N/A vs N/A

ORDER

1. , 1980 ' President's Order No, 1 of 1980: 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. 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)

2. Order, 1980. (2) It shall come into force at once.

2. Amendment to 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 any thing done, or action taken, or intended to me 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 a Martial Law Administrator or any person acting under the authority of either.

3. (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, shall be null and void; and 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.

4. (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, notwithstanding any judgment of any Court, to have been validly made."

5. In view of the said amendment my Lord the Acting Chief Justice sitting with S. A. Nusrat, J. Directed all such petitions as were ripe for hearing on 3-6-1980 to be put up before this Full Bench constituted by his to answer the following questions :-

(1) Whether the amendments made by the Constitution (Amendment) Order of 1980, inserting clauses (3-A), (3-B) and (3-C) in 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?

6. ' However, after some preliminary arguments made at the bar, the questions were reframed as under :-

(1) Whether the power of this Court under Article 199 has 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 have abated?

7. ' Main arguments were addressed by Mr. Khalid M. Ishaque and Mr. Abdul Hafeez Pirzada, while the remaining learned counsel, namely, Mr. G. H. Abbasi, Mr. Kamal Azfar, Mr. S. A. Wadood, Mr. Shaft_ Muhammad and Mr. Sabihuddin Ahmed mainly adopted their arguments and made additions.

8. ' Mr. A. A. Fazeel, who appeared for the Federal Government when called upon by the Court to state his case on behalf of the Government, very boldly stated that as a counsel for the Federal Government he had been instructed to state that the petitions had automatically abated, and no more. When asked if he would answer questions by the Court, he again very boldly stated that as a counsel for the Government he would make no submission and would answer no questions from the Court. Mr. A. I. Chundrigar, learned Advocate-General, appearing from the Sind Government and Mr. S. Inayat Ali learned Standing Counsel appearing for the learned Deputy Attorney-General to when notice was issued by the Court, adopted the same stand as taken by Mr. A. A. Fazeel. Thus, it is in this unfortunate position that we have to decide the important question of law involved by hearing only the learned counsel for the petitioners who addressed the Court at length.

9. ' When the case proceeded on the first hearing, Mr. Khalid M. Ishaque submitted that, inasmuch as, the Amendment Order sought to take away power of judicial review of the'superior Courts under Article 199 in respect of not only convictions recorded and sentences passed by the Military Courts, but also several other matters of more serious nature and consequence specified therein, the validity and effect of the amendment be considered as a whole and not in respect of one clause only relating to judgments and sentences passed by Military Courts or Tribunals. He pointed out that in case the Full Bench were to confine itself to the questions as framed and answered it in the affirmative it would not be possible for persons aggrieved by actions falling under one or the other of the remaining clauses to contend before a D. B. That the bar of jurisdiction was confined to the one clause of the amendment only. The argument of the learned counsel is not without substance, as, even otherwise, I genuinely feel that for deciding the first question as framed, it will be unavoidable to consider the effect of the other provisions of the Amendment Order. Further, it is well settled that Constitutional , Instrument is to be construed like any other document by reading it as a whole,' giving every part thereof a meaning consistent with the other provision& thereof.

10. ' Mr. Khalid M. Ishaque and Mr. Abdul Hafeez Pirzada mainly contended that the Supreme Court having held the present regime representing not a new legal order but only a phase of constitutional deviation dictated by necessity and granted such powers as fell within the scope of law of necessity, the present amendment taking away completely the power of judicial review of superior Courts, was beyond the competence of the President and was invalid.

11. ' It was next contended by the learned counsel that, in any case, the Supreme Court in the case of Begum Nusrat Bhutto having in clear terms held that on no principle of necessity could the powers of judicial review of the Superior Courts vested in them under the 1473 Constitution be taken away, the amendment which seeks to nullify the rule of law laid down by the Supreme Court and take away the power of judicial review of the superior Courts was ultra vires the powers of the President and is invalid, as, otherwise it would be recognising the theory of 'revolutionary legality' of new legal order providing its own source, which had been in no unsertain terms rejected by the Supreme Court in the said case.

12. ' The learned counsel next submitted that the structure of the 1973 Constitution was based on trichotomy of State powers and by taking away the power of judicial review of the superior Courts the amendment destroyed such structure.

13. ' Mr. Khalid M. Ishaque further added that in Islam the Ruler was not above law and his acts are not immune from judicial scrutiny by the Courts and that the right to approach Court is given to a man by God which cannot be denied to him under Islam.

14. ' Mr. Abdul Hafeez Pirzada further supplemented by contending that in addition to above, a mendatory power of the President was circumscribed by the following limitations-

(a) the proposed amendment cannot transcend beyond the limits or demands of state necessity.

15. Necessity being to save the Federation and to provide a bridge to enable the country to return to the path of Constitutional Rule ;

(b) resort to a constitutional amendment can only be made in the event that the present Constitution fails to provide a solution for the attainment of the declared objectives of Martial Law ;

(c) the power to amend the Constitution, as per sub-clause (iii) (a) at page 716 of the Supreme Court judgment is controlled by sub-clauses (b), (c) and (d) of clause (iii). Any amendment beyond the scope of these three sub-clauses would be void ;

(d) A Constitutional Amendment like any other executive or legislative act or function done or performed by the President/C. M. L. A. Has to be subservient to judicial scrutiny of the superior Courts under the power of judicial review, and for its validity must be positively upheld by the superior Courts as within the limitations prescribed.

16. ' Mr. Abdul Hafeez Pirzada finally cantended that even if constituent power to amend the Constitution be conceded to the President, he cannot amend the Constitution so as to destroy its basic structure or fundamentals and as such the President Order 1 of 1980 in fact destroys the basic structure of the Constitution.

17. ' Mr, G. M. Abbasi further supplemented by contending that Martial Law was temporary and as such it cannot produce in the shape of the present amendinant a permanent constitutional measure to outlive itself and to perpetuate military dispensation of justice after Martial Law is over. Mr. Kamal Azfar added that judicial power of review of the superior Courts can be taken away only when the Courts have ceased to exist.

18. ' As would have been noticed, sub-clause (a) of clause (3-A) of the Amendment Order takes away the power of High Court of judging the validity and efftxt not only of Martial Law Regulations and Orders, but also of actions taken thereunder or even intended to be taken thereunder. Sub-clause

(b) of clause (3-A) takes away the power of the Court to make any order relating to the validity of any judgment or sentence passed by a Military Court or Tribunal, even if such judgment or sentence may have been passed without jurisdiction or in excess of jurisdiction or in breach of mandatory provisions of the proccedural Law. Similar", sub-clause (e) of the said clause prohibits the Courts from granting any injunction or order or even entertaining any proceedings in respect of any matter to which the jurisdiction of Military Court or Tribunal extends and of which cognizance has been taken by Military Court or Tribunal. Sub-clause (d) then goes on to prohibit the Court from issuing any process against the C. M. L. A. Of Martial Law Administrator or any person acting under the authority of either. Clause (3-B) declares with retrospective effect invalidity of all orders, injunctions or processes referred to in clause (3-A) issued before the Amendment Order or thereafter and renders all proceedings for such orders or processes pending before any Court, including the Supreme Court and High Court as having abated, notwithstanding any judgment of any Court. Clause (3-C) further goes on to confer retrospective validity on the Proclamation. All President's Orders, Orders of Chief Martial Law Administrator, Martial Law Regulations and Martial Law Orders. There can thus be no dispute that the Amendment Order takes away completely the power of judicial review of the Superior Courts under Article 199 in respect of the said matters.

19. ' The question for consideration is whether the amendment made lay within the competence and powers of the President and is valid. For answering the aforesaid question it will be necessary to ascertain the scope and the extent of a mendatory power of the President and this in turn would further require to ascertain the whole gamut of powers enjoyed by regime, including the President, under the present dispensation.

20. ' As would have been seen, the amendment in question was made by the President in purported exercise of his power derived from the Proclamation and the Laws (Continuance in Force) Order, 1977. Both these instruments came up for examination before the Supreme Court in the case of Begum Nusrat Begum v. Chief of Army Staff (1), as to their validity and effect. Mr. A. K. Brohi, appearing for the Federation of Pakistan, contended before the Supreme Court that upto 5th 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 which had displaced the old legal order, hence, the validity or legality of any action taking place after 5th of July 1977, could be tested only against the guidelines provided by the new legal order provided by the Proclamation and the Laws (Continuance in Force) Order, 1977, and, therefore, all actions coming before the Courts must be decided according to this new legal framework, that is, the Laws (Continuance in Force) Order, 1977. In support of his contention Mr. A. K. Brohi relied upon the theory of 'revolutionary legality' expounded by Professor Han Kelsun and adopted by the Supreme Court in Dosso's case (2) and the case from Southern Rhodesia, Madzimbamuto v. Lardner Burke and another (3). My Lord the Chief Justice, who wrote the leading judgment, after examining the theory of 'revolutionary legality' in the light of the two leading judgments in another historical case of Asma Jilani v. Government of Punjab (4) and the views of eminent jurists and writers mentioned in the judgment repelled Mr. Brohi's contention as being untenable, The relevant observations by his Lordship may be reproduced as under :- "Kelsen's theory is also open to serious criticism on the ground that by making effectiveness of the political change as the sole condition or

(1) PLD 1977 SC 657 (2) PLD 1958 SC (Pak.) 533

(3) (1968) 3 All E R 561 (4) PLD 1972 SC 139 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.

21. ' 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.

22. ' 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 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.

23. ' 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 of revolution." (Underlining* is by me).

24. ' My Lord then turned to the serious disturbing circumstances culminating in the imposition of Martial Law on 5th July 1977, and held that due to the said circumstances there had arisen grave political crises in the country leading to the breakdown of the Constitutional machinery of the executive and legislative organs and hence a situation had arisen for which the Constitution provided no solution, and it being in these circumstances that the Chief of Army Staff intervened to save the country, it was undoubtedly an extra-constitutional step which was obviously dictated by the highest considerations of State necessity and welfare of the people, and that the speech made by the C. M. L. A. On 5th July 1977 making sincere and unambiguous declaration of his objectives was a major factor in persuading the people of Pakistan to willingly accept the new dispensation as interim arrangement to bridge the gap between the breakdown of the previous administration and the induction of the new elected government under the terms of 1973 Constitution, and the present government therefore, acquired its ,effectiveness owing to its moral content and promise of restoration of democratic institutions.

