federating units has its own utility for the country as a whole. It is, therefore, of utmost importance that the impugned suspension of the above democratic institutions is examined with great care and caution, otherwise it would adversely affect the democratic processes in the country, which may

cause instability, impair the economic growth and resultantly ' prove detrimental to the general well-being of the people. However, where the representatives of the people, who are responsible for running the affairs of the State are themselves accused of massive corruption and corrupt practices and in the public as well as private sectors are benefiting therefrom and resist establishing good governance; where a large number of references have been filed against the former Prime Minister, Ministers, Parliamentarians and members of the Provincial Assemblies for their disqualification on account of corruption and corrupt practices; where there is a general perception that corruption is being practised by diversified strata including politicians. parliamentarians public officials and ordinary citizens and that a number of Parliamentarians and members of the Provincial Assemblies misdeclared their assets before Election Commission and Tax Authorities; where there was no political and economic stability and bank loan defaults were rampant and that as per report of Governor, State Bank of Pakistan Rs. 356 billion are payable by the, bank defaulters up to 12-10-1999. having no accountability and transparency; where economic stability in Pakistan was highly precarious and there was an overall economic slowdown as GDP growth during the past three years had hardly kept pace with the growth of population; where Pakistan has a debt' burden, which equals the country's entire national income; where all the institutions of the State were being systematically destroyed and the economy was in a state of collapse due to. self-serving policies of the previous government, which had threatened the existence, security, economic life, financial stability and credit of Pakistan; where a situation had arisen under which the democratic institutions were not functioning in accordance with the provisions of the Constitution, inasmuch as, the Senate and the National and Provincial Assemblies were closely associated with the former Prime Minister and there was no real democracy because the country was, by and large, under one man rule; where an attempt was made to politicize the Army, destabilize it and create dissension within its ranks and where the Judiciary was ridiculed, leaving no stone unturned to disparage and malign it by making derogatory and contemptuous speeches by some of the members of the previous ruling party inside and outside the Parliament and no. Reference was made tar the Chief Election Commissioner for their, disqualification as members of the Parliament under Article 63 (2) of the Constitution; where the disparaging remarks against the Judiciary crossed all limits with the rendering of judgment by this Court in the case of Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504, declaring the establishment of Military Courts as ultra vires the Constitution, which resulted into a slanderous campaign against the Judiciary launched by the former Prime Minister registering his helplessness in. the face of the Judiciary not allowing him the establishment of Military Courts as a mode of speedy justice; where the image of the Judiciary was tarnished under a well conceived design; where the telephones of the Judges of the Superior Courts and other personalities were tapped in spite of the law laid down by this i Court in the case of Mohtarma Benazir Rhutto v. President of Pakistan PLD 1998 SC 388, that tapping of telephones and eavesdropping was immoral, illegal and unconstitutional; where storming of the Supreme Court was resorted to allegedly by some of the leaders and activists of the Pakistan Muslim League which ultimately led to the issuance of contempt notices against them/contemners by the Full Bench of this Court in a pending appeal; where Mian Nawaz Sharif's constitutional and moral authority stood completely eroded and where situation was somewhat similar and analogous to the situation that was prevalent in July, 1977, the extra constitutional step of taking over the affairs of the country by the Armed Forces for a transitional period to prevent any further destabilization, to create corruption free atmosphere at national level through transparent accountability and revive the economy before restoration of democratic institutions under the Constitution, is validated, in that Constitution offered no solution to the present crisis. In the Commonwealth Finance Ministers Meeting, held on 21-23rd September, 1999, commenting on the Framework for Commonwealth Principles on Promoting Good Governance and Combating Corruption, it was, inter alia, observed that; "Good governance is not a luxury but a basic requirement for development. Corruption, which undermines development, is generally an outcome and a symptom of poor governance. It has reached global proportions and needs to be attacked directly and explicitly ."..The Commonwealth should firmly commit itself to the policy of "zero tolerance" of all types of corruption. This policy must permeate national political cultures, governance, legal systems and administration. Where corruption is ingrained and pervasive, especially at the highest political levels, its eradication may require a

