ABDUI. HAKEEM KHAN, C.. J.-Major-General (Retired) Nasirullah Khan Babar, seeks the following reliefs through this Constitutional petition :-
(i) the assumption of office of the President by the Chief of Army Staff, G. H. Q., Rawalpindi, cited as respondent No. 1 ;
(ii) the Constitutional amendments made by respondent No. 1, referred to in his petition, which we specify as follows-
(a) induction of non-elected civilian Cabinet in disregard of Article 92 of the Constitution ; and
(b) amendment of Article 10 of the Constitution in such a way that a person can now be detained for a continuous period of two years ; and
(iii) switch over to separate electorate and directions to delimit the constituencies afresh being an unnecessary change in the Constitution ; were without legal authority, void and of not legal effect. Furthermore, Election Commission of Pakistan (respondent No. 2) be restrained from holding fresh delimitation on the basis of separate electorate during the pendency of the petition.
2. We need not advert to the distinguished Military career of the petitioner and the fact that he has been Governor of this Province from March 1976 to 5th July, 1977 to which about two pages of the petition have been devoted. We are also not concerned with the motives which impelled the petitioner to join the Pakistan People's Party and his political activities, including meetings with the Chief Martial Law Administrator and the Martial Law Administrator Zone-B to which next three pages of the petition have been devoted. We are certainly bound by the law which has been declared by the Supreme Court of Pakistan in Begum Nusrat Bhutto's case (PLD 1977 SC 657) from which a quotation has been given and references have been made in the next two pages of the petition. The summum bonum of the next five pages of the petition is that the petitioner cannot place any reliance on the pledges of respondent No. 1 so far as his holding fair and free elections is concerned though relevant does not appear to be necessary for the disposal of this petition.
3. The learned counsel for the petitioner vehemently urged that the regime headed by respondent No. 1 was validated by the Supreme Court in Begum Nusrat Bhutto's case under the doctrine of necessity and that the actions to which exception was being taken by the petitioner were not at all necessary. There were provisions in the Constitution which respondent No. 1 could invoke but he embarked upon a course not indicated in Begum Nusrat Bhutto's case. The learned counsel elaborated that respondent No. 1 could not take over as President for Articles 41 and 43 of the Constitution provided that only such person was qualified for appointment as President as was qualified to he elected as the Member of the National Assembly. Respondent No. 1, being in the active service of the Army, was obviously not qualified to be elected as the Member of the National Assembly and thus there was a clear contravention of Article 41 of the Constitution. Again Article 43 of the Constitution created a bar when it provides : -- The President shall not hold any office of profit in the service of Pakistan or occupy any other position carrying the right to remuneration for the rendering of services.
By combining two offices of President and Chief of Army Staff in one person, respondent No. I was' violating Article 43 of the Constitution flagrantly.
4. The next point that the learned counsel for the petitioner endeavoured to make was that Federal Ministers and Ministers of State could only be appointed by the Prime Minister from amongst Members of the Parliament, vide Article 92 of the Constitution. Respondent No. 1 has, however, appointed a Cabinet which is not from amongst the Members of the Parliament.
5. The last point that the learned counsel made was that respondent No. 1 has not only increased the seats of the National Assembly but has also introduced separate electorate in complete disregard of the letter and spirit of Articles 51 and 222 of the Constitution.
6. We should like to preface our discussion with the dictum of the Supreme Court in Begum Nusrat Bhutto's case and the same reads : 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 Constitu--tion, and have continued in their functions in spite of 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 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 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 !He 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 acts or action of the Martial Law Authori--ties, 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.
The impression that the learned counsel had about Begum Nusrat Bhutto' case, namely, that it gave a time schedule for the holding of elections could not get any support from the pronouncement even though the learned counsel was asked repeatedly as to whether some directions were issued in this behalf. Rather a reference to page 723 of the report in the PLD would show that though a suggestion was made by Mr. Yahya Bakhtiar as to a definite timetable for the holding of elections the Court did not consider it appropriate to issue any directions. All that their Lordships clarified is that the Court found it possible to validate the extra-Constitutional action of the Chief Martial Law Administrator not only for the reason that he stepped into save the country at a time of grave national crises 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.
7. It has been asserted by the petitioner in paragraph 22 (c) of the petition that Chaudhri Fazal Ilahi "the legal President of Pakistan" resigned and thereafter respondent No. 1 began to style himself as President of Pakistan, without any legal or Constitutional authority. There is no dispute that respondent No. 1 could not be elected as a Member of the Parliament, so long as he is in the active service, and that Article 43 of the Constitution also created a bar in his way to hold two posts at one and the same time but when we enquired from the learned counsel for the petitioner if there was any person eligible in terms of Article 41 of the Constitution for appointment as President under the Constitution, he had to concede that since the Parliament was not in existence, a person qualified in terms of Article 41 of the Constitution was not available. When we enquired from the learned counsel as to whether after the resignation of Chaudhri Fazal Ilahi as President or in case of the death of the President, the appointment of the President would be necessary, he could hardly dispute the necessity. It should be obvious to one who is conversant with the provisions of the Constitution, without President at the helm of affairs, there will be a big B Constitutional void. In the circumstances there can be no two opinions that this void/vacuum had to be supplied.
