' MIAN HAMID FAROOQ, J.---Petitioners, six in numbers, through the present constitutional petition, have called in question vires of the Federal Public Service Commission (Amendment) Ordinance, 2005 (Ordinance No. XV of 2005) ("Amending Ordinance"), in particular section 4 of the amending Ordinance, and prayed that the said Ordinance and removal of the petitioners thereunder may be declared as void, unconstitutional, based on mala fide and without lawful authority.
2. Necessary facts of the case, in brief, as narrated in the present petition, are that President of Islamic Republic of Pakistan, under the provisions of Federal Public Service Commission Ordinance, 1977 (Ordinance XLV of 1977) (hereinafter referred to as "parent Ordinance"), appointed petitioner No.1 as Chairman of Federal Public Service Commission ("Commission"), on 31-3-2003, while the other petitioners were appointed as members of the Commission, on different dates, for a period of five years. It has been stated that before the petitioners could complete their term of office, the President of Pakistan promulgated the "amending Ordinance", and notified the same in the official Gazette of Pakistan, dated. 27-8-2005, whereby section 4 of the "Parent Ordinance" was amended and section 4(1) was substituted, thereby providing that a member of the Commission shall hold officer for a term of three years from the date on which he enters upon office or till he attains the age of sixty-five years whichever is earlier. Consequent to the promulgation of the "Amending Ordinance", petitioner No. 2 (GuI Hanif), petitioner No.3 (Retd. Mr. Justice Abdul Rehman Khan) and petitioner No.4 (Javed Akram) ceased to be the members of the Commission forthwith, petitioner No.5 ceased to hold office w.e.f. 1-12-2005 and petitioner No.1 shall cease to the Chairman of the Commission on 30-3-2006, hence the present constitutional petition.
3. Learned counsel for the petitioners has stated that with the promulgation of the "Amending Ordinance", all members of the "Commission", except the Chairman, have ceased to hold offices; the President and the Prime Minister decided to cut short tenure of their offices and remove them through promulgation of the "amending Ordinance", which was made just two days before the session of National Assembly, which stood already convened by the President himself. He has submitted that the amending Ordinance was made with mala fides; as the petitioners acted in spirit of their oaths of offices, and the Chairman resisted any violation of law and took up such issues with President/Prime Minister. He has added that despite the bar of Article 248(1) of Constitution of Islamic Republic of Pakistan, the petition is competent against the President and Prime Minister and as their actions are tainted with mala fides, therefore, respondents Nos.4 and 5 are necessary parties. He has referred to the following judgments:-- "Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092 at page 1150), Nawabzada Muhammad Umar Khan (represented by his legal heirs) and 4 others v. Pakistan through Secretary, Cabinet Division and 2 others (PLD 1982 Peshawar 1), Ch. Zahur Ilahi, M.N.A. v. Mr. Zulfikar Ali Bhutto and 2 others (PLD 1975 SC 383), Abrar Hassan v. Government of Pakistan and another (PLD 1976 SC 315), Khawaja Muhammad Sharif v. Federation of Pakistan through Secretary Cabinet Division, Government of Pakistan, Islamabad and 18 others (PLD 1988 Lahore 725 at page 770), Muhammad Anwar Durrani v.
Province of Balochistan through Chief Secretary and 10 others (PLD 1989 Quetta 25 at page 40), Pakistan, through Secretary, Cabinet Division, Islamabad and others v. Nawabzada Muhammad Umar Khan (deceased) now represented by Khawaja Muhammad Khan of Hoti and others (1992 SCMR 2450 at page 2458), Nawabzada Mohsin Ali Khan and others v. Government of N.-W.F.P. And others (PLD 1993 Peshawar 207), Pakistan Lawyers Forum v. Federation of Pakistan and others (PLD 2003 Lahore 371 at page 384) and Nayyar Abbas and others v. Government of the Punjab and 4 others (2004 MLD 976 at page 984)".