sustained effort over a protracted period of time. However, the policy of "zero tolerance" should be adopted froth the outset, demonstrating a serious commitment to pursue the fight against corruption. The Commonwealth should remain firm inns determination that the high standards and goals enunciated in the 1991 Harare Declaration are upheld and enhanced. Creating an environment, which is corruption-free will require vigorous actions at the national and international levels, and within the Commonwealth itself. These actions should encompass the prevention of corruption, the enforcement of laws against it and the mobilization of public support for anti-corruption strategies". Probably, the situation could have been avoided if Article 58(2)(b) ; of the Constitution had been .in the field, which maintained parliamentary form of Government and had provided checks and balances between the powers of the President and the Prime Minister to let the system run without any let or hindrance to forestall the situation in which Martial Law can be imposed. With the repeal of Article 58(2)(b) of the Constitution, there was no remedy provided in the Constitution to meet the situation like the present one with which the country was confronted, therefore, constitutional deviation made by the Chief of the Army Staff, General Pervez Musharraf for the welfare of the people rather than abrogating the Constitution or imposing Martial Law by means of an extra constitutional measure is validated for a transitional period on ground of State necessity and on the principle that it is in public interest to accord legal recognition to the present regime with a view to achieving his declared objectives and that it is in the interest of the community that order be preserved. Legal recognition/ legitimacy can be accorded to the present regime also on the principle that the Government should be by the consent of the governed, whether voters or no; Here there is an implied consent of the governed i.e. the people of Pakistani in general including politicians/parliamentarians, etc. to the army take-over, in that no protests worth the name or agitations have been launched against the army take-over and/or its continuance. The Court can take judicial notice of the fact that the people of Pakistan have generally welcomed the army take-over due to their avowed intention' to initiate the process of across the board and transparent accountability against those, alleged of corruption in every walk of life, of abuse of national wealth and A of not taking appropriate measures for stabilizing the economy and democratic institutions. Another principle, which is attracted is that since an extra-constitutional action has been taken by General Pervez Musharraf wielding effective political power, it is open to the Court to steer a middle course so as to ensure that the frame-work of the pre-existing Order survives but the constitutional deviation therefrom be justified on the principle of necessity, rendering lawful what would otherwise be unlawful. However, prolonged involvement of the Army in civil affairs runs a grave risk of politicizing it, which would not be in national interest, therefore, civilian rule in the country must be restored within the shortest possible time after achieving the declared objectives, which necessitated the military take over and Proclamation of Emergency as spelt out from the speeches of the Chief Executive, dated 13th and 17th October, 1999. The acceptance of the above principles do not imply abdication from judicial review in the transient. suspension of the previous legal order. We accordingly hold as under:1. On 12th October, 1999 a situation arose for which the Constitution provided no solution and the intervention by the Armed Forces through an extra constitutional measure became inevitable, which is hereby validated on the basis of the doctrine of State necessity and the principle of salus populi suprema lex as embodied in Begum Nusrat Bhutto's case. The doctrine of State necessity is recognised not only in Islam and other religions of the world but also accepted by the eminent international jurists including Hugo, Grotius, Chitty and De Smith and some Superior Courts from foreign jurisdiction to fill a political vacuum and bridge the gap. 2. Sufficient corroborative and confirmatory material has been produced by the Federal Government in support of the intervention by the Armed Forces through extra-constitutional measure. The material consisting of newspaper clippings, writings, etc. in support of the impugned intervention is relevant and has been taken into consideration as admissible material on the basis of which a person of ordinary prudence would conclude that the matters and events narrated therein did occur. The findings recorded herein are confined to the controversies involved in these cases alone.

3. All past and closed transactions, as well as such executive actions as were required for the orderly running of the State and all acts, which tended to advance or promote the good of the people, are also validated. 4. That the 1973 Constitution still remains the supreme law of the land subject to the condition that certain parts thereof have been held to abeyance on account of State necessity; 5. That the Superior Courts continue to function under the Constitution. The mere fact that the Judges of the Superior Courts have taken a new oath under the Oath of Office (Judges) Order No.l of 2000, does not in any manner derogate from this position, as the Courts had been originally established under the 1973. Constitution, and have continued in their functions in spite of the Proclamation of Emergency and PCO No. 1 of 1999 and other legislative instruments issued by the Chief Executive from time to time; 6(i) That General Pervez Musharraf, Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff through Proclamation of Emergency, dated the 14th October, 1999, followed by PCO 1 of 1999, whereby he has been described as Chief Executive, having validly assumed power by means of an extra-Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures as enumerated hereinafter, namely:(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it; (b) (c) All acts which tend to advance or promote the good of the people; All acts required to be done for the ordinary orderly running of the State; and

