' ABDUL HAYEE KURESHI, C J.-This Full Bench has been constituted to answer the following two questions.
"(1) Whether the powers of this Court under Article 199 of the Constitution have been taken away in respect of cases arising out of or in relation to convictions, sentences and proceedings recorded, pending or taken by the Military Courts?
(2) Whether the pending petitions in relation to the cases mentioned in question No, 1 above have abated?
2. It is necessary to briefly state some facts which ultimately resulted in the making of this reference. Ever since the promulgation of Martial Law Order No, 4 by the Chief Martial Law Administrator, Military Courts were established throughout the country. These Courts started trials for offences. Most of the trials were by the Summary Miltary Courts and since there was no provision for appeals, jurisdiction of this Court under Article 199 of the Constitution was invoked by the aggrieved persons. In the meantime, judgment in the case of Begum Nusrat Bhutto (1) was delivered by the Supreme Court and it was held by the Supreme Court that in spite of the imposition of Martial Law 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. The Supreme Court further ruled that the powers of the superior Courts under Article 191 of the Constitution remained 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 Ordinacne. The constitutional Petitions therefore, continued to be estertained by this Court. It was on 16-10-1979 that the Constitution was amended by inserting Article 212-A to provide for a partial ouster of jurisdiction of the High Courts in respect of cases decided by the Military Courts. It seems, the Chief Martial Law Administrator and President had desired to achieve the object of the High Court abstaining from exercising jurisdiction in respect of cases tried before a Military Court. A Division Bench of this Court consisting of Agha Ali Haider, C. J. And A. V. Akhund, J., heard several Advocates on the point of ouster of jurisdiction, complete or partial as a consequence of insertion of Article 212-A in the Constitution. The learned Judges of the Division Bench came to the conclusion that Article 212-A did not create a bar on jurisdiction of the High Courts in regard to judicial review in respect of convictions and sentences passed or awarded by the Military Courts. A copy of this judgment was placed before a Division Bench consisting of Mr. Justice Saeeduz Zaman Siddiqui and myself and we found that the basic question in regard t o the competence and validity of this provision was not decided by the Division Bench and we recommended constitution of a bigger Bench, preferably of five
(1) PLD 1977 SC 657 Judges to examine the question. This reference of the Division Bench was laid before Mr. Justice Agha Ali Haider on 15-5-1980 and an order was passed on the same day to the effect that the papers concerning this reference may be put up after the summer vacations, viz. After 7-8-1980.
' Again, on 27-5-1980, the President, by the Constitution (Amendment) Order (President's Order No, 1 of 1980) a mended Article 199 of the Constitution by inserting clauses (3-A), (3-B) and (3-C) in the said Article of the Constitution. These provisions were designed to obtain a complete ouster of jurisdiction of the High Court in respect of and relating to the validity or effect of any judgment or sentence passed by a Military Court. The full text however, shall be reproduced in a subsequent paragraph of this judgment. After the enactment of the said President's Order amending Article 199, a Constitutional Petition No, 942/1980 was placed before a Division Bench consisting of myself and Mr. Justice S. A. Nusrat. On 2-6-1980, we took notice of the amendment and referred to this Full Bench for decision the following two questions, namely :- "(1) Whether the amendments made by the Constitution (Amendment) Order of 1980, inserting clauses (3-A), (3-B) and (3-C) of Article 199 of the Constitution are valid?
(2) Whether this Court has jurisdiction to hear petitions, whereby convictions, or proceedings before Military Courts, including Summary Military Courts, are challenged?
3. The Full Bench sat on 3-6-1980 and after hearing the Advocates, particularly, Mr. Khalid Ishaque, Mr. Abdul Hafeez Pirzada and the Advocate-General, recast the questions referred and framed the two questions which now call for an answer by this Full Bench. In regard to the competence of the Full Bench to amend the questions there can be no doubt and if authorities are needed reference may be made to Farid Khan v. The State (1) and Bakhshi Rustam All v. Province of West Punjab (2).
We amended the original questions as the petitions which are before us arise only out of convictions and sentences passed by Military Courts. We did not therefore, think it proper to refer for decision to this Full Bench the validity of all the three Clauses recently inserted in Article 199 of the Constitution. It is not necessary to refer to any other categories of cases which are not before us. The Advocates had however, made a grievance that on the answers in the present reference would depend the answers in regard to the jurisdiction of this Court in relation to other cases which are referred to in the three Clauses of Article 199 of the Constitution. We are of the view that the reference need not be so broad as to consider questions involved in cases which are not filed before us. Manifestly that would prejudice the parties in other cases and we will wish to avoid that.
4. It is necessary to reproduce the Constitution (Amendment) Order, 1980, in extenso and the same is reproduced herein below :- "THE CONSTITUTION (AMENDMENT) ORDER, 1980 President's Order No, 1 of 1908 : ' In pursuance of the Proclamation of the fifth day of July 1977, read with the Laws (Continuance in Force) Order, 1977 (C. M. L. A.
