SHAHID WAHEED, J:- As all the five constitutional petitions, to wit, Writ Petition No.196881 of 2018, Writ Petition No.208646 of 2018, Writ Petition No.228253 of 2018, Writ Petition No.230166 of 2018 and Writ Petition No. 229885 of 2018 raise common issue for decision before this Court, they were heard and decided concomitantly through a short order dated 31 August, 2018 which reads as under:- ?For the reasons to be record ed later, we declare that after promulgation of the Constitution (Eighteenth Amendment) Act, 2010, the National Accountability Ordinance, 1999 still exits and is in force and consequently this petition along with connected petitions is dismissed.?
2. Here are the reasons for the above short order .
3. The seminal question that hinges for consideration of this Court is as to whether the National Accountability Ordinance, 1999 made in pursuance of the Provisional Constitution Order No.1 of 1999 after promulgation of the Constitution (Eighteenth Amendment) Act, 2010, has ceased to be a law and is non-existent, non-est and a dead letter . The argument propounded in these petitions is that on 4 October , 1999 two instruments were made and enforced. The first was the Proclamation of Emergency through which the Constitution of the Islamic Republic of Pakistan, 1973 was held in abeyance, whereas the second was the Provisional Constitution Order No.1 of 1999 which was subsequently amended by the Provisional Constitution (Amendment) Order 9 of 1999 declaring that an Ordinance promulgated by the President and by the Governor of the province would not be subject to the limitation as to its duration prescribed in the Constitution of the Islamic Republic of Pakistan, 1973. In pursuance of above stated instruments, the President promulgated the National Accountability Ordinance, 1999 which continued in force till the Constitution (Eighteenth Amendment) Act, 2010. However, after enforcement of the Constitution (Eighteenth Amendment) Act, 2010 amending the Constitution of the Islamic Republic of Pakistan, 1973 comprehensively and by virtue of its Article 270-AA, the National Accountability Ordinance, 1999 lost the protection of the Provisional Constitution Order No.1 of 1999 as amended by the Provisional Constitution Orderst th No.9 of 1999 and thus by automatic operation of law came under limitation period of 120 days as provided in Article 89 of the Constitution of the Islamic Republic of Pakistan, 1973. Since the National Accountability Ordinance, 1999 was not laid before the appropriate legislature within the prescribed period of limitation, it had become dead from 18 August, 2010. The bedrock of the above arguments is the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case of "Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others" (PLD 2009 Supreme Court 879).
4. To appreciate the points that have been canvassed before us, it will be essential to narrate briefly the relevant historical background of the constitutional legislation, jurisprudence developed thereon and accountability law. We will begin the chronology from 12 October , 1999 when General Pervez Musharraf, the then Chief of Army Staff by taking extra constitutional measure seized power and suspended the governme nt on the ground of politicizing army , destabilizing it and trying to create the dissension within its rank. On 14 October , 1999 Proclamation of Emergency effective from 12 October , 1999 was issued. According to this Proclamation, the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution") was held in abeyance; the President of Pakistan was allowed to continue in office; the National Assembly , the Provincial Assemblies and Senate stood suspended; the Chairman and Deputy Chairman of the Senate; the Speaker and the Deputy Speaker of the National Assembly and the Provincial Assemblies stood suspended; the Prime Minister , the Federal Ministe rs, Ministers, Ministers of State, Advisors to the Prime Minister , Parliamentary Secretaries, the Provincial Advisors to the Chief Ministers were ceased to hold offices and whole of the Pakistan came under the control of the Armed Forces of Pakistan. The Chief of Army Staff on 14 October , 1999 also issued Provisional Constitution Order No.1 of 1999 ("PCO No.1 of 1999") wherein it was inter-alia provided that notwithstanding the abeyance of the provisions of the Constitution and subject to that Order and any other Orders made by the Chief Executive: (a) Pakistan would be governed, as nearly as may be, in accordance with the Constitution;and, (b) all laws other than the Constitution would continue in force until altered, amended or repealed by the Chief Executive or any authority designated by him. Subsequently , on 15 November , 1999 the Provisional Constitution (Amendment) Order No.9 of 1999 ("PCO No.9 of 1999") was promulgated through which Article No.5-A was inserted in the PCO No.1 of 1999. The effect of the amendment was that the Ordinance promulgated by the President or by the Governor of the Province would not be subject to the limitation as to its duration prescribed in the Constitution. This effect was also applied to the Ordinance issued by the President or by the Governor which was in force immediately before the commencement of the Proclamation of Emergency dated the 14 October , 1999. In pursuance of the aforesaid Proclamation and PCO No.1 of 1999 as well as PCO No.9 of 1999 the President of the Islamic Republic of Pakistan on 11 November , 1999 promulgated National Accountability Bureau Ordinance No.XVIII of 1999. The word "Bureau" stood omitted from the title of the said Ordinance by virtue of Ordinance No.CXXXIII of 2002 dated 23 November , 2002. Now the title of the Ordinance is "The National Accountability Ordinance, 1999 ("the NAO, 1999"). The object of the NAO,1999 was/is to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse/abuse of power , misappropriation of property , taking of kickbacks, commissions and for matters connected and ancillary or incidental thereto.