8. It is true that by combining two offices, respondent No. 1 was deviating from the provisions of Article 43 of the Constitution but the all-important question that arises is as to whether respondent No. 1 acted under the Constitution or that his or that of the former President's action was an extra- Constitutional action. In this context it will be useful to refer to the President's Succession Order, 1978, the Preamble whereof reads :- In pursuance of the Proclamation of fifth day of July, 1977, read with the Laws (Continuance in Force) Order, 1977 (C. M. L. A. Order No. 1 of 1977) and in exercise of all powers enabling him in that behalf, the President is pleased to make the following Ord.Er.
It will be seen that this Presidential Order was not under the Constitution but was in pursuance of the proclamation of the 5th day of July, 1977, read, with the Laws (Continuance in Force) Order, 1977.
Now paragraph 2 (1) of l the Laws Continuance in Force Order No. 1 provides : - 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.
So to speak this paragraph gives power to the President or to the Chie Martial Law Administrator to make Constitutional deviations or in other words issue extra-Constitutional orders. On a second look at the Begum o Nusrat Bhutto's case it will appear that this Laws Continuance in Force Orderdeclared as valid.
9. That the point arising before us should be examined in the manner in which we have done gets ample support from another authority of the Supreme Court reported in Mr. Zulfikar Ali Bhutto v. The State (PLD 1978S C 40) wherein the appointment of Mr. Justice Mushtaq Hussain as Chief Election Commissioner, his taking oath of entering into the office under Post-Proclama--tion Order No. 3 of 1977 and spelling out of the duties and functions of the Chief Election Commissioner under President's Post-Proclamation Order No. 4 of 1977 were allowed to prevail over the specific provisions of the Constitution, namely, Articles 213, 215 and 216 and the bars to be inferred in the aforementioned Articles were held to be not attracted to the case of Mr. Justice Mushtaq Hussain's appointment as Chief Election Commissioner and their Lordships on page 50 of this report further observed that in Begum Nusrat Bhutto's case they had declared that the Chief Martial La Administrator has "the power to perform inter alia all actions which could b taken under the 1973 Constitution". Furthermore, on page 51 their Lordships elaborated that- "this Court had no doubt held in the recent judgment already referred to above that the 1973 Constitution continues to be the supreme law of the land but at the same time we have also taken note of the fact that certain parts thereof remain in abeyance in accordance with the proclamation."
If the holding of two posts by Mr. Justice Mushtaq Hussain simultaneously in pursuance of President Post-Proclamation Order could not be sifted at the touchstone of the Constitution, how could the President's Succession Order, 1978 be subjected to such an attack or sifting. Even though two opinions are possible, it cannot be reasonably argued that the combination of the two posts by respondent No. 1 was in any way an act which would not tend to advance or promote the good of the people or an act which was not required for the ordinary orderly running of the State. Taking into consideration the requirements of the present situation it would rather appear that combination of the two posts the respondent No. 1 has not only done away with a cumbersome formality but has also assumed direct responsibility and incidental accountability for his actions as Chief Executive of Pakistan.
10. The question as to whether persons who are not members of the Parliament could be appointed to the Federal Cabinet inasmuch as Article 92 of the Constitution lays a bar can be disposed of on the short ground that there is no Parliament eversince the proclamation of the 5th day o July, 1977 and the Laws (Continuance in Force) Order. When there is no Parliament, evidently a person who is not a Member of the Parliament will have to be appointed. That is altogether a different question as to whether or not Cabinet is a necessity which has to be supplied. . But a reasonable answer to this question also will be in the affirmative. If, as it has been proclaimed time and again, the object of the present Administration is to restore Democracy the formation of a Civilian Cabinet appears to be a step in that direction. It will be indeed difficult for us to hold that the appoint--ment of a Civilian Cabinet neither tends to advance nor promotes the good of the people.
11. It is indeed surprising that it is being assumed in some quarters that the Constitution by itself provided for joint electorate. On going through Articles 51 and 222 of the Constitution again and again, the impression that we have gained is that the Constitution itself is silent about the system of electorate. All that Article 51 of the Constitution provides is that the National Assembly shall consist of 200 Members to be elected from direct and free vote in accordance with law. The expression "law" is significant. So far as Article 222 is concerned, a reference to the same will show that delimitation of constituencies and conduct of elections are matters for which the Parliament is to provide l---.Aw. Here reference to section 4 of the Electoral Rolls Act, 1974 will be of advantage. It reads :-- The electoral rolls to be prepared under this Act shall be prepared by revising the existing electoral rolls for the time being in force.
It will be seen that this section does not specifically provide for joint electorate. The explanation to the section makes a referential legislation in this behalf. The existing electoral rolls' alluded to in section 4 ibid were made under Electoral Roll Order, 1969 (P. O. No. 6 of 1969). That this Order of 1969 provided for Joint electorate by intendment, will be clear if one refers to paragraph 8, which reads :- For the purpose of election of representatives of the people on the basis of adult franchise, there shall be electoral rolls in relation to such areas, to be called electoral .Areas, as the Commissioner may, in consultation with the Central Government, determine.