(1) PLD 1960 Lab. 957 (2) PLD 1965 Pesh. 31 ' Order No, 1 of 1977), and in exercise of all powers enabling him in that behalf, the President is pleased to make the following Order-
1. Short title and commencement.-(1) This Order may be called the Constitution (Amendment)
Order, 1980.
(2) It shall come into force at once.
2. Amendment of Article 199 of the Constitution. In the Constitution, in Article 199, after clause (3), the following new clauses shall be inserted, namely :- (3-A) Notwithstanding any judgment of any Court, including any judgment, in respect of the powers of Courts relating to judicial review, a High Court shall not, under this Article-
(a) make an order relating to the validity or effect of any Martial Law Regulation made by the Chief Martial Law Administrator or any Martial Law Order made by the Chief Martial Law Administrator or a Martial Law Administrator or of anything done, or action taken, or intended to be done or taken, thereunder-
(b) make an order relating to the validity or effect of any judgment or sentence passed by a Military Court or Tribunal ;
(c) grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of a Military Court or Tribunal extends and of which cognizance has been taken by a Military Court or Tribunal ; or
(d) issue any process against the Chief Martial Law Administrator or any person acting under the authority of either.
(3-B) Every such order, injunction or process as is referred to in clause (3-A) made, granted or issued at any time before or after the commencement of the Constitution (Amendment) Order, 1980, shall, notwithstanding any judgment of any Court, be null and void and of no effect whatsoever and any proceedings for the making, granting or issue of such order, injunction or process which may be pending before any Court, including the Supreme Court and a High Court, shall abate.
(3-C) The Proclamation of the fifth day of July 1977 all President's Orders, orders of the Chief Martial Law Administrator, Martial Law Regulations and Martial Law Orders made on or after the fifth day of July 1977, are hereby declared, notwitstanding any judgment of any Court, to have been validly made."
5. Several Advocates have addressed us but the main contentions have been furnished by Mr. Khalid Ishaque and Mr. Abdul Hafeez Pirzada. Both of them have clearly stated before us that the Chief Martial Law Administrator, who is also the President of Pakistan, has the power to amend the Constitution. They however, contend that the exercise of this power is not uncontrolled and is circumscribed by various factors. Mr. Khalid Ishaque has stated that the power to amend the Constitution or to make other legislative iustruments is dependent on the existence of material which would satisfy a reasonable man that for the purposes of restoration of democracy such legislative measure was necessary. Additionally, it is contended by him that the maker of the law has to show that the proposed legislative measure did not command or demand anything more or less that what was absolutely necessary for the achievement of the given object. He went on to contend that it is not merely the subjective satisfaction to assessment of the situation demanding a legislative measure by the maker of the law but he has to satisfy the superior Courts on the criterion of a reasonable person that such necessity does indeed exist as to demand the legislative measure.
6. Mr. Abdul Hafeez Pirzada has contended before us that the amending )rder is ultra vires the powers of the President and therefore, void on the allowing grounds :-
(i) That under the law declared in Begum Nusrat Bhutto's case the President/Chief Martial Law Administrator does not enjoy the constitutional/legislative powers of a sovereign parliament as the power to amend the Constitution excludes any curtailment of judicial power of the superior Courts or any departure or delegation from the declared objects of Martial Law, namely, restoration of law and order and restitution of democratic institutions under the 1973 Constitution.
(ii) Subject to what is stated in No, 1 above the Supreme Court in Begum Nusrat Begum's case has not permitted any wanton or needless amendments of the Constitution and in any case the power to amend the Constitution is also circumscribed by the limitations of the amendment being within the limits and/or demands of State necessity to return the country to constitutional rule and further that constitutional amendments can be resorted to only if the present Constitution fails to provide a solution for attainment of the declared objectives of Martial Law.
' It has further been contended that the power to amend the Constitution as recognized by the Supreme Court in clause (iii) (a) at page 716 of the Supreme Court judgment in Begum Nusrat Bhutto's case is, controlled by clauses (b), (c) and (d) in the same clause at the same page. It is further averred that the superior Courts have the power of judicial review to scrutinise legislative acts and functions performed by the Chief Martial Law Administrator/President and the validity of the amendments must be positively upheld by the Courts ; and in case the superior Courts do not so uphold the validity, the provisions shall be null and void. Mr. Abdul Hafeez Pirzada has also contended that no amendment of the Constitution can be permitted if it destroys or tends to destroy the fundamental and basic structure of the Constitution. Lastly, he contends that the amendment is not a law within the meaning of Article 4 of the Constitution and therefore, cannot be permitted to operate to the detriment of citizens.
7. To our mind, the basic questions based broadly and enveloping all facts that arise in this case are the following :-
(1) Whether the President/Chief Martial Law Administrator has the power to amend the Constitution ; and
(2) Whether the amendment can be struck down on any ground other than competence?