(ii) Learned counsel has next contended that motive of the introduction of the "amending Ordinance" can be questioned before this Court. He has referred to Article 8 of the Constitution to contend that right of service is right of life and relied upon the case reported as Dr. Naveeda Tufail and 72 others v. Government of Punjab and others (2003 SCMR 291). He has further contended that in the written comments, filed by respondent No.1, Federation has not denied the factual aspect of the constitutional petition, thus, according to him, the said facts would be deemed to be admitted.
He has relied upon the case reported as Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1).
(iii) Learned counsel has referred to judgment of Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others (PLD 1996 SC 324) to contend that law made by the Parliament is on a higher pedestal than Ordinance issued by the President.
(iv) Learned counsel has further submitted that since the petitioners were appointed for a fixed period of five years, therefore, the tenure of their offices could not be curtailed. He has referred to the cases reported as Abdul Qayyum Qureshi v. The Government of Punjab and others (1975 SCMR 457), Pakistan v. Fazal Rahman Khundkar and another (PLD 1959 SC (Pak.) 82), Ch. Muhammad Bakhsh v. Government of Punjab through Secretary, Education Department, Government of the Punjab, Lahore and 2 others (PLD 1989 Lahore 175), Prof. Feroze Yousif Khan v. Chief Secretary, Government of Sind, Karachi and another (1988 PLC (C.S.) 763), (1982 CLC 515), Professor Alaud Din Akhtar, Chairman, Punjab Textbook Board v. Government of the Punjab through The Chief Secretary, Punjab, Lahore and another (PLD 1979 Lahore 324) and Saeed Mehtab Butt, Member, Punjab Public Service Commission, Lahore v. The Government of Punjab through Chief Secretary and 3 others (1998 PLC (C.S.) 535).
(v) He has next pleaded that vested right under enactment once accrued cannot be taken away and the "Amending Ordinance" cannot operate retrospectively and term of office of three years can only be applied to those members, who will be appointed after the promulgation of the amending Ordinance, and not to the petitioners. He has relied upon the cases reported as Sh.
Muhammad Ali v. Messrs China Silk House and another (1985 CLC 679 at page 682), State Life Insurance Corporation of Pakistan v. Mercantile Mutual Insurance Company Limited and others (1993 SCMR 1394 at page 1404), Altaf Hussain and 2 others v. N.E.D. University of Engineering and Technology through Vice- Chancellor and another (PLD 1997 Karachi 289 at page 290), Muhammad Hussain and others v. Muhammad and others (2000 SCMR 367 at page 381) Zila Council, Jhang, District Jhang through Administration and others v. Messrs Daewoo Corporation, Kot Ranjeet, Sheikhupura through Director Contract and others (2001 SCMR 1012 at pages 1031, 1032), Arshad Mehmood and others v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others (PLD 2005 SC 193 at page 232), The State v. Maulvi Muhammad Jamil and others (PLD 1965 SC 681).
4. Conversely, the learned Attorney General for Pakistan, while refuting the aforenoted contentions, has submitted that action of the President, while promulgating an Ordinance is a piece of legislation under Article 89 of the Constitution, therefore, the same cannot be subjected to judicial review. He has further submitted that promulgation of an Ordinance is a law making act and the vires of a legislation, on the basis of motives and wisdom of law making authority, cannot be called in question through the filing of constitutional petition. He has added that wisdom of legislature cannot be questioned. He has referred to the case of Fauji Foundation and another v. Shamimur Rehman (PLD 1983 SC 457) and Muhammad Rafique v. Federation of Pakistan through Secretary, Law Justice and Human Rights Division, Islamabad and another (PLD 2005 Lahore 150 at page 162).
(ii) Learned Attorney General has next contended that the administrative actions and the legislative measures cannot be questioned on the ground of mala fide. He has referred to cases of the Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others (PLD 1954 SC 151). Ardeshir Cowasjee and 11 others v.
Sindh Province and others (2004 CLC 1353), Mahmood Hassan Harvi v. Federation of Pakistan through Secretary Interior, Government of Pakistan, Islamabad and 3 others (PLD 1999 Lahore 320) at page 325) and Ghulam Nabi v. Province of Sindh and others (PLD 1999 Karachi 372 at pages 381- 382).