25. ' Having thus held that extra-constitutional step was justified by State necessity and welfare of the People, my Lord proceeded to examine its legal consequences. It was argued by Mr. Sharifuddin Pirzada, the learned Attorney-General, that doctrine of necessity being recognised by the Holy Qur'an and the Judicial System of Western Countries and by the Supreme Court in several precedent cases, the Authority inducted into power on account of State necessity and the principle of. Salus populi supremo lex was fully entitled to administer the country and exercise supra-constitutional powers for this purpose. Mr. Brohi sticking to the theory of 'revolutionary legality', however, contended that even if the said doctrine of necessity applied, 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 test to apply, and that in any case the Courts were now governed by the limitation placed upon them by the Laws (Continuance in Force) Order, 1977. The Supreme Court rejected such contention of Mr. Brohi and held that the assumption of power by an authority having been held to be based on the doctrine of necessity, the action taken by such an authority would have to be judged in the light of principles pertaining to the law of necessity. The relevant remarks made by their Lordships at page 706 of the judgment may be usefully reproduced as under :- "The question of considering the application of the doctrine of necessity has obviously arisen in this case as the Court is not persuaded that the military intervention provided its own legality simply for the reason that it had 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 judicial concepts and notions of morality and 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 the legal continuity of the country, as distinguished strictly from the Constitutional continuity."

26. ' Thus applying the doctrine, my Lord held that inasmuch as Martial Law was impelled by high considerations of State necessity and welfare of the people, the extra-constitutional step taken by the C. M. L. A. To overthrow the government of Mr. Zulfiqar Ali Bhutto as well as the Provincial Governments and to dissolve the Federal and Provincial Legislatures stood validated in accordance with doctrine of necessity.

27. ' My Lord then dealt with the extent and scope of powers exerciseable by C. M. L. A. During the temporary period for which he had taken control of the administration in Pakistan. It was contended by the learned Attorney-General before the Supreme Court that once the take-over was validated on the principle of State necessity, then the C. M. L. A. Would have the right to govern the country in any manner he thought best and the Courts in Pakistan were bound by the provisions of the Laws (Continuance in Force) Order, 1977, which must henceforth be treated as supra-constitutional instrument, binding, on all authorities in Pakistan, and in support, relied upon the statement regarding implications of Martial Law made by the authors in Corpus Juris Secundum, Volume 93 and `Salmond on Jurisprudence, page 150, 11th Edition. The Supreme Court, however, rejected such contention of the learned Attorney-General and observed that the definitions of Martial Law given in the said two books were irrelevant to the situation which in the present case was of more fundamental character where the constitutional machinery had broken down and its authority had been eroded by factors of political nature and, as such, the nature of the change had to be determined by examining all the surrounding circumstances including the motivation of those who had brought the change and the objectives declared by them as justifying the change, which declaration of intent was of higher purpose and was not to be construed in the limited sense in which preamble to a statute or even the Constitution is looked at; And thus taking into consideration the speech of 5th July 1977, made by the C. M. L. A. Containing solemn.

28. Declaration of his intentions and objectives of imposition of Martial Law, proceeded to hold that the situation very aptly called for application of the following remarks by D'Smith in his book 'Constitutional and Administrative Law' : "In some situations where unconstitutional action has been taken by person wielding effective political power, it is open to a Judge to steer a middle course. He may find it possible to ask 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 supersession of the Legal Order; it is essentially a transient phenomenon."

29. ' Their Lordships thereafter proceeded to summarise the legal position emerging from the above discussion as under :- "(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 derograte 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, o could have been made under the 1973 Constitution, including the power to amend;

(b) All acts which intend 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 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 as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance.

30. ' 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 Court's 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 I have held that the new Legal Order is only for a temporary period, and for a 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 of salus populi suprema lex, the superior Courts continue to remain Judges of the validity of the actions of 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.

31. ' There is yet another, and a stronger reason for holding that the power of judicial review continues.

32. 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 consideration arose in regard to the judicial organ of the State.

33. Accordingly, on no principle of necessity could powers of judicial review vested in the superior Courts under the 1973 Constitution, be taken away.

34. ' 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 anyone 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 Mina (Muslim Community), and provide an effective safeguard for the rights of the subject. 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?'

35. ' My Lord then proceeded to examine the provisions of the Proclamation as well as the Laws (Continuance in Force) Order, 1977, in the light of the principles stated above. Mr. Sharifuddin Pirzada described the instrumen as supra-constitutional as in his view they overrode the 1973 Constitution and were binding on overyone by virtue of their own force. His Lordshi repelled the contention and held that as the power of Courts to test the validity of all actions of the C. M. L. A. On the touchstone of necessit remained, he would describe them as instrument of extra-constitutional nature to conform to the description of action by virtue of which the C. M. L. A. Had assumed the administration of Pakistan and finally went on to say at page 719 of the Judgment that the proclamation described in legal form the extra-constitutional action which the C. M. L. A. Had taken on the ground o necessity and held it valid for that reason, namely, 'necessity'. In other words, their Lordships rejected the contention that it was valid by virtue o its own force, dehors the doctrine of necessity. Similarly, dealing with the Laws (Continuance in Force) Order, 1977 my Lord the Chief Justice held that it was primarily designed to give effect to the purpose of the proclamation and as it was an offspring of necessity, the superior Courts continue to hay the power of judicial review, notwithstanding anything to the contrart contained in this order, to test the validity of its provisions and any action taken thereunder, in the light of the principles regulating the application of the law and doctrine of necessity set out earlier.

36. ' Here, a word of explanation may be called for. It may well be said that when the legal position emerging was so lucidly, if I may say so with respect summarized in the conclusions stated in the judgment, where was the necessity of referring to the arguments of the learned counsel and the discussion in the body of judgment. To this, I would humbly reply that I have done so as I thought it necessary for proper understanding o the conclusions and that it would be relevant in the context of the present issue before this Court as almost all the learned counsel heavily relied on the contentions raised by Mr. A. K. Brohi and the learned Attorney-General and the manner in which they were repelled. If, however, it is still thought that it was not required, the excess may be condoned.

37. ' It will thus be seen that the Supreme Court after determining the legad character of the present interim regime and the status of the two Instruments, viz. The Proclamation and the Laws (Continuance in Force) Order, 1977 determined the scope of powers exerciseable by the C. M. L. A.

38. To those o performing acts and promulgating measures as falling within recognize scope of the law of necessity, as enumerated in category (iii) at page 71 of the judgment. It will however, be noticed that the Supreme Court while conceding the above said powers to the C. M. L. A. Went on also to lay down in the subsequent conclusion (v) at the same page of the judgment, as a concomitant of exercise of such powers, that superior Courts will continue to have the power of judicial review of judging the validity of any act or action of the Martial Law Authorities if challenging in the light of principles underlying the law of necessity and their power under Article 199 of the Constitution would remain available to them 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 as would have been further noticed, the raison d'etre of the above principle laid down by their Lordships was that several textbook writers and contemporary jurists ha supported the proposition that the Courts established under the pre- existing legal order continue to have the power and jurisdiction to judge the validity and effectiveness of new legal order, and as the present regime was temporary for specified and limited purpose and represented not a new legal order but only a phase or constitutional deviation dictated by necessity, superior courts continue to have the power of judicial review under Article 199 of the Constitution to their full extent.

39. ' That being so, the premises remaining the same, the principle laid down above by the Supreme Court would, indeed, prevail during th entire period of Constitutional deviation as a basic arrangement and I will not be permissible to any one in the regime, including the President, 0 to take away during the said period the power of the superior Courts under Article 199, of judging the validity of all the acts and actions of the Martial Law Authorities during such period.

40. ' The power of judicial review of the superior Courts under Article 199 was upheld by the Supreme Court on the further principle of trichotomy of State powers. Their Lordships observed :- "There is yet another, and stronger reason for holding that the power o judicial review continues.

41. 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 consideration arose in regard to the judicial organ of the State.

42. Accordingly on no principle of necessity could powers of judicial review vested in the Superior Courts under the 1973 Constitution be taken away. (Underlining* is by me)."

43. ' The observations underlined* above appear to me be very significant, in that, they rule out possibility of power of judicial review of superior Courts under Article 199 being taken away by the present regime at an stage during their tenure, for the reasons that, firstly, the powers exerciseable by the regime are limited to these falling within the law of P necessity. Secondly, it had survived the initial take over for lack of State necessity and, thirdly, it will upset the trichotomy structure of the Constitution which, as held by the Supreme Court, is still the Supreme Laws of the land, subject to the condition that certain parts thereof have been held in abeyance.

44. ' This is not all. The Supreme Court went further to uphold the power of judicial review of the superior Courts for yet another important reason which may be reproduced in their Lordships' words as under :- "Next, even if for any reason the principle or power of judicial review embodied in the relevant provisions of the 1973 Constitution he held not to be available under the new dispension, 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 accounted to the Courts to 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 subject. On this principle as well, the power of judicial review for judging the validity of the actions of the Martial Law Authority must continue to remain in the Superior Courts."

45. ' The principle stated above is also not without significance. The opening lines of the above paragraph would indicate that the Courts had envisaged the situation as has presently arisen due to the present amendment in question, but their Lordships went on to forestall and lay down that even in such a situation happening, the superior Courts will continue to have the power of judicial review to judge the validity of the actions of the Martial Law Authorities, and the reasons assigned are such as cannot be denied by any Authority in Pakistan whose ideology is based on Islam.

46. ' Article 189 of the 1973 Constitution provides that any decision of the Supreme Court shalt, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all Courts in Pakistan. That being so, the principle of law enunciated above by their Lordships in regard to the judicial power of review of the superior Courts under Article 199 of the Constitution of judging all actions of Martial Law Authorities would be binding on this Court.

47. ' It may be recalled that the aforesaid principle of law was laid down by the Supreme Court in answer to the contention raised by Mr. A. K. Brohi and the learned Attorney-General that the Laws (Continuance in Force) Order, 1977, was binding on every one by virtue of its force and therefore the jurisdiction barring provisions contained therein had to prevail and the Court therefore had no jurisdiction to judge the validity of the actions of the Military Authorities. The Preamble of the Amendment Order in question would show that for its making it derives power from Laws (Continuance in Force) Order, 1977. As such, the President could claim no higher power than the C.