5. The army take-over, Proclamation of Emergency, PCO No.1 of 1999 along with other Orders were challenged before the Hon'ble Supreme Court of Pakistan in the case of "Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others" (PLD 2000 Supreme Court 869). Vide judgment dated 12 May, 2000 the action of 12 October, 1999 was held valid on the basis of doctrine of State necessity and the principle of salus populi est suprema lex and General Pervez Musharraf was held entitled to perform all acts, or legislative measures, which were in accordance with or could have been made under the Constitution including the power to amend it and to perform all such measures as would establish or lead to the establishment of his declared objectives. As to the power to amend the Constitution, it was held that the constitutional amendments could be resorted to, for a period of three years with effect from 12 October, 1999, only if the Constitution failed to provide a solution for the attainment of his declared objectives, but no amendment would be made in the salient feature of the Constitution, that is, the independence of judiciary, federalism, parliamentaryth th th th th th th th rd th th th form of Government blended with Islamic Provisions. Review of Zafar Ali Shah's case (supra) was sought but it was dismissed vide judgment dated 7 February, 2001 reported as "Wasim Sajjad and others v. Federation of Pakistan through Secretary, Cabinet Division and others" (PLD 2001 Supreme Court 233).
6. Pursuant to the judgment of Zafar Ali Shah' s case, firstly , the PCO No.1 of 1999 was amended through Provisional Constitution (Amendment) Order, 2000 (Chief Executive's Order No.10 of 2000) dated 14.11.2000, so as to provide that the words "Prime Minister" and the words "Chief Minister," wherever occurring, would be deemed to be substituted by the words "Chief Executive of the Islamic Republic of Pakistan" and "Governor" respectively; and, secondly, on 20 June, 2001 the President's Succession Order, 2001 (Chief Executive's Order No.III of 2011) was promulgated and in pursuance whereof General Pervez Musharraf became President of the country. Later on, by means of Chief Executive's Order No.XII of 2002 dated 30 April, 2002 General Pervez Musharraf held referendum asking for a vote on his continuation in the office of President for next five years. He was returned with more than 99% of the polled votes.
7. At the fag end of three years granted in Zafar Ali Shah' s case, General Pervez Musharraf made number of amendments in the Constitution through: (i) the Legal Framework Order (Chief Executive' s Order No.24 of 2002) dated 21 August, 2002; (ii) the Legal Framework (Amendment) Order 2002 (Chief Executive' s Order No.29 of 2002) dated 9 October , 2002; and (iii) the Legal Framework (Second Amendment) Order 2002 (Chief Executive' s Order 32 of 2002) dated 26 October , 2002. One of the effects of the amendments made through the Legal Framework Orders was that the NAO, 1999 was not only continued in force but also made part of the Sixth Schedule to the Constitution, consequently it could not be altered, repealed or amended expressly or impliedly without the prior sanction of the President accorded after consultation with the Prime Minister; and, that this protection was for a limited period of six years. The amendments made in the Constitution through the Legal Framework Order , 2002 were challenged before the Hon'ble Supreme Cour t of Pakistan by means of a Constitutional Petition filed by the Watan Party . This petition was dismissed vide judgment dated 7th October , 2002 reported as "Watan Party through Punjab President Ladies Wing Tasneem Shaukat Khan v. Chief Executive President of Pakistan, and another" (PLD 2003 Supreme Court 74) on the ground that the petitioner had no locus standi to file the same. Since the elected Parliament was in immediate sight, it was held in that judgment that Parliament and not the Supreme Court was the appropriate forum to consider all these amendments with the observations that procedure to amend the Constitution as enshrined in Article 239, Part XI remained unaltered and the Parliament retained same power to amend the Constitution as it did before the promulgation of the Legal Framework Order .
8. On 10 October , 2002 complying with the direction given in Zafar Ali Shah' s case, elections to the National Assembly and the Provincial Assemblies were held. Vide Notification dated 15 November , 2002 certain Articles of the Constitution were revived and on 16 November , 2002 General Pervez Musha rraf took oath of the office of President and members of the National Assembly were also sworn in. Subsequently , through Notification dated 20 November , 2002 remaining Articles of the Constitution were revived. The Members of the Senate took oath on 23 November , 2002 whereas the Chief Ministers of the Provinces were sworn in on 12 March, 2003.
9. The provisions of the Legal Framework Order through which amendments were made in the Constitution were one of the contentious issue before the new Members of the Parliament and resultantly as per observations made in the Watan Party' s case they undertook exercise to review the same which ultimately culminated on 31 December , 2003 when the Constitution (Seventeenth Amendment) Act, 2003 was promulgated. By virtue of Article 9 of the Constitution (Seventeenth Amendment) Act, 2003 the constitutional status given to the NAO, 1999 was withdrawn and the same stood omitted from the Sixth Schedule to the Constitution. The Parliament also granted validation and affirmation to laws made between 12 October , 1999 and 31 December , 2003 (that is date on which the Constitution (Seventeenth Amendment) Act, 2003 came into force). In this context Article 270-AA of the Constitution was also amended and substituted with the following: 270AA. Validation and Affirmation of laws etc....(1) The Proclamation of Emergency of the fourteenth day of October, 1999, all President's Orders, Ordinances, Chief Executive's Orders including the Provisional Constitution Order No.1 of 1999, the Oath of Office (Judges) Order, 2000 (No.1 of 2000), Chief Executive's Order No.12 ofth th th st th th th th th th rd th st th st 2002, the amendments made in the Constitution through the Legal Framework Order, 2002 (Chief Executive's Order No.24 of 2002), the Legal Framework (Amendment) Order, 2002 (Chief Executive's Order No.29 of 2002), the legal Framework (Second Amendment) Order 2002 (Chief Executive's Order No.32 of 2002) and all other Laws made between the 12 day of October, One thousand nine hundred and ninety nine and the date on which this article comes into force (both days inclusive), having been duly made or accordingly affirmed, adopted and declared to have been validly made by competent authority and notwithstanding anything contained in the Constitution shall not be called in question in any Court or forum on any ground whatsoever.