(iii) His next contention is that general denial of facts by the Federation in its comments is sufficient to dislodge the factual aspect of the case as narrated in the constitutional petition.
(iv) Learned Attorney-General while referring to the prayer made by the petitioners has submitted that the challenge has not been thrown to any executive/administrative action taken by the President or/and the Prime Minister, but in fact Article .89 of the Constitution has been called in question, where-under President is empowered to promulgate Ordinance. He has added that necessity and timing of Ordinance is for the President to determine and none else.
(v) Learned Attorney-General has submitted that judgment of Muhammad Rafique (supra), rendered by the learned Full Bench of this Court, is binding on this Court. He has also referred to the 17th amendment made in the Constitution, whereunder retirement age of Judges of the Hon'ble Supreme Court of Pakistan and High Court was curtailed.
5. Firstly dealing with the contention of the learned counsel for the petitioners, qua mala tide of fact and to the question as to whether despite the bar of Article 248(1) of the Constitution, respondents No.4 and 5 are necessary parties to the present petition. Contention of the learned counsel is mainly based on the judgment of Aman Ullah Khan and others (ibid), wherein it has, inter alia, been held that where allegations of mala fide of fact were levelled, it was necessary that the party against whom such mala fide of fact was alleged must be impleaded as a party, as in the absence of such a party no findings with regard to the mala tide of fact as distinguishable from mala fide of law could be recorded. It has also been held in the case of Amanullah that allegations of mala tide must be pleaded by the petitioners. Principle of law laid down by the apex Court of the country in the case reported as Pakistan, through Secretary, Cabinet Division, Islamabad and others v.
Nawabzada Muhammad Umar Khan (deceased) now represented by Khawaja Muhammad Khan of Hoti and others (1992 SCMR 2450) is that where allegations of mala fide of fact were involved or alleged it was necessary that the parties against whom such mala fide was alleged must be impleaded as party. In the said perspective, I have examined the contents of the petitioner to find out as to whether the petitioners have alleged, pleaded or levelled allegation of mala fide of fact qua respondents Nos.4 and 5. Although no specific mala fide on the part of respondents Nos.4 and 5 has been pleaded in the present petition, yet paras. Wherein petitioners have named respondents Nos.4 and 5 are reproduced below:-- Para.6 "That the President and the Prime Minister could not countenance the independent and conscience working of the petitioners for long and decided to cut short tenure of the petitioners and removed them by promulgating an Ordinance just two days before the National Assembly Session which was convened for 29th of August, 2005...."
Para.7 " The petitioners performed their duties in the true sprit of their oath to uphold the law and the rules governing their functions. Lt. Gen. Jamshed Gulzar petitioner/ Chairman resisted any violation of laws and rules and took up such issue with the Prime Minister or the President as the case may be...
"
Para.11 "...The Commission's annual report for the year 2003 was submitted to the President's Secretariat on 6-11-2004 with a request by the petitioner/Chairman to be allowed to present it personally. It was followed by a reminder, dated 3-12-2004 to the Chief of Staff to the President and finally by the last reminder, dated 16-6-2005. The request was never granted. Obviously the President was annoyed with the petitioner/ Chairman."
Para. 13 ...The petitioner/Chairman brought this fact also to the notice of the President through a letter, dated 13-8-2005 to which he did not receive any response."
Para. 15 "That evidently, the forthright position taken by the petitioners against violations of rules and regulations by the P.M. And the President caused promulgation of the amending Ordinance. Mala fides are therefore more than obvious."