48. M. L. A. Had on 5th of July 1977. Now, when the power of excluding the judicial power of review of the superior Courts under Article 199 was denied to the C. M. L. A. And the Jurisdiction barring provisions contained in the Laws (Continuance in Force) Order, 1977, were held to be not valid in the context of the legal character of the regime and the powers exerciseable by him during the period of Constitutional deviation, it cannot be accepted that the President could legally arrogate to himself the same power to take away the judicial power of review of the superior Courts under Article 199 by enacting the similar jurisdiction barring provisions through the instrument which for its making derived power from the Laws (Continuance in Force) Order, 1977. In other words, the jurisdiction of the superior Courts under Article 199 having been upheld by the Court, notwithstanding the similar barring provisions contained in the Laws (Continuance in Force) Order, 1977, the same could not be taken away by the present Amendment which for I source of power draws on the Laws (Continuance in Force) Order, 1977. It is a well-settled principle that what cannot be done directly, cannot be done indirectly.

49. ' It is true that the Amendment Order contains non-obstante clause which seeks to take away the effect of the judgment in Begum Nusrat Bhutto's case in respect of the power of judicial review of the superior Courts under Article 199, upheld by the Court. It will, however, be noticed that the amendatory power was conceded to the C. M. L. A., not as a constituent power enjoyed by the Parliament functioning under the Constitution when the Constitution is in full operation, but on the doctrine of necessity. As such, its exercise would be not without constraints and would be limited to the specified fields and purposes falling within the law of necessity as and when dictates of necessity ,so required. That being so, the Supreme Court having in no uncertain terms laid down that the power of judicial review of superior Courts under Article 199 remains intact and available to them 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 that on no principle of necessity can the said power be taken away, which principle was laid down as applicable during the entire period of Constitutional deviation as a basic arrangement, this Court cannot but decide the question raised by applying the principle of law laid down above by the Supreme Court in the case of Begum Nusrat Bhutto, being the mandate of Article 189 of the Constitution, which indeed hold the field, that any decisions of the superior Court shall, to the extent it S decides a question of law or is based upon or enunciates a principle of la shall be binding on all other Courts in Pakistan.

50. ' So viewed, I am clearly of the view that in whatever other field the amendatory power conceded to the President/Chief Martial Law Administrator may or may not be exerciseable, it certainly could not be exercised to amend the Constitution so as to take away the power of Judicial review of the superior Courts vested in them under Article 199 of the 1973 Constitution during the said period. As a consequence, it has to be held that the amendment in question and the non-obstante clause were beyond the competence and the power of the President, and are thus invalid.

51. ' Although it has been held above that taking away of the judicial power of review was beyond the amendatory power of the President, it will be pertinent to refer to the subsequent case of Mr. Z. A.

52. Bhutto v. State (1) wherein their Lordships have explained the effect of their conclusions in the case of Begum Nusrat Bhutto, regarding the power of the C. M. L. A. Under the doctrine of necessity. At page 58 of the report their Lordships after reproducing the passage categorizing the permissible acts and legislative measures recognised under the law of necessity made the following observations "These categories of the various types of permissible actions were spelt out after a review of the leading authorities on the doctrine of necessity which purported to lay down that such actions would be construed or deemed to be necessary in the interest of the welfare of the people and the State. The reason underlying such a view obviously is that once an extra constitutional action or intervention'

(1) P D 197g SC 40 is validated on the ground of State or civil necessity, then, as a logical corollary it follows that the new regime or Administration must be permitted, in the public interest, not only to run day-to-day affairs of the country, but also to work for the achievement of the objectives on the basis of which its intervention has earned validation. In other words, if it can be shown that the impugned action reasonably falls within one or the other of the enurerated categories, than it 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 and legal constitution as distinct from its ordinary dictionary meaning.

53. ' It is also necessary to state that, 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 1968 SC 313, 'under a constitutional system which provides for a judicial review of an executive action, it is a 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 discretion of the Court for that of the administrative agency. What the Court is concerned with it 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.'

54. ' 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."

55. ' As to what is reasonable and what is not the observations made by Hamoodur Rahman, J. (as he then was) in the case of Abut Ala Maudoodi v. The Government of West Pakistan (1) provide a useful guide, namely.

56. "But what is the test that the Courts are to apply in determining what is or is not reasonable.

57. 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."

58. ' It may be pointed out here that the above observations were made in relation to a different type of Legislation, and not of the kind which is in question before us, namely, the constitutional amendment, seeking to take away power of judicial review of superior Courts under Article 199.

59. Therefore, while considering application of the above observations to the 7. Questions before us, the passage reproduced above from the judgment oft Begum Nusrat Bhutto categorizing the permissible acts and legislative' measures recognised under the law of necessity, have to be read subject to the further principle laid down in the subsequent paragraph (v) of the conclusions at page 716 of the judgment that the powers of the superior

(1) PLD 1964 SC 673 Courts under Article 199 of the Constitution remain intact to their full extent, notwithstanding anything to the contrary contained in any M. L. R. Or orders, Presidential Order or Ordinance. So considered, the above-quoted observations, in my humble view, will not apply in the present case, it having been held that it was beyond the powers of the President to, legislate on this subject of power of superior Courts under Article 199 of the Constitution.

60. ' Assuming however that the present amendment is to be examined in the light of the test laid down by their Lordships, it cannot be maintained that the power of the Courts is limited to merely finding whether the impugned act falls within any of the categories mentioned by their Lordships.

61. Suppose an amendment were to provide that henceforth Pakistan will be a secular State or were to remove Article 4 from the Constitution or were to change the Federal Structure of the State or were to relate to the change of form of Government or the concept of franchise which are fundamental features of the Constitution, as observed in Fazlul Quader Choudhry v. Mr. Muhammad Abdul Haque (1), can it be maintained that even in such a case all that the Court has to do is to find whether it falls in one of the categories, and if it so finds, it has to stop there only. I humbly think not.

62. If that were to be so, the consequences can best be imagined. Further the amendments, as will be seen from the Amendment Order reproduced above, place so vast an area of orders and actions taken by the authorities thereunder beyond the scrutiny of judicial review by the superior Courts under Article 199, that if they were to be upheld, it will not be possible to apply the test of necessity even as a term of art to such acts or actions of the Martial Law Authorities or of persons acting under their authority, with the U result, that the authorities will be the sole Judge of the necessity of their own acts on their own subjective satisfaction, and thus render the rule laid down in the case otiose and upset the rationale of both the judgments in point. It cannot be, therefore, maintained that all the Court has to do is to find whether the impugned act falls under one or the other categories enumerated by the Supreme Court. Faithful reading of judgment in the case would show that it has been provided therein that even if the impugned act falls within the category, test of reasonableness has to be applied.

63. ' The above-cited observations of their Lordships came up for interpretation before the Full Bench of this Court in the case of Mumtaz Ali Bhutto v. Deputy Martial Law Administrator (2). My Lord the Acting Chief Justice (as he then was) had this to say in regard thereto: "While on this subject I must take notice of the argument advanced by the learned Attorney- General. He urged before us that the Supreme Court in the judgment in the case of Begum Nusrat Bhutto had recognised a power in the Chief Martial Law Administrator to amend the Constitution.

64. He went on to state that the concept of necessity governing the power to amend the Constitution had again been discussed by the Supreme Court in the case of Mr. Zulfiqar All Bhutto v. The State PLD 1978 SC 40. He has relied on a paragraph appearing at page 58 of the said report to demonstrate that if the amendment in the Constitution is relatable or bears nexus to any of the acts permitted to be done by the Chief

(1) PLD 1963 SC 487 (2) PLD 1979 Kar 307 Martial Law Administrator, the acts shall be presumed to be a product of State necessity. I find it difficult to construe the judgment in the case of Mr. Zulfiqar Ali Bhutto in the manner the learned Attorney-General would wish to have it construed. In the very paragraph on which the learned Attorney-General has relied the tests of validity are that such action should be in the public interest and aimed at achieving the objectives of Martial Law. It cannot be said that if the action of the Chief Martial Law Administrator falls within any one of the categories considered in isolation it is presumed to satisfy the test of necessity, regardless of the reactions on other conclusions regarded by Supreme Court. If we are to agree with such interpretation then the power that has been conferred on the Chief Martial Law Administrator to amend the Constitution would virtually operate to confer on him the power to do anything that he thinks best and render the powers of judicial review nugatory. That would mean that he was the only Judge of his actions. That may even be meant to imply that the powers of the Courts could be curtailed by him because even such powers come from the Constitution. In these circumstances it would be difficult to reconcile the various other clauses as are contained in these conclusions recorded by their Lordships in the case of Begum Nusrat Bhutto. On reading the two judgments of Begum Nusrat Bhutto and Mr. Zulfigar Ali Bhutto together I am clearly of the view that amendments in the Constitution can only be justified on grounds of necessity." (Underlining* is by me).

65. ' Fakhruddin G. Ibrahim, J. In the same case interpreted the above observation as under :- "The aforesaid passage as was pointed by Mr. Abdul Hafeez Pirzada and so also Mr. Muhammad Ali Saeed, the learned amicus curiae cannot be read in isolation. Even the Supreme Court does not appear to have followed the principle that once there is nexus between the impugned measure and the permissible actions, there is no need for any further inquiry. In the above case the main question before the Supreme Court was whether in terms of President's (Post Proclamation) Order No, 4 of 1977, read with the relevant provisions of the Constitution, it was permissible for one person to combine the functions and duties of two constitutional offices, namely, the Acting Chief Justice of the High Court and the Chief Election Commissioner. The conclusion reached was that the appointment of Mr. Justice Mushtaq Hussain as Chief Election Commissioner was in the nature of a temporary and ad hoc appointment in a situation not covered or contemplated by the Constitution of 1973 and that it was merely intended for the limited purpose of holding the forthcoming General Elections and therefore, it was not an appointment to which the prohibition contained in Article 216 of the Constitution was attracted. Every contention raised on behalf of the petitioner in the above case in relation to Post-Proclamation Orders 4 and 5 of 1977, though on the subject of elections was sought to be justified first by reference to the Constitution and whenever there was departure from the Constitution on the ground that the Orders clearly fell within the objectives for "which the Martial Law was imposed on the country on the 5th of July, 1977, to ensure the restoration of Democratic institutions under the Constitution. In other words the Supreme Court was not satisfied in concluding the controversy by a statement that there was nexus between the Presidential Orders and the permissible action, which sufficiently answered the test of necessity. It may also be noticed that following the passage quoted above the Supreme Court reiterated the extent of the High Court's jurisdiction under Article 199 in the case of Mir Abdul Baqi Baloch v. The Government of Pakistan (PLD 1968 SC 313) and in the case of Abul Maudoodi v. The Government of West Pakistan (PLD 1964 SC 673)."