(2) All orders made, proceedings taken, appointments made, including secondments and deputations, and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, between the twelfth day of October, one thousand nine hundred and ninety-nine, and the date on which this Article comes into force (both days inclusive), in exercise of the powers derived from any Proclamation, President's Orders, Ordinances, Chief Executive's Orders, enactments, including amendments in the Constitution, notifications, rules, orders, bye-laws, or in execution of or in compliance with any order made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court or forum on any ground whatsoever.
(3) All Proclamations, President's Orders, Ordinances, Chief Executive's Orders, laws, regulations, enactments, including amendments in the Constitution, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by the competent authority .
Explanation.--In this clause, ?competent authority? means.--
(a) in respect of President's Orders, Ordinances, Chief Executive's Orders and enactments, including amendments in the Constitution, the appropriate Legislature; and
(b) in respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law .
(4) No suit, prosecution or other legal proceedings, including writ petitions, shall lie in any Court or forum against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in Clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.
(5) For the purposes of Clauses (1), (2) and (4), all orders made, proceedings taken , appointments made, including secondments and deputations, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby .
10. Upon analysis of different clauses of Article 270-AA provided by the Constitution (Seventeenth Amendment)
Act, 2003 it will appear that Clause (1) dealt with the validation of the Proclamation of Emergency of 14 October, 1999 whereby whole of the Pakistan came under the control of the Armed Forces of Pakistan and all laws, whether of constitutional nature or of ordinary kind made between 12 October, 1999 and the date on which the said Article came into force. Clause (2) was confined to the validity conferred on actions taken in exercise of powers derived from the legal instruments and laws, not only those mentioned in Clause (1) but all laws and orders passed by any authority, during the period mentioned in Clause (1). Clause (3) made provisions for continuation of all laws which were in force immediately before the date on which the Article came into force.
Clause (4) was indemnity clause for protection of authorities and persons for action taken during the relevant period. Clause (5) was deeming provision declaring all measures and actions taken as referred to in Clauses (1),
(2) and (4) to have been made, taken or done in good faith. There was yet another important feature of Article 270-AA. Clause (1) of Article 270-AA proclaimed that the laws in question "are affirmed , adopted and declared to have been validly made by the competent authority and notwithstanding contained in the Constitution shall not be called in question in any Court or forum on any ground whatsoever". According to the case of "Miss Benazir Bhutto v. Federation of Pakistan and another" (PLD 1988 Supreme Court 416) the word "affirm", inter-alia means to ratify, whereas the word "adopt" means to make that one's own (property or act) which was not soth th th originally. And the word "declare" is defined "to make known, manifest or clear". Applying the said meaning of crucial words, the effect of Clause (1) of Article 270-AA was that the specified laws (including the NAO, 1999) were validated and although they were not enacted by any law-making authority known to the Constitution were adopted as though made by the appropriate legislature under the Constitution and were pronounced by the force of the constitutional provision to have been made by the competent law-making authority established by the Constitution. Thus, Article 270-AA was a constitutional device to confer validity upon the specified laws by the exercise of constituent power and to give them the status of competently enacted laws, to remove the blemish, as to their maker. This was necessary in order to overcome the unconstitutionality of the laws for lack of legislative power because under the Constitution legislative power vested in the organs institutionalized by the Constitution, and not in an authority outside the contemplation of the Constitution. The affirmation, adoption and declaration of validity conferred upon the laws mentioned in Clause (1) of Article 270-AA, both as to the lack of legislative authority as well as to the content of the laws, inasmuch as they were to be regarded as validly enacted laws, at par with other laws which were passed by the legislature constituted under the Constitution.
11. On a plain reading of Article 277-AA (3) it appears clear that all proclamations, President's Orders, Ordinances, Chief Executive's Orders, laws, enactments etc. which were in force immediately before the date on which this Article came into force were continued in force and the appropriate legislature was authorized to alter, repeal or amend the same. The object of this provision was to maintain continuity of the pre-existing laws after the Constitution (Seventeenth Amendment) Act, 2003 came into force till they were repealed, altered or amended by the competent authority. Without the aid of such provision there would have been utter confusion in the field of law. In this perspective Clause (3) of Article 270-AA posited the continuation of the NAO, 1999 until altered, repealed or amended by the competent authority .
12. Needless to observe here that grafting of the Legal Framework Order , 2002, in the body of the Constitution, the Constitution (Seventeenth Amendment) Act, 2003, the vote of confidence and the notification of General Pervez Musharraf as Chief of Army Staff and President of Pakistan were also challenged before the Hon'ble Supreme Court of Pakistan but the petition was dismissed vide judgment dated 13 April, 2005 which is reported as "Pakistan Lawyer Forum and others v . Federation of Pakistan and others" (PLD 2005 Supreme Court 719 ).