' It flows from the above that the petitioners in the petition in hand did not specifically plead any mala fide of fact against respondents Nos.4 and 5 and a few instances quoted in para.7 of the petition, are directed towards the Ex. Prime Minister (Mr. Zafar Ullah Khan Jamali). It has simply been stated in para.10 of the petition, as noted above, that the Chairman took up certain issues, he and other members expressed serious reservations about recruitments of certain Government servants and raised these issues in annual reports. The petitioners have not specifically alleged and pleaded any mala fide of fact against respondents Nos.4 and 5. In the absence of allegation qua mala tide of fact against respondents Nos. 4 and 5 in the petition, the petitioners arc precluded from agitating the same before this Court during arguments. The petitioners have not even placed on record any material to demonstrate that promulgation of "Amending Ordinance" by the President was due to mala fide of fact. Simply to say that the "amending Ordinance" was promulgated two days before the Session of the National Assembly is no ground to assume and infer that legislative action of the President was tainted with mala fide of fact. Hon'ble Supreme Court of Pakistan in a case reported as Fauji Foundation and another v. Shamithur Rehman (PLD 1983 SC 457 at 554) in the end of paragraph 80, has held that law giver is the sole Judge of the necessity of such legislation. It appears appropriate to reproduce the said portion from the judgment, which reads as follows:-- ... In keeping with the above rationale, the extrinsic factors, such as haste and other political matters awaiting earlier attention cannot, in any way, affect the validity of the impugned legislatiye instrument as it is the law-giver who is the sole Judge of the necessity of such legislation and on no principle of interpretation can the vires of the legislation be attacked by reference to such extrinsic factors." (Underlining is mine).
6. As noted above, no allegation of mala fide has been levelled and pleaded against respondent Nos.4 and 5. Even otherwise, mala fides is one of the most difficult things to prove and onus to prove mala fides is always on the person alleging mala, fides. Reference can be made to the judgment reported as . The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others (PLD 1974 SC 151). Hon'ble Supreme Court of Pakistan in recent judgment reported as Ch. Shabbir Hussain and others v.
Registrar, Lahore High Court, Lahore and others (PLD 2004 SC 191), while replying upon the aforenoted case of Saeed Ahmed Khan has held that allegations of mala fide can be easily made than proved. It may be noted that in the instant case, as held above, even allegations of mala fide has not been made in the petition. It would be appropriate to reproduce a portion of judgment from the case of Ch. Shabbir Hussain and others (supra) which reads as follows:-- "The allegation of mala fide can be easily made than proved. It is by now firmly settled that the allegation of mala fide requires proof of a high order owing to its serious nature and the burden of proof lies heavily on the person who makes it. In this context the observations made in Federation of Pakistan v. Saeed Ahmed Khan (PLD 1974 SC 151) may be reproduced hereunder:-- "Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption- is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. As has been pointed out by this Court in the case of Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), mala fide must be pleaded with particularity, and once one kind of mala fide is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case."
7. It has been held in Nawabzada Mohsin Ali Khan and others v. Government of N.-W.F.P. And others .(PLD 1993 Peshawar 207) that mala tide has to be specifically pleaded and legal proof has to be adduced to establish the same. In the instant case neither mala fide has been pleaded nor any proof of whatsoever nature has been adduced to establish the same, therefore, it cannot be argued that respondent No.4 has promulgated the amending Ordinance with mala fide of fact.
Here, it would be appropriate to refer the case of Fauji Foundation, ibid, wherein it has been held that person pleadings mala fide against President and Chief Martial Law Administrator, if failed to give any evidence in support of his assertion, then inference of malice cannot be drawn qua President and Chief Martial Law Administrator.
8. There possibly cannot be any cavil with the principles of law laid down by the Hon'ble Supreme Court of Pakistan in the cases of Aman illlah Khan and others and Pakistan, through Secretary, Cabinet Division, Islamabad and others (ibid), but the said judgments are of no avail to the petitioners, as firstly, as discussed above, no allegation of mala fide of fact has been alleged or pleaded against respondents Nos.4 and 5 and secondly in none of the judgments either act of the President to promulgate Ordinance or any legislative enactment by the Parliament was called in question, inasmuch as neither the President nor Prime Minister was party in those proceedings.
9. In the above perspective, I am of the view that as no mala fide of fact has been alleged and pleaded against respondents Nos. 4 and 5, therefore, they are neither necessary nor proper parties to the present proceedings, thus, names of respondents Nos. 4 and 5 are deleted from the array of respondents.
10. Now coming to Article 248(1) of the Constitution of Islamic Republic of Pakistan, which envisages that President, Governor, Prime Minister, Federal Minister or Minister of State, Chief Minister and PrOvincial Minister shall not be answerable to any Court for the exercise of powers and performance of function. Proviso to Article 248(1) provides that it shall not preclude a person from initiating an appropriate proceedings against Federation or Province. It may be noted that in the instant case, the petitioners have impleaded Federation as respondent No.