66. ' It was further observed : "In Begum Nusrat Bhutto's case the Supreme Court approved the following summing up of the law of necessity by one of the learned Judges of the Cyprus Supreme Court as embodying the true essence of the doctrine and providing useful and practical guidelines for its application : (a)Any imperative and inevitable necessity of exceptional circumstances; (b)No other remedy to apply;

(c) The measures taken must be proportionate to the necessity; and (d)It must be of a temporary character limited to the duration of the exceptional circumstances."

67. ' The Supreme Court also approved the following remarks made by De Smith in his book "Constitutional and Administrative Law" : "In some situation where constitutional action has been taken by person wielding effective political power, it is open to a Judge to steer a middle course. He may find it possible to ask 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 reference 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 averred, 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.

68. ' To my mind the aforesaid prerequisites would become meaningless if our jurisdiction was merely limited to finding a nexus between the impugned measure and the permissible action. As was pointed out by Mr. Mohammad Ali Saeed if the argument of the learned Attorney-General is accepted an amendment, made to the Constitution by the C. M. L. A's. Permissible act, will have to be automatically accepted as necessary and the Court will have no jurisdiction to examine its justification which is surely not the law laid down by the Supreme Court, for it will make redundant the test of necessity laid down in Begum Nusrat Bhutto's case."

69. ' In the same case, I. Mahmud, J. Observed as follows :- "There is no doubt that Martial Law Order 12 is law passed by a competent Legislature even though it is by an individual person. For these reasons, the third submission of Mr. Pirzada based on Article 4 cannot be accepted. However, I have bad some anxiety, because it would follow from this view that these would be no restriction upon the Chief Military Authority to make any despotic or tyranical law which may deprive persons of their lives and liberty. But I do not think that there would be such practical danger, because the power of judicial review of the superior Courts is in full force to strike down such laws on the touchstone of necessity."

70. ' It would appear that I. Mahmud, J. Interpreted the observations of the Supreme Court' in Zulfiqar Ali Bhutto's case to be laying down the test that if it can be shown that the law reasonably falls within one or the other of the categories set out in the Begum Nusrat Bhutto's case, then it must be construed as being necessary, whereas truly he applied his mind to the nature of law in question and held that the law fell within the category (iii) (d) as a measure tending to establish or leading to the establishment of the declared objectives of the proclamation of Martial Law of restoration of law and order and normalcy in the country and the earliest possible holding of free and fair elections. He further held that there existed no detention law covering the subject-matter relating to "acts prejudicial to the purposes for which Martial Law has been proclaimed". This would clearly show that the learned Judge in fact had applied the objective test of the law of necessity in reaching his conclusion that the law in question was validly made.

71. ' It will be further noticed in this very case of Mr. Zulfiqar Ali Bhutto, their Lordships referred .To the case of Mir Baqi Baloch v. Government of Pakistan (1) while laying down the scope of judicial review. In the last said case it was observed at page 322 : "Can the High Courts be expected to be satisfied on the mere ipse dixit of the detaining authority. If this could be so, then this "judicial power" would, as pointed out in that case, be "reduced to a nullity If laws are so worded or interpreted that the executive authorities may make what statutory rules they please thereunder and may use this freedom to make themselves the final Judges of their own 'satisfaction", for imposing restraints on the enjoyment of the fundamental rights of citizens" and Article 2 of the Constitution itself would be "rendered meaningless". If the mere production of an order of a, detaining authority, declaring that he was so satisfied was to be held to be sufficient also to "satisfy" the Court then what would be the function that the Court was expected to perform in the discharge of this duty". "If this function is to be discharged in a judicial manner, then it is necessary that the Court should have before it the materials upon which the authorities have purported to act."

72. ' As to what constituted reasonable or not, reference was also made by their Lordships to the case of Abul A'la Maudoodi v. The Government of Pakistan, wherein his Lordship referring to the case cited by their Lordships clearly stated that the opinion of the Legislature as to the reasonableness of the impugned legislation is not conclusive on the question.

73. ' Viewed in the light of above. I have no hesitation in holding that every act or legislative measure of the present regime if challenged has t be judged in the light of the principles laid down by their Lordships as t whether it reasonably falls within the scope of their authority. Further as was argued by Mr. Abdul Hafiz Pirzada, category of acts and mea mentioned in (iii) (a) at page 716 in the Begum Nusrat Bhutto's case (1)PLD 1968 SC 313 taken by itself would give total power to the C. M. L. A. Surely, therefore, the subsequent categories mentioned in (b), (c) and (d) on the same page of the judgment would not extend his power, but only restrict such power. And then, if that were not so, what would be the purpose of the said subsequent categories, and what would remain of the law of necessity and the finding by the Supreme Court that the present regime represents not a new legal order but a phase of constitutional deviation. Yet another reason would be that if the executive acts covered by clauses (b), (c) and (d) of category (iii) have been subjected to the test whether the acts tend to advance or promote the good of the people or are required to be done for ordinary orderly running of the State, it cannot be maintained that exercise of the constituent powe of amending the Constitution of the highest importance will not be subject to a limitation. Indeed, the measure of amendment has also to satisfy the same test of necessity as stated above.

74. ' There now remains the question that even if it were to be assumed that the present amendments relating to power of judicial review could be made, it will be a question for consideration whether they fall within the test of reasonableness laid down' by the Supreme Court. Unfortunately, we have nothing before us except the two speeches of the C. M. L. A. Which were, very kindly supplied to us by the Government Advocate who beyond doing that very openly stated that as counsel for the respective Governments, they would argue nothing, anew or no question and would only say that the petition had abated.

75. ' Out of the two speeches supplied to us, one of the 16th October, 1979, is not pertinent to the present case. The speech speaks of necessity for establishing Military Courts with exclusive jurisdiction for trial of offences publishable under Martial Law Regulations or orders or any other law for the time being in force.. The question in the present case, however, is whether there are reasonable grounds for taking away the power of judicial review of the superior Courts under Article 199 in relation to the proceeding taken or judgments and sentences passed by the Military Courts. Here notice may be taken of the contention of Mr. G. H. Abbasi. He contended that Martial Law was temporary and as such it cannot justifiably produce in the shape of the present amendment a permanent constitutional measure to outlive itself and to perpetuate Military dispensation of justice after Martial Law is over. Mr. Kama! Azfar's contention was that necessity for such kind of legislation would be justified only when the Courts have ceased to exist.

76. ' The reasons assigned in the speech of 3rd June, 1980, may be summarised as under

(1) Judicial system is complicated and it takes lot of time and money to get justice;

(2) To eradicate some serious crimes it was necessary to award instant punishment to criminals.

(3) Interference of civil Courts in the 'proceedings of the Military Courts resulting in non-fulfilment of expectations of people to get swift justice;

(4) To make Martial Law more effective and provide speedy justice, Article 212(A) was added to the Constitution and grave cases were transferred from the jurisdiction of civil Courts but yet the object of the amendment was not achieved as civil Courts started issuing stay orders on the judgments of Army Courts.

(5) It was decided therefore that the jurisdiction of Military Courts should be reduced and restricted to only eight grave crimes instead of thirty-five and the decision of the Military Courts in cases relating to these crimes have been taken out of the jurisdiction of the civil Courts.

(6) Interference in the few cases that come up for hearing in Military Courts.

77. ' As will be seen, the first four categories relate to the amendment introducing Article 212-A in the Constitution. It has never been disputed that Special Courts or tribunals may be set up with exclusive jurisdiction for special matters to provide speedy justice. Transferring the jurisdiction from the ordinary criminal Courts to Military Courts, therefore did not affect High Court's power under Article 199. Same would be the position regarding the fifth class of reasons. Thus there remains only the last reason at (6) above which is relevant in so far as the present amendments are concerned.

78. ' Now, to consider the reasonableness of the present amendment in the light of the reason given above, it is not enough to take into consideration only the present position as to the cases which are cognizable by the Militar Courts. Article 212-A gives power to the Military Authorities to establish Military Courts for the trial of offences punishable under Martial Law Regulation and also under ordinary Law. Under sub-clause (2) of Arti de 212-A the jurisdiction and powers of the Military Courts can be specific by a Martial Law Order and in doing so the jurisdiction of the Militar Court can be extended to cover any offence under the penal laws of the country. At present number of offences have been made triable by Militar Courts under Martial Order 77 issued by the C. M. L. A. Thus, Martia Law Orders although being sub-constitutional measures can effective extend or restrict the jurisdiction of the Military Courts as thong fit, and in this process it will be possible to exclude the judicial review by a superior Court of the proceedings in connection with any criminal case. It is in this perspective that the question of Constitutional jurisdiction or the power of judicial review of the High Court has to be examined; and this has to be construed in the light of the nature and scope of its powers under Article 199 of the Constitution. It is well settled that a superior Court while acting in exercise of its jurisdiction under Article 199 does not act as a Court of appeal but comes in only in case of lack or excess of jurisdiction or when the proceedings of such Court are coram non judice.

79. Reference may be made in this context to the observations of Bashiruddin, J, at page 819 in the case of Mir Hassan v. State (1). . "We have no cavil with this proposition of law that no Martial Law Regulation' or Order could be challenged in this Court, but it must be remembered that there is nothing in the proclamation or the Provisional Constitution Order or the Martial Law Regulations which bar the superior Courts of the country from interpreting the Martial Law Regulations. It is inherent jurisdiction of the superior Courts of the country to interpret law. If an order is passed by a Martial Law Authority or a Military Court which is in excess of or without jurisdiction its legal position is open, for examination by the High Court, or the Supreme Court, though these Courts would not and could not interfere if the order in question was one with jurisdiction

(1) PLD 1969 Lab. 786 and had the sanction of the Provisional Constitution Order behind it. This was the view that prevailed in a parallel situation under the old Martial Law of 1968 with the High Court of West Pakistan in cases reported as Manzoor Elahi v. The State (PLD 1959 Lab. 243) and Sher Muhammad v. Nasir-ud-Din (PLD 1960 Lah. 583). In any event, the question of the scope and effect of the Martial Law Regulations would be eminently fit for determination by the superior Courts with a view to adjudge whether an order purporting to have been passed under a particular Martial Law Regulation was with or without jurisdiction."