(d) All such measures as would establish or lead to the establishment of the declared objectives of the Chief Executive. (ii) That Constitutional Amendments by the Chief Executive can be resorted to only if the Constitution fails to provide a solution; for attainment of his declared objectives and further that the power to amend the Constitution by virtue of clause (6) subclause (i) (a) ibid is controlled by sub-clauses (b)(c) and (d) in the same clause. (iii) That no amendment shall be made in the salient features of the Constitution i.e. independence of Judiciary, federalism, parliamentary form of Government blended with Islamic provisions. (iv) That Fundamental Rights provided in Part II, Chapter 1 of the Constitution shall continue to hold the field but the State will be authorized to make any law or take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 as contemplated by Article 233 (1). of the Constitution, keeping in view the language of Articles 10, 23 and 25 thereof. (v) That these acts, or any of them, may be performed or carried out by means of orders issued by the Chief Executive or through Ordinances on his advice; (vi) That the Superior Courts continue to have the power of judicial review, to judge the validity of any act or action of the Armed Forces, if challenged, in the light of the principles underlying the law of State necessity as stated above. Their powers under; Article 199 of the Constitution, thus, remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any legislative instrument enacted by the Chief Executive and/or any order issued by the Chief Executive or by any person or authority acting on his behalf. (vii) That the Courts are not merely to determine whether there exists any nexus between the orders made, proceedings taken and acts done by the Chief Executive or by any authority or person acting on his behalf, and his declared objectives as spelt out from his

speeches, dated 13th and 17th October, 1999, on the touchstone of State necessity but such orders made, proceedings taken and acts done including the legislative measures, shall also be subject to judicial review by the Superior Courts. 6. That the previous Proclamation of Emergency of 28th May, 1998 was issued under Article 232(1) of the Constitution whereas the present Emergency of 14th October, 1999 was proclaimed by way of an extra-Constitutional step as a follow up of the Army take-over which also stands validated notwithstanding the continuance of the previous Emergency which still holds the field. 7. That the validity of the National Accountability Bureau Ordinance, 1999 will be examined separately in appropriate proceedings ,at appropriate stage. 8. That the cases of learned former Chief Justice and Judges of the Supreme Court, who had not taken oath under the Oath of Office (Judges) Order, 2000 (Order 1 of 2000), and those Judges of the Lahore High Court, High Court of Sindh and Peshawar High Court; who were not given oath, cannot be re-opened being hit by the doctrine of past and closed transaction. 9. That the Government shall accelerate the process of accountability I, in a coherent and transparent manner justly; fairly equitably and in accordance with law. 10. That the Judges of the Superior Courts are also subject to accountability in accordance with the methodology laid down in Article 209 of the Constitution. 11. General Pervez Musharraf, Chief of the Army Staff and Chairman Joint Chiefs of Staff Committee is a holder of Constitutional post. His purported arbitrary removal in violation of the principle of audi alteram partem was ab initio void and of no legal effect. 12. That this order will not affect the trials conducted and convictions recorded including proceedings for accountability pursuant to various orders made and Orders/laws promulgated by the Chief Executive or any person exercising powers or jurisdiction under his authority and the pending trials/proceedings may continue subject to this order. 13. This is not a case where old legal order has been completely suppressed or destroyed, but merely a case of constitutional deviation for a transitional period so as to enable the Chief Executive to achieve his declared objectives. 14. That the current electoral rolls are out-dated. Fresh elections cannot be held without updating the electoral rolls. The learned Attorney-General states that as per report of the Chief Election Commissioner this process will take two years. Obviously, after preparation of the electoral rolls some time is required for delimitation of constituencies and disposal of objections, etc. 15. That .we take judicial notice of the fact that ex-Senator Mr. Sartaj Aziz moved a Constitution Petition ' No. 15 of 1996, seeking a mandamus to the concerned authorities for preparation of fresh electoral rolls as, according to Mr. Khalid Anwar, through whom, the above petition was filed, the position to the contrary was tantamount to perpetuating disenfranchisement of millions of people of Pakistan in violation of Articles 17 and 19 of the Constitution. Even MQM also resorted to a similar Constitution Petition bearing No. 53 of 1996 seeking the same relief. However, for reasons best known to the petitioners in both the petitions, the same were not pursued any further. 16. That having regard to all the relevant factors involved in the case including the one detailed in paragraphs 14 and 15 above three years period is allowed to the Chief Executive with effect from the ' date of the Army take-over i.e. 12th October, 1999 for achieving his declared objectives. . 17. That the Chief Executive shall appoint a date, not later than 90-days before the expiry of the aforesaid period of three years, for holding of a general election to- the National Assembly and the Provincial Assemblies and the Senate of Pakistan.

18. That this Court has jurisdiction to review/re-examine the continuation of the Proclamation of Emergency, dated 12th October, 1999 at any stage if the circumstances so warrant as held by this Court in the case of Sardar Farooq Ahmed Khan Leghari v. Federation of Pakistan PLD 1999 SC 57. Before parting with this judgment we would like to record our deep appreciation for the valuable assistance rendered by the learned counsel appearing on behalf of both the parties as also the learned amicus curiae all of whom had put forward their view point in the most illuminating manner enabling us to reach the conclusions we did in this judgment. M.B.A./Z-11/S Order accordingly