13. On 3 November, 2007 Proclamation of Emergency, Provisional Constitution Order No.1 of 2007 and Oath Order of 2007 were promulgated. The first and second instruments were issued by the Chief of Army Staff whereas the third was issued by the President of Pakistan. The striking features of the said instruments were: (a) that the Constitution was held in abeyance and Pakistan made to be governed as nearly as may be, in accordance with the Constitution but subject to Provisional Constitution Order No.1 of 2007 and any other Order issued by the General Pervez Musharraf as President; (b) executive and legislature were continued; (c) Federal, Provincial Governments, that is, Prime Minister, Federal State Ministers, Chief Ministers and Provincial Ministers continued in office; (d) the Chairman/Deputy Chairman Senate and the Speaker/Deputy Speaker of National Assembly also continued in office; (e) the National Assembly and Provincial Assemblies continued and they were allowed to complete their term of five years. During the period w.e.f. 3rd November, 2007 to 15 December, 2007 General Pervez Musharraf, as President of Pakistan, purported to make amendments in the Constitution, inter- alia, protecting his own actions by insertion of Article 270-AAA in the Constitution. On 28 November, 2007 General Pervez Musharraf relinquished the office of Chief of Army Staff and on 15 December, 2007 by means of Revocation of Proclamation of Emergency Order , 2007 he revoked the emergency imposed on 3 November , 2007 and restored the Constitution as amended by him. The said instruments and amendments were challenged before the Hon'ble Supreme Court of Pakistan in the case of "Tikka Iqbal Muhammad Khan and others v. General Pervez Musharraf and others" (PLD 2008 Supreme Court 178). The said case was dismissed through judgment dated 23 November , 2007 and the above said three instruments and the amendments made in the Constitution were declared valid under the principle of salus populi suprema lex .
14. General Elections were held on 8 February 2008 and as consequence whereof, the National Assembly and the Provincial Assemblies came into existence and Governments at the Federal and Provincial levels were formed.
In the wake of resolution passed by all the four Provincial Assemblies calling upon General Pervez Musharraf toth rd th th th rd rd th quit the office of President otherwise impeachment resolution would be moved against him, he resigned from the office of the President on 18 August, 2008 and elections for the office of the President were held on 6 September , 2008 wherein Mr . Asif Ali Zardari was returned as the successful candidate.
15. The Proclamation of Emergency , Provisional Constitution Order No.1 of 2007, Oath Order , 2007, amendments made in the Constitution through Lega l Framework Orders and the judgmen t rendered in the Tikka Iqbal Muhammad Khan's case came under consideration before the Hon'ble Supreme Court of Pakistan in the case of "Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary , Ministry of Law and Justice, Islamabad and others" (PLD 2009 Supreme Court 879). In this case, the Hon'ble Supreme Court of Pakistan declared the Proclamation of Emergenc y and Provisional Constitutional Order No.1 of 2007 unconstitutional, void, ab-initio; and, that Ordinances issued during the period w.e.f. 3 November , 2007 to 15 December , 2007 ceased to be permanent laws with the result that life of such Ordinances would be limited to the period specified under Articles 89 and 128 of the Constit ution, viz, four month and three moths respectively from the date of their promulgation. The discussion with regard to Ordinances made during the said period is available in paragraph 186,187 and 188 of the judgment and the same being relevant for determination of question, under discussion, is reproduced below: ?186.Proclamation of Emergency and PCO No.1 of 2007 having been declared unconstitutional and void ab initio and the validity purportedly conferred on all such Ordinances by means of Article 270-AAA and by the judgment in Tikka Iqbal Muhammad Khan's case also having been shorn, such Ordinances would cease to be permanent laws with the result that the life of such Ordinances would be limited to the period specif ied in Articles 89 and 128 of the Constitution, viz. , four months and three months respectively from the date of their promulgation. Under Article 89 of the Constitution, and Ordinances issue d by the President, if not so laid before the National Assembly , or both Houses of Parliament stands repealed on expiration of four months from its promulgation. Similarly , under Article 128 of the Constitution, an Ordinance issued by the Governor , if not so laid before the concerned Provincial Assembly , stands repealed on expiration of three months from its promulgation.
187. It may be noted that such Ordinance s were continued in force throughout under a wrong notion that they had become permanent laws. Thus, the fact remains that on the touchstone of the provisions of Articles 89 and 128 read with Article 264 of the Constitution and section 6 of the General Clause s Act, 1897, only such rights, privileges, obligations, or liabilities would lawfully be protected as were acquired, accrued or incurred under the said Ordinances during the period of four months or three months, as the case may be, from their promulgation, whether before or after 3rd November , 2007 and not thereafter , until such Ordinances were enacted as Acts by the Parliament or the concerned Provincial Assembly with retrospective effect.
188. In the light of above the question of validation of such Ordinances would be required to be decided by the Parliament or the concerned Provincial Assemblies. However, the period of four months and three months mentioned respectively in Articles 89 and 128 of the Constitution would be deemed to commence from the date of short order passed in this case on 31 July, 2009 and steps may be taken to lay such Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law during the aforesaid periods. This extension of time has been allowed in order to acknowledge the doctrine of trichotomy of powers as enshrined in the Constitution, to preserve continuity, to prevent disorder, to protect private rights, to strengthen the democratic institutions and to enable them to perform their Constitutional functions, which they were unconstitutionally and illegally denied under PCO No.1 of 2007. Needless to say that any validation whether with retrospective effect or otherwise, shall always be subject to judicial review on the well-recognized principles of ultra vires, non-conformity with the Constitution or violation of the Fundamental Rights or on any other available ground.?