80. ' Accordingly, when the High Court exercise its such jurisdiction, it onl aids the administration of justice, and it cannot be suggested that the Militar Authorities would want the Military Courts to out step their jurisdiction and act in breach of mandatory provisions of law and procedure which the are legally bound to observe. If therefore, it was thought by the Authoritie that jurisdiction in some cases had not been exercised by a superior Court strictly within the scope stated above, it would not justify taking away altogether the power of judicial review of the superior Courts in the state terms. And then, even in such cases the Authorities had their remedy before the Supreme Court.

81. Further Article 199 while conferring power on superior Courts also guarantees constitutional swift remedy to a citizen in appropriat cases of lack or excess of the jurisdiction on the part of the Military Court and as the present amendment seeks to take away that remedy from hi without providing any similar remedy under the law, it cannot be said to satisf the test of reasonableness laid down by the Supreme Court in the said case. As such it cannot be upheld on this ground as well.

82. ' Thus having considered the matter in the light of the principle lai down by the Supreme Court in the case of Begum Nusrat Bhutto, I would answer both the .

83. ' ZAFFAR HUSSAIN MIRZA, 3.-By the Constitution (Amendment) Order, 1980 the President has made the following amendments in 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 taken, thereunder ; (b)make an order relating to the validity or effect of any judgment or sentence passed by a Military Court or Tribunal ;

(e) 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 a Martial Law Administrator or any person acting under the authority of either.

84. (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 of no effect whatsoever and any proceedings for the making or granting or issue of such order, injunction or proceeding which may be pending before any Court, including the Supreme Court and a High Court, shall abate.

85. (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, notwithstanding any judgment of any court, to have been validly made."

86. ' In a pending Constitutional petition a Division Bench of this Court consisting of my Lord the Acting Chief Justice and S. A. Nusrat, J., in view of the aforesaid constitutional amendments framed the following questions and ordered them to be referred to a Full Bench :

(1) Whether the amendments made by the Constitution (Amendment) Order of 1980, inserting clauses (3-A), (3-B) and (3-C) in Article 199 of the Constitution are valid, and

(2) Whether this Court has jurisdiction to hear petitions, whereby convictions, or, proceedings before Military Courts including Summary Military Courts are challenged ?

87. However, when this Full Bench assembled to hear the case the questions were reframed as under :

(1) Whether the power of this Court under Article 199 has 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 have abated ?

3. On behalf of the petitioners the leading argument was addressed by Mr. Khalid M. Ishaque and the other counsel who addressed arguments before us were Messrs Abdul Hafeez Pirzada, G. H.

88. Abbasi, Kemal Azfar, S. A. Wadood, Shafi Muhammad and Sabihuddin Ahmed. On behalf of the Federal Government Mr, A. A. Fazed and on behalf of the Provincial Government the learned Advocate-General, Sind and for the Deputy Attorney-General to whom Court notice was ordered, Mr. S. Inayat Ali, Standing Counsel were present. It may be pointed out that the Division Bench had ordered notice to the Deputy Attorney-General, Advocate-General, Sind and Mr. A. A. Fazeel as amicus curiae. On the first date of hearing Mr. Fazed, however, stated at the Bar that he represents one of the parties in the petitions and express his inability on this account to argue the case as amicus curiae. Accordingly he was relieved of the obligation to act as the amicus curiae. After the conclusion of the arguments of the first two counsel on behalf of the petitioners the Court had called upon Mr. A. A. Fazeel to state the points on which he proposed to argue the case on behalf of the Federal Government. He submitted that as counsel for the Federal Government he has been instructed only to state that the petitions under consideration had automatically abated and nothing more. He, however, ' stated certain points of Law which he was prepared to argue in his personal capacity and not as counsel for the Federal Government. To a pointed question from the Court whether he will answer any questions from the Court as counsel for the Federal Government he replied in the negative. Even to the question whether he will argue legal position as to how the petitions have abated, he declined to argue, whereupon he was put the proposition whether in his submission this Court did not have the jurisdiction even to consider the question as a question of law whether the petitions had abated, he replied: "It amounts to that". The learned Advocate- General and the learned Standing Counsel also adopted the same position. After considering the aforesaid statements, the Court, however, decided to dispose of the case after hearing the rest of the counsel for the petitioners by a proper judgment. Thus the unfortunate position is that the Court was deprived of the assistance of the counsel appearing for the other side on the various questions of law raised in this case although the petitioners' case has been fully argued.

4. Now it will be seen from the language of the reframed question No, 1 that the scope of this question is confined to the extent to which the power of this Court under Article 199 in relation to the judgments and sentences passed by Military Courts, has been taken away whereas the question as originally framed embraced the entire ambit of the new amendments made in Article 199.

89. During the course of , hearing, again and again a question has been agitating my mind, whether it is possible to adequately answer the question as reframed without touching the larger issues that arise, if one looks upon the entire amending legislation relating to Article 199. After seriously considering the matter I find that even for the decision of the issue raised in question No, 1 as presently framed, it will be necessary to consider the effect of other provisions of the amendments at least to the extent it is Z unavoidable and relevant. The rule is well-founded that the Constitution has to be construed like any other document reading it as a whole an giving every part thereof a meaning consistent with the other provision thereof (vide State v. Zia Rahman (1).

5. It may at the very outset be pointed out that the special feature of this case, as far as it appears from the cases brought to our notice, is that it is the first case of its kind since the decision in Begum Nusrat Bhutto v. The Chief of Army Staff (2) in which validity of a direct amendment in the Constitution has been challenged. This case, therefore, raises fundamental questions of far- reaching public importance after that case.

6. On behalf of the petitioners the validity and viret of the amendments made in relation to the powers of this Court under Article 199 were challenged on various grounds, but before considering this question it seems necessary to first examine the scope of the amendments. It will be seen that under clause (3-C) the Proclamation of 5th of July, 1977 and inter alia the legislative Orders of the Chief Martial Law Administrator made on or after the aforesaid date have been declared, notwithstanding any judgment of any Court, to have been validly made. The effect of this provision would obviously, therefore, be to validate with retrospetive effect by a constitutional provision the Laws (Continuance in Force) Order, 1977 (hereinafter referred to as C. M. L. A. Order No, 1 of 1977) in its Pristine form as originally promulgated notwithstanding the judgment in the case of Begum Nusrat Bhutto. It, therefore, follows that by virtue of Article 2 of the aforesaid order Pakistan shall be governed as nearly as may be in accordance with the Constitution subject, inter alia, to the said order and any legislative order made by the President and any Regulation made by the Chief Martial Law

(1) PLD 1973-SC 49 (2) P L. D.1977 SC 657 Administrator. Viewed in the aforesaid context it was submitted that in final analysis the entire administrative machinery of the Government in this country is being run under the Regulations made by the Chief Martial Law Administrator and, therefore, sub-cause (a) of clause' (3-A) places outside the scope of Article 199 not only the validity or effect of Martial Law Regulations and Orders but of all administrative and other actions taken or intended to be taken by authorities and functionaries of the Government.

7. Sub-clause (b) of clause (3-A) takes away the power of this High Court to make any order relating to the validity of any judgment or sentence passed by a Military Court or a Tribunal, even if such judgment or sentence has been passed without jurisdiction, in excess of jurisdiction or beyond the limits prescribed by the Martial Law Regulations or Orders which provide for the limits of its jurisdiction and the procedure for trial of cases before it within its competence and jurisdiction.

90. Similarly sub-clause (c) of the said clause places an embargo upon the Court to issue any injunction or order or even to entertain any proceedings in respect of any matter within the jurisdiction of the Military Court or Tribunal of which cognizance has been taken. Sub-clause (b) places an embargo upon the High Court against issue of process against the Chief Martial Law Administrator or a Martial Law Administrator or any person acting under the authority of either. It was pointed out that all functionaries of State are acting either under the authority of the Chief Martial Law Administrator or a Martial Law Administrator. Clause (3-B) is a provision declaring with" retrospective effect invalidity of all orders or processes referred to in clause (3-A) issued before the Constitution (Amendment) Order or thereafter and for abatement of proceedings for such orders or processes pending before any Court, including the Supreme Court and High Court.

8. In view of the aforesaid it was submitted that amendments in question would result in total ouster of the jurisdiction of this Court under Article 199 of the Constitution with the result that the power of judicial review granted to the High Courts will be taken away in its entirety. It was argued by Mr. Khalid Ishaque that the real crux of the matter is whether the power to make the law in question is an exercise of the original power or whether by virtue of the Supreme Court in the case of Begum Nusrat Bhutto. According to the learned counsel the source of power available to the present regime is the recognition given to the constitutional deviation by the Supreme Court. In this, connection he referred to the argument of Mr. A. K. Brohi before the Supreme Court in the case of Begum Nusrat Bhutto that the doctrine of necessity did not apply as with the supersession or destruction of the old Legal Order even this doctrine or concept has disappeared and that even if the said 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 Courts were now governed by the limitations placed upon them by C. M. L. A. Order No, 1 of 1977. On page 706 my Lord the Chief Justice who wrote the leading judgment repelled the contention in the following words :-- "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 of 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 and justice have also been destroyed simply for the reason that the new legal Order doe; not mention any thing about them.

91. 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 the legal continuity of the country, as distinguished strictly from the constitutional continuity."

92. ' While considering 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, a similar contention advanced by the learned Attorney-General was considered to the effect that once the take over is validated on the principles of necessity 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 C. M. L. A. Order No, I of 1977, which must henceforth be treated as a supra-Constitutional instrument, binding all authorities in Pakistan.

93. Repelling the contention once again his Lordship summarized the true legal position on page 715 of the report as under :

(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 have 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 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 orginary 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.

94. ' 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 to 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 a 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 of salus populi suprema /ex, 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 necessary, for the new regime then represents not a new Legal Order, but only a phase of constitutional deviation dictated by necessity.

95. ' There is yet another, and a stronger reason for holding that the power of judicial review continues.

96. 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.

97. Accordingly, on no principle of necessity could powers of judicial review vested in the superior Courts under the 1973 Constitution, be taken away.

98. ' 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 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.

99. ' 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, make 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."

100. ' Mr. Khalid Ishaque also pointed out that the contention based upon the theory of revolutionary legality was also rejected by the Supreme Court to be irrelevant to the situation and the circumstances in which the Military took over the administration of the country on 5-7-1977 and contended that the source of power of the present Government is not the original source flowing from the take over but as explained by the. Supreme Court is the necessary corollary of the extra- Constitutional step necessitated by the complete breakdown and erosion of the constitutional and moral authority of the previous Government. Mr. A. H. Pirzada also joined in this submission to contend that the Supreme Court declared the law regarding the Proclamation and the C. M. L. A.