It is this position which was brought by a regime which was not validated by the Supreme Court, in Asma Jilani's case that has been rectified by Electoral Rolls (Amendment) Ordinance, 1978, section 3 whereof provides for the substitution of section 4 of the Electoral Rolls Act of 1974 with the following :-- The Electoral Rolls shall be prepared simultaneously under this Act on the principle of separate electorate for the Muslims and non-Muslims and revised annually.
We are, therefore, clear in our mind that the argument that question of Electorate bad been settled by the Constitution is not tenable and that this was a matter within the legislative competency of the Federal Government. So to speak by adoption of separate Electorate not a single word of the Constitutional mandate in this behalf stands violated.
12. We should like to bring on the record that the learned counsel for the petitioner did not press the objection of his client regarding amendment of Article 10 of the Constitution. We will also like to leave the question open for examination in an appropriate case moreso when there is nothing to show that the petitioner is a person aggrieved by the amendment. He is in the Jail on account of conviction and sentence by a Military Court which is being challenged by a separate petition.
13. Before we conclude we should like to bring on the record that our task has been made easier by certain observations of their Lordships of the Supreme Court in Mr. Zulfikar Ali Bhutto v. State. On page 58 their Lordships observed :- In other words if it can be shown that the impugned action reasonably falls within one or the other of the enumerated categories, then it
(1) PLD 1972 SC 139(2) PLD 1978 SC 40 must be construed as being necessary and thus held valid under the law of necessity. The word "necessity" has, therefore, come to be used in this context as a term of art, having a certain.
Constitutional arid legal connotation as distinct from its ordinary dictionary meaning.
It is also necessary to state, as pointed out by this Court in a slightly different context in the case of Mir Abdul Baqi Baluch v. The Government of Pakistan PLD 1958 SC (Pak.) 313, "under a constitu-- tional system which provides for a judicial review of an executive action, it is -fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the executive authority. It is not the purpose of a judicial authority reviewing executive actions to sit in appeal over the executive, or to substitute the direction of the Court for that of the administrative agency.
What the Court is concerned with is to see that the executive or administrative authority had before it sufficient material upon which a reasonable person could have come to the conclusion that the requirements of law were satisfied". We may add that the material in question may either be provided by the authority whose action is challenged, or it may be such of which the Court can take judicial notice, as was done by this Court in the recent case of Begum Nusrat Bhutto.
As to what is reasonable and what is not, the observations made by - Hamoodur Rehman, J: (as he then was) in the case of Abul A'la Maududi v. The Government of West Pakistan PLD 1964 SC 673,,provide a useful guide, namely :- -But what is the test that theCourts are to apply in determining what is or is not' reasonable.
Obviously this cannot depend upon the notions of reasonableness of individual Judges, for, one Judge may well regard. That as reasonable which another regards as unreasonable. Nor is the opinion of the Legislature conclusive on this question. The reasonableness must, of course, be judged by the standards of an ordinary prudent and reasonable citizen --------------- Reasonable is itself a relative term. What is unreasonable in one given set of circumstances may well be reasonable in another set of circumstances.
It seems to us, therefore, that it must be clearly understood that in judging whether an action taken by the President or the Chief Martial Law Administrator is valid under the Law of Necessity, the Court is not to sit in appeal over the executive or legislative authority, concerned, nor substitute its own discretion for that of the competent authority. The responsibility for the relevant action, its methodology and procedural details, must rest on that authority. In exercising its powers of judicial review the Court is concerned with examination whether the impugned action reasonably falls within any of the categories enumerated by this Court in Begum Nusrat Bhutto's case while spelling out the powers which may be exercised by the Chief Martial Law Administrator, or the President of Pakistan acting on his advice. As to what is reasonable or not in this context must be judged by the standards of an ordinary, prudent and reasonable citizen, and will depend on the prevailing circumstances and the object with which the action has been taken. These observations are, of course, without derogation to the other accepted principles governing the exercise of powers conferred by Article 199 of the Constitution.
14. It will follow, we cannot substitute our own discretion for that of a competent authority and we areclear in our mind that ultimate responsibility for an action taken, its methodology and procedural details must rest with respondent No. 1 in all capacities, which he has assumed.. The possibility of two opinions on certain points may be there but to say that it is the duty of this Court to judge in the exercise of its Constitutional jurisdic-1 tion, the political implications of this or that action will be an argument to which we cannot subscribe subject to law, every party whether in minority or majority, is at liberty to -question the wisdom of this or that decision of, the Federal Government, as presently constituted, but all that we have to ensure is whether an impugned action reasonably falls within any of the categories enumerated in Begum Nusrat Bhutto's case on pages 5 to 7 of this order. This criterion-in our judgment presents no serious challenge to the impugned actions.
For these reasons we reject this petition in limine