16. The new Parliament which came into existence after the elections held in the year 2008 realizing the relentless struggle of the people of Pakistan for democracy, thought it prudent to review the constitutional amendments and laws so as to attain the ideals of a Federal, Islamic, democratic, parliamentary and modern progressive welfare State, wherein the rights of the citizens were secured and the Provinces had equitable share in the Federation. Thus extensive exercise was undertaken to review the Constitution and finally to achieve the above stated objectives, the Constitution (Eighteenth Amendment) Act, 2010 was promulgated. Itth th rd th st was for the first time that the Parliament refused to validate extra-constitutional actions and measures and thus by repealing the Constitution (Seventeenth Amendment) Act, 2003 substituted Article 270-AA and thereby declared the Proclamation of Emergency of 14 October, 1999, the Provisional Constitution Order No.1 of 1999 and Oath of Judges Order 2000, Chief Executive's Order No.19 of 2002, Amendment made in the Constitution through Legal Framework Order, 2002, Legal Framework (Amendment) Order, 2002 and the Legal Framework (Second Amendment) Order, 2002, notwithstanding any judgment of any Court including the Supreme Court or High Court as having been made without lawful authority and of no legal effect. After having given the above declaration, the question before the Parliament was whether the Ordinances promulgated and legislative measures taken by the President, or as the case may be, by the Governor, which in force at the time of, or during the period for which the Proclamation of Emergency of 14 October 1999 and Provisional Constitution Order No.1 1999 held the field, would continue to be in force. There were two principles which could be taken into consideration to resolve this question. The first principle was expounded by the Hon'ble Supreme Court of Pakistan in the case of "Miss Asma Jilani vs. The Government of the Punjab and another" (PLD 1972 Supreme Court 139) wherein it was held as follows:- ?I too am of the opinion that recourse has to be taken to the doctrine of necessity where the ignoring of it would result in disastrous consequences to the body politic and upset the social order itself but I respectfully beg to disagree with the view that this is a doctrine for validating the illegal acts of usurpers. In my humble opinion, this doctrine can be invoked in aid only after the Court has come to the conclusion that the acts of the usurpers were illegal and illegitimate. It is only then that the question arises as to how many of his acts, legislative or otherwise, should be condoned or maintained, notwithstanding their illegality in the wider public interest. I would call this a principle of condonation and not legitimization.
Applying this test I would condone (1) all transactions which are past and closed, for, no useful purpose can be served by re opening the (2) all acts and legislative measures which are in accor dance with, or could have been made under , the abrogated Constitution or the previous legal order , (3) all acts which tend to advance or promote the good of the people, (4) all acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment of, in our case, the objectives mentioned in the Objectives Resolution of 1954. I would not, however , condone any act intended to entrench the usurper more firmly in his power or to directly help him to run the country to its legitimate objectives. I would not also condone anything which seriously impairs the rights of the citizens except in so far as they may be designed to advance the social welfare and national solidarity .?
Second Principle was settled in the case of "Mehmood Khan Achakzai and others v. Federation of Pakistan"
(PLD 1997 Supreme Court 426 ) wherein it was held as follows ?The learned Advocate for the respondents and the learned amicus curiae have contended that the competency of the members of the National Assembly is protected by the doctrine of de facto. Reference has been made to Farzand Ali v. Province of West Pakistan PLD1970 SC 98 and Sabir Shah v Federation of Pakistan PLD 1994 SC
738. This is a well-recognized doctrine embedded in our jurisprudence. Under this doctrine bona fide acts in public interest performed by persons assuming authority which turns out to be illegal are assumed to have been performed by a de jure authority/person and binding. This doctrine is intended to avoid dislocation, instability and confusion while declaring a de facto authority illegal. In order to create stability, regularity and to ?prevent confusion in the conduct of public business and insecurity of private rights the acts of the officer de facto are not suffered to be questioned because of want of legal authority except by some direct proceeding instituted for the purpose by the State or someone claiming office de jure.........." (Constitutional Limitations by Cooley - 8th Edition Vol. 2, page 1357). Besides, this Mr. Khalid Anwar has referred to Norton v Shebly County 118 US 425 where it was observed that the doctrine of de facto is based on considerations of policy and public interest. For good order and peace of society the title of persons in apparent authority is to be respected and obeyed until their title is investigated in some regular mode prescribed by law. In Gokaraju v State of Andhra Parashad AIR 1981 SC 1473 it has been observed that ?the acts of the officer de facto performed by them within the scope of their assume official authority in the interest of the public or third persons and not for their own benefit orth th generally as valid and binding as if they were the acts of officer de jure". This doctrine can be applied if the Parliament is declared to be illegally constituted and Eighth Amendment is declared unconstitutional. It is only in such situation that to preserve continuity, prevent disorder and protect private rights, this doctrine can be pressed in service."
It appears that the Parliament by taking into consideration the above stated two doctrines, that is, doctrine of condonation and doctrine of de facto framed Clause (2) of Article 270-AA of the Constitution which reads as under:-
(2) Except as provided in clause (1) and subject to the provisions of the Constitution (Eighteenth Amendment) Act, 2010, all laws including President's Orders, Acts, Ordinances, Chief Executive's Orders, regulations, enactments, notifications, rules, orders or bye-laws made between the twelfth day of October , one thousand nine hundred and ninety-nine and the thirty-first day of December , two thousand and three (both days inclusive) and still in force shall, continue to be in force until altered, repealed or amended by the competent authority .
Explanation.- For the purposes of clause (2) =and clause (6), ?competent authority" means,--
(a) in respect of Presidents' Orders, Ordinances, Chief Executive's Orders and all other laws, the appropriate Legislature; and
(b) in respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law .