101. Order No, 1 of 1977 and gave legal validity to the same which is, therefore, the source of power inter alia for promulgating Legislative measures by the C. M. L. A. During the period of constitutional deviation.

9. At page 719 the Supreme Court observed :- "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 thereunder, in the light of the principles regulating the application of the law and doctrine of necessity, as already set out earlier." (Underlining* is mine).

102. ' Basing upon the foregoing passages cited from the judgment of the Supreme Court Mr. Khalid Ishaque raised the following contentions :-

(i) That the power to amend the Constitution does not include a power to destroy the constitutional trichotomy or to change its basic structure.

(ii) That in Islam it is not given to any man to deny judicial review of his own acts.

(iii) That the power to amend the Constitution or to make the other legislative instruments is dependent on the existence of material which would satisfy a reasonable man that for the purpose of restoration of democracy the proposed Legislative measure was necessary.

(iv) That it will additionally have to be shown that the proposed Legislative measure did not command or demand anything more than what was absolutely necessary for the achievement of the objective.

(v) That in the ultimate analysis it is not the subjective assessment of the law maker which Will be final but the superior Courts shall have to be satisfied on the criterion of reasonableness that such necessity exists.

103. ' Elaborating these submissions the learned counsel contended that if a plenary power to amend the Constitution in the manner the law maker thinks best is conceded then it will amount to reviving and accepting the original contention that the old Legal Order as preserved by the Constitution of 1973 has been totally replaced by a new Law-giving constitutional fact on the principle of revolutionary legality to introduce a totally different Legal Order.

10. Mr. Abdul Hafecz Pirz Ida elaborating his submissions on this question urged that clause (v) mentioned by the Supreme Court at page 716 is not a statement of fact but a principle laid down that under no circumstances judicial power can be taken away. He raised the question whether the power at piesent invoked t) amend the Constitution is superior to that en dyed by the Chief Martial Law Administrator on 5th July, 1977 and submitted that the constituent power available to him is not superior to that enjoyed by him on the aforesaid date. Referring to the preamble of the present amending order he submitted that the legal instrument itself does not claim any superior power than was available on the aforesaid date as the power invoked is the Protamtation and C. M. L. A.

104. Order No 1 of 1977 which was the subject-matter of the judicial pronouncement by the Supreme Court. Learned counsel made a distinction between the plenary constituent power enjoyed by a body charged with the preparation of a new Constitution and the ordinary constituent power which flows from the Constitution once adopted by a constituent body. In his submission the Chief Martial Law Administrator doe.. Not possess plenary constituent power enjoyed by a constituent body as no limitations on such powers are operative as to procure any mode for the preparation of the Constitution whereas limitations are imposed on the amendatory power flowing from the Constitution as laid down in Articles 238 and 239. A further argument was advanced before us that apart from the express limitations provided for in the aforesaid Articles, there are implied restrictions dictated by the doctrine of basic structure. In support of this submission counsel further urged that the amendatory power under the Constitution enjoyed by the Legislature is subject to certain implicit limitations which are to be obeyed by the constitions power. According to him there are six fundamentals of basic structure in the Coesiitution as under :

(i) Federalism ;

(ii) Islamic character of the State ;

(iii) Republican democracy

(iv) Trichotomy of State power ;

(v) Sovereignty of State ; and

(vi) Fundamental obligations of State.

105. ' These fundamentals, according to the learned counsel, are enshrined in Articles 1 to 5 which are sacrosanct and outside the amendatory power flowing from the Constitution as the substantise provisions of the organic law translating the will of the people of Pakistan as expressed in the preamble reflecting the objectives resolution. On these premises it was urged by the counsel that the power of judicial review which is the very of the doctrine of rule of law as enjoined by Article 4 of the Constitution cannot be taken away even under the Constitution by the Sovereign Parliament and, therefore, permitting the amendments in question would result in conceding supra- Constitutional power although the Supreme Court has held that C. M. L. A. Order No, 1 of 1977 is not a supra-Constitutional instrument from which it follows that no plenary constituent power was conceded.

11. As already stated the larger issues raised by the learned counsel in their arguments need not be gone into in this case. After having carefull considered the relevant questions it appears to me that in view of the decision in the case of Begum Nusrat Bhutto it cannot be disputed that the Chief Martial Law Administrator has Legislative powers including the power t amend the Constitution, but the question that arises for consideration whether the amendment in the Constitution affecting the jurisdiction of this Court under Article 199 can be validly made by him. In this regard a careful analysis of the judgment of the Supreme Court as to the extent and scope of the powers which the Chief Martial Law Administrator may exercise during the temporary period of constitutional deviation and of the powers of the superior Courts, to my mind, it unequivocally postulates that his law-making powers are not unfettered although he may legislate in the specified fields if the dictates of necessity so demand. The clean principle laid down is that since unlike the executive and Legislative organs of the State, the judicial organ had not lost its constitutional and moral authority, on no principle of necessity could the powers of judicial review, vested in the superior Courts under the 1973 Constitution, be taken away. It seems to me that this proposition was laid down as a principle applicable during the entire period of constitutional deviation as a basic structural arrangement for applying the test of necessity to all the acts of the present regime. The legal position, if I may say so with respect, so lucidly enunciate in the above judgment clearly spells out the distinction between the extent and scope of the law-making powers of the Legislative organ of the State during normal constitutional phase and the extraordinary period of constitutional deviation. The Legislative authority of the Parliament during the normal period when the Constitution is in full operation is not subject to the constraints of the law of necessity, which is an additional limitation within which this power can be exercised during the period of constitutional deviation.

12. It may well be asked that if the judicial organ of the State has survived the initial take over on account of grave State necessity, so that it stands as a distinct and independent entity constituting a separate organ of State as a part of the old Legal Order to perform its legitimate function on the principle of trichotomy of powers and its special function to apply the test of the law of necessity, can the amplitude of its constitutional power be whittled down so as to place beyond its reach some of the actions o the Government, except by replacing completely the old Order with the D new Legal Order ? To my mind, the observations of the Supreme Court as contained in para. (v) of their conclusions as reproduced above are t be understood in this context and the answer to the question posed above, with all humility as gleaned from the dicta laid down is that the powers of superior judiciary under Article 199 remained intact to their "full" extent and "may be exercised as heretofore, notwithstanding anything t the contrary contained in any Martial Law Regulation or Order, Presidentia Order or Ordinance." In the face of the clear rule postulated by the Supreme Court this Court cannot hold that the power to amend the Constitution available to the Chief Martial Law Administrator includes the power to take away the power of judicial review granted to the superior Courts under the Constitution. Substantially the same provisions of the C. M. L. A. Order No, 1 of 1977 were held to be ineffective by their Lordships, to take away the power of the superior Courts.

13. While saying the above I am conscious of the wording of the Constitution (Amendment) Order, 1980 which contains a non obstante clause excluding the effect of the judgment of any Court including a judgment in respect of the powers of the Courts relating to judicial review. In this behalf I may state that it is the mandate of Article 189 of the Constitution which has been left untouched, that any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or E enunciates a principle of law be binding on all other Courts in Pakistan. This Court is, therefore, under a constitutional obligation to decide the questions raised by application of the rule laid down by the Supreme Court in the case of Begurn Nusrat Bhutto.

14. Although I have held that the power of judicial review conferred by the Constitution on the superior Courts is beyond the Legislative authority of the present Government, reference may be made to the observations of the Supreme Court in the case of Mr. Zulfiqar Ali Bhutto v. State (1) wherein their Lordships have explained the effect of their conclusions in the case of Begum Nusrat Bhutto as to the powers of the Chief Martial Law Administrator under the doctrine of necessity. At page 58 of the report their Lordships after reproducing the passage categorising the permissible acts and Legislative measures recognized under the law of necessity made the following observations "These categories of the various types of permissible actions were spelt out after a review of the leading authorities on the doctrine of necessity which purported to lay down that such actions would be construed or deemed to be necessary in the interest of the welfare of the people and the State. The reason underlying such a view obviously is that once an extra-Constitutional action or intervention is validated on the ground of State or civil necessity, then, as a logical corollary it follows that the new Regime or Administration must be permitted, in the public interest, not only to run the day-to-day affairs of the country, but also to work towards the achievement of the objectives on the basis of which its intervention has earned validation. 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 must be construed as being necessary and thus held valid under the law of necessity. The word "necessary" has, therefore, come to be used in this context as a term of art, having a certain constitutional and legal connotation as distinct from its ordinary dictionary meaning.

106. ' It is also necessary to state that, as pointed out by this Court in a slightly different context in the case of Mir Abdul Baqi Baluch v. The Government of Pakistan, "under a constitutional system which provides for a judicial review of an executive action, it is a 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 action to sit in appeal over the executive, or to substitute the discretion of the Court for that of the administrative agency. What the Court is concerned

(I) PLD 1978 SC 40 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.

107. ' As to what is reasonable and what is not, the observations made by Hamoodur Rahman, J. (as he then was) in the case of Abul A'la Maudoodi v. The Government of West Pakistan provide a useful guide, namely :- `But what is the test that the Courts are to apply in determining what is or is not reasonable.

108. 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."

109. ' 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 power of judicial review the Court is concerned with examining whether the impugned action reasonably falls within any of the categories enumerated by this Court in Begum Nusrat Bhutto's case, while appearing 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."

110. ' In the first place it may be pointed out that these observations were not made in relation to legislation of the type in question before us, namely, constitutional amendment taking away the powers of the High Courts under Article 199. As already explained the passage reproduced from the case of Begum Nusrat Bhutto, in my humble opinion, was not intended to be read out of the context and the background in which it was stated in the whole judgment, but has to be read subject to the principle laid down that the powers of the High Court under Article 199, remained intact to their full extent notwithstanding any Martial Law Regulation or Order issued by the President or Chief Martial Law Administrator. In the present case, therefore, in my opinion the observations are not applicable as there is lack of power to legislate on this subject. But even assuming that the present amendment is to be examined in the light of the tests of necessity laid down

(1) PLD 1978 SC 40 by their Lordships, the obvious result of upholding the amendments would be to place a large area of administrative actions and the orders of authorities, if not the entire field of the Governmental activities beyond the jurisdiction of the High Court under Article 199, with the result that the test of necessit even as a term of art cannot be made applicable to such acts or actions o Martial Law Authorities or of persons acting under their authority. Am unable to conceive as to how the rule laid down in this case will apply to such acts in that eventuality. These Authorities will thenceforth be the sole Judges of the necessity of their own acts on their own subjective satisfaction. Such a consequence will upset the very basis of both the cited judgments.