1. It has been held by the Hon'ble Supreme ,Court of Pakistan in the case reported as Abrar Hassan v. Government of Pakistan and another (PLD 1976 SC 315) that protection contained in Article 248(1) of the Constitution of Islamic Republic of Pakistan extends to the person of President, Governor, Prime Minister etc. And not to any action taken or any order passed by them. In the case in hand, the petitioners have challenged amending Ordinance, promulgated by the President of Pakistan, and Federation of Pakistan, Secretary Establishment Division and Secretary Law Justice and Human Rights have been made party to the present petition. In the presence of the said persons even on the strength of the case of Abrar Hassan (ibid), protection under Article 248(1) is available to the respondents Nos.4 and 5. Thus, under the circumstances, the President and Prime Minister are protected and immunity is available to them on the strength of Article 248(1) of the Constitution.
Additionally, the matter in hand can effectually and conclusively be determined in the absence of those respondents.
11. The controversy in hand has arisen due to amendment made in the "Parent Ordinance" by way of "Amending Ordinance". It would be advantageous to reproduce the "Amending Ordinance", which reads as follows:-- "No. F. 2(1)/2005-Pub.--The following Ordinance promulgated by the President is hereby published for general information:-- ' Ordinance No.XV of 2005 ' An Ordinance further to amend the Federal Public Service Commission Ordinance, 1977.
' Whereas it is expedient further to amend the Federal Public Service Commission Ordinance, 1977 (XLV of 1977), for the propose hereinafter appearing; ' And whereas the National Assembly is not in session and the President is satisfied that circumstances exist which render it necessary to take immediate action; ' Now, therefore, in exercise of the powers conferred by clause (1) of Article 89 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to make and promulgate the following Ordinance:--
(1) Short title and commencement.--(1) This Ordinance may be called the Federal Public Service Commission (Amendment) Ordinance, 2005.
(2). It shall come into force at once.
(2) Amendment of section 4, Ordinance XLV of 1977.---In the Federal Public Service Commission Ordinance, 1977 (XLV of 1977), in section 4, for subsection (1) of following shall be substituted and shall be deemed always to have been so substituted, namely:-- "(1) A member of the Commission shall hold office for a term of three years from the date of which he enters upon office or till he attains the age of sixty-five years whichever is earlier: 'Provided that a member of the Commission who is' a retired Judge of the Supreme Court or a High Court shall hold office for a term of three years within five years from the date of his retirement: ' Provided further that a member of the Commission shall not be eligible for re-appointment.
(1A) Notwithstanding anything in any contract, agreement or any instrument containing terms and conditions of the service, a member who, on or after the commencement of Federation Public Service Commission (Amendment) Ordinance, 2005, completes his tenure or attains upper age- limit specified in subsection (1) shall on such commencement forthwith cease to be member as denied in clause (b) of section 2."
12. Article 89(1) of the Constitution envisages that President may, except when the National Assembly is in session, is satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require. It flows therefrom that .Before promulgating Ordinance only President is to be satisfied that circumstances do exist for promulgation of an Ordinance. It has been held in the .Tase of Muhammad Rafique
(ibid) that "The sole Judge of existence of circumstance rendering it necessary to take immediate action under Article 89 of the Constitution is the President and it lies within his subjective satisfaction".
' Obviously, the President of Pakistan in exercise of powers under the said Article, has promulgated "amending Ordinance".
13. It has been held in the judgment reported as Mahmood Hassan Harvi v. Federation of Pakistan through Secretary Interior, Government of Pakistan, Islamabad and 3 others (PLD 1999 Lahore 320) that power to make Ordinance under Article 89 of the Constitution is coextensive with the power of the Parliament to make the law and that the Ordinance shall have the same force and effect as an Act of Parliament. It has been held in the case reported,as Ardeshir Cowasjee and 11 others v. Sindh Province and others (2004 CLC 1353) that Courts would not sit in judgment over the wisdom of legislature and while acting under Article 128 of the Constitution, Governor would exercise legislative and not merely executive powers.