17. Clause (2) of Article 270-AA as amen ded by the Constitution (Eighteenth Amendment) Act, 2010 is of a pattern of a curative or validity statute and must be understood and be operative in that context. Needless to observe here that remedial statute is one which remedies a defect in the common law or in the pre-existing body of statute law.
The legitimate purpose of remedial statut e is to keep our system of our jurisprudence up-to-date. In Black' s Law Dictionary , Sixth Edition, page 1550, "validity statute" is stated to be "a statute, purpose of which is to cure past error and omission and thus make valid what was invalid, but it grants no indulg ence for the correction of future errors". Since the defects in the legal measures when enacted during the period from 12 October , 1999 to 31 October , 2003 had to be cured so as to avoid instability and confusion in the country , Article 270-AA (2) specifically provided subject to the provisions of the Constitution (Eighteenth Amendment) Act, 2010 that all those laws which were made during the said period and in force would continue to be in force until altered, repealed or amended by the competent authority . It means that the legislature owned legal instruments and legal measures mentioned in clause (2) of Article 270-AA and made between the specified dates, which for sure included the NAO, 1999, as if enacted by itself so as to give them validity and competency and while adopting the principle of ratification such validity and competency was performed. In fact the doctrine of adoption propounded by Hobbes in his Leviathan, that the "Legislature is he, not by whose authority the laws were first made, but by whose authority they continue to be laws" is thus found embodied in Articl e 270-AA(2) of the Constitution, securing the continuation in force of the laws including the NAO, 1999.
18. Now the stage is set to address the arguments canvassed at the Bar. It is contended that the NAO ,1999 had lapsed inasmuch as it was not placed before the competent legislature for approval in accordance with the provisions of Article 89 of the Constitution; and, that though on the date of promulgation of the NAO,1999, the Constitution was in abeyance, it was necessary to have the approval of the competent legislature within the period prescribed in Article 89 in order to continue the NAO, 1999 as valid law after the promulgation of the Constitution (Eighteenth Amendment) Act, 2010. These arguments sans merit for variety of reasons. Firstly, the NAO ,1999 was promulgated, as we have already pointed out, long before the Constitution (Eighteenth Amendment) Act, 2010 came into force. It was therefore, not necessary to place the NAO, 1999 before the competent legislature for approval. This Ordinance has been continued as a valid law by virtue of Article 270-AA
(2) of the Constitution which provides that subject to the provisions of the Constitution (Eighteenth Amendment)
Act, 2010 all laws including President's Orders, Acts, Ordinances, Chief Executive's Orders, enactments, etc. made between 12 October, 1999 and 31 October, 2003 and still in force shall continue to be in force until altered, repealed or amended by the competent authority. There is no doubt that the NAO, 1999 was a valid law before the Constitution (Eighteenth Amendment) Act, 2010 came into force and since the NAO, 1999 had not been excluded in Article 270-AA (2) it continues to remain in force and its continuance was not upon complianceth st th st with the provisions of Article 89 of the Constitution. Secondly, the word "until" in Article 270-AA (2) is not used entirely to connote a duration. It really means that existing laws including the NAO, 1999 are to continue so long as they are not altered, repealed or amended. This finds support from the case of "United Provinces v. Mt.
Atiqa Begum and others" (A.I.R 1941 F.C. 16). And lastly, during the period between 12 October, 1999 and 31st October, 2003, the Constitution was in abeyance and, therefore, the power to enact the legal measures which was derived from the Proclamation of Emergency dated 14th October, 1999, the PCO No.1 of 1999 and PCO No.9 of 1999 was without any limitation as to the time and subject of legislation. Thus, there was no occasion for any conflict of the legal measures in the state of things then existing with any provision of the Constitution. While promulgating the Constitution (Eighteenth Amendment) Act, 2010 the legislature was conscious of above facts and the time limitation prescribed in Article 89 of the Constitution and thus by virtue of Clause (2) of Article 270-AA it adopted the laws including the NAO, 1999 made during the said period "subject to the provisions of the Constitution (Eighteenth Amendment) Act, 2010". The expression "subject to" conveys the idea of a provision yielding place to another provision or other provisions to which it is made subject. The words "subject to the provisions of the Constitution (Eighteenth Amendment) Act, 2010," therefore, mean that if there is irreconcilable conflict between the pre existing law and a provision or provisions of the Constitution (Eighteenths Amendment) Act, 2010, the latter shall prevail to the extent of that inconsistency. Neither the provisions of the Constitution (Eighteenth Amendment) Act, 2010 prescribe any condition to lay the Ordinances (including the NAO, 1999) within 120 days before the competent legislature for approval nor there is any conflict between the provisions of the NAO, 1999 and the Constitution (Eighteenth Amendment) Act, 2010. Since Clause (2) of Article 270-AA is not subject to the provisions of Article 89 of the Constitution, it cannot be held that the NAO, 1999 has ceased to be a law and is non-existent for non-compliance of the limitation suggested in Article 89 of the Constitution which being general provisions are not intended to be interfered with the special provisions of Article 270-AA(2) of the Constitution.