15. Even otherwise the argument cannot be made that all that the Court has to do is to find whether the act under examination falls within any of the categories mentioned by their Lordships. It has clearly been provided that the test of reasonableness has to be applied even if the act complained of falls within the ambit of permissible acts. The observation cited above have been interpreted in various judgments and reliance was placed on behalf of the petitioners on the following very pertinent observations of my Lord the Acting Chief Justice in the case of Mumtaz All Bhutto v.

111. Deputy Martial Law Administrator, Sector 1, Karachi (1), at page 367 of the report ;- "While on this subject I must take notice of the argument advanced by the learned Attorney- General. He urged before us that the Supreme Court in the judgment in the case of Begum Nusrat Bhutto had recognized a power in the Chief Martial Law Administrator to amend the Constitution.

112. He went on to state that the concept of necessity governing the power to amend the Constitution had again been discussed by the Supreme Court in the case of Mr. Zulfiqar Ali Bhutto v. The State.

113. He has relied on a paragraph appearing at page 58 of the said report to demonstrate that if the amendment in the Constitution is relatable or bears nexus to any of the acts permitted to be done by the Chief Martial Law Administrator, the acts shall be presumed to be a product of State necessity. I find it difficult to construe the judgment in the case of Mr. Zulfiqar All Bhutto in the manner the learned Attorney-General would wish to have it construed. In the very paragraph on which the learned Attorney-General has relied the tests of validity are that such action should be in the public interest and aimed at achieving the objectives of Martial Law. It cannot be said that if the action of the Chief Martial Law Administrator falls within any one of the categories considered in isolation it is presumed to satisfy the test of necessity, regardless of the reactions on other conclusions recorded by Supreme Court. If we are to agree with such interpretation then the power that has been conferred on the Chief Martial Law Administrator to amend the Constitution would virtually operate to confer on him the power to do anything that he may think best and render the power of judicial review nugatory. That would mean that he was the only Judge of his actions. That may even be meant to imply that the power of the Courts could be curtailed by him because even such 'powers come from the Constitution. In these circumstances it would be difficult to reconcile the various other clauses as are contained in the conclusions recorded by their Lordships in the case of Begum Nusrat Bhutto. On reading the two judgments of Begum Nusrat Bhutto P L, D 1979 Kar. 307 and Mr. Zulfiqar Ali Bhutto together I am clearly of the view that amendments in the Constitution can only be justified on ground of necessity."

114. ' Reliance was also placed on the observations of Fakhruddin G. Ebrahim, J. In the case at page 397 of the report : "The aforesaid passage as was pointed out by Mr. Abdul Hafeez Pirzada and so also Mr. Muhammad Ali Saeed, the learned anicus curiae cannot be read in isolation. Even the Supreme Court does not appear to have followed the principle that once there is nexus between the impugned measure and the permissible actions, there is no need for any further inquiry. In the above case the main question before the Supreme Court was whether in terms of President's (Post-Proclamation) Order No, 4 of 1977, read with the relevant provisions of the Constitution, it was permissible for one person to combine the functions and duties of two constitutional offices, namely, the Acting Chief Justice of the High Court and the Chief Election Commissioner. The conclusion reached was that the appointment of Mr. Justice Mushtak Hussain as Chief Election Commissioner was in the nature of a temporary and ad hoc appointment in a situation not covered or contemplated by the Constitution of 1973 and that it was merely intended for the limited purpose of holding the forthcoming General Elections and therefore, it was not an appointment to which the prohibition contained in Article 216 of the Constitution was attracted. Every contention raised on behalf of the petitioner in the above case in relation to Post-Proclamation Orders 4 and 5 of 1977, though on the subject of elections was sought to be justified first by reference to the Constitution and whenever there was departure from the Constitution on the ground that the Orders clearly fall within the objectives for which Martial Law was imposed in the country on the 5th of July 1977, to ensure the restoration of democratic institutions under the Constitution. In other words the Supreme Court was not satisfied in concluding the controversy by a statement that there was nexus between the Presidential Orders and the permissible action, which sufficiently answered the test of necessity. It may also be noticed that following the passage quoted above the Supreme Court reiterated the extent of the High Court's jurisdiction under Article 199, in the case of Mir Abdul Baqi Baloch v. The Government of Pakistan PLD 1968 SC 113 and in the case of Abdul A'la Maudoodi v. The Government of West Pakistan PLD 1964 SC 673.

115. ' He further observed : "In Begum Nusrat Bhutto's case the Supreme Court approved the following summing up of the law of necessity by one of the learned Judges of the Cyprus Supreme Court as embodying the true essence of the doctrine and providing useful and practical guidelines for its application: "(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."

116. ' The Supreme Court also approved the following remarks made by De Smith in his book "Constitutional and Administrative Law".

117. "In some situations where constitutional action has been taken by a person wielding effective political power, it is open to a Judge to steer a middle course. He may find it possible to ask 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 reference 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."

118. ' To my mind the aforesaid prerequisites would become meaningless, if our jurisdiction was merely limited to finding a nexus between the impugned measure and the permissible action. As was pointed out by Mr. Muhammad All Saeed if the argument of the learned Attorney-General is accepted an amendment made to the Constitution by the C. M. L. A.'s permissible act, will have to be automatically accepted as necessary and the Court will have no jurisdiction to examine its justification which is surely not the law laid down by the Supreme Court, for it will make redundant the test of necessity laid down in Beg= Nusrat Bhutto's case."

16. I. Mahmud, J. Made the following observations in his judgment in the aforesaid case :- "There is no doubt that Martial Law Order 12 is a law passed by a competent Legislature even though it is by an individual person. For these reasons, the third submission of Mr. Pirzada based on Article 4 cannot be accepted. However, I have some anxiety, because it would follow from this view that there would be no restriction upon the Chief Military Authority to make any despotic or tyranical law which may deprive persons of their lives and liberty. But I do not think that there would be such practical danger, because the power of judicial review of the superior Courts is in full force to strike down such laws on the touchatone of necessity." (Underlining is mine).

119. ' In the context of this background I. Mahmud, J. Apparently interpreted the observation of the Supreme Court in the case of Mr. Zulfiqar All Bhutto as laying down the test that if it can be shown that the law reasonably falls within one or the other of the categories enumerated in Begum Nusrat Bhutto's case, then it must be construed as being necessary, but in fact applied his mind to the nature of law in question and held that the law falls within the category (iii)(d) as a measure tending to establish or leading to the establishment of the declared objectives of the proclamation of Martial Law, namely, the restoration of law and order and normalcy in the country and the earliest possible holding of free and fair elections. He also held hat no existing detention law covered the subject-matter relating to "acts prejudicial to the purposes for which Martial Law has been proclaimed". Clearly, therefore, the learned Judge applied the objective test of the law of necessity in reaching his conclusion that the impugned law was validly made.

17. Their Lordships of the Supreme Court have referred to the case of Mir Abdul Baqi Baluch v.

120. Government of Pakistan (1), while laying down the

(1) PLD 1968 SC 313 scope of judicial review in such cases. In that case at page 322 of the report it was observed.

121. "Can the High Courts be expected to be satisfied on the mere ipse dixit of the detaining authority? If this could be so, then this "judicial power" would, as pointed out in that case, be "reduced to a nullity if laws are so worded or interpreted that the executive authorities may make what statutory rules they please thereunder and may use this freedem to make themselves the final Judges of their own "satisfaction", for imposing restraints on the enjoyment of the fundamental rights of citizens" and Article 2 of the Constitution itself would be "rendered meaningless". If the mere production of an order of a detaining authority, declaring that he was so satisfied, was to be held to be sufficient also to "satisfy" the Court then what would be the function that the Court was expected to perform in the discharge of this duty."

122. ' Further it was observed at page 325 as follows :- "If this function is to be discharged in a judicial manner, then it is necessary that the Court should have before it material upon which the authorities have purported to act."

18. Reference was also made in the case of Mr. Zulfiqar Ali Bhutto by their Lordships in relation to what constitutes reasonable or otherwise, to the case of Abdul A'la Maudoodi v. The Government of West Pakistan (1). The observations of Hamoodur Rahman, J. (as he. Then was) from the case cited by their Lordships clearly state that the opinion of the Legislature as to the reasonableness of the impugned legislation is not conclusive on this question, I may with advantage further cite the following observation of the learned Judge from the same case which seems to me to further elucidate the passage quoted by their Lordships in the 1978 case : "In my view it will neither be possible nor advisable to lay down any exact or precise enumeration of the matters which may be taken into consideration for testing the reasonableness of such a restriction, for, there can be no general standard of reasonableness applicable to all cases. It will certainly depend upon the nature of the right sought to be restricted, the nature and extent of the restrictions sought to be imposed, the nature of the circumstances in which the restriction is to be imposed, the evil sought to be prevented or remedied, the necessity or urgency of the action proposed to be taken and the nature of the safeguards, if any, provided to prevent possibilities of abuse of power. All these and there may well be other considerations, such as the objectives of the legislation and the prevailing conditions at the time, in the light of which the reasonableness has to be considered. This much, however, appears from decided cases that the Courts both in this country and in other foreign jurisdictions have treated a restriction as unreasonable if the restriction is for an indefinite and or unlimited period or disproportionate to the mischief sought to be prevented "or if the law imposing the restriction has not provided any safeguard at all against arbitrary exercise of power."

123. ' In the light of the aforesaid I am clearly of the view that each actly or legislative measure of the present administration has to be judged

(1) PLD 1964 SC 673 the light of the principles laid down by their Lordships as to whether it reasonably falls with the ambit of, their authority.

19. It was submitted by Mr. Abdul Hafees Pirzada that the category of acts and legislative measures mentioned in clause (iii) (a) at page 716 in the case of Begum Nusrat Bhutto taken by itself would seem to confer total power and, therefore, it cannot be argued that the subsequent categories mentioned in clauses (b), (c) & (d) further extend this power, but obviously these, subsequent categories limit the power conferred in category (a) and provide the constraints on such power. It was forcefully contended that if executive acts covered by clauses (b) & (c) have been subjected to the test whether the acts tend to advance or promote the good of the people or are required to be done for ordinary orderly running of the State, how can it be contended that the constituent power of amending the Constitution which has to be placed on the highest pedestal in the entire gamut of powers, was not subject to any limitations? I find immense force in this submission and hold that the exercise of the power of amendment of the Constitution has also to satisfy the test of necessity as laid down their Lordships as stated above. In Sadiq Hussain Qureshi v. Federation o Pakistan (1) also the view was expressed that'the power of the Chief Martia Law Administrator to amend the Constitution as recognized by the judgment of the Supreme Court in Begum Nusrat Bhutto's case is subject to certain limitations. In the -case of Mr. Zulfiqar All Bhutto v. State also their Lordships applied the test contained in cotegory (d) of clause (iii) to the impugned legislation before them in holding it to be competently made and did not leave the matter only by holding that there was power to take legislative measures as recognized in category (a). I, therefore, find no force in the view that holds that the Courts have to merely determine whether there exists a nexus between the impugned act or legislative measure and the categories of permissible actions.