14. Now coming to the question as to whether powers of the President to issue an Ordinance can be called in question, while invoking the constitutional jurisdiction of this Court and such exercise of powers can be subjected to judicial review. These questions, amongst others, were raised, dealt with and decided by the Hon'ble Supreme Court of Pakistan in the case of Fauji Foundation, ibid. It may be noted that the Hon'ble apex Court of the Country in the latest judgments reported as Shamimur Rahman v. Fauji Foundation, Rawalpindi and another (1992 SCMR 1496) and Pakistan, through Secretary, Cabinet Division, Islamabad and others v. Nawabzada Muhammad Umar Khan (deceased) now represented by Khawaja Muhammad Khan of Hoti and others (1992 SCMR 2450), declined to review on law points, the decisions given in the case of Fauji Foundation (PLD 1983 SC 457). It appears appropriate to reproduce certain extracts from the judgment of Fauji Foundation (supra), which read as follows:-- ' At page 546 (Head note f.)
"Therefore, when a Court, which is creature of the Constitution itself, examines the vires of an Act, its powers are limited to Examining the legislative competence or to such other limitations as are in the Constitution; and while declaring a legislative instrument as void, It is not because the judicial powers is superior in degree or dignity to the legislative power' but because it enforces the Constitution as a paramount law either where a legislative instrument is in conflict with the constitutional provision so as to give effect to it or where the Legislature fails to keep within its constitutional limits."
' At page 546 (Head note g).
"Clearly, therefore, the scope of judicial review is confined to the enforcement of the Constitution as .Supreme law. Aside from the Prerogative to interpret - the Constitution, its purpose is corrective or directory, and extends to determining the legality of an administrative action and in relation thereto the constitutionality of the Legislation. It, however, does not extend to prying into the affairs of the Legislature."
' At page 554 (Head note M).
' In keeping with the above rationale, the extrinsic factors, such as haste and other political matters awaiting earlier attention cannot, in any way, affect the validity of the impugned legislative instrument as it is law giver who is the sole Judge of the necessity of such legislation and on no principle of interpretation can the vires of legislation be attacked by reference to such extrinsic factors."
' At page 577 (Head note II, JJ)
' Clearly from these observations the exertion of the legislative power, either by the elected Assembly or the President, is not made dependent on any motive, wisdom, policy or impolicy or any rule of jurisprudence etc. And further it seeks to avoid a conflict between the two functional organs of the State. (See also Urnyal Achi v. Lakshmi Achi (1), Tariq Transport Co. v. Sargodha-Bhera Bus Service (2), Mr. Fazlul Quader Chowdhry v. Mr. Muhammad Abdul Hague (3) and Mr. A.K. Fazalul Quader Chaudhry v. Syed Shah Nawaz (4). Again the observations of Hamoodur Rehman, C.J.
Undoubtedly bear out that the constitutionality of an act depends upon the exercise of power within constitutional limits and not upon motive or any other consideration."
' At page 577 (Head note KK)
"From these provisions it is obvious that the President was not answerable to any Court for the exercise of this legislative functions and for this reason it was not possible to enquire into the motives of any legislation promulgated by him."
' At page 578 (Head note PP)
"That if political safeguards in the Constitution are overlocked and the legislation is struck off on the ground of mala fides then there is a possibility of conflict of judicial power with the political power of the Government and this would entail a mutual destruction of the functional organs of the State."
' At page 579 (Head note QQ)
"On principle there is no distinction between an Act and Ordinance as both are the products of the exercise of legislative powers. Therefore, if needs to the same conflict if it were to be struck down on the ground of mala fides, a contingency which has been strongly deprecated for the all embracing reasons in the aforementioned decision."
' At page 580 (Head note RR).
"What is said above goes a long way to fortify the curb on judicial power in matters involving conflict between the functional organs of the State and the wisdom underlying it for maintaining and equilibrium inter se between them."