19. The reasons expounded above by us find fortification from the judgments passed by the Hon'ble Supreme Court of Pakistan in different cases. The First judgment on the subject was rendere d in the case of "Badrul Haque Khan v. (1) The Election Tribunal, Dacca (2) The Chief Election Commissioner and (3) Jamalus Sattar " (PLD 1963 Supreme Court 704). In this case it was held that carrying over of laws as effective instruments from the period prior to the Revolution into the period of Martial Law was effected by Article 4 of the Laws (Continuance in Force) Order , 1958, and it was clear that within the term of that Article, the Representation of the People Act was one of the law which continued to be existing law after the 7th October , 1958. The Supreme Court of Pakistan did not find that the law could be thought to have been deprived of its force by anything appearing in the Proclamation of Martial Law of 7 October , 1958.
The second judgment was rendered in the case of "Malik Muzaffar Khan v. Government of the Punjab and 2 others" (1980 SCMR 121). In that case the validity and existence of the West Pakistan Tribunal of Inquiry Ordinance 1969 was under consideration. It was pleaded that with the issuance of "Proclamation of withdrawal of Martial Law" on 21 April, 1972 the said law had lapsed automatically. This argument was repelled in the following words:- "The next point argued was that even though Ordinance II of 1969 was promulgated during the Martial Law of General Agha Muhammad Yaha Khan but as in its very nature it was an "Ordina nce" therefore according to the very concept of that type of legislation such an Ordinance lapsed within six weeks of the next session of the Provincial Assembly under Article 135(2) of the Interim Constitution and thereafter it ceased to remain operative in any form. The contention has no force. The aforesaid Article applied to Ordinances made after the promulgation of the Interim Constitution whereas for the continuation of existing law ( i.e. existing on 21 April, 1972 as was the present Ordinance) the relevant provision is Article 280(1) which stated that "Except as provided by this Article, all existing laws shall, subject to this Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or mended by the appropriate Legislature". As it is not the case of the petitioner that the aforesaid Ordinance has been repealed therefore the plea raised fails. For the meanings of word "until" see Hashmat Ali v. Abdul Karim and another (1) where with reference to corresponding Article 225 (1) of 1962th th st st Constitution and section 292 of the Government of India Act, 1935, it was laid down that when used with reference to authorizing continuation of the old laws for example by saying "until" altered, repealed or amended, this word connotes and means that "so long as" they are not altered, repealed or amended they would continue in operation, and from that point of view, if we can say so such a provision gives a new sanction for the continuation of such laws as aforesaid. At this place it may further be pointed out that Article 270 (1) of 1973 Constitution provided a new scheme for validating laws passed between 25 March, 1969 and 19 December , 1971 (the period of Martial of General Agha Muhammad Yahya Khan)--authorizing the Parliament to validate them. Consequently the Parliament passed a law known as the "validation of Laws Act LXIII of 1975" gazet ted on 29 July, 1975. Section 2 whereof laid down that "the laws mentioned in the schedule are hereby declared to have been validly made by a competent authority". The Ordinance in question figures at serial No.1 of head "v--W est Pakistan Ordinances".
This is to be read with Article 268 (1) of 1973 Constitution which is similarly worded as Article 280 of the Interim Constitution and sanctions continuation of "existing laws" onward from the comm encing day namely 14 August, 1973. In this way the Ordinance in ques tion which was an "existing law" at the time of the Interim Constitution, continued to remain an "existing law" at the time of the promulgation of 1973 Constitution, and then was authorized to continue further thereunder , and was also validated as hereinbefore mentioned. There was thus no break in the continuity of this Ordinance from the date of its promulgation and it still continues to remain a valid law of the land as explained above."
Somewhat similar proposition came under consideration in the case of "Sally Textile Mills Limited vs. Collector of Customs, Customs House, Karachi" (1991 SCMR 721). In that case the Finance Ordinance, 1982 was challenged. Paragraph 7 of the Laws (Continuance in Force) Order , 1977 dispensed with the requirement of limitation as to its duration so far as the Ordinances promulgated by the President or a Governor of Province was concerned. This law remained in force by virtue of Article 270-A of the Constitu tion. It was contended that the Article 270-A of the Constitution had a limited efficacy of placing beyond dispute the competence and the validity of legislative instruments specified in that provision and that they did not accomplish anything beyond; that the law which continued to remain in force had to satisfy an additional test and that was of its consistency with the provisions of the Constitution as revived; and, that the removal of the limitation or duration of the validity of Ordinance came to an end with the revival of the duration w.e.f. 25.03.1981 and thus Finance Ordinance 1982 could not be considered to be good law after four months of its promulgation witho ut having received the approval of the Parliament. The above noted arguments were repelled and it was held in the following terms.
"So far as the contention with regard to Article 270-A of the Constitution is concerned, the object was never to take it beyond the curing of the competency and the validity of the legislative instruments specified therein. It is also correct that for laws which are to continue after the revival of the Constitution have to conform to the other Constitutional Provisions and must satisfy that test. However, on the strength of such an interpretation of Article 270-A, it cannot be said that on revival of Article 89 of the Constitution by the Provisional Constitution Order, 1981, such a contrariety came into existence, as to repeal paragraph 7 of the Proclamation Order of 1977 dispensing with the limitation with regard to the duration of the validity of the Ordinance. The Provisional Constitution Order, 1981 did not accomplish even by implication the repeal or displacement of paragraph 7 of the Proclamation Order. The two could subsist as they did when the Proclamation itself was made. If Article 89 had not been in the field or is not in the field paragraph 7 of the Proclamation Order would not be necessary and merely because Article 89 is revived, it cannot be argued that it became unnecessary or got repealed impliedly.