20. If at all, therefore, the present amendments could be made on the subject of the power of judicial review (which in my opinion as already stated is beyond the competence of the present administration) then the next question to consider is whether the amendments in Article 199 so far as they are relevant for the purposes of the questions referred to this Bench are reasonable as required by the Supreme Court. It is unfortunate that we are left to judge this question without being informed the Government point of view as to the materials and reason for enacting this piece of legislation. The text of two speeches made by the President dated 16th October, 1979 and 3rd June, 1980 have been placed on the record which is only material available with us for this purpose. The first mentioned speech is really not relevant to the Constitution (Amendment) Order No, 1 of 1980 as it seems to have been made before the Constitution (Second Amendment) Order, 1979 which inserted a new Article 212-A in the Constitution providing for the power to establish Military Courts or Tribunals. The Speech touches the question of the necssity for establishing Military Courts with exclusive jurisdiction for trial of offences punishable under the Martial Law Regulations or Orders or any other law for the time being in force as provided by a Martial Law Order. The question relevant for the purpose, however, is not wheher there is justification for establishing Miliary Courts for the trial of criminal offences. The question really is whether there are reasonable grounds for taking away the supervisory jurisdiction of the High Court under Article 199 in relation to the proceedings, judgments and sentences taken or passed by the Military Courts. It was contended before us by

(1) P I., D 1979 Lab. 1 Mr. G. H. Abbasi that Martial Law Administration is temporary in nature and, therefore, it cannot produce in the shape of constitutional amendment a permanent constitutional measure to outlive itself resulting in perpetuation of Military dispensation of justice after restoration of democracy. He further submitted that the amendment is contrary to the constitutional provision that judiciary should be separated from the executive. Mr. Kamal Azfar argued that the necessity for such legislation would be justifiable only on the factual ground of physical inability of the Judges of the superior Courts to exercise this power.

21. In the Speech of 3rd June, 1980 following reasons have been assigned ;

(i) Complicated judicial system consumes a lot of time and money to secure justice;

(ii) To eradicate some heinous crimes it was necessary to award instant punishment to criminals ;

(iii) Some civil Courts interfered in the proceedings of the Military Courts with the result that the people's expectations could not be fulfilled nor could they get quick justice;

(iv) To provide speedy justice and to make Martial Law effective Article 212-A was added to the Constitution whereby grave cases were transferred from the jurisdiction of civil Courts but still the object of the amendment was not achieved as civil Courts started issuing stay orders on the judgment of Army Courts;

(v) The decision was, therefore, taken that jurisdiction of Military Courts should be reduced and confined to only eight grave crimes instead of thiry-five and the decisions of Military Courts in cases relating to these crimes have been taken out of the jurisdiction of the civil Courts;

(vi) What is needed is that there should be no interference in the few cases that come up for hearing in Military Courts.

124. ' It will be seen that the first four reasons are pertinent to the previous amendment inserting Article 212-A in the Constitution. There is no cavil with the' proposition that for special matters Special Courts or Tribunals may be established with exclusive jurisdiction in order to meet the requirement of speedy justice. These cases were not otherwise within the ordinary jurisdiction of the High Court to try and dispose of. Therefore, in transferring the jurisdiction from the ordinary criminal Courts to Military Courts no part of the power under Article 199 would necessarily be affected Same is the position in regard to the reasons mentioned in No, 5 above. The remaining reason mentioned at No, 6 is the principal and the only relevant reason so far as the present amendments are concerned.

22. In the first place in order to consider the reasonableness of the present amendment it is not sufficient to take into consideration only the present position as to the cases which are cognizable by the Military, Courts. The true position is that under Article 212-A it is the power of the Martial Law Authorities to establish Military Courts for the trial of, offence punishable under Martial Law Regulation or Order or even under the ordinary law. Under sub-clause (2) of Article 212-A the jurisdiction and powers of the Military Courts can be specified by a Martial Law Order, so that in practice the jurisdiction of the Military Courts can enlarged to embrace any offence under the penal laws of the country. At present under Martial Law Order No, 77 issued by the Chief Martial La Administrator a number of specified offences have been made triable b the Military Courts but as stated any criminal case can be made triable by a Military Court by a Martial Law Order. Therefore, Martial Law Orders being sub-Constitutional legislations can effectively enlarge or abridge the jurisdiction of the Military Courts as deemed fit. It is in this context that the question of the constitutional jurisdiction or the power of jurisdiction review of the High Court has to be examined.

125. In other words, it will be possible to exclude the judicial review of the High Court from the proceeding in connection with any criminal case. This question must be construed in the light of the nature and scope of the powers under Article 199 of the Constitution. It is well recognized that the High Court does not act as a Court of Appeal while exercising this jurisdiction and only steps in when there is excess of jurisdiction on the part of an inferior Court or the proceedings of such Court are coram non judice. Obviovsly the object for establishin: Military Courts is to punish the true culprits of the offences charged against them in accordance with the law governing the jurisdiction of Military Courts. It cannot be even suggested that the administration would like the Military Courts to overstep their jurisdiction or to try the accused in violation of the mandatory provisions of the rules of procedure which they are under a mandate of the law applicable to them to obey. The High Court only corrects such excess or want of jurisdiction and does not interfere in the exercise of lawful jurisdiction or orders thus passed by Military Courts. In my humble opinion, if a matter is examined by the High Court and is further found to be correct, it strengthened the administration of justice with the approval of the superior Courts and if the order o sentence is upset, in the final analysis justice is done to a citizen. There are always two parties to a cause which comes up for adjudication before a Court including a Military Court and it is as important to do justice to the accused as to the complainant. The interference of the High Court, therefore, is, in furtherance of justice and not to hamper the course of justice. I am tempted to refer to an old decision from the English jurisdiction which dealt with this issue and is reported as Heddon v.

126. Elanas (1). This was a case of a Military Officer who was sentenced to imprisonment for conduct said to the prejudice of good order and Military discipline by his Commanding Officer. The plaintiff brought action against his Commanding Officer to recover damages for alleged false imprisonment etc. Since the alleged injuries arose out of military relationship existing between the parties the defence was that the action did not lie on the ground that it pertained to administration of military discipline by the defendant. Mr. Justice McCardie who delivered the judgment referred to the dictum laid down earlier that a case involving the questions of military duty alone are cognizable only by a Military Tribunal and not by a Court of Law and observed:- "It is essential to consider the nature of Military Law proper. This law is to be found in the Army Act and the Rules and the King's Regulations made under the Act, and also in the Army Order. This body of provisions constitutes "the military Code, alike in peace and war. Before 1689 Military Law existed only in times of war when articles of war were framed and announced under the prerogative of the Crown. But Military Law in the true sense of the fawrd, applicable alike in peace as in war, was first created by the Military Act of 1689. That Act created a statutory

(1) 35 T L R 642 military Code. It was passed at a time when the rights of personal freedom had been successfully reasserted in the country. No more cogent weapons for enforcing such rights then existed or can now exist than the writ of habeas corpus, and the actions for false imprisonment and assault."

127. ' The Editors of the report then made the following observations regarding the judgment: "His Lordship then traced the history of Military legislation and said that the punitive jurisdiction of Officers and their powers as to sentences were indicated by section 46 of the Army Act and by King's Regulation No, 487. The plaintiff contended that if a Court Martial or an Officer acted without jurisdiction as to trial or imflicted a sentence on a soldier which it or he possessed no power to impose, whereby the soldier suffered in his person or his liberty, an action for false imprisenment or assault would lie on proof of the appropriate facts although the acts complained of arose in the course of militay discipline. It was a settled principle of English Law that a man who without lawful authority caused another to be arrested, imprisoned or otherwise injured in his person or property was liable to an action for damages. Did that apply to the acts of Military Tribunals? On principle he could see no good reason for exempting Military Officials from the operation of that law. If the acts of the Military Tribunals or Officers with respect to military discipline were insusceptible of supervision by the civil Courts, then the gravest consequences might ensue. It could scarcely be that military men were alone the interpretors of Military Law. If so, they became above the civil law, and not to hold would be to exclude the Courts from one of their most important and beneficent functions. The Military Law was a part of realm. It rested on statutory basis. A soldier was a person subject to two sets of laws-the Military Law and Civil Law. The liberty of a soldier should not be infringed save in so far as that infringement was justified either by the law Military or the law Civil.

128. The question of justification should ultimately be determined by the ordinary Courts of law. It was for those Courts to determine the extent of the Military jurisdiction given to Military Tribunals and Officers by the Acts of Parliament."

23. Additionally if there is any erreoneous decision by the High Court the existing law provides a remedy before the Supreme Court. It may be recalled that in the earlier peroid of the present Martial Law when the country was faced with grave law and order situation, it was considered c reasonable to remove whatever restrictions were imposed on the power o the High Courts under Article 199 by means of Constitution (First Amendment) Act, 1974 and Constitution (Fourth Amendment) Act, 1975 vide C. M. L. A. Order No, 6 of 1977 dated 22nd September, 1977. It was argued on behalf of the petitioners that even by these amendments the final power of judicial review was allowed to remain intact. Another aspect of the matter may also be considered. Article 199 provides a special remedy to the citizen against the excess or want of jurisdiction on the part of Military Court, which will be totally taken away by the amendment without N providing for any similar remedy under the law which is a matter requiring all consideration that it deserves. After careful and anxious consideration of all the abovesaid matters in the light of principles laid down by the Supreme Court, I have reached the conclusion that the amendments seeking to take away the power of the High Courts under Article 199 in relation to the proceedings before the Military Courts and sentences passed by them do not satisfy the test of reasonableness and cannot, therefore, be upheld.

24. For the foregoing reasons, I would answer both the questions referred to this Bench in the negative. The aforesaid are the reasons for my opinion recorded in the short order announced by the Court on 18-6-1980.