' At page 582 (Head note SS)
"I had referred to this English case earlier in the discussion on another topic and relied on the same passage for holding that the judicial power cannot over reach the legislative department so as to enable an enquiry to be initiated into the motives of legislation."
At page 585 (Head note YY)
"In conclusion and for all the reasons hereinbefore given, I am of the view that neither mala fides has any nexus with the legislative power nor there is any distinction between an Act and an Legislative measures promulgated by an individual in whom the power is reposed."
' At page 685 Head note U6 "In practice, there are numerous instances of ex post fact legislations and none of them have been struck down on the criterion that the legislature was debarred from legislating retrospectively."
' The Principles of law decided in the case of Fauji Foundation (supra), some of the extracts whereof have been reproduced above, are the complete answer to the contentions raised by the learned counsel for the petitioner.
15. Here I may refer to the recent judgment reported as Muhammad Rafique v. Federation of Pakistan through Secretary, Law Justice and Human Rights Division, Islamabad and another (PLD 2005 Lahore 150), relied upon by the learned Attorney General, wherein the vires of Legal Practitioners and Bar Councils (Amendment) Ordinance (III of 2004) were challenged. Hon'ble Full Bench of this Court has, inter alia, held that said Ordinance is not ultra vires of any provision of the Constitution. It would be advantageous to reproduce certain portions from the said judgment, which reads as follows:-- ' At page 162 (Head note C)
"As far as the first three grounds are concerned none has merit. There is a chain of precedent cases that promulgation of an Ordinance under the Constitution is a legislative act and an Ordinance and an Act of the Parliament stand at the same footing. As far as the plea of the mala fide is concerned it is not available against a legislative act. The sole Judge of Existence of circumstances rendering it necessary to. Take immediate action under Article 89 of the Constitution is the President and it lies within his subjective satisfaction. It is, therefore, beyond the reach of the Court in exercise of Constitutional jurisdiction. The first judgment on the question to be noted is a Full Bench judgment of this Court in the matter of Syed Akhlaque Hussain, Advocate PLD 1965 (W.P.) Lah.
147. This Court relied on the observations of the Pirvy Council in the case of Bendoari Lal Sharma 72 IA 57 and held that satisfaction of the President was essentially subjective and the vires of an Ordinance could not be attacked on that ground."
' Head note D page 164 "Our conclusion, therefore, is that the amending Ordinance could not be assailed on the ground of mala fides, unreasonableness or that conditions of Article 89 were not satisfied."
16. In the above backdrop, it is held that the President has validly promulgated the "amending Ordinance"; vires whereof 'cannot be subjected to judicial review; the "amending Ordinance" is not ultra vires of any of the provisions of Constitution; it cannot be assailed on the ground of mala fide; the same is valid piece of legislation and it cannot be struck down.
17. Having decided the said legal questions, now I advert to the next question as to whether the 'amending Ordinance" would take effect retrospectively or it will operate prospectively. I have re- examined the "amending Ordinance" and find that section 2 of amending Ordinance, provides that new section 4(1) shall be deemed always to have been so substituted. (Underlining is mine). The said wording in the Ordinance have a substantial bearing, while interpreting about its taking effect.
To my mind, following questions arise in the present petition:--
(i) Whether "amending Ordinance" is to operate retrospectively or it will take effect prospectively.
(ii) Whether any vested right existed in favour of the petitioners, when the "amending Ordinance" was promulgated.
(iii) If so whether the "Amending Ordinance" has infringed any of the vested rights of the petitioners.
(iv) Whether petitioner's cessation to hold offices under the "amending Ordinance" is void, unconstitutional and without lawful authority.
18. I feel that the aforenoted questions need deeper probe of the matter, therefore, the present petition stands admitted to regular hearing only to consider and decide the aforenoted formulations, as rest of the issues involved in the case stand decided.
19. Since the respondents are represented, therefore, no formal notice shall be issued to them.
20. Petitioners shall file amended petition, thereby deleting the names of respondents Nos. 4 and 5 within a period of fifteen days.
21. As the said questions are intricate questions of law, therefore, Hon'ble Chief Justice is requested to constitute a Larger Bench, if his Lordship deems fit, for hearing the matter.