The two are made to co-exist, paragraph 7 modifying or controlling Article 89. Paragraph 7 of the Proclamation Order cannot exist unless Article 89 is in the field. Besides, on no principle of constitutional interpretation it can be said that the revival of the Constitution had the effect of the reviving something which was not in existence immediately before the revival of the Constitution, i.e. need of placing an Ordinance promulgated before the revival of the Constitution before the Assembly within four months of its promulgation after which period it ceased to have effect. Such revival of the Constitution certainly will prospectively bring to life such requirement but would not revive for past matters the requirement which was not in existence immediately before the revival of the Constitution. Such a result is sustainable on the strength of Article 264 of the Constitution.?th th th th The last judgment which clinches the controversy involved in this case was referred by Mr. Imran Aziz Khan, learned Deputy Attorney General of Pakistan. This is the judgment which was rendered by the Hon'ble Supreme Court of Pakistan in the case of "Justice Hasnat Ahmed Khan and 3 others v. Registrar , Supreme Court of Pakistan and others" (PLD 2010 Supreme Court 806). The question for determination in that case was whether the Contempt of Court Act, 1976 or the Contempt of Court Ordinance 2003 was the law in force regarding the contempt proceedings. It is pertinent to mention here that Contempt of Court Ordinance, 2003 was promulgated during the period 12 October , 1999 and 31 October , 2003, that is, the period during which the NAO, 1999 was promulgated. The Hon'ble Supreme Court of Pakistan taking into consideration the effect of the Constitution (Second Amendment) Act, 2003 and the Constitution (Eighteenth Amendment) Act, 2010 declared that the Contempt of Court Ordinance as permanent legislation. The relevant extract of the judgment reads as under:- ?(10) It would be seen that the contempt of Court Act, 1976 has been repealed effectively by all three successive Ordinances. Furthermore Article 270-AA substituted by Constitution (17 Amendment) Act, 2003 has accorded permanence to the Ordinances issued prior to 31 December, 2003. Ordinance V of 2003 issued on 15 December, 2003 comes under its protection. The Constitution (18 Amendment) Act, 2010 again substituted Article 270-AA and while declaring unlawful a number of instruments issued during the military rule, nevertheless, by Clause 2 accorded permanence to, inter alia, Ordinances promulgated between 12 October, 1999 and 31 December, 2003.We are, therefore, left in no doubt that the Ordinance V of 2003, being permanent legislation and having repealed the Contempt of Court Act, 1976, is the law regulating the proceedings of contempt of Court.?
20. The above cited judgment was challenged in the Intra Court Appeal before the Hon'ble Supreme Court of Pakistan and the same was upheld through the judgment which is reported as "Justice Hasnat Ahmad Khan and others V . Federation of Pakistan/State" (PLD 201 1 Supreme Court 680 ).
21. On the basis of aforesaid survey of case law, the irresistible conclusion is that the NAO, 1999 has attained the status of permanent law by virtue of the Constitution (Eighteenth Amendment) Act, 2010.
22. Lastly , we examine the point as to whether on the basis of principle settled in the case of "Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary , Ministry of Law and Justice, Islamabad and others" (PLD 2009 Supreme Court, 879), the NAO,1999 can be declared to be a dead letter . As stated above, the challenge in Sindh High Court Bar Associa tion's case was to the validity of the Proclamation of Emergency , the Provisional Constitutional Order No.1 of 2007, Oath Order , 2007, and the laws made during the period w.e.f. 3 November , 2007 to 15 December , 2007. Since the said instruments were not approved or validated by the Parliamen t, the Hon'ble Supreme Court of Pakistan examined their validity and declared to have been passed without lawful authority and of no legal effect. After doing this, the Hon'ble Supreme Court of Pakistan went further to determine the fate of the laws which were made during the said period. In order to avoid any chaos, confusion and instability in the country the Hon'ble Supreme Court of Pakistan neither applied the doctrine of condonation nor doctrine of de facto but left the question of validation of Ordinances to be decided by the Parliament or certain Provincial Assemblies within the period of 120 days in term of Article 89 and 128 of the Constitution. This was in line with the principle settled in the Watan Party' s case. On the contrary the NAO, 1999 which was made in pursuance of PCO No.1 of 1999 read with PCO No.9 of 1999 was affirmed, adopted and declared to have been validly made by the legislature firstly through the Constitution (Seventeenth Amendment) Act 2003 and subsequently stood validated by the Constitution (Eighteenth Amendment) Act, 2010, it means that the NAO, 1999 was made a permanent law and thus it was not required to be laid before the Parliament for its approval in terms of Article 89 of the Constitution and principle settled in Sindh High Court Bar Association' s case.
23. Learned counsels appearing on behalf of the petitioners also argued before us the plea of mala fide, violation of the provision of Rules of Business, 1973 of the Federal Government and violation of principle settled in the case of "Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others" (PLD 2016 Supreme Court 808) with the request that since the NAO, 1999 is not a valid piece of legislation, it be struck down. We are afraid that this argument cannot be entertained for the simple reason that validity of the NAO, 1999 has already been determined in the case of "Khan Asfand Yar Wali th st th st th th th st rd th and others v. Federation of Pakistan through Cabinet Division Islamabad and others" (PLD 2001 Supreme 607). The said judgment neither can be reviewed by this Court nor validity of the NAO, 1999 can be examined on any new plea on the principle of res judicata.
24. After giving anxious consideration to the contentions raised in this case, we are satisfied that for the foregoing reasons the National Accountability Ordinance, 1999 still exists and is in force and thus this petition along with connected petitions merits dismissal and these are, accordingly dismissed.