8. In order to determine whether the Chief Martial Law Administrator/ President has the power to amend the Constitution it must be stated straightaway that the learned counsel have not challenged that the power to amend the Constitution does vest in the Chief Martial Administrator/President. In that regard the judgment in the case of Begum Nusrat Bhutto is very clear. At page 716 of the report it has been stated as follows :- "(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 recognized 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."
9. It would thus be clear that even on the doctrine of necessity it has been consistently recognised by the judicial authority that the Chief Martial Law Administrator has the powers to do all acts or take all legislative measures which are in accordance with, or could have been made under the 1973 Constitution including the power to amend the said Constitution. The separate mention of the power to amend the Constitution is indeed significant, 4 when looked at in the background that the Constitution itself preserves the power of amendment. In consonance with the situation, the mandatory power is highlighted. In regard therefore, to the basic and primary question of the power to amend the Constitution there is no controversy before us.
10. The learned Advocates have, however, contended before us that by the amendment the trichotomy of powers, judicially recognized as a basic feature in the structure of the Constitution has been destroyed. Mr. Abdul Hafeez Pirzada has referred to Article 4 of the Constitution and contended that the said Article recognizes such division of State powers. Although Article 4 does not appear to fully support Mr. Abdul Hafeez Pirzada we would all the same take the view that such trichotomy of powers in the executive, legislative and judicial field has been consistently recognized by the superior Courts of this country. Even at page 722 of the report in the case of Begum Nusrat Bhutto such trichotomy appears to have been recognized by the Supreme Court in the following words :- "(v) 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."
11. The question then is whether; the trichotomy has been destroyed or even impaired so that the basic features of the Constitution have been thrown overboard. Article 199 is enshrined in the Constitution to provide for a judicial review in respect of actions by the remaining two limbs or functionaries of the State. This provision had been amended by the Parliament of Pakistan on more than one occasion. The last of the occasions arose whom Article 245 of the Constitution was amended. It is not necessary to reproduce the amendment in extenso but it must be stated that clause (iii) was inserted in Article 245 to provide that a High Court shall not exercise any jurisdiction under Article 199 in relation to the causes arising within the cities of Karachi, Hyderabad and Lahore, within which areas the Armed Forces were called to act in aid of civil power. Clause (4) of Article 245 was also amended to provide that any proceedings under Article 199 in relation to the said areas instituted on or after the day the Armed Forces were called to act in aid of civil power shall remain suspended during the period that the Armed Forces would be so acting.
' Such amendment was challenged before the High Court of Sind and a Full Bench of five Judges upheld the validity of the amendment. It must be seen that by insertion of clauses (3) and (4) in Article 245 what parliament intended was to oust totally the jurisdiction of the High Court in relation to such areas. A mass of Case Law was cited before the Full Bench. Notice was taken of the Judgment of Supreme Court in the case of State v. Ziaur-Rehman (1), and the following passage was reproduced in the judgment of Abdul Kadir Shaikh, C. J. (as his Lordship then was) to base his conclusions :- "So far, therefore, as this Court is concerned it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. It has accepted the position that it is a creature of the Constitution; that it derives its powers and jurisdiction from the Constitution; and that it will even confine itself within the limits set by the Constitution which it has taken oath to protect and preserve but it does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean, even if that particular provision is seeking to oust the jurisdiction of this Court. This is a right which it acquires not de hors the Constitution but by virtue of the fact that it is superior Court set up by the Constitution itself. It is not necessary for this purpose to invoke any divine or supernatural right but this judicial power is inherent in the Court itself. It flows from the fact that it is a Constitutional Court and it can only be taken away by abolishing the Court itself."
12. The learned Chief Justice had earlier delivered judgment in the case of Diwan Textile Mills Limited v. Pakistan (2). In that case, the Constitution (Fourth Amendment) Act, whereby the power of the High Court to pass interim orders had been drastically curtailed by the Parliament, came up for consideration and in that case Abdul Kadir Shaikh, C. J. Had considered the scope of a mandatory constituent power conferred by Article 239 of the Constitution. Even in that case, the learned Chief Justice had expressed that "once a Constitution is framed and the power of legislation which appertains to the people is transferred or delegated to an organ constituted under the Constitution, the people cannot thereafter exercise the power, and then the machinery that is provided for amending the Constitution has the power to amend the same. "At this stage a reference must also be made to the case of Darwesh v. Federation of Pakistan (3). This case is also decided by a Full Bench of the Lahore High Court. The amendment of Article 245, was challenged.
Their Lordships of the Lahore High Court recognized the power of the Legislature to amend the Constitution although subject to some limitations of the nature that the basic structure, framework and essential features are not changed.
13. In fact, the Constitution which is a man-made document can never be considered to be not amenable to amendment. The Constitution of United States of America, India, Australia and most of other countries including Pakistan contains provisions for amendment and numerous amendments have been made, some very vital but still upheld. It would be seen that the original makers of the Constitution have always had foremost
(1) PLD 1975 SC 49 (2) PLD 1976 Kar. 1368